Tuesday, 3 April 2012

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 
If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 
But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established that 'there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special [defence of incrimination]'. He added: 'there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]


  1. MISSION LOCKERBIE, 2012. MEBO's attempt to inquire:

    After high amounts of money had been payed to Libyan CIA agent Abdul Maghid Giaka for immoral procuration of evidence and giving wrong evidence at Camp van Zeist, we have to focus also on the activities of the Gauci brothers:

    First Anthony Gauci, shopkeeper of "Mary's House" in Malta, was questioned on the occasion of police investigations on 1/2/14 and on 26 September 1989. Afterwards, from mid of 1991 on a big amount of money was given to Gauci for his testimony of wrong fabricated circumstantial evidence...

    On April 14, 2009 diclosed crown documents are supposed to be handed over to the defence team of Abdelbaset al Megrahi in this context. This could bring clear insight into the bribes payed to the Gauci brothers ...

    In Gauci's police statement (Prod. 469, page 1 and 7 at line 11) on the 10th of September 1990, Tony Gauci gives reference to the various police interrogations in September 1989: "I have been showed many photographs over the last year, and I have never seen a photograph of the man who bought the clothing".

    MEBO: In all the picture parades shown to Gauci always a picture of Abdelbaset al Megrahi (Q9) was included but never a picture of the Libyan CIA defector Abdul Magjid Giaka!

    Probably it was supressed because Abdul Magjid Giaka resembled the policy robotdrawing Q12 to 90%!

    Magjid Giaka alias "Puzzlepiece", was not a "Shirker" and a "Liar" as the FBI tries to present him today, but according to CIA cables and other indications he was the CENTRAL MAN in Malta for the conspiracy and for the procurement of evidence such as clothing from Gauci against Libya. No wonder that the orders concerning him are still secret and under national security!

    MEBO investigation concludes: Not Mr. Abdelbaset Al Megrahi was the Libyan buyer of cloths at Tony Gauci (Boutique Mary's House) on 7th of December but according to our investigation, on the 23th of November 1988, 18:45 clock, the Libyan Agent for the CIA, Abdul Magjid Giaka bought the cloths!
    One of the classified cables reveals that before the PanAm 103 tragedy Giaka was under pressure from his handler to deliver additional indication of events inside Libyan Arab Airlines station at Luqa Airport against Abdelbaset al Megrahi and Lamin Khalifah Fhimah in the period before the 21th of December 1988. Giaka got the order to purchase cloths on the 6th of November 1988. This meeting was held in a safe house at Malta.

    Another meeting was held on the 5th of December, before Abdelbaset al Megrahi arrived on the 7th of December in Malta and a further meeting took place on the 20th December 1988, the day before the Lockerbie-tragedy!

    Before was published the US/UK Indictment against the Libyan official Fhimah and Megrahi, on 14th/15th November 1991, a further determining US meeting with Giaka took place. On 14th September 1991 Giaka left the Maltese shores unofficially by US boat and transferred to the USS Navy Vessel "Butte" (T-AE 27), 27 miles away from Malta at 36.10'N 14.38'E. On the ship there were special agent Philip Reid, FBI official Harold Hendershot and Nicholas H****, Arabic language interpreter and he enters the witness protection program as witness no. 684 with his wife already safely in London.

    The official date given when Giaka joined the witness protection programme in the United States is the 3th December 1992. From official records until October 1999 the US Justice Department spend US$324,000 in connection with Giaka, accommodation, travelling, etc. A code used on Giaka's form regarding the witness protection programme is "Puzzle Piece" WF 140440.

    by Edwin Bollier, MEBO Ltd. Switzerland. URL: www.lockerbie.ch

  2. Salmond said something about the SCCRC report narrowing down what needs to be looked at, or something like that. This needs to be countered vociferously.

    I don't yet believe the possibility that the timer fragment (and possibly the radio manual front page) were fabricated has been ruled out. On the contrary, the more recent revelations about the metallurgy findings have propelled the possibility to centre stage once again.

    Perhaps even more importantly, the SCCRC didn't attempt to challenge the assertion that the bomb suitcase travelled from Malta via Frankfurt. We will never be able to advance this case until that is knocked on the head. This aspect needs to be pointed out with more and more force so that the politicians are in no doubt where the real problems with the Crown case are located.

  3. "We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence."

    How could they make such an assumption without knowing what the redacted passages concealed?