Lockerbie – the murder of Scottish justice

[This is the heading over an interesting article posted on Friday on Richard Haley’s blog. It contains a very useful summary of the Lockerbie case and of the flaws in the proceedings that led to the conviction of Abdelbaset Megrahi.  It reads as follows:]

The 25th anniversary of the Lockerbie bombing is prompting renewed  interest in who – or perhaps who else besides Abdelbaset al Megrahi – could have been responsible for the crime. Some of this may turn out to be  important. But irrespective of any leads pointing to other suspects, it’s time to recognise that Megrahi cannot reasonably be held to be guilty.

Scotland’s Lord Advocate Frank Mulholland says he welcomes the recent announcement that Libya has appointed two prosecutors to work with the Scottish and US authorities over the bombing.

They will be seeking to establish whether there are people in Libya who could be brought to trial in connection with the bombing of Pan Am Flight 103 over Lockerbie on 21 December 1988. Libyan citizen Abdelbaset al Megrahi, who died last year, is the only person to have so far been convicted for the attack.

The bombing cost the lives of all of the 259 people on board the aircraft and 11 people from the town of Lockerbie. It was, and remains, by far the deadliest act of terrorism ever to have occurred in the UK.

The problem with the ongoing Scottish investigation into the bombing  is that it is built on a legal fiction. Megrahi was convicted in 2001 by three judges sitting in a specially built court operating under Scots law at Camp Zeist in the Netherlands. He should not have been found guilty on the evidence presented to the court. Journalist Paul Foot, writing shortly after the trial ended, demolished the judgement in a special report for Private Eye magazine entitled Lockerbie: the flight from justice.

Paul Foot concluded:

“The judges brought shame and disgrace to all those who believed in Scottish justice, and have added to Scottish law an injustice of the type which has often defaced the law in England. Their verdict was a triumph for the CIA, but it did nothing at all to satisfy the demands of the families of those who died at Lockerbie – who still want to know how and why their loved ones were murdered.”

Dr. Hans Köchler, nominated by UN General Secretary Kofi Annan as international observer at the trial, said in his report that he had:

“reached the general conclusion that the outcome of the trial may well have been determined by political considerations and may to a considerable extent have been the result of more or less openly exercised influence from the part of actors outside the judicial framework – facts which are not compatible with the basic principle of the division of powers and with the independence of the judiciary, and which put in jeopardy the very rule of law and the confidence citizens must have in the legitimacy of state power and the functioning of the state’s organs – whether on the traditional national level or in the framework of international justice as it is gradually being established through the United Nations Organization.”

Further evidence has emerged since then, particularly in the book Megrahi: You are my Jury by John Alston (published in 2012), that catastrophically undermines the already unsound conviction. Worse yet, there appear to be grounds to suspect that Scottish Police and the Crown Office were involved in presenting the court with evidence they knew to be false.

The book reveals  evidence that a fragment of a circuit board said by the prosecution to be a timing device for the bomb and to have been  found at the crash scene could not have come from a batch of circuit boards supplied to Libya by their Swiss manufacturer. The claim that it had done so was central to the case against Megrahi. The evidence contradicting the claim had not been disclosed to Megrahi’s defence team.

In other words, Megrahi was framed by specific actions of the police and the Crown Office, as well as through the general conduct of the trial and the expectations placed upon the three judges – Lord Sutherland, Lord Coulsfield and Lord MacLean.

The result of all this is that we are no closer today than we were 25 years ago to understanding what happened in the Lockerbie sky  in December 1988.

Allegations that Libya was involved in the Lockerbie bombing were in the first place a surprise. It was widely assumed that the bombing was the work of one or another group with links to Iran, and that it had been carried out in revenge for the attack on an Iranian airliner by a US warship in July 1988, which had resulted in the death of all of the airliner’s 290 passengers.

In the first couple of years after the Lockerbie bombing, evidence seemed to be emerging to implicate a group called  the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) . Both Iran and Syria were thought to make use of  PFLP-GC to carry out terrorist attacks.

Then in August 1990 Saddam Hussein’s troops invaded Kuwait and the US began moving towards war with Iraq. The following month, a French newspaper reported that Libya was a possible culprit in the Lockerbie bombing. It now seems that some US investigators had been looking at a Libyan connection as far back as September 1989.

In November 1990, British media repeated the allegation against Libya. In the same month, Syria was taken off the US list of countries harbouring terrorists and joined the military coalition that the US was assembling against Iraq.

Support from Syria – a country by no means regarded as a US puppet – was an immense political asset for the US. It must have greatly eased the path towards UN Security Council Resolution 678, which effectively authorised the use of force against Iraq and was adopted on 29 November.

It is difficult to doubt that the lifting of the allegations against PFLP-GC was an essential step in securing Syria’s place in the coalition. Even if  Syrian President Hafez al-Assad had been prepared to overlook the allegations against his regime, the US Congress would not.

The lifting of the allegations may also have helped to ensure the quiet acquiescence of Iran in the US war on Iraq, though Iran in any case had compelling strategic reasons to take that position.

The US-led attack on Iraq began in January 1991 and resulted in the rout of the Iraqi occupation forces from Kuwait during February, with the US declaring a ceasefire at the end of the month.

In November 1991, Scotland and the US made a joint announcement alleging that Libyan citizens Abdelbaset al Megrahi and Lamin Khalifah Fhimah, acting  on behalf of Libyan intelligence, had planted the bomb that destroyed Pam Am 103. Britain’s Foreign Secretary, Douglas Hurd, told the House of Commons that no other country besides Libya was implicated.

In March 1992 the UN Security Council adopted Resolution 731, which in effect required the extradition of the two Libyan suspects and imposed sanctions on Libya until its government complied with the demand.

But suspicions over Iranian involvement in the bombing won’t go away. ExaroNews, for example, reports today that a US Defense Intelligence Brief released under the Freedom of Information Act  and dated  February 1991 – several months after US accusations focussed on Libya -  names Iran’s former interior minister Ali Akbar Mohtashempur as having paid for the bombing of Pan Am Flight 103. The same Defence Intelligence Brief was referred to in December 2011 in an article by Dr Davina Miller.

Much more importantly, documents released today reveal that Syrian sources told a CIA agent in 1995 that PFLP-GC was responsible for the Lockerbie bombing.

The problem for Scottish justice isn’t that there are other, perhaps more persuasive, hypotheses about the Lockerbie bombing than the one adopted by the Crown Office. It isn’t even that there is strong circumstantial evidence to suggest that the re-targeting of investigations towards Libya after the autumn of 1990 was prompted by foreign policy needs rather than by the requirements of justice. It is simply that Megrahi hasn’t been proven guilty, except in the eyes of those who believe that a legal conjuring trick is the same thing as proof.

Truth is sometimes surprising. Possibly it will one day be found, despite all the indications  to the contrary, that Libyan intelligence was indeed responsible for the destruction of Pan Am 103. Possibly it will even be found – stranger still – that Megrahi was somehow involved.

Perhaps, at some point between December 1988 and September 1990, US and British intelligence came across unexpected evidence that persuaded them of Libyan guilt. And perhaps,  for reasons of their own, they were not prepared to present the evidence in court, but instead instigated the manufacture of a collection of false but presentable evidence. It’s a scenario that might please people who believe that the US and British intelligence services work tirelessly for the good of the world and  sometimes have to act outside the law.

That approach works nicely in the movies. But in the real world, evidence that seems utterly convincing to groups of like-minded people viewing it in secret is apt to seem  a lot less useful when examined in daylight.

Perhaps – irrespective of the truth of this hypothesis – the Camp Zeist judges guessed that something like it must lie behind the insubstantial evidence they were presented with. Maybe they took for granted the good faith of the hidden hands that framed Megrahi. Maybe, when they bent their judgment to deliver the verdict that the government expected, they really believed they were doing justice even as they undid the law.

All this is just speculation. In the absence of a proper examination of the facts by a court or a public inquiry or both, it’s neither better nor worse than any other speculation.

The false conviction of  Abdelbaset al Megrahi took a lot of effort. But the fix was in by the time that the negotiations over the trial of Megrahi and Fhimah came to an end  in 1999.

“Fix” is a difficult word to use of negotiations that came about through the intervention of Nelson Mandela and were conducted, amongst others, by Professor Jakes Gerwel, secretary to the South African cabinet. The best that can be said is that the negotiators believed the isolation  of Libya by the UN sanctions regime to be wrong and were prepared, in the end,  to take an optimistic view of Scottish justice in order to restore normality. They must by then have been near despair. Nelson Mandela had proposed in 1994 and again in 1997 that the trial could be held in South Africa. On each occasion the British Prime Minister of the day – John Major, and then Tony Blair – had  rejected the offer.

The deal that the negotiators reached meant that Megrahi and Fhimah would be tried in the Netherlands by a “Scottish court” – three Scottish judges sitting without a jury. But Scottish courts do not try murder cases without a jury.

Robert Black QC – a law professor at Edinburgh University, born and brought up in Lockerbie – is generally credited with having devised the unique format of the Lockerbie trial. His proposal was made in January 1994. He suggested that “a trial be held outwith Scotland, perhaps in the premises of the International Court of Justice at the Hague,” under the law and procedure followed in Scottish courts. He suggested that the jury, normal in a Scottish court, should be replaced by a panel of judges. Crucially, he proposed that this would be “an international panel of five judges,  presided over and chaired by a judge of the Scottish High Court of Judiciary whose responsibility it would be to direct the panel on Scottish law and procedure.”

Ibrahim Legwell, the Libyan lawyer representing the suspects, wrote to Robert Black to say this scheme was wholly acceptable to his clients, and the deputy foreign minister of Libya wrote that his government would not object to the arrangements. The British and US  governments ignored these developments and continued to insist that Libya must simply hand the two suspects over the the UK or the US.

By 1998 it was becoming clear that African and Arab support for efforts to isolate Libya could not be obtained. Nelson Mandela’s diplomacy gave this fact of life a face that could not easily be dismissed.

On 24 August 1998 the UK and US governments wrote to UN Secretary General Kofi Annan saying that they were willing to arrange for the Lockerbie suspects to be tried in the Netherlands by a court following Scottish law and procedures, but with the jury replaced by a panel of three Scottish High Court judges. This is the proposal that the international negotiating team supported by Nelson Mandela persuaded Libya to accept.

It meant that the suspects would have neither the rough and ready protection of a jury, nor the more intricate safeguards provided by panel of international judges, as Robert Black had proposed in 1994.

The location of the trial in the Netherlands and the involvement of a panel of judges gave  it something of the aura of an international court, without offending the traditional US hostility to such institutions. For the Libyans, the absence of a jury seemed to offer protection from the risk of prejudice against them. But in the legal traditions of the British Isles, dispensing with a jury is not normally done for the benefit of the accused. No one ever supposed that the  jury-free Diplock courts, used for terrorism-related cases in Northern Ireland, were invented to protect the rights of suspects.

Legal dogma insists that judges may sometimes err over difficult legal puzzles, but that they are magically immune from the prejudices that afflict people who serve on juries. It’s nonsense, of course. Judges sometimes affect disdain for popular sentiment. But anyone who has successfully climbed the career ladder to the judiciary is likely to be at least as sensitive to  political undercurrents as a typical jury member.

Political undercurrents were presented to the Zeist judges in unusually concrete ways. They were sitting in a court room built specially for the trial. The case they were dealing with had been brought before them by unprecedented international negotiations. It carried high hopes of closure, not just for the families of the Lockerbie victims but also for the wider public, especially in Britain, Spain and the USA.  A jury might, if justice required it, have been able to set all that to nought and let the system take the blame. A judge doing so would  have had to face government displeasure and media opprobrium.

Political power stalked the court-room in other ways too. US state prosecutors, unlisted in any court documents, sat next to the Scottish prosecution team, checking notes and passing on documents. For international observer Hans Köchler:

“this created the impression of “supervisors” handling vital matters of the prosecution strategy and deciding, in certain cases, which documents (evidence) were to be released in open court or what parts of information contained in a certain document were to be withheld (deleted).”

A Libyan defence lawyer – appointed not by the defendants, but by the Libyan government – was present  in addition to the Scottish defence team. In Hans Köchler’s view, this man “had to be perceived as a kind of liaison official in a political sense.”

In the end, the judges decided that Megrahi was guilty and that Fhimah was not guilty. Fhimah’s acquittal was unavoidable. The case against him depended crucially on testimony by Abdul Majid Giaka, a former Libyan intelligence officer paid by the CIA. His performance in court was dismal. The judges found his evidence “at best grossly exaggerated, at worst simply untrue” and “largely motivated by financial considerations”.

The prosecution case involved the joint action of both Megrahi and Fhimah in Malta, where the bomb was allegedly put on a feeder flight before being transferred to Pan Am 103 at Heathrow. Giaka’s testimony formed part of the case against Megrahi too. The prosecution’s decision to call Giaka as a witness suggested, at the very least, an unscrupulous approach to the case and a degree of desperation. So it was rather odd that the judges did not consider that their acquittal of Fhimah fatally undermined the case against Megrahi.

Odd, but not impossible. There was one other witness – Tony Gauci  -  whose testimony the Crown relied on to identify Megrahi. Gauci’s evidence was very unconvincing, but not so blatantly unacceptable  that the judges had no choice but to exclude it. That left them free, in their judgment, to note the “substantial discrepancy” between Gauci’s original description to police of the man he was identifying as six feet tall and 50 years of age,  and 37 year-old Megrahi’s actual height of five feet eight inches, and then to go on to conclude that the identification was “entirely reliable”.

Evidence has subsequently emerged that appears to show that the US Department of Justice promised Gauci “unlimited monies” if Megrahi was convicted.

In finding Megrahi guilty, the judges did the very best with the prosecution case that could possibly be managed, short of declaring the rule of law to be irrelevant.

When the verdict was announced, Robert Black said:

“I thought this was a very, very weak circumstantial case. I am absolutely astounded, astonished. I was extremely reluctant to believe that any Scottish judge would convict anyone, even a Libyan, on the basis of such evidence.”

He has subsequently campaigned for the case against the Libyan suspects to be re-examined. In 2005, he told the Scotsman:

“If they had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence and standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial.”

The Zeist judges must have understood that, by sitting as both judge and jury, they  had made it very hard indeed for Megrahi to have his conviction overturned within the Scottish justice system.

Scotland’s Court of Appeal might not find it too hard to rule that a Sheriff, trying a minor offence without the benefit of a jury, has misdirected himself. But it would be a bold appeal court judge who could reach the same decision about three senior judges deciding the most important case to have come before a Scottish court in modern times.   Megrahi’s legal team would instead have to show that they had new evidence that could have changed the outcome of the trial had it been known at the time. But how could that be shown, when the Zeist judgment had been built from leaps of faith, with scant regard for reason?

As it turned out – and rather against the odds -  evidence was indeed available by 2009 that might, just possibly, have made headway against Scottish judicial conservatism. But by then Megrahi was dying from prostrate cancer. He dropped his appeal – a slow process with an uncertain outcome – and thus cleared the way  for the Scottish government to release him on compassionate grounds and allow him to return to Libya.

Scottish compassion provoked apparent outrage in the US, with Secretary of State Hillary Clinton saying she was “deeply disappointed”. But there was probably no other way, except through utterly illegal interference in the judicial process, that the Scottish Government could have been certain that Megrahi’s conviction would not be quashed. And that would have left Clinton even more deeply disappointed.

At a performance of the play Lockerbie: Lost Voices in Edinburgh last summer I met Marina de Larracochea, sister of Maria Nieves Larracoechea, who was one of the cabin crew on Pan Am Flight 103. I said something anodyne and rather thoughtless about the slow struggle for justice. She said that the families of the victims no longer have time on their side. They are getting old.

The British and US authorities and the Scottish Crown Office understand the problem, and evidently intend to exploit it. The current flurry of interest in investigations in Libya looks like a delaying tactic.

Lord Advocate Frank Mulholland, head of the Crown Office, was dismissive this week of concerns over the soundness of Megrahi’s conviction. He says that he believes in the rule of law. It’s rather late in the day for the Crown Office to discover an interest in the rule of law.

The families of the Lockerbie victims are not the only people with an interest in these events. Five million of us, here in Scotland, are living under a justice system that has been subverted from top to bottom to meet the needs of British and US intelligence agencies. It’s worth remembering the words of  Hans Köchler in his report on the Zeist trial:

“proper judicial procedure is simply impossible if political interests and intelligence services – from whichever side – succeed in interfering in the actual conduct of a court.”

The Scottish Government says that it cannot set up an independent inquiry into the Lockerbie affair because that would involve looking into international issues that are beyond its power under the current constitutional arrangements.

Scotland urgently needs an inquiry to determine how the investigation, prosecution and conviction of Megrahi under Scottish jurisdiction went so badly wrong, and how we can ensure that nothing of the kind ever happens again. That lies well within the current powers of the Scottish government.