[In the 7 May 2001 edition of The Nation an article by Alexander Cockburn appeared entitled Justice Scotched in Lockerbie Trial. It is well worth reading. However, it infuriated certain American Lockerbie relatives. What follows are their letters of complaint and Alexander Cockburn’s response, as published in the edition of The Nation published on 18 June 2001:]
Alexander Cockburn should show respect for, and knowledge of, the facts. In his May 7 "Beat the Devil" column, "Justice Scotched in Lockerbie Trial," he shows neither.
He starts by praising a report critical of the trial presented to a conference of the Arab League by Hans Koechler, whom he describes as "a distinguished Austrian philosopher." Distinguished for what? Certainly not for his knowledge of Scottish law. Koechler's report is bizarre. He doesn't even seem to know that in a Scottish court the judges do not introduce evidence. Koechler proposes that there was a conspiracy to convict Libyans, which included the United States, Britain, the Scottish court and even the Libyans' defense lawyers. Koechler has wandered out onto the grassy knoll, and Cockburn is trotting right along behind him.
Koechler was "one of five international observers at the trial" appointed by Kofi Annan. He was a representative of something called the International Progress Organization. A second observer appointed from the same organization was Robert Thabit. Koechler acknowledges that he worked with Thabit. Shortly before his appointment as trial observer Thabit had been a lawyer for Libya's UN mission. Cockburn was either unaware of this or just forgot to mention it.
Cockburn characterizes the testimony of Maltese shopkeeper Tony Gauci--who was supposed to identify one of the accused Libyans as the man who bought clothes found in the bomb bag in his shop--as so confused he could barely recognize the accused when he was pointed out in court. We would bet a considerable sum that Cockburn didn't see the Gauci testimony. We did. He was an excellent witness, clearly a man trying his best to accurately describe an event that had taken place over a decade earlier. Not only did he point out the accused Libyan in court, he picked him out of a lineup ("parade," the Scots call it) shortly before the trial opened. In 1991 Gauci picked out a photo of the accused as the man resembling the purchaser of the clothes from twelve photos shown him. Earlier, in 1989, Gauci assisted a police artist in preparing a sketch and in compiling an image of the purchaser. Both images looked strikingly like the accused Libyan looked at the time. This also seems to have escaped Cockburn's notice.
Cockburn says that prosecutors produced "a document" indicating that a bag from Air Malta was loaded onto Pan Am 103 at Frankfurt. Actually, there were two documents: They were the baggage-loading records from Frankfurt. Cockburn counters that there was "firm evidence from the defense" that all bags from the Air Malta flight had been accounted for. The defense presented no evidence at all on that point. It just said that all the bags had been accounted for, and even Cockburn must be aware that evidence is not what comes out of a lawyer's mouth.
That's an impressive number of errors for a short column. The Lockerbie trial was long and complicated, and there was a ton of evidence. Cockburn may know this, but he doesn't care. He appears to believe that if there is evil in the world, the United States is behind it. He can truly paraphrase "the terrible Lord Braxfield": "Let them bring me Americans, and I'll fiddle the facts."
DANIEL COHEN SUSAN COHEN
Parents of Theodora Cohen, murdered in the terrorist bombing of Pam Am 103
I don't expect to agree with every Nation article, but I do expect meticulously accurate facts. I can address only some of Alexander Cockburn's most flagrant falsifications here. He thinks "the prosecution's case absolutely depended on proving beyond a reasonable doubt that Megrahi was the man who bought the clothes" used in the lethal suitcase from a Maltese shop owner. He also claims that "in nineteen separate statements to police prior to the trial the shopkeeper, Tony Gauci, had failed to make a positive identification of Megrahi" and that "Gauci was asked five times if he recognized anyone in the courtroom. No answer. Finally, the exasperated prosecutor pointed [out the accused].... 'the best that Gauci could do was to mumble that 'he resembled him.'"
Gauci did not mumble when he identified Megrahi--the first time he was asked to do so in court. The only number five that can reliably be associated with Megrahi is the number 5 he wore in the police lineup in April 1999 when Gauci pointed him out as the man who came into his shop in December 1988. The number nineteen is the number of photographs Gauci was initially asked to look at on September 14, 1999, in police headquarters in Floriana, Malta. As for the correct number of times Gauci actually met with police and looked at photographs, according to the Opinion of the Court, it seems to be six.
What is Cockburn's source? My sources for the facts are: the transcript of the testimony Gauci gave on July 11, 2000; the Opinion of the Court delivered by Lord Sutherland on January 31, 2001; my transcribed remarks of a speech Alistair Campbell, QC, gave when he spoke to the US families in Baltimore on March 5, 2001, during the posttrial briefings of the crown team; and the recollections of other family members who heard that testimony.
Cockburn seems unaware that the prosecution's case against Megrahi was also based on the coded passport issued to him by the Libyan Security Service, the ESO, for which Megrahi worked; the tickets for every flight he took; the records of every hotel he stayed at in Malta in December 1988. Nor does he seem aware that the prosecution team was able to use Megrahi's own words against him by playing the film interview he gave to Pierre Salinger in 1991, in which he lied about his ESO membership and denied staying in the Holiday Inn, Malta, December 20, 1988. Megrahi used his false passport five times in 1987. The next time he used it was December 20-21, 1988, to travel to and from Malta and Tripoli. He never used it again.
I have a passionate need to see justice done in the murder of my husband, Tony Hawkins, and 269 other souls. The evidence as revealed in the Lockerbie trial has convinced me that: 1. The debris trail from Lockerbie leads to Libya; 2. These two men are guilty of assembling the bomb and starting it on its journey; 3. They were not mere soldiers taking the rap for the higher-ups; 4. That of the two, Megrahi was clearly in charge of this operation, Fhimah providing the necessary assistance and access to Air Malta; 5. They clearly did not act on their own without the complete assistance and approval of the Libyan government, i.e., Qaddafi.
What was incomprehensible was not the guilty verdict but the not guilty verdict. It should have been not proven. The case against Fhimah was not as strong as that against Megrahi. I don't know who Cockburn believes to be responsible for this act of terrorism, but he shouldn't use his column to create confusion about this case or to increase the suffering of the families who are still fighting for justice for the people they love.
Editor, Truth Quest (newsletter published by The Victims of Pan Am Flight 103)
For years the Cohens described the Scottish media in extremely unflattering terms, sending multiple faxes to editors if they even suspected a publication was going to challenge "the official version." Thus, in July 1991, they protested the possible inclusion of the Syrian flag among those of other Gulf War coalition members at a Washington victory parade, on the grounds that the Syrian government had murdered their daughter (the favored line of official US leakers at that time). When Washington decided to shift the blame to Libya they became no less clamant in their denunciations of Qaddafi and indeed of anyone, like distinguished Scottish law professor Robert Black, who attempted to negotiate an agreement under which the two Libyans could stand trial in a neutral country. Certainly, the group of US relatives suing Libya for some $4 billion as responsible for the bombing has every reason to dislike any questioning of the verdict.
Hans Koechler is indeed a distinguished Austrian philosopher who by now probably knows a lot more about Scottish law than the Cohens. Those sitting through the entire trial in Zeist, Holland (which the Cohens, contrary to their misleading insinuation, attended a relatively sparse number of times), recall that Koechler was present for almost the entire proceedings. Thus Koechler may know, as the Cohens do not, that while Scottish judges cannot introduce evidence, they can rule on what evidence is or is not admitted.
Less prejudiced critics might pause to reflect that, since they had brought the indictments, there obviously was a conspiracy by the US and British governments to convict the Libyans. Collusion in such an agreement by the judges and the defense, William Taylor QC (counsel for Megrahi), can only be inferred, but it is not absurd for Koechler to make that inference. The judges found Megrahi guilty solely on the basis of some very shaky circumstantial evidence, and the normally tigerish Taylor, in the opinion of many legal observers, put up an astonishingly feeble performance in his crucial cross-examination of Tony Gauci, the only witness who could link Megrahi to the suitcase bomb. Nevertheless, Gauci was hardly "an excellent witness." Engelhardt has no basis in claiming only six meetings between police and Gauci, who was interviewed by innumerable Scottish, US and Maltese law enforcement groups, as well as prosecution and defense lawyers. On a reasonable count, the number of such interviews goes well into the double digits. The judges themselves admitted in their verdict, "On the matter of identification of the first accused, there are undoubtedly problems," and "We accept of course that he never made what could be described as an absolutely positive identification."
In fact, when Gauci gave evidence on July 11 last year, he was asked several times by the crown counsel if he could identify anyone in the court as the man who had bought the clothes from his shop that were later found in the suitcase containing the bomb. He failed to do so, and only when asked if the person sitting next to the policeman in the dock was the man in question did he grudgingly reply: "He resembles him a lot." On an earlier occasion, when shown a photograph of Mohammed Abu Talb, a Palestinian terrorist whom the defense contended was the real bomber, Gauci used almost the same words, declaring, according to his brother, that Talb "resembles" the clothes buyer "a lot." Gauci's identification of Megrahi at the identity parade just before the opening of the trial was with the words "not exactly the man I saw in the shop. Ten years ago I saw him, but the man who look [sic] a little bit like is the number 5" (Megrahi).
It is highly likely that the evidence of identification of Megrahi, its unsatisfactory nature and the comments by the trial judges will bulk large in the appeal this coming fall. However Gauci's testimony may have later appeared in a transcript or on a video recording, two relatives who were physically present at the courtroom testimony have confided that they found Gauci far from confident in his identification.
Whether Megrahi had a false passport, or stayed in Maltese hotels, or was there on December 20-21, 1988, is irrelevant--grassy knoll territory, if you will. Is there evidence that links him to the bomb? That's the sole pertinent issue. That's why Gauci's testimony is crucial. As I noted above, even the judges admitted that identification was squishy. As for Fhimah, the judges would doubtless have preferred to opt for a "not proven" verdict, but there was no evidence of any sort against him, apart from testimony of the prosecution's supergrass Giaka, who was on the CIA's payroll before, during and after the bombing, but who failed to mention the alleged role of Megrahi and Fhimah in the bombing to his paymasters until 1991. Even the judges called him a liar. The prosecution described Fhimah in indictments and thereafter, up until almost the end of the trial, as a Libyan intelligence agent, then dropped the accusation.
As far as the baggage is concerned, the prosecution's sole achievement was to demonstrate that it was theoretically possible for a bag from the Air Malta flight to have found its way onto the Pan Am flight from Frankfurt to London that connected to Flight 103. The fact remains that there is no conclusive evidence that this transfer occurred. When Granada TV broadcast a documentary asserting such a transfer as a fact, Air Malta sued and extracted damages.