Saturday, 22 August 2015

CIA Giaka cables surface at Lockerbie trial

[What follows is the text of the report for 22 August 2000 from the University of Glasgow’s Lockerbie Trial Briefing Unit:]

The Lockerbie trial started again this morning following summer recess. Proceedings began with Bill Taylor, defending the first accused making a submission to the court. He said that cable communications  which had been made available to both the Crown and the defence initially had sections which had been blanked out. It has come to light that the Crown had recently obtained further copies of these documents which showed the full text. His submission was that the full documents should now also be made available to the defence.

These documents are significant as they allegedly communicated information provided by Giaka via another CIA agent to the USA prior to the Lockerbie disaster. Giaka, who is expected to give evidence this week is currently on a witness protection programme in the USA and is alleged to be a former Libyan agent who worked under cover as an Libyan Arab Airline employee in Malta from 1986. In August 1988 the Crown allege that he contacted US representatives in Malta and operated for a period as a double agent in Malta. The defence wish sight of the full text of these cable communications in preparation of their cross examination of this witness. Under the European Convention on Human Rights the principle of equality of arms may persuade the judges that the defence claim for this information is well founded. The question remains, however, whether the Court can grant access to unedited versions of such sensitive information when it does not belong to them. The Lord Advocate has stated that he does not have copies of the unedited documents nor does he have the authority to compel the US authorities to hand them over.

The Lord Advocate addressed the court after a lengthy adjournment. He stated that there was nothing in the cable documents that would either assist or hinder the defence case and also in the interests of US security the documents should not be handed over. He claimed that the deleted sections of the cables related to sensitive intelligence information and operations not related to Lockerbie. All of the judges asked the Lord Advocate questions. It was highlighted that the accused, if given sight of the information which relates to other operations, may doubt its accuracy and this in turn would raise questions of the credibility and reliability of information provided by Giaka.

The court adjourned for lunch without the matter being resolved.

The court heard further submissions from the Lord Advocate this afternoon relating to the Defence submission raised this morning regarding access to unedited copies of cables sent by a CIA agent in Malta to Headquarters in Washington. These cables allegedly contain information supplied by Giaka (also referred to as Mr Majid).

Lord Sutherland indicated that while he accepted that certain names and operations required to be protected and not disclosed in these cables that his concerns rested with the submission of the Crown that the redactions included irrelevant information. Lord Sutherland appeared unconvinced that the Crown were necessarily in a position to determine that this information was indeed irrelevant to the credibility of the evidence of Giaka and the defence case.

It was disclosed that the unedited cable documents were made available to the Crown on 1 June 2000 but the defence only became aware of this fact yesterday. It also appears that the documents were consulted in The Netherlands and possibly at Camp Zeist by Mr Turnbull QC, Advocate Depute and Mr McFadyen, the Procurator Fiscal. Lord Sutherland stated that as the court were discussing a document that the Crown had lodged as a production, he was concerned that information contained within the document was now viewed as being irrelevant.

Bill Taylor, QC, addressed the court again. He said that the consultation by the Crown of the cables in June resulted in their positions, which were previously on the same footing in relation to the cables, now being inequitable. If there were security considerations regarding the content of the cable he asked what assurances were sought by the USA and given by the Crown. He further asked why the information could be given to one side and not the other and referred to the concession by the Lord Advocate that information disclosed to the Crown may assist in the establishment of the credibility of the witness.

He referred to problems encountered when precognosing witnesses related to the cables. This was done in the presence of US Department of Justice Attorneys instructed by the CIA. He said the precognition process was characterised by long silences, by "take 5" (to allow consultation with attorneys) answers of "not relevant", refusing to answer and "I've seen the unredacted cables and had no part in the redaction process". He commented that it was of no assistance to the important precognition process when witnesses are instructed by foreign governments not to answer questions. He admitted that he did not know the exact content of the information edited out in the cables but did view it as material in his cross-examination of Giaka.

He requested that the Judges make no orders but invite the Crown to use best endeavours to ensure that the defence receive copies of the cables with no deletions or editing. He said that having read the document he did not agree with the Lord Advocate's suggestion that the blanked out sections were of no relevance. He further noted that US security may already have been breached by the Crown having access to these documents.

Richard Keen, QC, wished to enquire if the Lord Advocate had checked that the defence would also be able to consult the unedited Cables. He said the US Government had upset the balance of fairness in the trial by their actions. He viewed the Lord Advocate's suggestion that the defence were conducting a fishing exercise as unfounded and stated that during precognition CIA agents had referred to offers and counter offers for information being made to Giaka.  Further, the unedited cables may disclose that some defence witnesses are in fact Libyan intelligence agents and if this was only known by the Crown it would prejudice the defence.

The Lord Advocate submitted that all payments which have been made to Giaka were listed in a production. Lord Sutherland said that the issue was not merely how much had been paid but also the negotiations and the witness’s motivation in giving the CIA this information. These issues are relevant to the witness’s credibility.

The judges retired to consider the submission and when they returned one hour later invited the Lord Advocate to use his best endeavours to ensure that the information on the unedited cables was disclosed to the defence. It is now unclear when Giaka will give evidence as the dispute over the cables will require to be resolved first.

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