Saturday, 22 August 2015

The Crown and the CIA

[This is the title of an article that I wrote for The Lockerbie Trial website in August 2000. It reads as follows:]

When the trial resumed on Tuesday 22 August, the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion 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... 

"There is nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

The Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables.

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material.  The Court, wishing to avoid the delays which would necessarily be caused by any recourse to the American courts, has instructed the Lord Advocate again to use his best endeavours to secure the release by the CIA of these additional cables.  Only if he is unsuccessful will the Scottish Court reluctantly consider the option of a formal request through the American courts. 

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made. 

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."


  1. "... it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid.""

    In plain terms:
    The crown supplied totally false critical information under circumstances that leave no room for it being 'an honest mistake'.

    In even plainer terms: they lied, in a case as serious as imaginable.

    This is a serious crime by any standard.

    In a democracy like Scotland's it is so easily fixable, without blood and barricades, or fathers or brothers thrown into jails and tortured.
    All it would take was that the people said "Hey! Put honest people in the top of of our judicial system, or we will of course not vote for you."
    But I assume people have more important things to think about.

  2. It's not just that they have more important things to think about, it's that there's nobody to vote for who will do this.

    More important things include independence, trying to mitigate the slash and burn policies of Westminster, getting effective value for money out of the shrinking pot of pocket money doled out to Scotland and generally administering the country in a more or less grown-up manner. None of the other parties is capable of any of that.

    In this context the self-serving horror that is the Crown Office doesn't impact on many people's lives and it isn't a priority at the ballot box. Even if it were, who would you vote for? The rest of the options are even worse. The above affront to justice was perpetrated by a Labour and LibDem coalition. The Conservatives were the power behind the 1989-90 investigation failings. We don't have any options.

  3. I was reading a report of the trial of Thomas Muir in 1793, with the guilty verdict a foregone conclusion and the jury packed with government sympathisers. The judge, Lord Braxfield, was determined to convict.

    It makes you wonder if anything has ever changed, and if Scotland's judiciary has always been in the pocket of the political establishment and prepared to deliver judgements as required. Maybe ordinary non-political trials are generally untainted, but the entire system seems to have a legacy and a culture of corruption and political expediency.

  4. "...if Scotland's judiciary has always been in the pocket of the political establishment..."
    Well, "the separation of powers" was of course never really that.

    I feel over this page about the nomination of Clarence Thomas

    There is an interesting list of how the senators voted. The case was in the main whether the sexual allegations by Anita Hill would be true or not.

    Anyone thinking that party-membership would have little impact on that matter should think again. 46 of 48 opposing were Democrats, 41 out of 52 supporters were Republicans.

    - - -

    Today, 26th Aug., this article is printed in Bangkok Post.

    But the two murder suspects, who have been on trial since early July, applied to the court to hand over the report, arguing that it might be of use to their defence case.

    The Metropolitan Police opposed their application, arguing that disclosure would impede the force's ability to enter into cooperation agreements with foreign authorities in future.

    Having seen the full report, the judge ruled that the interests of the police outweighed those of the suspects.

    "In short I have concluded that there is nothing in the police report which is exculpatory, i.e. would be of material assistance to the claimants in the trial," he said in a summary of his ruling.

    The defense demanding the release of available information, issues having nothing to do with justice making the release inconvenient, and a representative for the judicial system saying "But Oh, there is really nothing much there anyway, trust me.".

    Does it sound familiar?
    We do, Nicholas Green, trust you to give the answer expected of you, in this case and the other I have seen.

    Cute that the public police can reach agreements about making secret reports and that you support its secrecy, as otherwise they might not be able to make another secret report another time.

    The 'interests of the police' (??) outweighing the interests of the defendants in a murder case, facing a certain death penalty if found guilty.

  5. Recalling Colin Boyd's "irreproducible" conclusion, it could be interesting to see if the Metropolitan police would have had any comment on matters brought up elsewhere, and just how it would have affected the view on Nicholas Green's findings.