Friday, 14 August 2015

The verdict cannot possibly stand as a representation of historical fact

[The item that follows has been contributed by Dr Kevin Bannon:]

It appears that the vast majority of parliamentarians, jurists, academics and news editors in the UK - and their US equivalents - have very little idea of the extent of the affront to justice in the conviction of Abdelbaset Ali Mohmed al-Megrahi for the Lockerbie bombing, in which 270 people died on 21 December 1988. 

Just to recount the basics, the crime-scene was the largest in law enforcement history and police investigations took about three years. By international arrangement, Al-Megrahi’s special trial under Scottish jurisdiction and his appeal were held at Kamp Zeist, Holland in 2000-2001. He served 10 years until his release because of his terminal cancer and following his agreement to drop his planned second appeal. Al-Megrahi died in May 2012.

Here is a summary of matters largely omitted from the general narrative about the Lockerbie atrocity:

Investigation and Evidence
The most important item of hard evidence in the investigation was a centimetre square fragment of circuit-board, found, remarkably, within a debris field of hundreds of square miles. Just as fortunately, this was matched by its appearance to a commercially marketed circuit board from a timing device supplied to Libya. Despite that the fragment remains the only part of the explosive device found, no test for explosives residues was carried out on it – which one investigator described as “inconceivable” and “irrational”. In fact neither were such tests carried out on the fragments of the radio/cassette player housing the bomb, or the pieces of suitcase which had contained it – a series of evasions simply too outrageous to describe as an oversight. 

Despite a supposedly meticulous investigation, both the date of the fragment’s discovery and the identity of its discoverer remain contradictory and matters of dispute. Most suspiciously of all, the police evidence label pertaining to this item had been manifestly falsified, crucially altering its apparent provenance. 

It was never discovered how a bomb was introduced at Malta’s Luqa airport, nor how it transited unaccompanied through Frankfurt and Heathrow - supposedly impossible under security protocols. Instead of solving such outstanding issues, the largest criminal investigation in history has left us with only uncertainties and discrepancies.

A day or two after the Lockerbie bombing, a relatively intact suitcase was removed from the debris field by US officials and taken by helicopter to an unknown destination where its contents were ‘handled’. The suitcase had belonged to a US intelligence official on the passenger list. Four days after the bombing, two Americans believed to be from the CIA, returned the suitcase to the exact position from where it had been removed – a manoeuvre not logged in police records. 

In September 1989 a Maltese shopkeeper, Tony Gauci, described to police the visit of a Libyan to his shop in late November 1988 to purchase several clothing items which matched pieces later found near Lockerbie; these items had apparently been adjacent to the bomb in ‘the primary suitcase’ aboard PA 103. Gauci appeared to have a magnificent memory, and in his first police interviews – nine months after the purchase – he recalled most of the items bought by the customer, the total bill and the weather at the time. Unfortunately, he described in detail someone entirely unlike al-Megrahi both facially and in stature. In any event, al-Megrahi was not in Malta in late November 1988. However, Gauci changed all of his initial evidence in subsequent interviews – changes which were more consistently harmonious with police suspicions and later with the Crown prosecution case. The purchaser’s visit was now revised to December 7 – the only day in the timeframe consistent with al-Megrahi’s movements.

In a ‘photo-session’ al-Megrahi’s picture had been shown to Gauci amongst 11 other photographs of individuals, some of which had been blatantly ‘doctored’ - supposedly to make them more similar to the suspect; even under these circumstances a senior investigating detective gave a plainly illegitimate prompt to Gauci who then chose al-Megrahi’s picture – already known as the ‘correct’ choice to police officers observing the procedure in the same room. This became the clinching identification of al-Megrahi and the basis of his eventual indictment. An identification line-up observed by Gauci was held only years later after al-Megrahi’s picture had been widely publicised, but in any event, the procedure was again improperly set-up in the Crown’s favour. 

Two months before the Lockerbie bombing, an apparent Frankfurt-based plot to bomb an airliner had been uncovered by German police. Marwan Khreesat (possibly an alias) arrested as the supposed mastermind, was a Jordanian (i.e. pro-western) intelligence agent and was allowed to return home, despite being caught red-handed making bombs. One of these later exploded killing a German police investigator, but no reports of an investigation or a prosecution transpired; Khreesat has not been seen or heard in public since. 

Just two weeks before the PA 103 attack, a telephone warning was received in Helsinki about a plan to bomb a Pan Am transatlantic flight from Frankfurt. Despite this being recognised as entirely spurious by investigators, US and airline security officials took it seriously. The caller’s identity remains oddly obscure to this day and he was not prosecuted for his ‘hoax’.

Both the German and UK investigators concluded that neither the Frankfurt set-up nor the Helsinki hoax had any link to the Lockerbie bombing but the obvious artificiality and official suppression of facts surrounding these incidents remains profoundly suspicious. 

The Trial
The Helsinki and Frankfurt incidents were referred to frequently in cross-examinations at Kamp Zeist, helping create a backdrop concerning Middle Eastern bomb threats in Europe, and reminding the court that such terrorists were devious and repeatedly escaped justice. Additional to this undercurrent were a cohort of invisible Crown witnesses: three CIA agents and three more from the former East German STASI - gave evidence concealed behind screens, under pseudonyms and with their voices disguised – all for unexplained reasons. Three more CIA agents, similarly pseudo-named, did not attend court but supplied written statements. Several other Crown witnesses were so vaguely identified in court as to remain obscure. 

Four Crown witnesses were described as liars in open court without objection – because it was transparently obvious. A director of the company which supplied the Lockerbie bomb timer had been shown to have conspired to falsely implicate Libya in the Lockerbie bombing during the investigation. In another incident the same witness claimed to have contacted the CIA with another false story implicating Gaddafi and his security chief Abdullah Senoussi in the Lockerbie attack. These clumsy acts of espionage were justly treated as laughable by the Defence. For all practical purposes, witnesses at Kamp Zeist were free from risk of perjury charges which would normally be applicable in Criminal trials in Scotland. 

One major Crown witness, Abu Talb, was serving a life sentence for a terrorist murder and two more (a Mr. ‘Wenzel’ and one Mansour El Saber) had each been party to preparing explosive devices for terrorist purposes – so it was claimed.  Her Majesty’s prosecutors had never before been propped-up by such a motley collection of crooks and spooks.

The bomb’s introduction at Malta’s international airport was never established but the judges, like the police before them, decided that this is what must have happened because of al-Megrahi’s ‘identification’ by Tony Gauci. This highly improbable arrangement diverted the investigation away from straightforward, circumstantial evidence that the bomb was introduced at Heathrow – the most logical scenario, but of course entailing an entirely different conspiracy.

Despite facing 227 Crown witnesses, al-Megrahi, mild-mannered and of previous good character, was advised to say nothing in his defence – a suicidal defence strategy designed for jury trials of gangsters or otherwise ‘open and shut’ cases. Of only three witnesses who testified on behalf of the Defence, two were FBI men, whose organisation was backing the prosecution. 

The trial and appeal, among the most extensive in the UK’s legal history, were made considerably more lengthy and costly by the attendance of irrelevant Crown witnesses and vast tracts of waffle on points of law and case citations emanating from al-Megrahi’s advocate, without any perceptible contribution to al-Megrahi’s defence. Stupendous weaknesses in the Crown case went unchallenged, in particular Gauci’s contradictory police statements, details of which were almost entirely evaded in cross-examination.

Al-Megrahi’s appeal was prepared in such a way that it was doomed to fail – as even the judges themselves emphasised in their verdict.

After the trial and appeal, Gauci was paid ‘in excess of $2 million’ by the US department of Justice for helping the investigation - his brother received $1 million despite not appearing in court - such payments are not legitimate under Scottish law and if a witness has been promised, or has formed expectations about receiving such payment it should be disclosed to the defence, having significant relevance to the witness’s credibility. Other witnesses received substantial benefits for their information or testimony, whether in the form of money from the US or fishing trips and fancy hotel stays in Scotland, laid on by the police. 

The CIA’s witness
Crown witness Majid Giaka worked for the JSO (the Libyan external security organisation) and was on secondment with Libyan Arab Airlines in Malta around the time of the bombing. He was also a CIA mole and as a former colleague of the accused he was regarded as a principal Crown witness at trial. Giaka’s evidence included his sight of a box of TNT in the office drawer of the second accused; the Libyan Consul in Malta seen handling the same explosives; Libyan senior security officials speaking of surreptitiously placing a bag on an ‘English’ aircraft, and the two accused couriering a Samsonite suitcase – the same as the suspect suitcase - into Malta’s Luca airport from Libya. This might have been damning evidence were it to have been credible.

In preparing their case, the Defence, acquired copies of 25 redacted CIA reports or ‘cables’ understanding that these represented all relevant material on Giaka, and believing that the redactions were mere security formalities. However, Defence advocates accidentally got wind of the fact that the Crown had been shown greatly extended versions of the CIA cables at a ‘secret’ meeting at the US embassy. This was against the rule of ‘equality of arms’ - fundamental to the principles of fairness in an adversarial trial. The failure to notify the defence and arrange for the exposed cables to be shared was a duplicitous and illegitimate act in any event. The chief prosecutor Lord Advocate Colin Boyd was then obliged to make a statement admitting his responsibility for the issue but he belittled the significance of the redactions – telling the court that “While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case”. 

This statement from the chief prosecutor, Scotland’s Lord Advocate, proved to be an outstanding misrepresentation. The court was left in the humiliating position of having to petition the CIA to reveal the redactions for the benefit of the Defence. After only a brief scan of the exposed passages Richard Keen QC for the second accused, was scathing about what had become ‘abundantly clear’:

‘…what is now disclosed is, in many instances, highly relevant to the Defence, and 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...’ 

The revelations showed that the CIA themselves had considerable doubts about Majid Giaka, believing he was a smuggler, was milking them for thousands of dollars and supplying little useful information, but plenty which was implausible. It was revealed that a further 11 cables featuring Giaka’s behaviour had been withheld from the Defence. The judge’s conclusions describe the man who had been posited as second principal Crown witness in the trial of the century. Majid Giaka attempted to give a ‘false impression of his importance within the JSO’. He had told the CIA that he had been in the JSO ‘secret files section’ when in fact he was in ‘vehicle maintenance’. He falsely claimed to be on familiar terms with senior JSO officials – and to be related to Libya’s former King Idris – which he was not. Giaka’s claims were ‘at best grossly exaggerated, at worst simply untrue’ the judges noted, and he was ‘largely motivated by financial considerations’. 

Inviting the CIA to assist with the Lockerbie investigation was an extraordinary error of judgement by the Scottish authorities. If the Kamp Zeist bench imagined the CIA to be a bona fide intelligence agency gathering information about security threats, they were mistaken. The US defence department has considerably greater, genuine intelligence resources to inform its defence department and government of such threats. The CIA is in fact a civilian institution, specialising in clandestine operations serving the interests, including the political interests, of the White House. The CIA’s ambit includes disinformation and propaganda and it has been infamous for manipulating events solely in the interests of the USA. Its methods have involved bribery, intimidation and murder and various other criminal means. Historically the CIA has assisted in the overthrow of benign governments – even those of democratic states and NATO members – and to have helped replace them with ruthless military juntas or corrupt and murderous oligarchs. 

The CIA’s contribution to the indictment of al-Megrahi was quite remarkable: the CIA came up with the commercial timing device brand which was matched to the circuit board fragment found near Lockerbie. The CIA also unearthed the photograph of al-Megrahi which led to his identification by the eyewitness. The CIA would also have supplied the court with the Crown’s principal witness but were exposed withholding the fact that Giaka was a liar. 

The CIA, whose personnel had tampered with the crime scene itself, have no place whatsoever in either assisting police investigations or in the gathering of information for use as evidence in criminal trials, most especially those in foreign jurisdictions, and with political implications. 

Expert views
Most citizens understand that a criminal trial is supposed to include a transparent examination and exposition of facts. Whence a conviction is reached, there should not be lingering doubts about the verdict. Every jurist, lawyer, academic investigator or researcher who has examined or analysed al-Megrahi’s conviction has reasoned that it represent an outstandingly blatant and audacious miscarriage of justice. These include:
  • Robert Black QC, Professor Emeritus of Scottish Law at Edinburgh University, former General Editor of The Laws of Scotland: Stair Memorial Encyclopaedia and frequently referred to as ‘the architect of the Lockerbie trial’ - has described its verdict as ‘a disgrace and an outrage’.
  • Britain’s most celebrated defence lawyer Gareth Peirce, whose advocacy led to the overturn some of Britain’s most infamous miscarriages of justice, called the Lockerbie trial outcome ‘the death of justice’. As well as describing certain aspects of the forensic investigations as ‘disgraceful’ she refers to political interference, believing that al-Megrahi was returned to his home in Libya because it suited Britain: She wrote: ‘The political furore has been very obviously contrived, since both the British and American governments know perfectly well the history of how and for what reasons he came to be prosecuted’
  • American media analyst and economist, Emeritus Prof. Edward S. Herman addressed the CIA’s attempt to withhold from the court, evidence about Giaka’s character: ‘Only under considerable court pressure did they produce a limited number of documents which showed Giaka to have been an incorrigible liar and the CIA, The United States and prosecuting attorneys, to be dishonest’.
  • Former US international lawyer and jurist Professor Michael P. Scharf, who had worked with the State Department on preparations for the indictment of the Lockerbie suspects, later formed the opinion that these were not based so much on evidence ‘...but rather on representations from the CIA and FBI and the Department of Justice about what the case would prove, and did prove.’ About Majid Giaka he declared: It wasn’t until the trial that I learned this guy was a nut-job and that the CIA had absolutely no confidence in him and that they knew he was a liar.”
  • Dr. Hans Köchler is one of Europe’s most eminent authorities on international law, in which he has made major contributions to the development of legal infrastructure. Reporting on his observations of the entire Camp Zeist proceedings on behalf of the UN, he wrote: ‘…foreign governments or (secret) governmental agencies may have been allowed, albeit indirectly, to determine, to a considerable extent, which evidence was made available to the Court.’ Dr Köchler described the verdict as ‘totally incomprehensible…a spectacular case of a miscarriage of justice.’
  • Len Murray, now retired as one of Scotland’s most distinguished and experienced lawyers, found it inexplicable that the Court could ‘have drawn so many adverse inferences against the accused when there were other explanations that were just as likely...’. Mr. Murray believed that the court’s finding of the crucial date - on which the eyewitness controversially identified al-Megrahi - was established by a means which ‘bordered on the perverse’.
  • Eddie MacKechnie, solicitor to al-Megrahi’s acquitted co-accused said: ‘This case was intelligence driven and the conduct of the CIA and other clandestine bodies had a very significant impact…the supposed evidence….was wholly inadequate and contrived’.
  • Ian Hamilton QC. Former rector of Aberdeen University wrote: ‘‘I don’t think there’s a lawyer in Scotland who now believes that Mr. Megrahi was justly convicted’.

These eminent people are experts in their fields and mostly involved either directly with the Lockerbie case itself or with special knowledge of Scottish law, international law or terrorist trials. 

Undeniably, other jurists, terrorism experts or commentators have made public statements in support of al-Megrahi’s conviction, but these have avoided factual analyses, offering instead their confidence in due process of law:
  • Anthony Aust was legal adviser to the UK’s UN Mission and later to the UK Foreign and Commonwealth Office department. Writing in a law journal he applauded the ‘ingenious use of international law’ in bringing the accused to justice - in fact the Kamp Zeist court was specifically an application of Scotland’s municipal law to an international case. Mr. Aust describes the trial as ‘This example of what can be achieved in the cause of justice...’
  • Lord Advocate Colin Boyd QC, Scotland’s chief prosecutor in the Lockerbie trial, took a very similar view: “…these proceedings have demonstrated what the judicial process can achieve when the international community acts together…I hope that this can be the enduring legacy of the Lockerbie trial. It is one that cannot and must not be forgotten”.
  • Stephen Emerson, a former staff member of the Senate Foreign Relations Committee, and author is Director of the Investigative Project on Terrorism which focuses on ‘Islamic and Middle Eastern terrorist groups’. While describing the Lockerbie forensic investigation as ‘meticulous’ Emerson frankly outlined his analytical priorities: ‘Rather than detail the actual components of the investigation, it is helpful to step back and consider the Pan Am 103 investigation and trial from a cost-benefit analysis perspective to determine whether U.S. interests were ultimately served’.
More recently Prime Minister David Cameron referred to Stephen Emerson as ‘a complete idiot’ for describing Birmingham, UK as “...totally Muslim where non-Muslims just don’t go in” on a US News broadcast.

Those who knew al-Megrahi personally have testified as to his good character. Investigative journalist John Ashton researched for a TV documentary about the Lockerbie bombing in the 90s and co-authored two seminal books about the affair and did research for Al-Megrahi’s legal team in preparation for his second appeal. He attested to the decency and integrity of al-Megrahi in August 2011:

‘I am as certain as I can be that al-Megrahi is innocent. His good manners and cooperative behavior won him respect from prison officers and inmates alike and he strongly desires to clear his name.’

Former Scottish Police Detective George Thomson researched for and interviewed contributors to the Al Jazzera film documentary Lockerbie: Case closed, including al-Megrahi himself. Thompson’s emotional, affectionate portrayal of al-Megrahi in the opening and closing minutes of the film fully substantiates the magnanimous, forgiving statements of al-Megrahi himself from his deathbed. I strongly recommend anyone to see Lockerbie Case closed and judge for themselves the sincerity of al-Megrahi’s comments.

Al-Megrahi’s conviction was not merely based on weak circumstantial evidence but on a collection of stark falsehoods and transparent absurdities. Once the imaginary ‘identification’ evidence against al-Megrahi had been authorised, the remaining case was constructed around it - in particular the evidence pertaining to the fragment of the bomb itself, which is contradictory in every aspect of its appearance throughout the investigation.

In the context of the conspicuous improprieties in both investigation and trial - the falsification of evidence and documents, the gaps in the forensic evidence, the contradictory testimony, the unknown witnesses, and the extent of circumstantial and hearsay evidence - the verdict cannot possibly stand as a representation of historical fact. 

Unlike most criminal trials, the outcome of the Lockerbie trial has had profound connotations for the development of foreign and security policies of the UK and the USA. It has strongly influenced popular and governmental attitudes to Middle Eastern terrorism, Islam, and the Arabic-speaking peoples in general. Based on the obvious discrepancies pervading the Lockerbie case, then even history itself appears to have been bent and continues on a perilously misguided course. 

I invite any jurist or expert to be the first to defend the conviction of al-Megrahi on a factual, analytical basis. I also invite members of the SCCRC or the Scottish Judiciary to respond informally or otherwise, to matters raised here, which are based entirely on either reputable, published sources or from notes made from the Kamp Zeist trial transcript or extracts from it. 

Hopefully, in the name of justice and humanity - and common sense - the Scottish or UK authorities will soon make a courageous decision leading to a root-and-branch review of this case. Taking no action is the most perilous option.

1 comment:

  1. A very fine piece.

    "The verdict cannot possibly stand as a representation of historical fact"

    Unless, of course, the 'historical fact' is, that "a heavily contradicted conclusion, that finds no support outside a small group of powerful people interested in maintaining it still can survive as the officially accepted truth in large parts of the population".

    You never needed to fool all the people all the time