Between a rock and a hard place

[What follows is excerpted from a cable (available courtesy of Wikileaks) sent on this date in 2008 by US chargé d’affaires in London, Richard LeBaron, to the State Department:]

1. (C/NF) Summary. Convicted Pam Am 103 bomber Abdelbasset al-Megrahi has inoperable, incurable cancer, but it is not clear how long he has to live, according to two separate medical opinions obtained by officials at Greenock prison near Glasgow, where Megrahi is currently serving a life sentence. Preparatory hearings for the second appeal of Megrahi's conviction, meanwhile, are continuing, but the appeal itself will probably not begin until late 2009, according to the Scottish Crown. The Libyan government is therefore pursuing Megrahi's early release through two other channels, the FCO reports: compassionate release under Scottish law, and the as-yet unsigned UK-Libya Prisoner Transfer Agreement (PTA). HMG has made clear to the Libyans, to Embassy London and to the media that it will take no official position on Megrahi's early release, but will leave the decision - whether through compassionate release or the PTA - to the devolved Scottish government. At the same time, FCO contacts tell us that HMG is adamant that, despite devolution, London controls foreign policy for the UK, not the Scottish. Embassy London is working with the FCO and the Cabinet Office to find a way to represent USG views on the matter to the Scottish government, should we wish to, without making any implicit statement about UK national foreign policy prerogatives.

2. (C/NF) Summary cont. The Libyans have not yet made a formal application for compassionate release for Megrahi, but HMG believes that the Scottish may be inclined to grant the request, when it comes, based on conversations between Scottish First Minister (PM-equivalent) Alex Salmond and UK Justice Secretary Jack Straw. Although the general practice is to grant compassionate release within three months of end of life, this is not codified in the law, so the release, if granted, could occur sooner rather than later. End summary.

Megrahi's Diagnosis

3. (C/NF) Megrahi was first diagnosed on September 23 at Inverclyde Royal Hospital, both the FCO and the Scottish Crown office have told us; the second diagnosis was on October 10. The two diagnoses match: he has prostate cancer that has spread to his bones, the cancer has advanced rapidly, and it is inoperable and incurable. Megrahi could have as long as five years to live, but the average life expectancy of someone of his age with his condition is eighteen months to two years. Doctors are not sure where he is on the time scale, and therefore, how much longer he has to live. He has visibly deteriorated in recent weeks, according to those who have visited him. His visitors have included a Libyan oncologist, who expressed satisfaction with the medical treatment Megrahi has been receiving. FCO North Africa Group Head Rob Dixon told us October 22 that Qadhafi apparently complained about the Scots' treatment of Megrahi, but that complaint was unspecific and hasn't been repeated. Megrahi has told his family he is dying, and is receiving regular visits from a imam.

Compassionate Release

4. (C/NF) The Libyans are pursuing two tracks to obtain Megrahi's release, apart from the appeal, Dixon told us. The first is the possibility of early release on compassionate grounds. FCO Minister for the Middle East Bill Rammell sent Libyan Deputy FM Abdulati al-Obeidi a letter, which was cleared both by HMG and by the Scottish Executive, on October 17 outlining the procedure for obtaining compassionate release (text of letter sent to NEA and L). It cites Section 3 of the Prisoners and Criminal Proceedings (Scotland) Act of 1993 as the basis for release of prisoners, on license, on compassionate grounds. Although the Scottish Crown informed the families of the Pan Am 103 victims in an email October 21 that the time frame for compassionate release is normally three months from time of death, Dixon stressed to us that the three month time frame is not codified in the law. Although Scottish Justice Minister Kenny MacAskill would normally make the final decision, Scottish First Minister Alex Salmond told Jack Straw that he will make the final decision in this case. Salmond told Straw that he would make the decision based on humanitarian grounds, not foreign policy grounds; Dixon told us HMG has interpreted this to mean that Salmond is inclined to grant the request.

Publicly, Salmond has refused to speculate on what decision he might make.

5. (C/NF) The Libyans have not yet requested compassionate release, but have indicated to the FCO that they will. Libyan officials are currently seeking a meeting with the Scottish Executive to discuss the situation. If Megrahi were to be released on compassionate grounds, he would be released into Scotland, but could be transferred back to Libya. According to Dixon, Megrahi does not have to drop his appeal in order to be granted compassionate leave.

Prisoner Transfer Agreement

6. (C/NF) The second track that the Libyans are pursuing to obtain Megrahi's early release is the UK-Libya Prisoner Transfer Agreement. The text of the PTA is not yet concluded between HMG and Libya, although the Libyans are now pushing for this process to be expedited, Dixon tells us. Once the two governments reach agreement on the text, HMG will proceed to clear it with the devolved governments of Northern Ireland, Wales, and Scotland. Salmond publicly expressed his ire to then-PM Tony Blair for not consulting with Scotland beforehand when HMG announced its intention to pursue a PTA with Libya in 2007; nonetheless, Dixon says the current draft PTA contains standard language that the Scottish have cleared for other countries. Once the three devolved governments agree to the text, Libyan and British officials will sign it. Dixon says the signing will probably take place before Christmas. Once it is signed, under British law the PTA needs to sit for 21 days before the House of Commons and in the Lords before it is enacted, meaning that late January 2009 is the earliest the PTA could come into effect. Megrahi cannot be transferred under the PTA while he has an appeal pending. Dixon says that Megrahi is not specifically mentioned in the text; however, there are no other prisoners currently in the UK prison system to which the PTA would apply.

Status of Megrahi's Appeal

7. (C/NF) The Scottish High Court's October 15 decision to allow all grounds for appeal to be considered, including grounds that had been previously rejected by the Scottish Criminal Case Review commission (text sent to NEA/MAG and L/LEI), slows the whole appeal process down, according to Scottish Court Head of Policy John Logue. Logue and Dixon both estimate that the appeal itself probably won't begin until late 2009, and probably won't conclude until 2010, Dixon said. Under Scottish law, even if Megrahi dies before the appeal is completed, a third party "with a legitimate interest" can continue the appeal on his behalf. The Scottish Crown is therefore proceeding with the case, Logue said.

UK: Between a Rock and A Hard Place

8. (C/NF) HMG is in an awkward position, Dixon and Cabinet Office North Africa officer Ben Lyons confided to us. The Libyans have told HMG flat out that there will be "enormous repercussions" for the UK-Libya bilateral relationship if Megrahi's early release is not handled properly. At the same time, in keeping with the practice of devolution, HMG has made clear to the Libyans, to the media, and to us that it will take no official position on Megrahi's early release, but will leave the decision on early release - whether through compassionate release or the PTA - to the Scottish government, and the decision on the appeal to the Scottish courts. But HMG is also adamant that, despite devolution, London controls foreign policy for the UK, not Edinburgh. Added to the mix are Alex Salmond and his Scottish National Party, whose stated goal is an independent Scotland, with a referendum on the issue to be held in 2010; Salmond and the SNP will look for opportunities to exploit the Megrahi case for their own advantage. This is the first time HMG has had to deal with a foreign policy issue under devolution, Dixon said, and HMG is feeling its way forward, as are the Scottish; Logue told us that Scotland, for example, has never before granted compassionate release to a foreign national. We noted that while we understand the complexities of the issue for HMG, we need to find a channel for consultation and representation of USG views on the matter to the Scottish government, should we wish to, while taking HMG equities into account. Our HMG interlocutors agreed to explore options with us.