Guantanamo trials a reaction to US dissatisfaction with Lockerbie process

[What follows is the opening section of a very interesting article headed War Crimes, Justice, and the National Interest published yesterday on the website of The Tower, the newspaper of the Catholic University of America in Washington DC:]

Lawrence J Morris, chief of staff and counselor to Catholic University President John Garvey, was presented with the Mirror of Justice Scholars Award on Thursday, November 7th in the Slowinski courtroom at Columbus Law School. Morris’ role as chief prosecutor for the Guantanamo military commissions during the 9/11 trials was recognized with the award. It was presented by the St John Paul II Guild of Catholic Lawyers, which advocates the achievement of justice through law.

Subject to almost two decades of humanitarian criticism, the Guantanamo Bay detention camp was established in Cuba at the Guantanamo Bay Naval Base. Enacted by the George Bush administration, the facility was the result of swift action in the war on terrorism following the September 11 attacks on the World Trade Center. Twenty men believed to be involved in the attacks were detained on January 11th, 2002 and the prison population expanded to nearly 700 by May of 2003.

Morris was head of the Army’s criminal law branch during the establishment of the prison and was eventually asked to be chief prosecutor of the Guantanamo military commissions. 

Morris argued in 2002 for a public trial of the suspected 9/11 terrorists. He wanted to uphold the standards of the American justice system while still laying “bare the scope of al Qaeda’s alleged conspiracy,” according to the Wall Street Journal. Instead, Morris’ proposal was disregarded by the Bush administration which desired more rapid prosecution. Those accused were interrogated clandestinely as the priority of senior officials was prevention of future attacks over standard court proceedings. 

The Bush administration’s initial decision to deny public trials led to disarray. Several setbacks occurred and destructive allegations against Guantanamo drew public attention. Rumors of torture and abuse of inmates spread rapidly to civil rights groups and law professionals. The untimely combination of poor public image and internal disarray lead the administration to bring the cases to public trial, which they then asked Morris to conduct. He hoped to reintroduce military commissions, which are, as described by Morris, a “judicial mechanism and what is colloquially known as war-crimes tribunals.” Morris illustrated this with reference to the 1988 bombing of Pan Am Flight 103 in Lockerbie, Scotland, which lead to the deaths of 270 people. 

Libyan prime minister Muammar al-Gaddafi produced the Libyan agents accused of the bombing in Lockerbie, who went to trial on the condition that “they would be tried under Scottish law in a Dutch courtroom,” said Morris. “Needless to say, there were no Americans involved.” [RB: Gaddafi was not the prime minister of Libya, but the "Leader of the Revolution". American lawyers from the US Department of Justice were in fact very heavily involved in the Zeist trial, as was noted by the UN Observer, Professor Hans Köchler, in his report on the trial and as can be seen in the references on this blog to Brian Murtagh and Dana Biehl.]

Thirteen years after the Lockerbie bombing, only one of the agents was convicted.

“We took from Lockerbie a sense of the limitations of relying on other sovereigns for justice,” says Morris.

In 2001, the young Bush administration spotted the similarities between the Lockerbie case and the 9/11 attacks and was looking to make rapid changes in response to past administrations. The thirteen-year delay of Lockerbie was unacceptable to the Bush administration, leading to their failed and controversial interrogation techniques which ultimately turned them to Morris’ appointment as the conductor of the public trials.

Morris turned to military commissions last used after World War II and “began drafting trial regulations and debating points of law with architects of the administration’s broad vision of presidential power,” according to the Wall Street Journal.

Morris believed in the provision of due process to those being tried, allowing them similar court proceedings as those of US civilian court cases. However, the administration was steadfast in its view of the accused, one which saw the terrorists as below the fairness for which Morris advocated and which saw itself as above standard court practices. Morris and his team were presented once again with the issue of the disconnect between the meaning of justice to the White House and that to military lawyers, after the previous rejection of Morris’ proposal for public trials.

“Using conventional courts was insufficient [and] unable to bring these killers to justice in any matter that would be timely and just,” said Morris. “There was a need to make a point through the courts… that this was an unlawful attack by unlawful combatants and therefore to resurrect a dormant mechanism for justice that has not been used in years.” 

Libyan defector Giaka in the witness box

[On this date in 2000, the Crown’s “star witness” Abdul Majid Giaka started his evidence at the Lockerbie trial. TheLockerbieTrial.com reported as follows:]

Witness number 684, Abdul Majid Giaka, today finally stepped into the witness box at the Lockerbie Trial. His appearance at the trial had been delayed due to legal wrangling over CIA cables.

Today the accused Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, the two Libyans charged with bombing Pan Am 103 came face to face once gain with the man billed by the Scottish Crown and the US Department of Justice as the star witness.

In a surprisingly brief and low key examination, Giaka was questioned by Advocate Depute Alistair Campbell QC, for the Crown.

Giaka said he contacted the US embassy in Malta in August 1988 (four months before the Pan Am attack) after becoming disillusioned with the Libyan security service. He stated that he had worked with the accused, for Libyan Arab Airlines and agreed to stay on at the airport and report to

the CIA monthly.

Earlier reports of these meetings show that while he was acting as a double agent his CIA handlers were not impressed with the quality of his information and were continually asking him for new material.

Giaka told the court that in August 1986, more than two years before the Lockerbie bombing, Fhimah showed him two bricks of what he said was the explosive TNT.

The TNT was in the drawer of a desk in an office they shared with another airline employee.

“Fhimah told me he had had 10 kg of TNT delivered by Abdel Basset (Megrahi). He opened the drawer and there were two boxes which contained a yellowish material,” Giaka said, adding Fhimah kept over $10,000 worth of travelers cheques.

The court referred to a CIA document dated October 5, 1988, in which Giaka recounted how the story of the explosives in the drawer had been relayed to CIA officers.

Continuing his testimony Giaka said Megrahi arrived in Malta from Tripoli on December 7, 1988, and had brought some cabin luggage with him. Two to three weeks later, Giaka said he saw Fhimah and Megrahi take a brown hard-shell suitcase off the carousel at Luqa.

Giaka said," They walked together toward customs. The suitcase was not opened for inspection.”

The witness then recounted another story where he remembered being asked by another Libyan Intelligence officer if it was possible to put an unaccompanied bag on a UK plane.

“My answer was that it was possible to place an unaccompanied bag on the flight,” Giaka said.

William Taylor QC for Megrahi then launched into a fierce cross-examination of Giaka forcing the Crown's star witness in to making several contradictory statements. Taylor was to prove relentless in his onslaught and during questioning, when Giaka would occasionally look over in the direction of the two US lawyers [RB: Brian Murtagh and Dana Biehl] who sit behind the Crown team, Taylor reminded him that they could not help.

Taylor had earlier objected to some of Giaka's testimony, calling it “tittle tattle and hearsay.”

“We’ll see many, many more examples of a story becoming embellished and changed to make it look better,” Taylor said as he highlighted more inconsistencies in Giaka's testimony.

Taylor will continue with his cross-examination followed by Richard Keen QC for Fhimah.

[A verbatim transcript of Giaka’s evidence can be found here.]

"Unfair, incomprehensible, irrational and arbitrary"

[This is the headline over an article by William Paul published in Scotland on Sunday on this date in 2001. It reads as follows:]

There was always an undercurrent of disquiet when the Lockerbie trial ended in Holland earlier this year. The unanimous guilty verdict on Abdelbaset Ali Mohmed Al Megrahi unexpected, the not guilty verdict on Al Amin Khalifa Fhimah apparently inconsistent, the loose logic adopted in the written judgement seemingly open to challenge.

Yet criticism was largely muted, even among some relatives of the 270 victims of Pan Am Flight 103 who had fought so hard and for so long to have the case brought to court and were mostly convinced that if the Libyans were involved at all they were, at best, minor players in a greater conspiracy that would only be exposed with the trial over.

Once the shock of the court's findings had sunk in, a consensus quickly arose among those with reservations about the verdicts. After all, due process of law had been followed and evidence had been heard in open court as promised. This had the effect of more or less suppressing the widespread sense of dissatisfaction.

Into this comparative vacuum stepped the Lord Advocate, Colin Boyd, with a series of "roadshows" for relatives in Britain and America which were said to have a distinctly triumphalist tone. The reputation of Robert Black, the Edinburgh University law professor who had been a constant critic of the way the case was handled, was subjected to "vicious and acidic" attack, according to one relative present at the briefings. It was also suggested that had Megrahi given evidence Fhimah would have been convicted too.

Trial judge Lord Sutherland agreed that such personal briefings were unusual but added in reference to Black who was adamant there was insufficient evidence for a guilty verdict: "If the Crown were getting their own back I'm not entirely surprised ... I suppose pointing out that he wasn't necessarily right might be a useful counterblast."

Now the authorities are facing a different kind of counterblast, this time from an independent observer who cannot be easily ignored. Dr Hans Koechler, president of the Vienna-based International Progress Organisation and a world -renowned expert on law and human rights, was personally appointed by United Nations Secretary General Kofi Annan to ensure fair play and high standards. Koechler, who sat through every day of the trial at Camp Zeist, not only supports Black's argument that there was insufficient evidence to convict Megrahi, but goes much further in condemning what went on in the special court as hopelessly contaminated by political considerations to the detriment of the rule of law. The conduct of the judges, previously regarded as beyond reproach, is also criticised for allowing a political dimension to be present in the courtroom and therefore to influence the final outcome.

This is a monumental embarrassment to the judges, the Crown prosecution team, and to the UN, an organisation that was pivotal in brokering the diplomatic understanding that allowed the Lockerbie trial to go ahead in a neutral venue after so many years of the British and American governments refusing to compromise.

On the day, January 31, Fhimah was set free and Megrahi was sentenced to life imprisonment, Annan said: "Justice has taken its course and the authority and legitimacy of the legal process must be respected."

Within days, Annan had received a report from Koechler telling him exactly what he didn't want to hear; the trial had been tainted by political interference and the verdicts were contradictory and irrational.

Yesterday a spokesman for Annan attempted to distance the UN from Koechler's report, saying it amounted to one person's personal opinion and could not be regarded as an official UN document. And the Crown Office pointed out that Koechler seemed not to understand the adversarial nature of criminal procedures in Scots law, nor how it was for the prosecution and defence to decide what evidence was presented in court, not the judges.

Koechler's report, does not pull any punches in its forthright condemnation of the way politics was allowed to dictate the course of the Lockerbie trial.

The problems began on the first day with two representatives of the US Justice Department sitting with the Crown prosecution team and seemingly acting as "supervisors" of strategy and presentation of evidence.

Soon after the start of the trial in May last year, Scotland on Sunday revealed concern over the presence of American lawyers Dana Biehl and Brian Murtaugh, members of the Office for the Victims of Crime, an offshoot of the Department of Justice. It was said their presence gave the court "an unfortunate US v Libya flavour".

Koechler writes: "This serious problem of due process became evident in the matter of the CIA cables concerning one of the Crown's key witnesses, Mr Giaka. Those cables were initially dismissed by the prosecution as not relevant but proved to be highly relevant when finally (but only partially) released."

The cables eventually showed that Abdul Majid Giaka, a Libyan defector, had been paid by the CIA for information which was regarded as of minimal worth. He had not mentioned any knowledge of Lockerbie until months after the bombing and only after being threatened with having his payments stopped. Then he implicated the accused by claiming to have seen them at Luqa airport in Malta with a suspicious suitcase.

"It has become obvious that the presence of foreign governments in a Scottish courtroom (in any courtroom for that matter) jeopardises the independence and integrity of legal procedures and is not in conformity with the general standards of fairness," Koechler wrote.

Relatives of the victims also complained about the two, sometimes three, Americans who sat with the prosecution team. In response, the Lord Advocate, Colin Boyd, said it was up to him who was invited to join him in the court.

Koechler's criticism extended to the defence, and the presence of Kamal Maghour, a former foreign affairs minister in the Libyan government . Again, Maghour was not listed in any official records as being present. The two Libyan accused lodged a special defence blaming named Palestinian terrorists for the bombing.

"It was a consistent pattern during the whole trial that - as an apparent result of political interests and considerations - efforts were undertaken to withhold substantial information from the court. It may never be fully known to which extent relevant information was hidden from the court. The most serious case... is related to the special defence. The alternative theory of the defence - leading to conclusions contradictory to those of the prosecution - was never seriously investigated... although it was officially declared as being of major importance to the defence. By not having pursued... an alternative theory, the court seems to have accepted that the whole legal process was seriously flawed in regard to the requirements of objectivity and due process. As a result the undersigned (Koechler) has reached the conclusion that foreign governments or governmental agencies may have been allowed, albeit indirectly, to determine to a considerable extent, which evidence was made available to the court."

Koechler says it was "highly arbitrary and irrational" to take witnesses like Giaka and Edwin Bollier, whose electronics firm supplied the fatal timing device, and rely on parts of their evidence when other parts were dismissed as riddled with inconsistencies and contradictions.

"In spite of the reservations explaining the verdict itself, the guilty verdict in the case of Megrahi is particularly incomprehensible in view of the admission by the judges themselves that identification was 'not absolute' and that there was a mass of conflicting evidence," the report says. Furthermore, the Opinion of the Court seems to be inconsistent in a basic respect: while the first accused was found guilty, the second accused was found not guilty. This is totally incomprehensible when one considers that the indictment in its very essence was based on the joint action of the two accused in Malta."

Koechler asserts, "The guilty verdict in regard to the first accused appears to be arbitrary, even irrational. This leads the undersigned to the suspicion that political considerations may have been over-riding a strictly judicial evaluation of the case thus may have adversely affected the outcome of the trial. This may have a profound impact on the evaluation of the professional reputation and integrity of the panel of three Scottish judges. Seen from the final outcome, a certain co-ordination of the strategies of prosecution, of defence, and of the judges' considerations during the later period of the trial is not totally unlikely. This, however, when actually proven, would have a devastating effect on the whole legal process of the Scottish Court in the Netherlands and on the legal quality of its findings.

"In the above context, the undersigned has reached the general conclusion that the outcome of the trial may well have been determined by political considerations and may to a considerable extent have been the result of more or less openly exercised influence from the part of actors outside the judicial framework - facts which are not compatible with the basic principle of the division of powers and with the independence of the judiciary, and which put in jeopardy the very rule of law and the confidence citizens must have in the legitimacy of state power and the functioning of the state's organs - whether on the traditional national level or in the framework of international justice."

Koechler's ultimate conclusion is that the Lockerbie trial had done a disservice to the cause of international criminal justice. It was neither fair, nor conducted in an objective manner.

Koechler's final message to Kofi Annan is to express the hope that Megrahi's appeal will "correct the deficiencies" of the trial and that will depend on the integrity and independence of the five judges who will hear it.

The appeal against conviction is likely to be heard in September.

[A further article by William Paul in the same newspaper contains the following:]

The Rev John Mosey, whose daughter Helga, 19, was killed at Lockerbie, said Koechler’s report touched on many of the issues he had raised with the Lord Advocate during the trial without receiving satisfactory answers. “It expresses more eloquently than I managed to do all of the major concerns that many of the relatives had identified,” he said.

A deafening silence

What follows is an item published on this blog on this date two years ago:

Silence for the dead of Lockerbie

[This is the heading over an article posted recently on the Lockerbie Truth website of Dr Jim Swire and Peter Biddulph.  It reads as follows:]

It is now almost six months since the revelation in John Ashton's book (Megrahi: You are my Jury: The Lockerbie Evidence) that the key evidence on which Baset Al-Megrahi was convicted can no longer be scientifically sustained.

And yet there remains a deafening silence on the part of the judges and Crown Office officials responsible for the investigation and conviction of Al-Megrahi.

The two main planks on which the prosecution's case was founded are:

1. A Maltese shopkeeper, Tony Gauci, identified Al-Megrahi as the stranger who had, shortly before the December 1988 bombing, bought clothes in his shop.

2. A fragment of an electronic timer board found at Lockerbie came from a batch of twenty sold to Libya in 1985 by Swiss electronics company MEBO.

1. The Maltese shopkeeper, Tony Gauci.

The Scottish Criminal Cases Review Commission, during their own three-year investigation of the case, found six grounds for concluding that "a miscarriage of justice may have occurred".

One of the SCCRC's grounds was their discovery of a series of entries in the police diary of chief Dumfries and Galloway police investigator Harry Bell.

Bell recorded from the first days of his investigation that huge offers of reward were available from the United States to principal identification witness Maltese shopkeeper Tony Gauci.

In a letter sent by Dana Biehl of the US Department of Justice, it was explained that Gauci would receive "unlimited monies, with $10,000 available immediately" if Al-Megrahi was convicted.

Bell's police diary, and all knowledge of this offer and negotiations concerning the offer, were concealed from the trial and first appeal. The judges who convicted Al-Megrahi were unaware of these matters when they concluded that Gauci was a totally reliable witness.

Gauci's final and conclusive identification of Al-Megrahi took place during a police identity parade.

Yet Gauci could not fail to identify the man, since he had possessed for several weeks a copy of a magazine with a colour photo of Al-Megrahi, in which the Libyan was described as "the bomber".

2. The fragment of electronic timer board

It was upon this item that the entire case against Al-Megrahi would turn. In the minds of the judges it proved the Libyan connection, since the evidence appeared to show that it came from a batch sold to Libya in 1985.

It had - according to the available evidence - been manufactured by Swiss company Thüring, on behalf of electronics supplier MEBO. It seemed to be a "golden thread" linking Al-Megrahi to the bomb.

In 2008 the Al-Megrahi defence team discovered an extraordinary anomaly, one which had escaped the attention of the prosecution team, the Scottish Crown Office, and the Scottish police. It concerned the silver-like protective coating on the fragment, which covered the copper circuitry in order to prevent oxidisation.

A hand-written note by the government's chief forensic scientist Alan Feraday had recorded the protective coating as "100% tin".

Feraday's records also showed that he was aware of the difference between the Lockerbie fragment and the coating upon a control sample supplied to the police as part of their investigation. The control sample - manufactured by Swiss company Thüring - contained a 70/30% alloy of tin and lead.

The prosecution and police mistake was to speculate that the heat of the Lockerbie explosion had entirely evaporated the lead content. But no follow-up investigations in order to test this theory were carried out.

During the trial, the judges and defence team were unaware of the anomaly and accepted the provenance of the fragment from the metallurgical point of view.

When in 2008 the defence team checked with Thüring, it emerged that all timer boards made by that company throughout the 1980's were coated with an alloy mixture of 70% tin and 30% lead. Indeed, Thüring had always made, and continue to make, boards with a 70/30% alloy.

In 2008 the Thüring production manager swore an affidavit to this effect and was scheduled to repeat his evidence in Al-Megrahi's second appeal, abandoned in 2009.

Having discovered the anomaly, the defence team commissioned two highly experienced and reputable scientists to investigate the matter. In a series of experiments carried out at separate laboratories, the scientists tested the theory of evaporation of lead content by high temperatures.

In all cases, the lead did not evaporate. Thus they established beyond all reasonable doubt that the fragment found at Lockerbie could not have come from any of the timers sold to Libya by MEBO.

This evidence too was scheduled to be presented in Al-Megrahi's second appeal, abandoned in 2009.

The protocols and data resulting from the defence-commissioned experiments would no doubt be freely available, should the prosecuting authorities request to examine them.

Do the responsible officers not have a duty of conscience to at least enquire into this new evidence?  

And might we ask of Lord Advocate Frank Mulholland how he would feel if it was his own daughter who had been murdered by unknown persons, while a man remains falsely convicted for that offence?

Will not his silence, and that of his officials and the Scottish judiciary, should it continue, be interpreted by historians as the greatest of betrayals of Scottish society and the law?

[RB: Today, two years and six months after the revelation in John Ashton’s book, the deafening silence continues.]

Silence for the dead of Lockerbie

[This is the heading over an article posted recently on the Lockerbie Truth website of Dr Jim Swire and Peter Biddulph.  It reads as follows:]

It is now almost six months since the revelation in John Ashton's book (Megrahi: You are my Jury: The Lockerbie Evidence) that the key evidence on which Baset Al-Megrahi was convicted can no longer be scientifically sustained.

And yet there remains a deafening silence on the part of the judges and Crown Office officials responsible for the investigation and conviction of Al-Megrahi.

The two main planks on which the prosecution's case was founded are:

1. A Maltese shopkeeper, Tony Gauci, identified Al-Megrahi as the stranger who had, shortly before the December 1988 bombing, bought clothes in his shop.

2. A fragment of an electronic timer board found at Lockerbie came from a batch of twenty sold to Libya in 1985 by Swiss electronics company MEBO.

1. The Maltese shopkeeper, Tony Gauci.

The Scottish Criminal Cases Review Commission, during their own three-year investigation of the case, found six grounds for concluding that "a miscarriage of justice may have occurred".

One of the SCCRC's grounds was their discovery of a series of entries in the police diary of chief Dumfries and Galloway police investigator Harry Bell.

Bell recorded from the first days of his investigation that huge offers of reward were available from the United States to principal identification witness Maltese shopkeeper Tony Gauci.

In a letter sent by Dana Biehl of the US Department of Justice, it was explained that Gauci would receive "unlimited monies, with $10,000 available immediately" if Al-Megrahi was convicted.

Bell's police diary, and all knowledge of this offer and negotiations concerning the offer, were concealed from the trial and first appeal. The judges who convicted Al-Megrahi were unaware of these matters when they concluded that Gauci was a totally reliable witness.

Gauci's final and conclusive identification of Al-Megrahi took place during a police identity parade.

Yet Gauci could not fail to identify the man, since he had possessed for several weeks a copy of a magazine with a colour photo of Al-Megrahi, in which the Libyan was described as "the bomber".

2. The fragment of electronic timer board

It was upon this item that the entire case against Al-Megrahi would turn. In the minds of the judges it proved the Libyan connection, since the evidence appeared to show that it came from a batch sold to Libya in 1985.

It had - according to the available evidence - been manufactured by Swiss company Thuring, on behalf of electronics supplier MEBO. It seemed to be a "golden thread" linking Al-Megrahi to the bomb.

In 2008 the Al-Megrahi defence team discovered an extraordinary anomaly, one which had escaped the attention of the prosecution team, the Scottish Crown Office, and the Scottish police. It concerned the silver-like protective coating on the fragment, which covered the copper circuitry in order to prevent oxidisation.

A hand-written note by the government's chief forensic scientist Alan Feraday had recorded the protective coating as "100% tin".

Feraday's records also showed that he was aware of the difference between the Lockerbie fragment and the coating upon a control sample supplied to the police as part of their investigation. The control sample - manufactured by Swiss company Thuring - contained a 70/30% alloy of tin and lead.

The prosecution and police mistake was to speculate that the heat of the Lockerbie explosion had entirely evaporated the lead content. But no follow-up investigations in order to test this theory were carried out.

During the trial, the judges and defence team were unaware of the anomaly and accepted the provenance of the fragment from the metallurgical point of view.

When in 2008 the defence team checked with Thuring, it emerged that all timer boards made by that company throughout the 1980's were coated with an alloy mixture of 70% tin and 30% lead. Indeed, Thuring had always made, and continue to make, boards with a 70/30% alloy.

In 2008 the Thuring production manager swore an affidavit to this effect and was scheduled to repeat his evidence in Al-Megrahi's second appeal, abandoned in 2009.

Having discovered the anomaly, the defence team commissioned two highly experienced and reputable scientists to investigate the matter. In a series of experiments carried out at separate laboratories, the scientists tested the theory of evaporation of lead content by high temperatures.

In all cases, the lead did not evaporate. Thus they established beyond all reasonable doubt that the fragment found at Lockerbie could not have come from any of the timers sold to Libya by MEBO.

This evidence too was scheduled to be presented in Al-Megrahi's second appeal, abandoned in 2009.

The protocols and data resulting from the defence-commissioned experiments would no doubt be freely available, should the prosecuting authorities request to examine them.

Do the responsible officers not have a duty of conscience to at least enquire into this new evidence?  

And might we ask of Lord Advocate Frank Mulholland how he would feel if it was his own daughter who had been murdered by unknown persons, while a man remains falsely convicted for that offence?

Will not his silence, and that of his officials and the Scottish judiciary, should it continue, be interpreted by historians as the greatest of betrayals of Scottish society and the law?

For those who may still doubt

[This is the heading over an item posted today on the Lockerbie Truth website of Dr Jim Swire and Peter Biddulph. It reads in part:]

Surely by now, among those who have examined all the evidence regarding the supposed guilt of Baset Al-Megrahi, can there be any lingering doubt?  

And for the benefit of any remaining doubters, we invite them to consider the two main planks on which the prosecution's case was founded.

1.  A Maltese shopkeeper, Tony Gauci, identified Al-Megrahi as the stranger who had, shortly before the December 1988 bombing, bought clothes in his shop.  

2.  A fragment of an electronic timer board found at Lockerbie came from a batch of twenty sold to Libya in 1985 by Swiss electronics company MEBO.

1.  The Maltese shopkeeper, Tony Gauci. 

The Scottish Criminal Cases Review Commission, during their own three-year investigation of the case, found six grounds for concluding that  "a miscarriage of justice may have occurred".

One of the SCCRC's grounds was their discovery of a series of entries in the police diary of chief Dumfries and Galloway police investigator Harry Bell.  

Bell recorded from the first days of his investigation that huge offers of reward were available from the United States to principal identification witness Maltese shopkeeper Tony Gauci. 

In a letter sent by Dana Biehl of the US Department of Justice, it was explained that Gauci would receive "unlimited monies, with $10,000 available immediately" if Al-Megrahi was convicted.

Bell's police diary, and all knowledge of this offer and negotiations concerning the offer, were concealed from the trial and first appeal.  The judges who convicted Al-Megrahi were unaware of these matters when they concluded that Gauci was a totally reliable witness.

Gauci's final and conclusive identification of Al-Megrahi took place during a police identity parade. In the words of a respected Scottish legal expert, "so widespread had been the publicity [regarding Al-Megrahi's guilt] most people following the case could have probably picked the accused out without ever having met him".

Yet Gauci had the advantage over such people, since he had had in his possession for several weeks a copy of a magazine with a colour photo of Al-Megrahi, in which the Libyan was described as "the bomber".

2. The fragment of electronic timer board

It was upon this item that the entire case against Al-Megrahi would turn. In the minds of the judges it proved the Libyan connection, since the evidence appeared to show that it came from a batch sold to Libya in 1985. 

It had - according to the available evidence - been manufactured by Swiss company Thuring, on behalf of electronics supplier MEBO. It seemed to be a "golden thread" linking Al-Megrahi to the bomb.

In 2008 the Al-Megrahi defence team discovered an extraordinary anomaly, one which had escaped the attention of the prosecution team, the Scottish Crown Office, and the Scottish police. It concerned the silver-like protective coating on the fragment, which covered the copper circuitry in order to prevent oxidisation.  

A hand-written note by the government's chief forensic scientist Alan Feraday had recorded the protective coating as "100% tin". 

Feraday's records also showed that he was aware of the difference between the Lockerbie fragment and the coating upon a control sample supplied to the police as part of their investigation. The control sample - manufactured by Swiss company Thuring - contained a 70/30% alloy of tin and lead. 

The prosecution and police mistake was to speculate that the heat of the Lockerbie explosion had entirely evaporated the lead content. But no follow-up investigations or tests were carried out.

During the trial, the judges and defence team were unaware of the anomaly and accepted the provenance of the fragment from the metallurgical point of view. 

When in 2008 the defence team checked with Thuring, it emerged that all timer boards made by that company were coated with an alloy mixture of 70% tin and 30% lead. 

In 2008 the Thuring production manager swore an affidavit to this effect and was scheduled to repeat his  evidence in Al-Megrahi's second appeal, abandoned in 2009. 

Having discovered the anomaly, the defence team commissioned two highly experienced and reputable scientists to investigate the matter.  In a series of experiments carried out at separate laboratories, the scientists tested the theory of evaporation of lead content by high temperatures. 

In all cases, the lead did not evaporate. Thus they established beyond all reasonable doubt that the fragment found at Lockerbie could not have come from any of the timers sold to Libya by MEBO.

This evidence too was scheduled to be presented in Al-Megrahi's second appeal, abandoned in 2009.

The protocols and data resulting from the defence-commissioned experiments would no doubt be  freely available, should the prosecuting authorities request to examine it.

All such information would be presented in court should the relatives or other persons representing Mr Al-Megrahi persuade the Criminal Cases Review Commission to ask for a recommencement of a second appeal.

The new scientific data regarding the fragment suggests strongly that to repeatedly send police and Crown Office investigators to Libya has become an irrelevance. 

Public Petitions Committee hearing on Megrahi petition

[On Tuesday 9 November, the Scottish Parliament's Public Petitions Committee will hold a hearing on the Justice for Megrahi petition. Dr Jim Swire, Mr Iain McKie, Mr Robert Forrester and I have been invited to attend to make a brief presentation and to respond to MSPs' questions.

The Scottish Sunday Express today runs an article on the forthcoming committee hearing. It reads in part:]

Shocking unseen evidence from the Lockerbie bomber’s abandoned appeal is to be presented to Holyrood this week in a bid to prove his innocence.

Campaigners including Professor Robert Black and Dr Jim Swire will use the documents to try and force a Scottish Government inquiry into Abdelbaset Ali Mohmed al-Megrahi’s conviction.

Dr Swire, whose daughter Flora was among the 270 killed in the 1988 atrocity, will introduce previously unseen diaries which could cast doubt on one of the trial’s key witnesses and show he was offered cash for evidence. [RB: The journalist is in error. This material will not be introduced at the committee hearing, which will be concerned simply with what action, if any, should be taken on the petition, NOT with the merits of Abdelbaset Megrahi's conviction. That would be a matter for any inquiry set up as a result of the petition.]

Written by a Scottish detective they reveal police knew from an early stage that Maltese shopkeeper Tony Gauci, whose identification of the bomber was pivotal in the conviction, had been promised an “unlimited” reward by the US.

Dr Swire, who will deliver a plea to ministers on Tuesday, said: “The diaries kept by Detective Inspector Harry Bell show he knew when he was interviewing Tony Gauci he was getting excited about the possibility of a reward.

“This information alone would ordinarily be enough to overturn the conviction. Both Justice Secretary Kenny MacAskill and First Minister Alex Salmond have made public statements saying they have full confidence in the verdict against Megrahi.

“That is an extraordinary situation given the Scottish Criminal Cases Review Commission has ruled there may have been a miscarriage of justice.” He added: “How can politicians say they have total faith in the verdict when the one organisation that Scotland possesses to look into these matters says otherwise? It is an untenable position.”

DI Bell was the Dumfries and Galloway detective who traced a scrap of material which had been wrapped around the bomb to Gauci’s clothes shop in Malta. When Megrahi was finally brought to trial, Gauci identified the Libyan in court as the man who had bought the clothing.

It has since emerged that Gauci received $2million and his brother, Paul, received $1million from the US Department of Justice. DI Bell kept a diary during the investigation, although this was not presented to the three judges at the Lockerbie trial in 2001.

On September 28, 1989, he recorded that the FBI had discussed with the Scottish police an offer of unlimited money to Gauci, with $10,000 being available immediately. On March 5, 1990, he recorded a meeting with the FBI and a Maltese detective to discuss “reward money as a last resort”.

And on January 8, 1992, he said Dana Biehl from the US Department of Justice had offered a $2million reward to Libyan double agent Majid Giaka, who also gave evidence against Megrahi. DI Bell wrote: “He was immediately advised of our concern regarding this. I also clarified with him about the Gauci reward and the response was only if he gave evidence.”

It contradicts police sources who have always insisted the rewards were only “engineered” after the trial to help the Gaucis leave Malta. (...)

At Tuesday’s Holyrood hearing, MSPs will consider for the first time a 1,646-signature petition calling for an independent Lockerbie inquiry. Previously, ministers have maintained such a wide-ranging probe could only be called by Westminster or the United Nations. However, Prof Black, Professor Emeritus of Scots Law at the University of Edinburgh, said: “The reasons the Scottish Government has given for not holding an inquiry are simply not correct.”

Pan Am 103: what really happened?

This is the headline over a three-part article by Scottish freelance journalist Stewart Nicol published today on the News With Views website. Part One can be read here, Part Two here and Part Three here.

The article contains a lot of interesting material, some of it not well known. However, it appears to have been written before Abdelbaset Megrahi abandoned his appeal and was returned to Libya and the Crown abandoned its appeal against the "punishment part" of his life sentence, since Part Three contains the following paragraph:

"So those who may have been behind the largest loss of life attack in Europe were certainly not Abdel Baset Al Megrahi of Libya. He became a scapegoat years later and one of the biggest victims as he spent over a decade in jail, his name ever linked with the atrocity. He sought to clear his name but due to a terminal illness and the unreal delaying tactics of the Crown Office under orders of the USA lawyers like [Brian] Murtagh and Dana Biehl the court only got started on the appeal. However five judges still have to rule on that section of the appeal and the Crown Office still have to drop their appeal of a stiffer sentence. That first phase of the appeal could exonerate Megrahi on the identification alone."

A supportive report on the website of Scottish lawyers' magazine The Firm can be read here.