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.]

US gagging orders in Lockerbie case

[On this date in 2000, Lamin Fhimah’s solicitor wrote to Dr Richard Fuisz. The account that follows is excerpted from an item on John Ashton’s website Megrahi: You are my Jury. The documents which are referred to can be read here.]

Dr Richard Fuisz was an international businessman and deep-cover CIA spy,  who worked in the USSR and across the Middle East during the Eighties and Nineties. As well as having a very successful medical technology company, he ran training programmes for the Saudi military, supplied computers with a secret spying capability to the unwitting Soviets (via Raisa Gorbachev) and had a model agency that supplied the first Miss USSR.

In May 2000, not long after the start of the Lockerbie trial, the defence lawyers got wind of Fuisz, via an associate of his, Susan Lindauer, who said that he had been based in Syria in 1988 and had irrefutable intelligence that Lockerbie was the work of the PFLP-GC. Lindauer also said that he was the subject of a gagging order, a breach of which would result in a significant prison sentence.

On 31 May [2000], defence solicitor Eddie MacKechnie wrote to the US department of justice’s Lockerbie prosecutor Brian Murtagh to ask if Fuisz was indeed prevented from speaking (Document 1). Six weeks later Murtagh wrote back. He confirmed that Fuisz was the subject of a gagging order in relation to another case, which involved the supply of military equipment to Iraq by a company called Terex, however, he claimed that Fuisz was free to talk about Lockerbie, writing: “I found no factual basis to the allegation that any representative of the US Government has taken any action to deter Dr Fuisz from talking to anyone about the bombing of Pan Am Flight 103.” (See Document 2)

Fuisz insisted that this was not true and that he was the subject of another gagging order that was quite independent of the Terex litigation. Furthermore, he claimed that Murtagh and another DoJ lawyer had advised him that he was not in fact free to talk about Lockerbie. (See Document 3)

Murtagh again denied it, telling MacKechnie: “You ask whether or not you can assume that the defense is at liberty to ask Dr Fuisz any questions in relation to Pan Am 103, and further whether he is fully at liberty to answer any questions relating to Pan Am 103? The answer to both questions as far as I am concerned is “yes”. The problem here is with Dr Fuisz himself, and not with any court order or attempt by the Government to keep him from talking to the defense about the destruction of Pan Am Flight 103.” (See Document 4)

MacKechnie replied: “Dr Fuisz insists that it is not the Department of Justice or even the Attorney General herself which possess the authority to release him from what he refers to as his statutory obligations of secrecy.  It has been suggested to us that the President himself, but perhaps more sensibly the Director of the Central Intelligence Agency, George Tenet, would be able to release him from any possible remaining inhibitions so that he could provide a statement in relation to Pan Am 103 and the alleged perpetrators of the bombing.” (See Document 5)

CIA lawyer Robert Eatinger then wrote to Murtagh: “Dr Fuisz has been informed that neither the CIA nor the DoJ pose any objection to his discussing with the defense, or anyone else for that matter, his knowledge of the Pan Am flight 103 bombing. There is and has been no impediment to his being interviewed on this matter… As you and I have discussed, there simply is no court order of which we are aware that in any way limits Dr Fuisz from revealing his knowledge of who bombed Pan Am flight 103. (See Document 6)

The following day, 13 October 2000, Eatinger wrote to Fuisz. Although the letter downplayed Fuisz’s knowledge of Lockerbie, it is highly significant, because it acknowledged de facto that Fuisz was, indeed, involved with the CIA. Moreover, it conceded that he had been briefed by the CIA about Lockerbie and that they had told him that Jibril was to blame. It also tacitly admitted that, contrary to earlier assurances, he was restricted in what he could say. The key passage read:

“Now that you have clarified that you have no personal knowledge of who is responsible for the bombing of Pan Am flight 103, we can provide you more specific guidance. You may freely identify the number of briefings you received by CIA officials the dates on which you received them. You may identify whom the CIA briefers said was responsible for the bombing of Pan flight 103. However, you may not reveal the identities of the CIA officers, nor the purpose for which you were receiving these security briefings.” (See Document 7)

Finally, on 6 December 2000, Fuisz was deposed. As well as his own lawyer, a DoJ lawyer and two unnamed CIA officials were also present at the first depositio and three at the second. Fuisz’s story was covered briefly in a few media reports, which suggested that he had been effectively prevented from saying anything that he knew about Lockerbie. However, earlier this year I learnt that this was not true. I came across a lawyer’s note of the first of his two depositions (Document 8) and a transcript of the second (Document 9). Although he was very restricted in what he could say, he nevertheless went on the record with two extraordinary revelations. Firstly, he confirmed that he received multiple briefings from CIA agents in 1989 in which they told him, inter alia, that the PFLP-GC was responsible for Lockerbie. Secondly, and even more significantly, he said that between 1990 and 1995 he was told separately by around 10-15 high level Syrian officials that the group was to blame.  These officials, he said, interacted with the group’s leader, Ahmed Jibril “on a constant basis”.

Justice not served: Those involved with Pan Am Flight 103 still troubled by al-Megrahi’s release

[This is the headline over a long report in today's edition of The Daily Orange, the newspaper of Syracuse University, New Jersey, thirty-five of whose students died on Pan Am 103.  It contains quotes from Frank Duggan, president of Victims of Pan Am 103 Inc (not himself a Lockerbie relative), Susan Cohen (mother of one of the Syracuse students) and Brian Murtagh, a US Justice Department prosecutor at the time who worked on the case and, indeed, formed part of the Lord Advocate's prosecution team in the Scottish Court in the Netherlands.  The views of Mr Duggan and Mrs Cohen are well known.  I therefore confine myself to reproducing the sections relating to Mr Murtagh (wrongly given as "Murtaugh" in the article itself).]

The Scottish and U.S. governments worked to study evidence from the site of the bombing, said Brian Murtaugh, then a Justice Department prosecutor. Pieces of cloth, metal from the aircraft and the remains of the suitcase that held the bomb were recovered, he said. A storekeeper in Malta said he sold the clothes that were recovered from the site to al-Megrahi. A double agent stepped forward with testimony, although Murtaugh said it was later discovered that the witness exaggerated his involvement. (...)

Murtaugh, who worked on the case for more than two decades, said if al-Megrahi had been tried in the United States, it would have been less likely for him to be released on compassionate grounds.

"A life sentence in the federal system means a life sentence," he said.

Through all the conflict, as well as the confusion of a foreign legal system, families of the victims wanted to be involved. The Justice Department funded flights to Scotland and provided access to al-Megrahi and Fhimah's trial, and closed-circuit televisions were set up in New York. (...)

 After 23 years, the case remains open. Few have details on how the crime was orchestrated. Gadhafi died at the hands of his own people in October and al-Megrahi still claims his innocence.

The Scottish and U.S. governments continue to investigate the case with the hope of finding more people involved. Someone had to make the bomb; someone else must have delivered it, Murtaugh said.

Closure may be impossible, he said, but people still want to know what happened.

"Trials are an imperfect vehicle to bring justice in a sense of making the victims whole," Murtaugh said. "We can never make them whole. We can never bring back the decedent."

Has United States asked Libyan NTC to extradite Megrahi?

A reputable Scottish journalist tells me that there is a report in today's edition of the Daily Mail to the effect that the United States has formally requested the Libyan National Transitional Council to extradite Abdelbaset Megrahi to the United States and that a NTC spokesman has responded that the present Libyan government has no interest in Megrahi and any state that wants him can have him. I cannot find this story on the Mail Online website, but many reports of primarily Scottish interest are never posted there.

If Libya had a normally-functioning government and judicial system any such extradtion request would be summarily rejected.  Abdelbaset Megrahi has already stood trial for the crimes in respect of which a US Federal indictment was obtained in 1991.  The international warrant for that trial was a United Nations Security Council Resolution (1192 of 27 August 1998) passed at the instigation of the United States and the United Kingdom following a joint letter of 24 August 1998 (S/1998/795) to the Secretary General. That Security Council resolution required all UN member states (including the US) to cooperate. In the trial that followed at Camp Zeist, United States government lawyers (Messrs Murtagh and Biehl) formed part of the Lord Advocate's prosecution team. For the United States to seek Megrahi's extradition to be tried in the United States for the same crimes would be a perversion of international legality.  Moreover, no US Federal Court with any respect for the rule of law and sensitive to governmental abuse of process would accept jurisdiction to retry him in these circumstances. However, if the US Department of State wants something badly enough, questions of legality are likely to count for little.

As far as the United Kingdom is concerned, the government in London should be gravely concerned about this attempt by the United States to subvert the international juridical regime that was set up to resolve the Lockerbie affair; and the Scottish Government should be gravely concerned about a deliberate attempt by the United States to take action that would place Abdelbaset Megrahi, entirely against his will, in breach of the terms of the licence under which he was released from his Scottish prison.

[The report in question may have been in the Scottish edition of The Sun, not the Daily Mail.

A related news item in Scottish lawyers' magazine The Firm can be read here.  A short report appears in the Friday 4 November edition of The Herald.]

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.