Doubts over witness led to fears Lockerbie trial would collapse

[This is the headline over a report in today's edition of The Times. It reads in part:]

Prosecutors in Edinburgh and Washington feared the case against the Lockerbie bomber would collapse if their concerns over the integrity of the star witness were made public, declassified documents have revealed.

The papers show that senior Scottish and US officials privately raised doubts over his reliability and are set to trigger fresh claims of a miscarriage of justice.

Abdul Baset Ali al-Megrahi, a Libyan intelligence officer, was sentenced to 27 years by a Scottish court sitting in the Netherlands after being found guilty of masterminding the 1988 atrocity in which 270 people were killed.

The testimony of Tony Gauci, a Maltese shopkeeper who claimed he sold clothing — believed to have been wrapped around the bomb — to a man resembling al-Megrahi, proved pivotal to securing his conviction in 2001. However, concerns were raised about the “soundness of Gauci’s identification” and the UK and US feared the case would founder if this became known.

The new information, disclosed last night, on the 33rd anniversary of the terrorist attack, has renewed calls for an appeal against al-Megrahi’s conviction.

Hans Koechler, who served as the UN’s independent observer at his trial, said: “I am even more convinced that a miscarriage of justice occurred.”

A report of a meeting between Alan Rodger, then Scotland’s lord advocate, and Robert Mueller, US assistant attorney-general, in Washington in 1992, states: “If it became known we or the US were sending people to check on the soundness of Gauci’s identification that would signal that we did not have a case on which we could confidently go to trial. The US Department of Justice maintained that they could not go to trial on the present identification.”

Gauci was the sole witness to link al-Megrahi directly to the bombing of Pan Am 103, over the town of Lockerbie.

In 2000 he told a panel of judges that al-Megrahi “resembled a lot” a man who bought clothes from his shop. But in 1992 a letter from the Crown Office to Mueller raised doubt. “Further inquiries concerning the identification made by the shopkeeper Gauci could be seized upon by those in Malta, Libya and elsewhere hostile to the conclusions of the investigation.” In 2007 it emerged that the US had paid $2 million to Gauci.

Robert Black, professor emeritus of Scots Law at Edinburgh University, who masterminded the trial, said: “It is now more obvious than ever that the Megrahi conviction is built on sand. An independent inquiry should be instituted into the case by the Scottish government, the UK government or both.”

The Crown Office said it would be inappropriate to comment further while leave to appeal (by al-Megrahi’s son Ali) is being considered by the UK Supreme Court. Police Scotland have confirmed that their investigation remains live. (...)

The confidential documents also show that British officials threatened to veto Malta’s application to join the EU if they did not back their demands over the Lockerbie bombing.

The UK and US insisted that the bomb which exploded over Scotland 33 years ago was loaded on to Air Malta flight KM-180, which left the island for Frankfurt on December 21. They contended it was then taken to London and transferred to Pan Am Flight 103, which blew up over Lockerbie with the loss of 270 lives. The Maltese authorities strongly disputed this version of events, insisting it was technically impossible.

Their stance provoked considerable anxiety. A March 1992 memo to the Foreign Office from diplomatic staff in New York states: “We understand that the Maltese government is considering stating publicly that the allegation that the bomb was planted in Malta was not proven and instructed their ambassador to the UN to explain this to non-aligned members of the Security Council. We hope the Maltese government will think carefully on this and reconsider its position. The US embassy here have told us that their embassy in Valletta has been instructed to take action at the highest level.”

The Maltese were then told the UK would not support their attempt to join the European Community (EC), the precursor to the EU. (...)

The following month British officials noted with satisfaction: “Malta will now comply with mandatory sanctions, while not agreeing with them.”

Guido de Marco, Malta’s justice minister at the time of the bombing, wrote in 2010 shortly before his death that there had been “so much room for error” in the British version of events.

Officials ordered to monitor ‘troublesome’ relatives of victims

An independent investigation into the Lockerbie atrocity launched by bereaved family members posed “great potential for trouble” and should be carefully monitored, government officials were told. (...)

In 2018 relatives of the Lockerbie bomb victims told The Times they had been repeatedly bugged by the security services after official documents suggested that they needed “careful watching”.

The Rev John Mosey, a church minister who lost his teenage daughter, Helga, in the bombing, said that after speaking publicly his phone calls were often disrupted and documents relating to the bombing had gone missing from his computer.

Jim Swire, a GP who became the public face of the campaign to secure an independent inquiry into the atrocity, reported similar intrusions and deliberately included false information in private correspondence, only for it to appear in the press days later.

Swire, whose daughter Flora was killed, said: “I cannot believe that a supposedly decent country could behave in such a way towards grieving people whose only crime was to seek the truth.”

[RB: It is no surprise that those at the top of the Lockerbie prosecution team in both Scotland and the United States were gravely concerned about the quality of the evidence that Tony Gauci would give at Camp Zeist. What is surprising is that the prosecution was prepared to proceed to trial in reliance on that evidence, and that the judges at the trial found that Gauci's evidence amounted to an identification of Abdelbaset al-Megrahi and that it was credible and reliable. Had they not done so, there was insufficient evidence in law for Megrahi to be convicted. 

The most rigorous analysis of Gauci's statements before and during the trial has been provided by Dr Kevin Bannon: https://lockerbiecase.blogspot.com/2017/09/the-centrepiece-of-case-against-megrahi.html. Here is part of what he found:

"The development of Tony Gauci’s statements from his first police interviews in September 1989 through to his testimony in court, reveal his recollections systematically developing in favour of the Crown narrative, in increasing contradiction of all his freshest recollections.

"... it is not merely the case (as has often been stated) that Gauci’s evidence was contradictory, but that in every aspect, it changed in favour of the Crown narrative, in some instances quite drastically. Gauci’s original, freshest recollections about the appearance of the Libyan purchaser and the time of his visit, would have, and should have, categorically eliminated al-Megrahi from suspicion.

"Gauci’s testimony, the centrepiece of the case against al-Megrahi and, by implication, the principal Libyan connection to the crime, simply has no integrity whatsoever - nevertheless he was given a substantial financial reward for his latter evidence. These discrepancies render the entire case against al-Megrahi invalid."

Had the newly released documents been available before the most recent appeal, it is possible that the Megrahi family's lawyers could have made use of them in their case. But I see no realistic prospect of a further posthumous appeal. It is now more than ever obvious that the Megrahi conviction is built on sand. What should now happen is that an independent inquiry should be instituted into the Lockerbie case by the Scottish Government, the UK Government or both in tandem. There is much evidence now available that has not been considered in any of the Scottish Lockerbie appeals, in part because of the highly restrictive rules governing what material can be made use of in Scottish criminal appeals. Only with an independent inquiry is there a possibility that the false narrative supported by the shameful conviction of Megrahi can be rectified.]

MacAskill: I’ve never believed Megrahi to be the bomber

[An article by Kenny MacAskill in today's edition of The Scotsman is headlined Lockerbie bomber was freed ‘to protect Scotland’, says Kenny MacAskill. It reads in part:]

... as justice secretary in 2009, it was my responsibility to consider applications for prisoner transfer and compassionate release made by Abdelbaset Ali Mohmed al-Megrahi, the only man every convicted of the crime. That saw me engage with state leaders as well as with the families of the victims from around the globe, for Lockerbie was truly international in its dimensions both with those who perpetrated it and those who suffered by it.

As with the atrocity itself, that period is also ingrained in my memory. It couldn’t be anything else given the significance of it and the focus that fell upon me. I realised it was going to be big but it was impossible at the outset to realise just how big. Later, finding my face on the front page of the Wall Street Journal and other international media brought it home.

But, though I’m now part of what seems a never-ending saga, my own involvement was quite truncated, most taking place over a short space of time from spring 2009, when an application for prisoner transfer was submitted by Libya, through to August of that year when I made my decision to release on compassionate grounds.

Of course, there had been involvement before as, just weeks into my tenure in 2007, it was announced that the UK and Libya were seeking to conclude a prisoner transfer agreement (PTA). There was of course only one Libyan national detained in Scotland and it was evident that the UK’s intention was his release. Indeed, Jack Straw, the UK justice secretary, was quite open about it when I spoke to him. BP were seeking a major oil contract and without it the deal would go to an American competitor.

New Labour had either forgotten about devolution or failed to notice that an SNP administration was now in charge at Holyrood. The First Minister quickly raised objections and the UK realised that there were complications. However, though I was involved in discussions, much was dealt with by Alex Salmond given the constitutional aspect.

As debate raged on over the PTA, however, a further twist in the tale came when Megrahi was diagnosed with terminal prostate cancer. I was advised of that in September 2008 but things still seemed a long way off, as arguments over prisoner transfer continued and his illness was in its early stages. Indeed, I recall a conversation with my wife at Hogmanay that year when I explained it would be my decision but there still seemed no immediacy.

But, by spring 2009 the pace was picking up as the UK ignored Scottish objections and signed a treaty with Libya. Likewise, Megrahi’s health was worsening and it would only be a matter of time before an application for compassionate release would be submitted.

The months following were to become quite frenetic. Prisoner transfer applications have set timetables and accordingly the clock was ticking. Invariably the responsibility was compounded by us being not just a minority administration but the first ever SNP one. If there were to be political casualties then they would be limited to one. The decision would be for me alone.

However, I was remarkably well supported by staff, even more so as the days passed and pressure mounted. There was no consensus that could be brokered or solution that would see it all just go away. Accordingly, I resolved that the decision I had to make wouldn’t be subject to economic or strategic issues but based on the laws and guidance that applied. They would be followed scrupulously and wherever possible information and actions would be open and public.

That remained the policy of the Scottish Government throughout.

The only red line I ever set was that Megrahi wouldn’t die in a Scottish prison cell. Rejection of either or both applications remained open until my final conclusions but it simply meant that he’d never be allowed to pass away here, even if it meant being medically evacuated at the very last moment. I wasn’t prepared to risk the lives of those who worked in health or prisons through the creation of a martyr and attacks following from those who perpetrate such terror. Events in cities around the globe since then have simply confirmed my view.

But increased security soon surrounded me as governments and organisations from far and wide sought to make their views known. Locked car doors and being driven everywhere were immediately noticeable, though to the chagrin of my driver I often insisted on walking. Hourly drive-bys by police vehicles at home and my office, and even panic alarms installed at both. Sadly, that level of intrusion also impacted on others as my wife from whom I’d recently separated also required to endure it.

It did, though, create a bond with those who worked with me and shared the risks that I’ll take to the grave.

My staff did their best to insulate me from undue pressure and I recall being advised that Robert Mueller, currently investigating President Trump but then FBI director, had sought to have a letter delivered personally to me. It was out of office hours and contrary to diplomatic protocols and his request was speedily rejected by my office, who advised it could be delivered to St Andrews House in the usual manner. I remained sound asleep oblivious to it all but was told that a police armed response team had been scrambled to my address just in case, greatly endearing me to them ever since.

To make a decision, evidence had to be heard from victims’ families and States. Much was harrowing indeed with many meetings being distressing for staff and myself. Governments varied in their attitudes. The Libyans convivial but with an underlying hint of menace; the Americans business like but co-operative with information; whilst the UK was shameless, all the time conniving for Megrahi’s release but equally insisting it was nothing to do with them.

Many politicians were equally shameful. Labour in Scotland simply opposed whatever I did despite the risks to the nation and the collusion of their London colleagues with Libya. Tories likewise condemned whilst former Tory ministers sought to lobby on behalf of Anglo-Arab business interests.

As is now well known I refused the prisoner transfer request as it was clear that there had been a UN brokered agreement between UK/USA and Libya that sentences would be served in Scotland.

The legal criteria for compassionate release were also met and so I rejected the former but granted the latter.

It’s a decision I stand by to this day and whilst some disagree, with it few can fault the procedure. Indeed, information that has since come to light since has simply confirmed my view. I always knew that Scotland was but a small cog in a much bigger international wheel. The British and Americans, whatever their public utterances, were colluding with Gadhafi on everything from training his special forces to rendering prisoners to him. Tony Blair’s embrace of the Libyan despot was matched by the fawning over his family by Hillary Clinton and the desire of the west for trade deals and strategic alliances

At the same time the supposed hero’s welcome received by Megrahi on his return to Libya was shown to have been fake news which the British and Americans were aware of. But they were never going to allow truth to stand in the way of an opportunity to heap opprobrium on Scotland. (...)

Questions remain over the conviction of Megrahi but whilst I’ve never believed him to be the bomber, he most certainly was no innocent abroad. He was the highest-ranking official Libya would release and the lowest one the west would accept. [RB: There is absolutely no evidence that I am aware of that the west sought higher-ranking officials than Megrahi and that Libya refused; and, given my contacts with the Libyan government during my efforts to secure a Lockerbie trial, I am sure I would have been informed.]

But the UK and USA know the full story, even if a court never will, having their spies and even getting their sources out. Sadly, that’s why the conspiracy theories will run for ever with me now part of them.

Where, I ask, is the justice?

[What follows is excerpted from an article published today on the CNN Politics website:]

[Robert] Mueller, now 73, began his Department of Justice career in 1976 as an assistant US attorney in San Francisco, and during the decades that followed took only two breaks to try out the private sector, each lasting no more than a couple of years.

The stints were so short-lived because of a simple fact, according to Graff: Mueller couldn't stand defending those he felt were guilty. (...)

That black-and-white outlook served Mueller well at the Department of Justice, where he oversaw some of the highest-profile cases of the last few decades including the prosecution of mobster John Gotti and Panamanian Dictator Manuel Noriega. But it was his investigation into the 1988 terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland that would most profoundly affect him.

"It was a very personal and a pivotal investigation of his career," according to Lisa Monaco, who served as Mueller's chief of staff when he was FBI director. "It is something that has stuck with him, and I think it was because he was so affected by walking the ground in Lockerbie after that plane went down, seeing the remnants of that plane, seeing the piecing together of the plane and the Christmas presents the passengers on that plane were carrying home to their family members, and seeing that all literally get pieced together in a warehouse in Scotland at the beginning of the investigation."

For years after the trial of the two Libyan terrorists, Mueller would quietly attend the annual December memorial service organized by the families, consoling those he had come to know well. When Scottish authorities announced in 2009 that they were releasing the one terrorist convicted in the case, Mueller was outraged.

"That did not sit well with him. He thought it was an injustice, a fundamental injustice for the families, and he did something very out-of-the-ordinary for him," Monaco said.

Mueller wrote a scathing letter to the Scottish authorities, saying in part, "your action makes a mockery of the grief of the families who lost their own. ... Where, I ask, is the justice?"

It was an unusual outpouring of emotion for a man who, according to those closest to him, regularly keeps to himself.

Stalinist thinking about the infallibility of police and prosecutors

[On this date in 2009, I posted on this blog an item headed That letter from the FBI to the Justice Secretary: is it real?  The first of its two sentences read simply “This is the heading over a devastating exposure by Jonathan Mitchell QC on his blog of the misconceptions and errors of fact and law in the letter from the Director of the FBI to Kenny MacAskill.” Mr Mitchell’s article reads as follows:]

My last post covered two issues; the hypocrisy of the attack on the decision to release Megrahi, and the law relative to compassionate release of prisoners in Scotland. But in linking these I noted in passing that much of the attack on MacAskill was simply ignorant, and wrote “FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘.“. That touched a nerve with one anonymous commenter, who wrote me a poison-pen message in the middle of which he stated:

The first paragraph of the FBI director’s letter he’s clearly putting it forth that he generally stays out of another jurisdiction’s case–in his experience as a prosecutor the cases of other prosecutors–though the phraseology might be a good target for a pendant punching above his weight class. Indeed, in the US and presumably Scotland, the prosecutor’s ultimate boss is the Attorney General of the US (or Justice Minister there). When the director talks about the effect of the release it is on terrorists in general and their conviction in a ‘…the conviction of trial by jury’. He obviously means it in a general sense or perhaps you’d have his sentence read something like ‘…the conviction of trial by jury–unless of course the crime is one that the statute allows the defendant to select a panel of judges or a judge instead–after the defendant is given all due process…’.

Now, I wouldn’t normally bother about poison-pen writers, but this made me go back to the letter to see if I had misread it. I didn’t. It contains glaring errors about the Lockerbie process. But what on reflection is interesting is that Robert Mueller is an extremely experienced lawyer who worked for many years on the Lockerbie prosecution, (although he was not, as the letter claims, ‘in charge of the investigation and indictment of Megrahi in 1991‘; that was the Lord Advocate). It seems inconceivable that he would not have known the truth; and I don’t believe he actually can have been as ignorant as I suggested. I apologise for that. I have to wonder if he actually wrote this letter, with its collection of howlers. Let’s look at what it says, and at the true facts.

The first weird statement is the one about staying out of another jurisdiction’s cases, to use the commenter’s re-hash. This is what Mueller wrote:

Over the years I have been a prosecutor, and recently as the Director of the FBI, I have made it a practice not to comment on the actions of other prosecutors, since only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

Your decision to release Megrahi causes me to abandon that practice in this case.

Now, the ‘practice‘ he says he’s abandoning is the practice that he does not ‘comment on the actions of other prosecutors‘. But the Justice Secretary is not a prosecutor; he has nothing to do with the prosecution process. He is not the ‘prosecutor’s ultimate boss‘; that’s the Lord Advocate, whose constitutional independence of the Justice Secretary is fundamental to the system. Section 48 (5) of the Scotland Act states “Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.” 1. If the Justice Secretary tried to tell prosecutors what to do, or how to do it, he would be told to sling his hook; and vice versa. Robert Mueller knows this. He is not stupid. He worked with several Lord Advocates over many years. If Robert Mueller wrote the quotation above, he was telling a deliberate untruth. That seems strange. Why should he bother, just for a minor rhetorical flourish? It seems more likely that the author was some minion who shared the lazy assumption of my commenter that the Justice Secretary just had to be a prosecutor, because that’s the American system.

Now, later in the letter the same howler is repeated in different language:

You apparently made this decision without regard to the views of your partners in the investigation and prosecution of those responsible for the Lockerbie tragedy.

The Justice Secretary is not a ‘partner in investigation and prosecution‘, any more than he is a ‘partner’ of the accused or the defence. He is independent of both, as a judge is. Here again we see language that suggests a basic ignorance of the separation of powers.

There’s another error which I didn’t mention, the reference to ‘conviction by jury‘, which Anonymous nevertheless identifies and defends:

Your action gives comfort to terrorists around the world who now believe that regardless of the quality of the investigation, the conviction by jury after the defendant is given all due process, and sentence appropriate to the crime, the terrorist will be freed …

It seems obvious from this language that its author thought Megrahi was convicted ‘by jury‘. But Mueller knows as well as Megrahi himself that he was not. He sat through much if not all of the trial. Here, again, it seems extraordinary that for a pointless two words Mueller would write something which he knew perfectly well was wrong. Juries are fundamental to the American system (except, of course, for alleged terrorists), but surely Mueller knows they aren’t the norm in most countries affected by terrorism.

There are other errors, most notably the central fatuous and hysterical claim that the release will give comfort to terrorists: what will actually give them comfort is the Faustian pact of successive American and British governments to forgive the entire chain of command in the Libyan intelligence service and government so as to encourage business opportunities2. If you cheerfully sup with the devil, you… the reader can complete this sentence.

Yet neither Mueller nor the FBI have ever gone on record as critical of the decision of successive US administrations to grant amnesty and forgiveness to those who, they say, gave Megrahi his orders; to give them hospitality, trade with them, sell them military equipment.

So I have to ask: who actually wrote this letter? If it was Robert Mueller, he must have been on the juice, which may perhaps have been what Lord Fraser had in mind when he kindly suggested Mueller visit Scotland to ‘discuss some good whisky‘. If it was some underling, he didn’t do his homework.

Whoever it was, it was someone with the Stalinist thinking about the infallibility of police and prosecutors which coloured the UK governments strenuous efforts to keep the evidence in the recent appeal effectively secret, but in a less disguised form. Look at this:

… only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

That’s the thinking that led to the founding of the Cheka in 1918. As Hector MacQueen pointed out, it’s the old chestnut that we don’t need courts or judges to “reach the appropriate decision“; still less any defence. The prosecution, after all, is infallible. No wonder then, perhaps, that the writer of this letter, whoever he or she may have been, was so appalled at anyone not following its instructions. Thus the complaint “You never once sought our opinion” on the release. As the Justice Secretary rightly pointed out in Parliament, however, in Scotland “we have separation of powers“. Someone in the FBI, however, does not believe in this.

There’s a phrase for this, and the phrase is ‘police state’.

1. See this description in a recent paper by the Judiciary on reform of the Lord Advocate’s status for a fuller analysis.
2. Musa Kusa, who the British government expelled in 1980 after he announced “The revolutionary committees have decided last night to kill two more people in the United Kingdom. I approve of this“, and who the CIA found had direct responsibility for the PanAm 103 bomb (and indeed many other murders), was in 2003 entertained by both governments in the Travellers Club in Pall Mall, London. The last time I was in the Travellers Club, I noticed the fine portrait of Lord Castlereagh half-way up the staircase. He was the Foreign Secretary of whom Shelley wrote in ‘The Masque of Anarchy’ ‘I met Murder on the way/He had a mask like Castlereagh/Very smooth he looked, yet grim/Seven bloodhounds followed him/All were fat, and well they might/Be in admirable plight/For one by one and two by two/He tossed them human hearts to chew/Which from his wide cloak he drew…‘ . Was the setting deliberate? Castlereagh would have been an appropriate host.

Special counsel Robert Mueller and Lockerbie

[What follows is excerpted from a report published late yesterday on the website of The New York Times:]

The Justice Department appointed Robert S Mueller III, a former FBI director, as special counsel on Wednesday to oversee the investigation into ties between President Trump’s campaign and Russian officials, dramatically raising the legal and political stakes in an affair that has threatened to engulf Mr. Trump’s four-month-old presidency.

The decision by the deputy attorney general, Rod J Rosenstein, came after a cascade of damaging developments for Mr. Trump in recent days, including his abrupt dismissal of the FBI director, James B Comey, and the subsequent disclosure that Mr Trump asked Mr Comey to drop the investigation of his former national security adviser, Michael T Flynn. (...)

While Mr Mueller remains answerable to Mr Rosenstein — and by extension, the president — he will have greater autonomy to run an investigation than other federal prosecutors.

As a special counsel, Mr Mueller can choose whether to consult with or inform the Justice Department about his investigation. He is authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” according to Mr Rosenstein’s order naming him to the post, as well as other matters that “may arise directly from the investigation.” (...)

Mr Rosenstein, who until recently was United States attorney in Maryland, took control of the investigation because Attorney General Jeff Sessions recused himself after acknowledging he had failed to disclose meetings he had with the Russian ambassador to Washington, Sergey I Kislyak, when Mr Sessions was an adviser to the Trump campaign. (...)

Mr Mueller’s appointment was hailed by Democrats and Republicans on Capitol Hill, who view him as one of the most credible law enforcement officials in the country. (...)

Mr. Mueller served both Democratic and Republican presidents. President Barack Obama asked him to stay two years beyond the 10-year term until he appointed Mr Comey in 2013, the only time a modern-day FBI director’s tenure has been extended.

[RB: Mr Mueller has featured regularly on this blog. Perhaps the most egregious of his ill-advised interventions in the Lockerbie case was the remarkable letter sent to Kenny MacAskill after the release of Megrahi in August 2009. The late and much lamented Ian Bell wrote a blistering article in the Sunday Herald about this letter headlined What do US cops know about justice?]

Scraping the bottom of the barrel

[What follows is an excerpt from an article headed Alex Salmond is in the US schmoozing away. But Americans won't forget in a hurry that he freed the Lockerbie bomber by Professor Tom Gallagher, a virulently anti-SNP commentator, published today on The Telegraph website:]

Whether a coincidence or not, at the start of Alex Salmond’s five-day visit to the United States, the Scottish National Party has suddenly launched a peace offensive after a bruising referendum campaign that has raised fears that society will be polarised for years to come. Party sources have told a Scottish newspaper that they intend to concentrate their energies on healing political wounds if Scotland votes Yes.

But to those who recall SNP rhetoric about the party preserving the best of Britishness in a social union, it needs to be taken with a hefty pinch of salt. It smacks too much of a serial wife-beater turning round to his family after a traumatic night and saying that from now on life will be totally different.

It remains to be seen if the era of good tidings will last beyond the conclusion of Salmond’s trip which includes a speaking engagement at the IMF in Washington DC. He can turn from being a political bruiser to acting as a charmer in a matter of seconds. Unfortunately for him, plenty of Americans, both influential folk and everyday citizens, have seen both sides of the coin.

It is not only relatives of the 180 US citizens killed when a bomb blew up a Pan Am flight over Lockerbie on 21 December 1988 who were astonished when his government released the man convicted by a Scottish court, in 2001, for the attack on the grounds that he had little time left to live. The release of the Libyan national Abdelbaset al-Megrahi was announced with much fanfare on 20 August 2009. Kenny MacAskill, Scotland’s justice minister, read a long statement insisting that the decision was based on "the values, beliefs, and common humanity that defines us as Scots". Hillary Clinton, then the US Secretary of State, twice spoke to MacAskill in the hope that he would reconsider the release of al-Megrahi who, instead of dying within weeks, enjoyed a comfortable life in a Tripoli suburb until 2012. [RB: It requires a really quite special sensibility to describe taking over two years to die of cancer in a war-ravaged and militia-ridden locality as enjoying a comfortable life in a Tripoli suburb.]

On 15 August 2009, Robert Mueller III, director of the FBI for nearly a decade, wrote to MacAskill in terms which had rarely been used between a senior US official and a friendly government:

"I have made it a practice not to comment on the actions of other prosecutors. Your decision to release al-Megrahi causes me to abandon that practice… I do so because I am familiar with the facts of the law , having been the assistant Attorney general in charge of the investigation and indictment of Megrahi in 1991. And I do so because I am outraged by your decision, blithely defended on the grounds of “compassion”’. [RB: More details about Robert Mueller’s “foolish and intemperate letter” (as I described it) can be found here. I commented: “In civilised countries decisions regarding liberation of prisoners are not placed in the hands of policemen and prosecutors, nor are they accorded a veto over those decisions. Mr Mueller (and Mr Marquise) would probably wish that this were otherwise. The rest of us can be grateful that it is not.”]

The British lawyer, Geoffrey Robertson, the first president of the UN war crimes court [RB: Not so. He sat as an appeal judge in the UN Special Court for Sierra Leone, something rather different.], observed that the decision taken was ‘lacking in compassion to every victim of terrorism and made an absurdity of the principle of punishment as a deterrent' ". [RB: Geoffrey Robertson’s idiosyncratic views on the Lockerbie case and Megrahi’s release can be followed here.]

The US Senate Foreign Relations Committee opened hearings on the affair but Salmond refused point-blank to cooperate. [RB: this is tendentious in the extreme. A more accurate account of the episode can be found here and here.]

It is hard to imagine such a scenario being played out if the Pan Am flight had exploded over Irish, Danish or even French territory. It is likely that the authorities of each of these countries would have avoided such a rupture in bilateral relations with an allied country.

The crumbling Lockerbie case

[This is the headline over an article published today on the Consortium News website. It reads as follows:]

A quarter century ago, the Pan Am 103 bombing over Lockerbie, Scotland, killed 270 people and later was pinned on a Libyan agent. In 2011, Lockerbie was used to justify a US-backed war to oust Libya’s Muammar Gaddafi, but the evidence now suggests the case was a miscarriage of justice, John Ashton writes.

Dec 21, 2013, marked the 25th anniversary of what, until 9/11, was the worst terrorist attack on US civilians. A total of 270 people died when Pan Am flight 103 was blown out of the sky over the small Scottish town of Lockerbie; 189 of the dead were Americans.

Officially the crime was partially solved on Jan 31, 2001, when Libyan Abdelbaset al-Megrahi was convicted of the murders by a panel of three senior Scottish judges, sitting at a specially convened Scottish court at Kamp Zeist in The Netherlands. His co-defendant, Lamin Fhimah, was acquitted.

As Megrahi was allegedly a puppet of the Gaddafi regime the Scottish and US prosecutors have vowed to pursue those who were pulling his strings. The ex-FBI Director Robert Mueller said on the 25th anniversary that he expected further charges to be brought. Yet, to most of those who have scrutinized the Megrahi conviction – and Consortiumnews.com is one of the few U.S. media outlets to have done so (see here, here and here) – it is, at best, odd and, at worst, a sham.

One of the UN trial observers, Professor Hans Koechler, noted: “there is not one single piece of material evidence linking the two accused to the crime. In such a context, the guilty verdict in regard to the first accused appears to be arbitrary, even irrational,” while eminent Scottish lawyer Ian Hamilton QC has said, “I don’t think there’s a lawyer in Scotland who now believes Mr Megrahi was justly convicted.”

More importantly, in 2007, the Scottish Criminal Cases Review Commission, a statutory body that reviews alleged miscarriages of justice, referred the conviction back to the appeals court on no fewer than six grounds, one of which was that the trial court’s judgment was unreasonable. Shockingly, four of the other grounds concerned the non-disclosure of important evidence by the prosecution. Sadly, Megrahi succumbed to pressure to abandon the appeal, shortly before his release from prison on compassionate grounds in August 2009.

More Promising Leads

Another reason to doubt the official line that the bombing was a solely Libyan operation is that there is ample circumstantial evidence that it was commissioned by Iran (possibly in retaliation for the U.S. military shoot-down of an Iranian airliner on July 3, 1988, killing 290 people) and carried out by a radical Palestinian group, the Popular Front for the Liberation of Palestine – General Command (PFLP-GC).

Two months before the Pan Am 103 attack, on Oct 26, 1988, the group was caught red-handed by the German federal police with a barometric bomb designed to explode at altitude. The police also uncovered a huge terrorist arsenal, which the group had amassed in an apartment in Frankfurt, the city from which PA103’s feeder flight, PA103A, would originate. Like the Lockerbie bomb, the barometric bomb had been built into a Toshiba radio cassette player. Although it was a single-speaker model – the Lockerbie device had twin speakers – by a rather sick twist, both models were from Toshiba’s BomBeat range.

The man who made the German bomb, Marwan Khreesat, turned out to be a mole for both the Jordanian and German intelligence services. He told the police that he had made five bombs, only four of which were recovered. He and another PFLP-GC member, Mobdi Goben, who led the group’s Yugoslavian cell, confirmed that the organization had other bomb makers and that the Oct 26 raids did not snare all of its German operatives.

Significantly, both men independently named a member with the nomme de guerre Abu Elias as the operation’s linchpin. His true identity remains unknown. Declassified U.S. intelligence documents stated as fact that Iran and the PFLP-GC were behind the bombing. Another, written months after the investigation had shifted decisively to Libya, said that Iranian interior minister had paid $10 million for the hit.

The increasingly rickety “Libya-did-it” line appeared to receive a much-needed boost 2½ years ago with the fall of the Gaddafi regime. At the start of the revolution, in early 2011, the opposition leader Mustafa Abdel Jalil, who had been Gaddafi’s justice minister, told the Swedish newspaper Expressen that he had proof that his old boss was responsible for Lockerbie. Other senior government defectors implicated the old regime in the bombing.

So, when Scotland’s prosecution service, the Crown Office, announced that it would be seeking the cooperation of the new Libyan government to gather evidence against Megrahi’s alleged co-conspirators, Lockerbie watchers were braced for some rapid developments.

Getting Nowhere

Unfortunately for the Crown Office and police, in the intervening 2½ years, they appear to have got precisely nowhere. Last December, Libya’s new UK ambassador, Mahmud Nacua, said that his government would be happy to open all of its Lockerbie files to the police, but added that this would only happen when the government had fully established security and stability – a process he believed would take at least a year. A year on, there’s no hint that the files are about to be opened.

It was not until February 2013 that the police, prosecutors and the FBI got to visit Tripoli to speak to the new government. Embarrassingly, no sooner had they left than the new deputy justice minister, Hameda al-Magery, told the Daily Telegraph that the case was closed.

The Crown Office swiftly issued a press release, which described the discussions with the Libyans as “positive” and added “it is hoped there will be further progress as a result.” That hope seems increasingly forlorn. Only last month did the Libyan government appoint prosecutors to work on the case with Scottish and US investigators.

The development was hailed as a “significant step” by Scotland’s chief prosecutor, the Lord Advocate Frank Mulholland. That is one interpretation, but, when viewed as a whole, the events since Gaddafi’s fall suggest that the Libyans might be trying to put off the day when they have to admit to the Scots and FBI that the cupboard is bare: they have no evidence of the Gaddafi regime’s involvement.

Since Gaddafi’s fall, the only document about the case to surface publicly from his regime’s files is a letter from Megrahi to his relative, Gaddafi’s security chief Abdullah Sennousi, in which, according to the Wall Street Journal, he protested his innocence and blamed his plight on “the immoral British and American investigators” who “knew there was foul play and irregularities in the investigation.”

What, then, of Mustafa Abdel Jalil’s proof? When asked about it on BBC Newsnight, the best he could offer was the fact that Gaddafi’s government had paid Megrahi’s legal bills. A year later Jalil insisted in another newspaper interview that Expressen had misquoted him, adding: “All I said then is what I say right now, which is that the regime was involved in this case, evident by insisting [Megrahi] returns [to Libya] and that they spent a lot of money on him while he was in jail.”

It was preposterous to claim that the old regime’s funding of Megrahi’s legal defense, and its efforts to secure his return to Libya, was evidence of its guilt.

Exonerating Evidence

While the police investigation in Libya has stalled, the police and Crown Office are studiously ignoring new evidence that destroys the case against Megrahi and Libya. It concerns the most important physical evidence of the entire case, a tiny fragment of circuit board, known by its police reference number of PT/35b, which was allegedly part of the bomb’s timer.

According to the prosecution case, the fragment matched boards in timers designed and built for the Libyan intelligence service by a Swiss firm called Mebo. During preparations for Megrahi’s aborted second appeal, his legal team (with whom I worked as a researcher) discovered that the fragment could not have originated from one of the Libyan timers’ boards, because it bore a crucial metallurgical difference.

When combined with a wealth of existing anomalies concerning the fragment’s provenance, the discovery strongly suggested that it was a fake that was planted in order to implicate Libya. According to the published memoir of the head of the FBI’s Lockerbie investigation, Richard Marquise, his opposite number in the Swiss police also suspected the fragment was a plant.  The thought even occurred to Marquise and the Scottish police’s senior investigating officer, Stuart Henderson.

Why, then, have the Scottish police and Crown Office failed to approach the witnesses who can attest to the mismatch between the fragment and the Libyan timers – witnesses who include the man who made the boards used in the those timers, and two independent scientists? The obvious answer is that they want to avoid evidence that shows the official case to be built on sand.

John Ashton, who worked as a defense investigator on the Pan Am 103 case, is the author of Scotland’s Shame: Why Lockerbie Still Matters.