Money cannot bring back our loved ones

What follows is the text of a letter from Dr Jim Swire published in the issue of The Herald for Friday, 29 August:

'Money cannot bring back our loved ones In the years following the Lockerbie atrocity Libya found her oil industry progressively crippled by UN (and US) sanctions, which denied her the use of ever more sophisticated western oil-recovery technology.

'Following her agreement to allow her two citizens to appear in front of a Scottish criminal court (at Zeist in Holland), one was found guilty of having carried out the atrocity.

'The terms for withdrawal of the UN sanctions included that Libya acknowledge her guilt and pay "compensation" for the atrocity. The scope for negotiation was clear: meeting the UN requirements would allow Libya's economic recovery, no less. This is now being achieved through a refurbishment of her oilfields with the benefit of western (mainly US) technology.

'In a letter to the UN after the Zeist verdict was passed, Libya's phraseology was that "since a Scottish court had found one of her agents guilty, therefore she would pay compensation''. The terms of the financial "compensation" were negotiated by a team of US lawyers representing most relatives, including myself. The details of these negotiations remain embargoed. The then Foreign Secretary, Jack Straw, stressed the negotiations were a legal, not a political, issue. Of course.

'Colonel Gaddafi's talented and artistic son, Saif, now claims the relatives were "greedy". I am glad to see that Libya's economy is recovering, far beyond the value of the "compensation" negotiations and that she is becoming accepted as other than a promoter of terrorism. Both of these facts suggest a diminution of hostility and material gains for both sides.

'I salute Saif and wish him happiness, which I think he is more likely to find in his life, if it is true, as he claims, that he is dropping out of politics. I just wish that the needs of the relatives, namely a thirst for the truth and for justice, would be attended to rather than an alleged hunger for money.

'A trapped man dies of thirst long before he would die of hunger.

'Financial "compensation" must remain in its inverted commas. Money cannot buy our families back.

'But there is some genuine compensation to be had from seeing the healing of the enmity between the West and Libya. I thank Saif for providing the opportunity to say this.

'So far as many relatives I know would say, we would gladly repay any "compensation" money if we could just have our loved ones back.'

More on the forthcoming BBC Two programme

The BBC News website has a lengthy article on what the forthcoming BBC Two programme The Conspiracy Files: Lockerbie has uncovered. It focuses on (1) the failure of the police to pass on to Abdelbaset Megrahi's defence team information, of which the police were aware, to the effect that the Maltese shopkeeper, Tony Gauci, had seen a photograph of Megrahi four days before the identification parade at which he pointed him out as resembling the person who had bought in his shop the clothes that were in the suitcase along with the bomb; and (2) comments by Saif-al-Islam Gaddafi to the effect that in the compensation negotiations the relatives of those killed on board Pan Am 103 had been "greedy" and "materialistic". He is also quoted as saying:

"Yes, we wrote a letter to the Security Council saying we are responsible for the acts of our employees... but it doesn't mean that we did it in fact.

"I admit that we played with words - we had to.

"What can you do? Without writing that letter we would not be able to get rid of sanctions."

Reactions from relatives and their US lawyers can be read here.

Libyan August 2003 "acceptance of responsibility"

I recently discovered that it is quite difficult to find on the internet the text of the Libyan "acceptance of responsibility" for Lockerbie. Here, for ease of reference, is the document:

Letter dated 15 August 2003 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council

I am pleased to inform you that the remaining issues relating to the fulfilment of all Security Council resolutions resulting from the Lockerbie incident have been resolved. I am also pleased to inform you that my country is confident that the representatives of the United Kingdom and the United States of America will be confirming this development to you and to members of the Council as well. The Libyan Arab Jamahiriya has sought to cooperate in good faith throughout the past years to bring about a solution to this matter.

In that context and out of respect for international law and pursuant to the Security Council resolutions, Libya as a sovereign State:
• Has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials.
• Has cooperated with the Scottish investigating authorities before and during the trial and pledges to cooperate in good faith with any further requests for information in connection with the Pan Am 103 investigation. Such cooperation would be extended in good faith through the usual channels.
• Has arranged for the payment of appropriate compensation. To that end, a special fund has been established and instructions have already been issued to transmit the necessary sums to an agreed escrow account within a matter of days.

The Libyan Arab Jamahiriya, which during the last two decades has, on numerous occasions, condemned all acts of terrorism in its correspondence to the General Assembly and to the Security Council, reaffirms its commitment to that policy. The following are examples of that policy. The Libyan Arab Jamahiriya confirms its support for Security Council resolutions 1373 (2001) which stipulates, according to Chapter VII of the Charter of the United Nations, that all States are to “refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts”; that they are to “take the necessary steps to prevent the commission of terrorist acts, including taking action and sharing information to provide early warning to other States”; that they are to “deny safe haven to any person who finances, plans, supports, or commits terrorist acts”; that they are to “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice”; and that they are to “afford one another the greatest measure of assistance in connection with criminal investigations or proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession, deemed necessary for legal proceedings”.

In that connection, the Libyan Arab Jamahiriya is committed to be cooperative in the international fight against terrorism. It is also committed to cooperate with efforts to bring to justice those who are suspects.

In addition, the Libyan Arab Jamahiriya renews its support for the Declaration on Measures to Eliminate International Terrorism as well as its support for such General Assembly resolutions as resolution 55/158, in which the Assembly “strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed”.

The Libyan Arab Jamahiriya continues to endorse the Declaration on Measures to Eliminate International Terrorism, which is contained in the annex to General Assembly resolution 49/60. That Declaration stipulates that all States shall “refrain from organizing, instigating, assisting or participating in terrorist acts in territories of other States, or from acquiescing in or encouraging terrorist activities within their territories directed towards the commission of such acts”. It also stipulates that “those responsible for acts of international terrorism must be brought to justice”.

In line with this forceful denunciation of terrorism in all its forms, the Libyan Arab Jamahiriya has signed regional conventions and bilateral agreements as well as the twelve international conventions to fight terrorism. It recently reported those steps to the Security Council and pledged to refrain from becoming involved in any acts of terrorism. In particular, the Libyan Arab Jamahiriya pledged “not to engage in, attempt, or participate in any way whatever in the organization, financing or commission of terrorist acts or to incite the commission of terrorist acts or support them directly or indirectly; and to prevent its territory from being used for the planning, organization or perpetration of terrorist offences by, inter alia, preventing the illicit entry, sheltering or sojourn of terrorist elements or by receiving, sheltering, training, arming or financing them or by providing them with facilities”(see S/2001/1323). Libya’s report to the Security Council also detailed the specific steps that were taken to implement those pledges.

Suffice it to say that the Libyan Arab Jamahiriya has pledged itself not only to cooperate in the international fight against terrorism but also to take practical measures to ensure that such cooperation is effective.

The Libyan Arab Jamahiriya appreciates the efforts made and the parts played by the Member States of the United Nations, by the Secretary-General and by other entities in bringing about the resolution of this long-standing matter. In expressing such appreciation, the Libyan Arab Jamahiriya affirms that it will have fulfilled all Security Council requirements relevant to the Lockerbie incident upon transfer of the necessary sums to the agreed escrow account. It trusts that the Council will agree. Therefore, in accordance with paragraph 16 of Council resolution 883 (1993) and paragraph 8 of resolution 1192 (1998), the Libyan Arab Jamahiriya requests that in that event the Council immediately lift the measures set forth in its resolutions 748 (1992) and 883 (1993).

I should be grateful if you would have the present letter circulated as a document of the Security Council.

(Signed) Ahmed A. Own
Ambassador
Chargé d’affaires a.i.

The Conspiracy Files: Lockerbie

The trailer for this programme, which is to be broadcast on BBC Two on Sunday, 31 August 2008 at 21.00 BST, can be viewed here.

Lockerbie - Mueller, Thurman, Bollier, Lumpert and a timer

This is the heading over a post dated 23 August on the Terrorism blog. Amongst many other things, it quotes responses from The Herald website to the two Lockerbie letters published there. Once again, however, it contains the false statement that Abdelbaset Megrahi's counsel at Zeist, Bill Taylor QC, has become a sheriff.

Reaction to the High Court of Justiciary decision

There are two letters in today's issue of The Herald, welcoming the decision of the High Court on the issue of the appellant's access to productions used at the Zeist trial, and the speed with which that decision was arrived at. They are from Dr Jim Swire and Tom Minogue, a long-standing campaigner against injustices perpetrated by the Scottish court system. The letters can be read here. The comments from members of the public which follow the letters are also well worth reading.

English court's robust approach to "national security" non-disclosure claim

Given that the thrust of the Advocate General's submissions to the High Court of Justiciary on the public interest immunity (PII) issue has been to seek to induce the Scottish court to adopt an approach identical to, or more closely in line with, that taken in the English courts, it is instructive to read yesterday's judgement by Lord Justice Thomas and Mr Justice Lloyd Jones in the case of Binyam Mohamed (the last UK resident imprisoned at Guantanamo).

The Foreign Secretary in that case contended that although information had been supplied to the US authorities from UK security and intelligence sources about the circumstances of Mr Mohamed's detention and interrogation, that information need not be supplied to the defence team. The basis of the Foreign Secretary's contention was "that disclosure, even on a limited basis ... would seriously prejudice the viability of the United Kingdom's liaison relationships with highly valued partners ... and the importance of keeping secret information received on a confidential basis from informants and liaison intelligence agencies so as to protect the operational effectiveness of the United Kingdom security and intelligence agencies."

This is precisely the basis of the Foreign Secretary's PII certificate in the Lockerbie appeal.

In the Binyam Mohamed case the English court overrode the secrecy claim and ordered disclosure. The full judgement can be read here.

[I am grateful to Big David for drawing my attention to this judgement.]

A view from France

The website of the French news agency Alter Info today publishes a lengthy article on the Libyan political scene. It starts with a discussion of the Lockerbie affair and takes the view that Libya was framed. Much weight is given to the recent affidavit by MEBO engineer Ulrich Lumpert relating to the provenance of the fragment of MST-13 circuit board that was such an important link in incriminating Libya and Megahi. The relevant portion of the article reads as follows:

'Après l'attentat de Lockerbie, les USA ont prouvé la culpabilité de la Libye sur le fait qu'un élément de détonateur de fabrication Suisse avait été trouvé sur les lieux. Justement, la Suisse venait de vendre 20 détonateurs de ce modèle à la Libye. Cette dernière était néanmoins parvenue à présenter les 20 détonateurs à des émissaires. Mais "tout concordait". Cette cabale a coûté un libyen innoçent en prison à perpetuité et 2,7 milliards d'US$ d'indemnités aux familles de victimes. 10 millions de dollars à chacune des familles des 270 victimes de l'attentat.

'Coup de théatre, en 2007, un ingénieur Suisse du nom d'Ulrich Lumpert, ex-employé du fabricant des détonateurs, l'entreprise Suisse MEBO, avoue avoir menti et avoir volé le fragment de détonateur et l'avoir "donné" à un des enquêteurs écossais. La CIA a dès lors eu beau jeu de prouver la culpabilité de la Libye. Ce fragment était en fait issu d'un détonateur défectueux mis au rebut, n'ayant pas passé le contrôle qualité. Après "traitement" (après "l'explosion de l'avion") par la CIA, le fragment était difficilement identifiable comme tel. Ce qui a néanmoins été fait par Ulrich Lumpert!

'Ulrich Lumpert, ingénieur Suisse travaillant pour le fabricant des détonateurs à l'époque de l'attentat de Lockerbie, a donc "donné" (pour quel prix? Mystère) la preuve nécessaire à la CIA pour faire accuser la Libye. La CIA avait de bonnes raisons de conspirer contre la Libye, dont le fait que Kadhafi était le héros de la nation africaine parce qu'il visait le développement de l'Union Africaine qui stagnait, minée par les occidentaux. Mais aussi parce que Kadhafi avait eu le talent de joindre une démocratie populaire à une intégration de sa culture musulmane et l'éradication de l'islamisme dans son pays.

'Les USA dépensent des milliards pour rendre les musulmans belliqueux, ce n'est pas pour qu'un Kadhafi calme le jeu.

'L'attentat de Lockerbie, après des mois et des mois d'enquête, personne ne l'avait revendiqué et il n'y avait pas de coupable. Par conséquent, il était librement attribuable à n'importe qui. La Libye, gêneur de première grandeur dans les plans africains de l'occident, dont la "Révolution Verte", pour ne citer que ça, était le coupable idéal. La CIA a monté le dossier de toute pièce et s'est approchée d'Ulrich Lumpert.

'Durant des années la Libye s'est trouvée sous embargo de l'ONU sur exigence des Etats-Unis. Voyant son peuple privé de tous les éléments de première nécessité, nourriture, médicaments, Kadhafi s'est mis à genoux en avouant publiquement "la faute" de la Libye. L'embargo a été partiellement levé. Pour le lever complètement, il a été exigé de Kadhafi qu'il livre les "coupables", deux Libyens qui passaient par là justement ce jour-là et ont été filmés par les caméras de surveillance, et qu'il indemnise les familles.

'Kadhafi n'a pas eu d'autre choix que de s'exécuter. Les "coupables" se sont livrés, courageusement, pour leur pays. Ils sont allés d'eux-même se faire juger en Ecosse. Kadhafi à versé 10 millions de d'USdollars à chaque famille des 270 victimes, soit 2,7 milliards de dollars en tout. Un des libyens a été acquitté. Trop difficile à "prouver" sa culpabilité. L'autre a été condamné à vie alors qu'il est parfaitement innocent (il est toujours en prison en l'occurrence).'

Seventh (public) procedural hearing

Today's procedural hearing related to the appellant's two petitions for access to material used at the Zeist trial, or referred to in material used at the trial. In respect of one petition, concerning documents and photographs relevant to the (alleged) identification of Abdelbaset Megrahi by the Maltese shopkeeper, Tony Gauci, the Crown (represented by Ronnie Clancy QC) intimated that it was no longer opposing the appellant's application to be allowed to show the originals to an expert psychologist. The court accordingly granted the prayer of the petition.

As regards the second petition, relating to the appellant's claim to be allowed access to documents and productions used at the Zeist trial (and to other material referred to in such documents), and to be permitted to subject them to forensic scientific examination, the Crown's opposition was maintained. However, after an adjournment of twenty minutes, the court (Lord Justice General Hamilton, Lords Kingarth and Eassie) granted the prayer of the petition, subject to satisfactory arrangements being agreed between the Crown and the appellant's representatives for the security of the productions during the forensic examination.

The fact that the court, without reserving judgement, granted the application makes it unnecessary for me to try to explain the convoluted grounds on which the Crown opposed the application. This is something that (despite having taken ten pages of notes during the hearing) I would have found it difficult to do for a (predominantly) lay readership. Perhaps the most important aspect of today's hearing is the ease and speed with which the court dismissed the Crown's submissions and granted the appellant's requests.

[For some light relief, why not glance at this piece from Radar?]

The Scottish press and the closed hearing

Only The Herald has a report, by Lucy Adams, on the PII hearing that took place yesterday behind closed doors and in the absence of Abdelbaset Megrahi's legal representatives. The Scotsman ("Scotland's National Newspaper") does not regard the issue as worthy of attention.

The article in The Herald (like yesterday's BBC report) says that what the judges have to decide is 'whether Megrahi can still get a fair appeal hearing without access to the secret papers.' This is inaccurate. The true position is as stated on this blog on 25 May 2008:

'As a distinguished Scottish judge said in 1968 in a case in the House of Lords: “It is universally recognised that there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

'What the court has to do is to assess the harm, if any, that would be done to the national interest through disclosure, and weigh that against the harm that would be done to the administration of justice (eg the likelihood, or the possibility, that an unjustified conviction might be upheld) if disclosure were denied. In this balancing exercise, the court must consider what aspects of the UK’s national interest would be harmed by disclosure (eg national security; relations with friendly foreign governments) and what the extent and gravity of that harm would be. Before the Government’s PII claim can succeed, this potential harm must outweigh the public interest in (and the European Convention on Human Rights requirement of) the fairness of criminal proceedings, which involves an accused person’s having access to all relevant material that might assist his defence.

'In the past, PII claims have been relatively frequently been upheld in civil cases, but only rarely upheld in criminal cases, where the liberty of the accused person is at stake. And given that the document in question was already in the hands of the Crown at the time of the Lockerbie trial in 2000, I suspect that the court will take some convincing that serious harm would be done to the UK’s national interest by its disclosure today, some eight years later.'

The Herald also publishes a letter on the matter from Dr Jim Swire. It reads in part:

'No matter what the content of the document(s) may be, and they may for all we know be quite trivial, the principle that there be "equality of arms" between the prosecution and defence in a criminal case is fundamental to a fair trial/appeal.

'Justice and truth could not be provided by any system where the political executive intervenes in the fair distribution of information between the prosecution and defence. Nor could the Scottish public have faith in such a system. One of the vital functions of any free country's judicial system is to ensure, free from interference by the executive, that the individual can rely upon it to decide issues where that political executive is alleged to have acted unfairly in disadvantaging that individual. It is against that background that I commend the letter from Professor Hans Koechler, the UN international observer at the Camp Zeist trial of Megrahi, to Mr Miliband in which he writes: "Many who, like myself, initially trusted in the integrity of the judicial process under Scots law, will feel betrayed. There is no justice without truth - and there can be no truth if evidence is withheld in a criminal case by governmental decree."

'Like the professor, I do not believe that a meaningful and fair further appeal could be held under the Scottish criminal justice system, should the High Court today decide against sharing this information with the [appellant]'s defence team.'

What happened at the closed hearing?

Here is what the BBC News website says about today's closed hearing:

'Legal debate has taken place behind closed doors to try to resolve a long-running row over secret documents linked to the Lockerbie bombing appeal.

'The man convicted of the atrocity, Abdelbasset al Megrahi, 56, believes they could help to clear him.

'UK Foreign secretary David Miliband said handing them to defence lawyers would put national security at risk.

'Judges now have to decide whether Megrahi can get a fair appeal hearing without access to the papers. [RB: No, this is not correct. What the judges have to decide is whether to override the Foreign Secretary's PII certificate and order the documents to be handed over, in whole or in part, to the lawyers representing Megrahi or (and this would be an entirely new departure in Scottish criminal proceedings) to special -- security-vetted -- counsel.]

'Scotland's top judge, Lord Hamilton, sitting with Lords Kingarth and Eassie, will make a ruling on the matter.

'It is the first time the Scottish courts have had to deal with such a question.

'Megrahi is currently serving a life sentence for the 1988 bombing, in which 270 people died.

'He has already lost one appeal against conviction, but the Scottish Criminal Cases Review Commission said he should have another.

'It has seen the secret documents and said they should have been shown to defence lawyers before Megrahi's trial.'

This week's court hearings

On Tuesday, 19 August a closed hearing will be held on whether the UK Government's claim of public interest immunity should be upheld and, if so, to what extent. As well as the public, Abdelbaset Megrahi and his lawyers are excluded from this hearing. As I wrote on this blog on 16 July: "This is the very first time of which I am aware in Scottish legal history that a hearing has been convened in a criminal appeal from which the appellant and his legal representatives have been excluded. It should also be the last."

On Wednesday, 20 August there will be a public procedural hearing on the petition lodged by Megrahi's legal representatives for an order according them access to the original trial productions which, contrary to established practice, the Crown has been denying them. It is to be hoped that there will also be an indication of the outcome of the earlier debate on the scope of the current appeal, ie whether it should be confined to the issues on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice.

Oliver Miles on the compensation agreement

The website of The Guardian has an article on the implications of the US-Libyan compensation agreement by Oliver Miles, a former British ambassador to Tripoli and a former president of the Society for Libyan Studies. The article, unlike many, recognises that the conviction of the one Libyan found guilty of involvement in the Lockerbie atrocity has been referred back to the Criminal Appeal Court by the SCCRC on the basis that it may have amounted to a miscarriage of justice. The article can be read here.

And here, from the Tripoli Post, is a Libyan perspective.

From the horse's mouth

The transcript of the press briefing given by David Welch, Assistant Secretary of State for Near Eastern Affairs, on his return from Tripoli after concluding the compensation agreement with the Libyan Government, can be read here.

Yet more ...

The following is from the CNN website:

'The pact, supported by the victims' families, closes the book on a contentious period in U.S.-Libyan relations. Ties between the two countries began to improve in 2003, when Libya gave up its weapons of mass destruction program and began compensating Lockerbie victims.

'But lingering lawsuits prevented the two countries from fully normalizing ties. A joint U.S.-Libya statement issued Thursday in Tripoli said "both parties welcomed the establishment of a process to provide fair compensation for their respective nationals, and thereby turn their focus to the future of their bilateral relationship." ...

'The State Department said the "agreement is being pursued on a purely humanitarian basis and does not constitute an admission of fault by either party."

'Senior State Department officials said the formula was designed to respect Libyan sensitivities about compensating victims for incidents for which it hasn't taken responsibility.

'But it also allows Libya to settle outstanding claims for U.S. air strikes on Tripoli in 1986, in which Libya claims more than 40 of its citizens were killed, including Gadhafi's adopted daughter.

'Donations to settle Libyan claims would be placed in the "voluntary" fund, from which each country involved in the claims draws the money to pay its citizens.

'Welch said no U.S. taxpayer money would be used to compensate Libya but said he was "optimistic" donations to settle Libyan claims would be made. Other senior U.S. officials said American companies eager to do business in Libya could possibly make a contribution.

'The deal is to be followed by a U.S. upgrading of relations with Libya, including the confirmation of a U.S. ambassador and possible American aid. Secretary of State Condoleezza Rice is expected to visit Libya before the end of the year.'