All quiet ...

Because of recent phone calls from journalists writing for the Scottish editions of two UK Sunday newspapers, I had expected that articles about different aspects of the Lockerbie case might appear today. One of the journalists was seeking confirmation of information he had apparently obtained about Abdelbaset Megrahi’s medical condition. Even if I had been privy to such information (which I am not) I would not, of course, have supplied it. But as far as I can discover from an internet trawl, neither newspaper has published a Lockerbie story.

The United Kingdom’s Strategy for Countering International Terrorism

This is the title of a lengthy document published today by the United Kingdom Home Office. Paragraph 1.07 reads in part:

"In December 1988 another commercial passenger aircraft, Pan Am 103, was destroyed by an explosive device over Scotland killing 259 people on board and 11 in the town of Lockerbie where it crashed. This operation, which caused greater loss of life than any other terrorist incident in the UK, before or since, was sponsored and conducted by the Libyan authorities; in 2001 a Libyan national was convicted and sentenced for his role in the incident."

It might perhaps have been worth mentioning that the conviction is under appeal on a reference back to the High Court of Justiciary by the Scottish Criminal Cases Review Commission. But UK Government publications on the subject of terrorism have not been noted for their concern with strict accuracy. The full document can be accessed here.

Crown's account of 12th procedural hearing

[The Crown Office (headquarters of the Scottish prosecution system) provides relatives of those killed aboard Pan Am 103 with accounts of proceedings in court in connection with the current Lockerbie appeal. I am grateful to one of these relatives (who, for the avoidance of doubt, is not Dr Jim Swire or, indeed, any of the UK relatives) for supplying me with the appended notes distributed by the Crown Office following the twelfth procedural hearing this past week.]

Petition for recovery of documents

On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.

Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.

The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.

Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.

This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.

In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.

•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.

•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.

•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.

•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).

•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.

Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.

Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.


Procedural Hearing 17th – 18th March 2009

People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.

Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross

Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.

Alan Summers QC appeared on behalf of the Advocate General for Scotland.

Hearing Grounds 1 and 2

The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.

Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.

Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.

The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.

Hearing Grounds 3.1 – 3.1

Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.

Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.

The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.

The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.

Outstanding Petitions for Disclosure

There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.

Additional Information

In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.

The High Court's disclosure decision

Three Scottish daily newspapers today print accounts of the High Court's decision to order the disclosure to Mr Megrahi's lawyers of documents relevant to his present appeal. The Herald's article (which is the most detailed) can be read here. The following are extracts:

'Three senior judges yesterday ordered 45 pieces of key evidence to be handed over to the legal team representing the man convicted of the Lockerbie bombing in an embarrassing setback for the Crown Office.

'The vital documents include a secret fax that could discredit a key prosecution witness.

'The court of criminal appeal in Edinburgh ordered prosecutors to find and disclose the different evidence, which has so far been kept secret from the defence. (...)

'The Libyan's defence team applied to see 48 documents, which included a fax they claim places a fundamental question mark against the original trial testimony of Tony Gauci, who sold clothes later found in the wreckage of PanAm 103 at Lockerbie.

'The judges rejected three of the requests, including demands for information about the number of times police and US agencies had contact with Mr Gauci.

'However, the onus will now be on the Crown to identify and share a range of other undisclosed documents, including those expected to show that Scottish police recommended to US authorities that both the main witness in the trial and his brother should be paid a reward of up to $3m, or $1.5m. (...)

'Libyan authorities have been encouraged to apply for a prisoner transfer to allow Megrahi to spend his remaining time with his family, but this would mean dropping the appeal, which he is not prepared to do.'

The Scotsman's article can be read here; and the Daily Record's here.

Apart from these reports on the court's disclosure decision, I have found no press reports of proceedings at the ongoing twelfth procedural hearing.

High Court orders further disclosure

At the eleventh procedural hearing held on 18 to 20 February, Abdelbaset Megrahi's legal team sought disclosure from the Crown of further documents relevant to his appeal. In delivering its judgment today, the High Court acceded to this request. The following extracts are from the BBC News website:

'Judges have ordered prosecutors to hand over more undisclosed documents they may have concerning a crucial witness at the trial of the Lockerbie bomber.

'Abdel Baset Al Megrahi's lawyers went to the Court of Criminal Appeal in Edinburgh seeking further material for the appeal against his conviction. (...)

'The Crown said it believed it had already handed over all the documents sought by the defence.

'The material being sought includes records, logs, notes and police computer entries concerning a sighting by Maltese shopkeeper Tony Gauci of a clothes buyer in September 1989. (...)

'The material wanted by defence lawyers also includes any documents on a meeting between police and Mr Gauci and an interview held with him.

'It further includes material over aspects of an ID parade held at Zeist in April 1999, attended by Mr Gauci, at which Megrahi was paraded.

'In the grounds of appeal lodged on behalf of Megrahi, those relating to the evidence of Mr Gauci run to almost 150 pages.

'More documentation is also sought of contact between police and other investigators with a potential witness, David Wright.

'Mr Wright did not give evidence at Megrahi's trial but it is said he "may have material evidence to give bearing on the identification of the appellant as the purchaser of goods associated with the Lockerbie incident".

'The Lord Justice General, Lord Hamilton, said: "Without expressing any view on the adequacy of the steps already taken by the Crown to satisfy the claims for recovery, we consider that the appropriate course at this stage is to identify the classes of document which, if they exist, the appellant is in our judgement entitled to recover."

'Lord Hamilton, sitting with Lord Kingarth and Lord Eassie, said: "The Advocate General has not yet scrutinised all the material on behalf of the United Kingdom Government.

'"It is possible that objections, based on legal privilege, might yet be made on the part of other governments or agencies.

'"The order which we shall pronounce will be subject to due consideration of any such objections."'

The full report can be read here.

Twelfth (public) procedural hearing

The final procedural hearing before the commencement on 28 April of the first substantive session (insufficient evidence to warrant conviction; verdict unreasonable on evidence led) of the appeal, will be held in the High Court of Justiciary in Edinburgh on Tuesday 17th, Wednesday 18th and Thursday 19th March 2009. The Tuesday hearing will start at 2pm, the others at or around 10am.

Milliband on Binyam Mohamed PII assertion

In a letter in today's edition of The Guardian, the Foreign Secretary, David Milliband, says this:

'It is factually wrong to say that we tried to conceal potentially exculpatory material from Mr Mohamed's defence counsel.

'Far from withholding documents, it was the British government which pressed for and secured the release of these documents by the US to his defence counsel in October 2008. This was the result of strenuous efforts on our part, as the high court said. We also disclosed considerable UK intelligence material in the court proceedings in this country, which was discussed at length in the court's publicly available judgments from last August onwards. We have also made that material available to parliament's intelligence and security committee, the body with the constitutional responsibility for the oversight of the work of the intelligence and security agencies.

'The point in issue in the recent judgment of the high court was not that, but whether the courts in one country should order the public disclosure of another country's intelligence material without that country's permission. We argued that they should not, given the fundamental principle that intelligence documents are shared on the basis of confidentiality, and should only be disclosed by the originators of the information.'

Whatever the UK Foreign Office's stance may have been in the Binyam Mohamed case, in Abdelbaset Megrahi's current appeal there is no doubt whatsoever that the FCO tried to conceal potentially exculpatory material from Mr Megrahi's defence counsel -- and that it succeeded, the relevant material being disclosed only to a special (security-vetted) advocate and not to Megrahi's chosen legal team.

Seventh anniversary of dismissal of appeal

It was on 14 March 2002 that five judges of the High Court of Justiciary sitting in the Scottish Court at Camp Zeist dismissed Abdelbaset Megrahi's appeal against conviction. In an article commenting on the trial and appeal, I wrote:

'As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them.

'Until such time as an appellate court (perhaps on a reference from the Scottish Criminal Cases Review Commission) is required to address the fundamental issues of (i) whether there was sufficient evidence to warrant the incriminating findings, (ii) whether any reasonable trial court could have made those findings (and could have been satisfied beyond reasonable doubt of the guilt of Megrahi) on the evidence led at Camp Zeist and (iii) whether Megrahi’s representation at the trial and the appeal was adequate, I will continue to maintain that a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied.'

The full article can be read here. The first substantive session of the fresh appeal granted by the Scottish Criminal Cases Review Commission is due to start on 28 April 2009.

The Lockerbie Trial and the Rule of Law

This is the title of an article written by Professor Hans Koechler for the National Law School of India Review, vol 19 (2009). The final section of Dr Koechler's article reads as follows:

'After an involvement of over more than 15 years in the observation and analysis of the legal and political disputes between the United Kingdom, the United States and the Libyan Jamahiriya – essentially over an issue of criminal jurisdiction in a suspected case of international terrorism –, the author has summarized his conclusions in remarks at the Law Awards of Scotland 2008:

'“Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland. At the same time, it has become an exemplary case on a global scale − its handling will demonstrate whether a domestic system of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as "supreme state interests" interfere with the imperatives of justice. Fairness of judicial proceedings is undoubtedly a supreme and permanent public interest. If the rule of law is to be upheld, the requirements of the administration of justice may have to take precedence over public interests of a secondary order − such as a state's momentary foreign policy considerations or commercial and trade interests. The internal stability and international legitimacy of a polity in the long term depend on whether it is able to ensure the supremacy of the law over considerations of power and convenience. Contrary to what skeptics and the advocates of the supremacy of realpolitik try to make us believe, the basic maxim of the rule of law is not fiat justitia, pereat mundus but fiat justitia ne pereat mundus – let justice prevail so that the world does not perish.”'

The full text of the article can be read here.

Susan Lindauer: Secret Charges and The Patriot Act

In the course of a lengthy interview conducted by Michael Collins and reported on the Scoop Independent News website, Susan Lindauer discloses that charges (now dropped) were brought against her under the Patriot Act. Relevant to the Lockerbie case is the following brief extract:

'I had my entire legal strategy mapped out in the first couple of hours after my arrest. I could see mistakes in the indictment, and I quickly identified which witnesses and evidence would be necessary to repudiate the whole lot.

'My witness list was outstanding. It included international attorneys from the Lockerbie Trial, former Congressional staffers, even a couple of international journalists. One of Scotland's finest Solicitors, Edward MacKechnie, who won acquittal for his Libyan client in the Lockerbie Trial, immediately promised to travel at his own expense to testify for me as to the identity and credentials of Dr. Richard Fuisz, my CIA handler. I have the emails to prove it. His participation was beyond dispute.'

The full interview can be read here.

The Influence Game: Libya Case Gets Lobbyists $2M

Two decades after a bomb blew Pan Am Flight 103 from the skies over Lockerbie, Scotland, the victims' families have finally received the full compensation Libya promised. And a lobbying firm that helped them collect is getting its share: A tidy $2 million.

The payout to Quinn Gillespie & Associates is rare, even for Washington's lucrative influence business. Of 18,989 reported lobbying fees collected last year, just 24 hit the $1 million mark, according to the nonpartisan Center for Responsive Politics, which traces political influence in Washington.

A report the lobbying firm filed in January and interviews with participants illuminate a little-noticed side of the long battle the victims' families waged in Washington, including how they were guided behind the scenes by experts in the capital's ways.

Quinn Gillespie's payment covers work it did from 2006 through 2008 helping the relatives plot strategy, generate publicity and arrange meetings at the State Department and elsewhere.

The 1988 blast killed all 259 people on the jetliner, including 180 Americans, plus 11 on the ground. After extended negotiations, Libya agreed to pay restitution of $10 million to each family of a victim. Payment of the final $2 million to each family became stalled, and the families hired the lobbying firm to help them collect it.

"I was a lobbyist for 30 years, and I thought the families were our best lobbyists," said Frank Duggan of Alexandria, Va., a retired attorney who helped the families and initially opposed hiring Quinn Gillespie. "It was worth it. They opened doors we could not have opened."

[From a report on the ABC News website. The full text of the long article can be read here.]

Libyan intelligence chief named FM in reshuffle

Libyan strongman and long-time secret service chief Mussa Kussa was named foreign minister in a ministerial reshuffle announced by parliament on Wednesday. (...)

Kussa, 59, replaces Abdel Rahman Shalgham who held the post for eight years and will now represent Libya at the UN Security Council. (...)

The new cabinet list saw three newcomers at the telecommunications, health and education ministries while several others were abolished or absorbed into other ministries.

The major change was the appointment of Kussa, a loyal servant to Kadhafi who has been the head of the north African state's secret service for 15 years.

He has been involved in all the negotiations and policy shifts that have seen the one-time pariah state return to the international fold.

After starting his career as a security specialist for Libyan embassies in Europe, Kussa became ambassador to London in 1980 -- but was kicked out that year for declaring his determination to liquidate "enemies of the revolution" on British soil.

A strongman on the Libyan revolutionary committee which forms the backbone of Kadhafi's regime, Kussa has been in charge of major foreign policy affairs such as Africa and Libya's relations with the West.

In particular, he played a key role in reaching deals to compensate the victims of the Lockerbie bombing in 1988 and bombing of a French airliner the following year, removing one of the biggest obstacles to building bridges with the West.

[From a report on the website of news agency Agence France Presse. The full text can be read here.]

Susan Lindauer interview

The Intelligence Daily today carries an extended interview by Michael Collins with Susan Lindauer. One section reads as follows:

'Collins: What first triggered your concern about a possible attack involving airplanes and the World Trade Center? How did Lockerbie figure into the 9/11 warning?

'Lindauer: The Lockerbie Trial in the year 2000 got us thinking of what the next terrorist scenario would look like. The bombings of Pan Am 103 in December, 1988 and UTA (French airlines) in September, 1989 were the last attacks involving airplanes prior to September 11, 2001. Our team worried openly that the Trial of the two accused Libyans would inspire a sort of "tribute attack" to the success of Lockerbie.

'The problem is that while most Americans have refused to accept that Libya's man, Mr Megraghi was innocent of the crime, it happens to be true. And terrorists groups know that. They know very well who was responsible for planting the bomb on Pan Am 103, and they know that those individuals have never been brought to justice. Indeed, throughout the Trial, when the US made such a poor showing of forensic evidence against the accused Libyans, that US failure was gossip throughout the Middle East. As Dr Fuisz used to say, terrorist groups thought that for all the mighty resources of U.S. Intelligence, the US was either too stupid to catch them. Or we were afraid because the real terrorists are "too big."

'Either of those beliefs stood to create a huge and irresistible provocation to the younger generation of jihadis. It was an easy step to anticipate that younger terrorists would be inspired to launch a tribute attack to the "heroes" who came before them. On that basis, we drew up an extreme threat scenario that the next major attack would most likely involve airplane hijackings or airplane bombings.

'That is exactly what happened by the way. Back in the 1980s, Osama bin Laden called Ahmed Jibril "a hero" and "the greatest fighter against Israel who ever lived."

'Sure enough, my own extensive sources in the Middle East have repeatedly told me that Ahmed Jibril was the true mastermind of Lockerbie - and so we find the 9/11 puzzle fits together exactly.'

The full interview can be read here.

Lockerbie Suitcase Bomb: Scientific Implausibility

This is the title of a scientific paper by Dr Ludwig de Braeckeleer and others which claims to establish that Pan Am 103 could not have been destroyed in the manner claimed by the Crown at the original trial. The paper, with all supporting references, can be read here.

My ignorance of matters technical and scientific is such that any opinion expressed by me on Dr De Braeckeleer's thesis would be worthless. But it is without doubt a serious contribution to knowledge regarding the Lockerbie tragedy.

Lockerbie bomber is dying: wife

The wife of convicted Lockerbie bomber, Libyan Abdelbaset Ali Mohmet al-Megrahi, warned on Thursday that he was in danger of dying due to deteriorating cancer.

"His health has considerably deteriorated. He is in danger of dying," Aisha Megrahi told AFP. "The disease has spread across his body." (...)

Defence lawyers say Megrahi's cancer is in a terminal phase but the Appeal Court in Edinburgh ruled that he could live for years depending on how successful his treatment is.

"While the disease from which the appellant suffers is incurable and may cause his death, he is not at present suffering material pain or disability," Lord Justice General Arthur Hamilton said at the time.

Aisha Megrahi said "they have refused to set him free. It is clear that the British prefer that he dies in jail."

She claimed that her husband "haemorrhaged several times recently."

"His body is not reacting any more to medication because of his bad psychological condition, according to a report by his doctor," she said, adding that she had visited him three times this month alone.

"Hospitals are refusing to admit him because of the exaggerated (police) surveillance involved in transferring him" from prison, she added.

Megrahi's wife said his family's "only wish is that he be transferred to a hospital or to our house in Scotland, so that he can spend what is left of his life with his family."

[From a report on the website of Agence France Presse. The full article can be read here.]