[What follows is an excerpt from yesterday's US State Department daily press briefing by Department spokesman Ian Kelly.]
QUESTION: Glenn Campbell from the BBC. Has the United States forgiven the Scottish Government for releasing the man convicted of the Lockerbie bombing?
MR. KELLY: Well, our views on that issue, of course, are extremely well known. Again, we’ve passed these views both in private channels and in – also publicly. I think just about everything that we have said to the governments in London and Edinburgh through diplomatic channels have mirrored what we’ve said publicly. I don’t think it’s a matter of forgiving anybody. I think all along, we recognized that Mr. MacAskill had the right to do what he did. We objected extremely strenuously at many different levels and in many different channels to the release of Mr. Megrahi.
I think at this point, we’re looking to move on. We’re looking to continue the very important cooperation that we have with the United Kingdom and with Scotland. We have very deep and abiding ties with Scotland. These ties are cultural. They’re – we share political values. We have many family ties. My own father, as you probably can guess from my first name, is Scottish. He was born in Edinburgh. So we’re looking to move on. We’re looking for a – to continue this important relationship that we have with Scotland.
QUESTION: Is there any diplomatic price for the Scottish Government to pay?
MR. KELLY: We are very close allies, and I think allies – I don’t think we’re looking to punish anybody, per se. There’s no tit-for-tat here.
[Today's edition of the Financial Times runs an interview with Louis Susman, the new US ambassador to the UK, in which he expresses his views about the Megrahi release and the "special relationship".]
Tuesday, 22 September 2009
Monday, 21 September 2009
The Scotsman legal debate: Megrahi
With the decision to release the Lockerbie bomber still reverberating around the Scottish legal profession, it was unsurprising that the topic was first on the agenda for the annual Scotsman live legal debate held on Wednesday in Edinburgh. (...)
Marshalled by journalist and commentator Ian Fraser, the panellists were: Jonathan Mitchell QC, a member of the Faculty of Advocates' council; Ian Smart, the president of the Law Society of Scotland; Catriona Headley, the secretary of the Scottish Young Lawyers Association and Lorne Crerar, the chairman of Harper Macleod.
Has the Megrahi decision damaged the Scottish justice system?
Jonathan Mitchell: I don't believe anyone, a couple of years from now, in Scotland or anywhere else is going to have this near the front of their minds. Enough murderers have been freed in Scotland, England and elsewhere in Europe in recent years without anybody paying much attention. We freed 78 murderers in Northern Ireland following the Good Friday Agreement.
There might be an issue as to whether we should change policy in the future. We should perhaps follow the example of other countries and say ministers should not take the decision on compassionate release – this is something for judges, or the parole board. The parole board advised that Megrahi should be released, the governor of the prison advised he should be released, the medical advice was that he was terminally ill. I don't see how you can turn round and say: "you're just the parole board, you're just the governor of the prison, you're only doctors, I am an elected politician responsible to the electorate and I say you're wrong". That would be outrageous.
Ian Smart: All civilised legal systems have compassionate release. The minister made a decision based on the evidence that was presented to him and the law of Scotland. The theory that suggests he, Peter Mandelson, Colonel Gaddafi's son and others formed a conspiracy is just absurd. No sane person thinks he made the decision other than in good faith. We have to move on.
Lorne Crerar: I was very proud we dealt with it the way we did and that we are seen as being a nation of compassion rather than a nation of cruelty. I see it as being a positive that the Scottish legal system is seen as being robust and independent and has compassion as a part of what it does.
Catriona Headley: The problem with the Megrahi decision is it appears to have been made by a politician for political reasons. If you look at the guidance that was available and the legislation followed by the justice minister, I don't think there was any other option but to release Megrahi.
[From the report on the debate in today's edition of The Scotsman.]
Marshalled by journalist and commentator Ian Fraser, the panellists were: Jonathan Mitchell QC, a member of the Faculty of Advocates' council; Ian Smart, the president of the Law Society of Scotland; Catriona Headley, the secretary of the Scottish Young Lawyers Association and Lorne Crerar, the chairman of Harper Macleod.
Has the Megrahi decision damaged the Scottish justice system?
Jonathan Mitchell: I don't believe anyone, a couple of years from now, in Scotland or anywhere else is going to have this near the front of their minds. Enough murderers have been freed in Scotland, England and elsewhere in Europe in recent years without anybody paying much attention. We freed 78 murderers in Northern Ireland following the Good Friday Agreement.
There might be an issue as to whether we should change policy in the future. We should perhaps follow the example of other countries and say ministers should not take the decision on compassionate release – this is something for judges, or the parole board. The parole board advised that Megrahi should be released, the governor of the prison advised he should be released, the medical advice was that he was terminally ill. I don't see how you can turn round and say: "you're just the parole board, you're just the governor of the prison, you're only doctors, I am an elected politician responsible to the electorate and I say you're wrong". That would be outrageous.
Ian Smart: All civilised legal systems have compassionate release. The minister made a decision based on the evidence that was presented to him and the law of Scotland. The theory that suggests he, Peter Mandelson, Colonel Gaddafi's son and others formed a conspiracy is just absurd. No sane person thinks he made the decision other than in good faith. We have to move on.
Lorne Crerar: I was very proud we dealt with it the way we did and that we are seen as being a nation of compassion rather than a nation of cruelty. I see it as being a positive that the Scottish legal system is seen as being robust and independent and has compassion as a part of what it does.
Catriona Headley: The problem with the Megrahi decision is it appears to have been made by a politician for political reasons. If you look at the guidance that was available and the legislation followed by the justice minister, I don't think there was any other option but to release Megrahi.
[From the report on the debate in today's edition of The Scotsman.]
Over the top on Abdelbaset al-Megrahi's dossier
[This is the heading over an article by Marcel Berlins on The Guardian's Comment is free website. It reads as follows:]
Scotland's chief law officer, lord advocate Elish Angiolini, was wrong to "deplore the efforts by Abdelbaset al-Megrahi to challenge his conviction through selective publication of his view of the evidence in the media".
A 298-page dossier has been published online, aimed at contesting Megrahi's conviction for the Lockerbie bombing. With further documents to be made public soon, the online material will amount to what would have been put to the Scottish court of appeal later this year had Megrahi not been returned to Libya on compassionate grounds.
Why is the lord advocate so exercised? "The only appropriate forum for the determination of guilt or innocence is the criminal court," she says. Yes, of course – but that's never been a barrier to campaigns over purported miscarriages of justice before. Indeed, almost all the famous cases were first brought to public attention not in a courtroom but by way of a media drive.
It is true, as Angiolini points out, that Megrahi voluntarily abandoned his appeal. But he did so because he and his advisers believed that it would improve his chances of release. I do not know whether or not his actions had that effect, but it was always made clear that withdrawing the appeal was not to be taken as a lack of confidence, or an admission of guilt.
Angiolini reminds us that Megrahi was convicted unanimously by three senior Scottish judges, with the conviction unanimously upheld on appeal by five judges. She fails to add that the second appeal had been initiated by the independent Scottish Criminal Cases Review Commission (SCCRC), which had referred the case back to the court of appeal in 2007 because it had doubts about the safety of Megrahi's conviction. The SCCRC does not reach such decisions lightly, and two-thirds of the cases it has referred to the court over the past few years have resulted in successful appeals.
In particular, the second appeal claimed that judges in the original trial had made errors in the way they treated the evidence of a Maltese shopkeeper, Tony Gauci – evidence that was crucial in linking Megrahi to the bombing. Gauci claimed to have identified Megrahi as the purchaser of clothing later found in the suitcase containing the Lockerbie bomb. That identification is at the centre of the doubt raised by the SCCRC.
Angiolini says that the crown was "ready, willing and able" to fight the appeal. I'm sure that's so, and I'm sure she was confident of winning, but that doesn't explain or justify her inflated reaction to Megrahi's online dossier.
We will probably never know for sure whether Megrahi planted the bomb on Pan Am flight 103 more than 20 years ago. But it would have been more dignified and more effective had the lord advocate merely emphasised the one-sided nature of Megrahi's online campaign, rather than giving the impression that she would have preferred the opposing argument to have been banned altogether.
[Unlike Mr Berlins, I am not sure that the Lord Advocate was confident of winning the appeal. The relief in the Crown Office when Mr Megrahi abandoned it was palpable and undisguised. And the later stages of the appeal would have shone a light on prosecution failure to make available to the defence material that could have assisted them, which would have been embarrassing, to say the least, to the Crown Office.]
Scotland's chief law officer, lord advocate Elish Angiolini, was wrong to "deplore the efforts by Abdelbaset al-Megrahi to challenge his conviction through selective publication of his view of the evidence in the media".
A 298-page dossier has been published online, aimed at contesting Megrahi's conviction for the Lockerbie bombing. With further documents to be made public soon, the online material will amount to what would have been put to the Scottish court of appeal later this year had Megrahi not been returned to Libya on compassionate grounds.
Why is the lord advocate so exercised? "The only appropriate forum for the determination of guilt or innocence is the criminal court," she says. Yes, of course – but that's never been a barrier to campaigns over purported miscarriages of justice before. Indeed, almost all the famous cases were first brought to public attention not in a courtroom but by way of a media drive.
It is true, as Angiolini points out, that Megrahi voluntarily abandoned his appeal. But he did so because he and his advisers believed that it would improve his chances of release. I do not know whether or not his actions had that effect, but it was always made clear that withdrawing the appeal was not to be taken as a lack of confidence, or an admission of guilt.
Angiolini reminds us that Megrahi was convicted unanimously by three senior Scottish judges, with the conviction unanimously upheld on appeal by five judges. She fails to add that the second appeal had been initiated by the independent Scottish Criminal Cases Review Commission (SCCRC), which had referred the case back to the court of appeal in 2007 because it had doubts about the safety of Megrahi's conviction. The SCCRC does not reach such decisions lightly, and two-thirds of the cases it has referred to the court over the past few years have resulted in successful appeals.
In particular, the second appeal claimed that judges in the original trial had made errors in the way they treated the evidence of a Maltese shopkeeper, Tony Gauci – evidence that was crucial in linking Megrahi to the bombing. Gauci claimed to have identified Megrahi as the purchaser of clothing later found in the suitcase containing the Lockerbie bomb. That identification is at the centre of the doubt raised by the SCCRC.
Angiolini says that the crown was "ready, willing and able" to fight the appeal. I'm sure that's so, and I'm sure she was confident of winning, but that doesn't explain or justify her inflated reaction to Megrahi's online dossier.
We will probably never know for sure whether Megrahi planted the bomb on Pan Am flight 103 more than 20 years ago. But it would have been more dignified and more effective had the lord advocate merely emphasised the one-sided nature of Megrahi's online campaign, rather than giving the impression that she would have preferred the opposing argument to have been banned altogether.
[Unlike Mr Berlins, I am not sure that the Lord Advocate was confident of winning the appeal. The relief in the Crown Office when Mr Megrahi abandoned it was palpable and undisguised. And the later stages of the appeal would have shone a light on prosecution failure to make available to the defence material that could have assisted them, which would have been embarrassing, to say the least, to the Crown Office.]
Sunday, 20 September 2009
Legal doubt over Megrahi's guilt
[This is the headline over an article by Jason Allardyce in today's edition of The Sunday Times. The following are excerpts.]
The legal body charged with assessing the guilt of the man convicted of the Lockerbie bombing concluded his conviction may be unsafe because it relied on evidence provided by a discredited witness who had been paid by American intelligence services.
A report by the Scottish Criminal Cases Review Commission (SCCRC), due to be published later this year, is said to suggest that the testimony of Abdul Majid Giaka, a paid informer for the Central Intelligence Agency (CIA) should have been discounted by judges at Abdelbaset Ali Mohmed al-Megrahi’s trial in the Hague in 2001. [Note by RB: This is a reference to the SCCRC's full 2007 report, only a brief summary of which has so far been published.]
Giaka testified that Megrahi was an agent for the Jamahiriya Security Organisation (JSO), the Libyan intelligence service. He claimed to have seen Megrahi carrying a suitcase containing the bomb used to blow up Pan Am Flight 103, which exploded over Lockerbie in December 1988 killing 270 people, and to have discussed the plot with him.
However, declassified documents released during the trial revealed that American intelligence officials doubted Giaka’s claims to be connected to the highest level of Libyan intelligence and threatened to stop paying him $1,000 (£612) a month unless he provided better information.
The informant claimed that he worked in the secret files section of the JSO, but he was a garage mechanic. Giaka’s credibility was further undermined when he claimed to be related to royalty and that the Libyan leader was a freemason.
The defence alleged Giaka had been paid £1.6m by the American government to help secure a guilty verdict against Megrahi and his co-accused Lameen Fhima.
The judges at Camp Zeist in The Hague discounted most of Giaka’s testimony on the grounds that his co-operation with the American authorities was “largely motivated by financial considerations”. However, they accepted his testimony that Megrahi was a member of the JSO, a suggestion the accused denied. (...)
While the commission’s concerns about the reliability of Tony Gauci, a key Crown witness at Megrahi’s trial, have been made public, its doubts about Giaka’s testimony were kept secret.
A source who has seen the SCCRC document, told The Sunday Times: “The report says there was no sufficient explanation made of why the court discounted him as a credible witness yet seemed to accept elements within his evidence which asserted that Megrahi was a senior member of the Libyan intelligence service and was involved in the wider conspiracy.
“There was no actual evidence to support that, but the court accepted it. It undermined [sic; presumably "underlined" or "supported" is what is meant] the Crown’s narrative of the offence — that Megrahi was acting on behalf of Libyan intelligence. That information came from Giaka and all his other evidence was utterly discredited — yet they accepted that element.” (...)
At the trial, Megrahi’s defence team denied their client was employed by the JSO and dismissed Giaka’s testimony as “pure fantasy”.
The SCCRC’s concerns about Giaka’s testimony are shared by Michael Scharf, who was the counsel to the US counterterrorism bureau when Megrahi and Fhima were indicted for the bombing. He believes that the case should never have gone to trial.
He claimed the CIA had assured State Department officials that Giaka was “the perfect witness” and there was an “airtight” case against Megrahi and Fhima, who was cleared. “This is a bit like the OJ Simpson case, where the prosecution, together with the US government, tried to sex up the case and tried to hide the flaws,” he said.
“Unfortunately, because Megrahi’s appeal is not going to go forward we’ll never really know the full story.”
The commission’s full report, expected to be published in redacted (edited) form within weeks, is said to conclude that the failure to disclose a document thought to pertain to the bomb’s timer device, may have led to a miscarriage of justice. The evidence belonged to an unnamed foreign country, which refused to hand the material over. The British government at the time claimed public interest immunity against disclosure.
The legal body charged with assessing the guilt of the man convicted of the Lockerbie bombing concluded his conviction may be unsafe because it relied on evidence provided by a discredited witness who had been paid by American intelligence services.
A report by the Scottish Criminal Cases Review Commission (SCCRC), due to be published later this year, is said to suggest that the testimony of Abdul Majid Giaka, a paid informer for the Central Intelligence Agency (CIA) should have been discounted by judges at Abdelbaset Ali Mohmed al-Megrahi’s trial in the Hague in 2001. [Note by RB: This is a reference to the SCCRC's full 2007 report, only a brief summary of which has so far been published.]
Giaka testified that Megrahi was an agent for the Jamahiriya Security Organisation (JSO), the Libyan intelligence service. He claimed to have seen Megrahi carrying a suitcase containing the bomb used to blow up Pan Am Flight 103, which exploded over Lockerbie in December 1988 killing 270 people, and to have discussed the plot with him.
However, declassified documents released during the trial revealed that American intelligence officials doubted Giaka’s claims to be connected to the highest level of Libyan intelligence and threatened to stop paying him $1,000 (£612) a month unless he provided better information.
The informant claimed that he worked in the secret files section of the JSO, but he was a garage mechanic. Giaka’s credibility was further undermined when he claimed to be related to royalty and that the Libyan leader was a freemason.
The defence alleged Giaka had been paid £1.6m by the American government to help secure a guilty verdict against Megrahi and his co-accused Lameen Fhima.
The judges at Camp Zeist in The Hague discounted most of Giaka’s testimony on the grounds that his co-operation with the American authorities was “largely motivated by financial considerations”. However, they accepted his testimony that Megrahi was a member of the JSO, a suggestion the accused denied. (...)
While the commission’s concerns about the reliability of Tony Gauci, a key Crown witness at Megrahi’s trial, have been made public, its doubts about Giaka’s testimony were kept secret.
A source who has seen the SCCRC document, told The Sunday Times: “The report says there was no sufficient explanation made of why the court discounted him as a credible witness yet seemed to accept elements within his evidence which asserted that Megrahi was a senior member of the Libyan intelligence service and was involved in the wider conspiracy.
“There was no actual evidence to support that, but the court accepted it. It undermined [sic; presumably "underlined" or "supported" is what is meant] the Crown’s narrative of the offence — that Megrahi was acting on behalf of Libyan intelligence. That information came from Giaka and all his other evidence was utterly discredited — yet they accepted that element.” (...)
At the trial, Megrahi’s defence team denied their client was employed by the JSO and dismissed Giaka’s testimony as “pure fantasy”.
The SCCRC’s concerns about Giaka’s testimony are shared by Michael Scharf, who was the counsel to the US counterterrorism bureau when Megrahi and Fhima were indicted for the bombing. He believes that the case should never have gone to trial.
He claimed the CIA had assured State Department officials that Giaka was “the perfect witness” and there was an “airtight” case against Megrahi and Fhima, who was cleared. “This is a bit like the OJ Simpson case, where the prosecution, together with the US government, tried to sex up the case and tried to hide the flaws,” he said.
“Unfortunately, because Megrahi’s appeal is not going to go forward we’ll never really know the full story.”
The commission’s full report, expected to be published in redacted (edited) form within weeks, is said to conclude that the failure to disclose a document thought to pertain to the bomb’s timer device, may have led to a miscarriage of justice. The evidence belonged to an unnamed foreign country, which refused to hand the material over. The British government at the time claimed public interest immunity against disclosure.
Saturday, 19 September 2009
Could the UK Government have stopped repatriation?
Gordon Brown's government could have used its powers under the Scotland Act to challenge the decision to release the Lockerbie bomber, it has emerged.
Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction. (...)
The key part of the Scotland Act [section 58(1)] says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."
[The above are extracts from an article by Gerry Peev in tomorrow's edition of Scotland on Sunday.
The contention that this provision of Scotland Act 1998 could have been used by the UK Government to block Abdelbaset Megrahi's repatriation is quite false. There may have been (indeed, there was) an undertaking by the UK (in a letter to the Secretary General of the United Nations) that anyone convicted in the Zeist trial would serve his sentence in Britain. But that is not what the Act means by an international obligation. What it does mean is a treaty obligation or an obligation directly imposed by a binding UN Security Council Resolution.
Moreover, while transfer of Mr Megrahi to serve the remainder of his sentence in Libya under the UK-Libya prisoner transfer agreement would have constituted a breach of this undertaking (which, as I have said, is not an "international obligation" within the meaning of the Act), this is not what Kenny MacAskill did. He rejected prisoner transfer precisely because he thought that this might breach an understanding legitimately held by the United States. What he did instead was to release Mr Megrahi from his sentence on compassionate grounds. The whole of the sentence that the law of Scotland required Mr Megrahi to serve was served in Scotland; and he was then released. There was accordingly no breach of the undertaking that the sentence would be served in Britain.]
Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction. (...)
The key part of the Scotland Act [section 58(1)] says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."
[The above are extracts from an article by Gerry Peev in tomorrow's edition of Scotland on Sunday.
The contention that this provision of Scotland Act 1998 could have been used by the UK Government to block Abdelbaset Megrahi's repatriation is quite false. There may have been (indeed, there was) an undertaking by the UK (in a letter to the Secretary General of the United Nations) that anyone convicted in the Zeist trial would serve his sentence in Britain. But that is not what the Act means by an international obligation. What it does mean is a treaty obligation or an obligation directly imposed by a binding UN Security Council Resolution.
Moreover, while transfer of Mr Megrahi to serve the remainder of his sentence in Libya under the UK-Libya prisoner transfer agreement would have constituted a breach of this undertaking (which, as I have said, is not an "international obligation" within the meaning of the Act), this is not what Kenny MacAskill did. He rejected prisoner transfer precisely because he thought that this might breach an understanding legitimately held by the United States. What he did instead was to release Mr Megrahi from his sentence on compassionate grounds. The whole of the sentence that the law of Scotland required Mr Megrahi to serve was served in Scotland; and he was then released. There was accordingly no breach of the undertaking that the sentence would be served in Britain.]
Misguided Magnus
For all Abdul Baset Ali al-Megrahi's protests about the fragility of the prosecution case against him, there are three crucial facts to be borne in mind in reading these documents.
First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.
Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.
Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.
Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.
He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.
What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.
That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.
[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.
First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated in paragraph 369 of their Opinion:
“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”
The true position, as I have written elsewhere, is this:
"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."
Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."
Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him.
And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.
Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]
First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.
Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.
Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.
Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.
He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.
What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.
That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.
[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.
First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated in paragraph 369 of their Opinion:
“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”
The true position, as I have written elsewhere, is this:
"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."
Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."
Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him.
And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.
Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]
Friday, 18 September 2009
Press release regarding publication of appeal documents
Mr Abdelbaset Ali Mohmed Al Megrahi, who has returned to his homeland, Libya, today commences the release of information which he hopes will establish his innocence. Through the website megrahimystory.net he will release details of Grounds of Appeal 1 and 2 of his challenge to the conviction for involvement in the Lockerbie bombing.
Grounds 1 and 2 dealt with the challenge to the conviction on the grounds of legal sufficiency and reasonableness.
The detailed written submissions lodged by Mr Megrahi’s defence team insupport of the grounds, also published today, break down the various steps in the reasoning of the Trial Court it said led to the conclusion that it was satisfied beyond a reasonable doubt of the guilt of Mr Megrahi.
In publishing this material Mr Megrahi made the following statement:
“I have returned to Tripoli with my unjust conviction still in place. As a resultof the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.
Through my website I have published the material which featured in the first full hearing of my appeal namely the challenges under Grounds of Appeal 1 and 2 to the legal sufficiency and reasonableness of the Court’s findings. I hope that this can assist in the understanding of my case, especially for those who have been most profoundly affected by it. As can be seen from the documents released today some of the challenges mounted before the Court are supported by the Scottish Criminal Cases Review Commission.
Argument was heard upon these challenges but unfortunately the Court was not, by the time of my abandonment, in a position to provide its opinion. Thus, there is no Court judgement or adjudication upon these challenges”.
Mr Megrahi hopes to continue to publish details of his appeal challenge in the course of the forthcoming weeks.
[The above is the text of a press release issued at noon today by Abdelbaset Megrahi's Scottish solicitor, Tony Kelly. The Scotsman's report on the matter can be read here and The Times's here. The Times of Malta website contains a report focussing on what the documents have to say about the identification evidence of Tony Gauci and the evidence relating to ingestion of the bomb at Malta's Luqa Airport.
The Lord Advocate has issued a press release commenting on this development it reads:
'The Lord Advocate, the Right Honourable Elish Angiolini QC, has criticised the publication of selected material relating to his appeal by Abdelbaset Ali Mohmed Al Megrahi, the convicted Lockerbie bomber.
'Mrs Angiolini said:
'“I deplore the efforts by Abdelbaset Megrahi to challenge his conviction through selective publication of his view of the evidence in the media after he has abandoned his second appeal against conviction.
'“The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. Mr Megrahi remains convicted of the worst terrorist atrocity in UK history .
'“The Crown has supported the conviction vigorously and stood ready, willing and able to do so throughout the appeal process which Mr Megrahi abandoned.
'“As he and his legal team have made clear, the decision to discontinue the appeal proceedings was taken voluntarily by Mr Megrahi himself. He did not require to abandon his appeal. Having done so, he now seeks to retry his case in the media and criticise the evidence against him. Mr Megrahi exercised his right of silence throughout the judicial proceedings.
'“The only evidence that the trial court ever heard from Mr Megrahi was in the television interview which he gave, after publication of the criminal charges in 1991, to the veteran journalist Pierre Salinger. In that interview, which was played to the trial court by the prosecution, Mr Salinger put to him the detailed allegations and his responses on many important matters were disproved and discredited in the trial.”'
This is a bit rich coming from the person whose office was responsible for the lion's share of the outrageous delay in getting Mr Megrahi's second appeal to the stage of argument. This had the consequence that, given his terminal illness, there was no chance of his surviving until its conclusion and also ultimately led to his regrettable, but entirely understandable, decision to abandon the appeal to maximise his chances of repatriation by keeping open the prisoner transfer option. At the end of the day the Cabinet Secretary for Justice chose another option -- compassionate release -- but Megrahi had no way of knowing that that was going to happen.
Here is what I wrote on this blog almost a year ago, on 26 October 2008:
"More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
"The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it."]
Grounds 1 and 2 dealt with the challenge to the conviction on the grounds of legal sufficiency and reasonableness.
The detailed written submissions lodged by Mr Megrahi’s defence team insupport of the grounds, also published today, break down the various steps in the reasoning of the Trial Court it said led to the conclusion that it was satisfied beyond a reasonable doubt of the guilt of Mr Megrahi.
In publishing this material Mr Megrahi made the following statement:
“I have returned to Tripoli with my unjust conviction still in place. As a resultof the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.
Through my website I have published the material which featured in the first full hearing of my appeal namely the challenges under Grounds of Appeal 1 and 2 to the legal sufficiency and reasonableness of the Court’s findings. I hope that this can assist in the understanding of my case, especially for those who have been most profoundly affected by it. As can be seen from the documents released today some of the challenges mounted before the Court are supported by the Scottish Criminal Cases Review Commission.
Argument was heard upon these challenges but unfortunately the Court was not, by the time of my abandonment, in a position to provide its opinion. Thus, there is no Court judgement or adjudication upon these challenges”.
Mr Megrahi hopes to continue to publish details of his appeal challenge in the course of the forthcoming weeks.
[The above is the text of a press release issued at noon today by Abdelbaset Megrahi's Scottish solicitor, Tony Kelly. The Scotsman's report on the matter can be read here and The Times's here. The Times of Malta website contains a report focussing on what the documents have to say about the identification evidence of Tony Gauci and the evidence relating to ingestion of the bomb at Malta's Luqa Airport.
The Lord Advocate has issued a press release commenting on this development it reads:
'The Lord Advocate, the Right Honourable Elish Angiolini QC, has criticised the publication of selected material relating to his appeal by Abdelbaset Ali Mohmed Al Megrahi, the convicted Lockerbie bomber.
'Mrs Angiolini said:
'“I deplore the efforts by Abdelbaset Megrahi to challenge his conviction through selective publication of his view of the evidence in the media after he has abandoned his second appeal against conviction.
'“The only appropriate forum for the determination of guilt or innocence is the criminal court. Mr Megrahi was convicted unanimously by three senior judges following trial and his conviction was upheld unanimously by five judges, in an Appeal Court presided over by the Lord Justice General, Scotland’s most senior judge. Mr Megrahi remains convicted of the worst terrorist atrocity in UK history .
'“The Crown has supported the conviction vigorously and stood ready, willing and able to do so throughout the appeal process which Mr Megrahi abandoned.
'“As he and his legal team have made clear, the decision to discontinue the appeal proceedings was taken voluntarily by Mr Megrahi himself. He did not require to abandon his appeal. Having done so, he now seeks to retry his case in the media and criticise the evidence against him. Mr Megrahi exercised his right of silence throughout the judicial proceedings.
'“The only evidence that the trial court ever heard from Mr Megrahi was in the television interview which he gave, after publication of the criminal charges in 1991, to the veteran journalist Pierre Salinger. In that interview, which was played to the trial court by the prosecution, Mr Salinger put to him the detailed allegations and his responses on many important matters were disproved and discredited in the trial.”'
This is a bit rich coming from the person whose office was responsible for the lion's share of the outrageous delay in getting Mr Megrahi's second appeal to the stage of argument. This had the consequence that, given his terminal illness, there was no chance of his surviving until its conclusion and also ultimately led to his regrettable, but entirely understandable, decision to abandon the appeal to maximise his chances of repatriation by keeping open the prisoner transfer option. At the end of the day the Cabinet Secretary for Justice chose another option -- compassionate release -- but Megrahi had no way of knowing that that was going to happen.
Here is what I wrote on this blog almost a year ago, on 26 October 2008:
"More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
"The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it."]
Inquiry would clear up Megrahi muddle
[This is the heading over a letter in today's edition of The Scotsman from Benedict Birnberg. It reads in part:]
That many families of the victims of the Lockerbie outrage are distraught at a decision [the compassionate release of Megrahi] that denies them even the consolation of a sacrificial lamb is understandable. But the hysteria, as much in the UK as in the US, has masked the decision of the Scottish Criminal Cases Review Commission in June 2007, following its three-year investigation, to refer the conviction to the High Court. It bears emphasising that its statement of referral extended to more than 800 pages with 13 volumes of appendices and that in its press release it described the investigation as "the longest, most expensive and singularly most complex" in its history. And it concluded " … based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court, that the applicant may have suffered a miscarriage of justice".
Yet, with scant exceptions, comment in the UK media generally, although much less so in Scotland, has ignored the reference or anything that casts doubt on Megrahi's guilt and has focused rather on such matters as his reception back home and the ostensible realpolitik behind his release and repatriation. The assumption has been that, because Megrahi withdrew his appeal before his release while maintaining his innocence, the court cannot now consider the case.
I do not know whether the appeal would succeed. All I know is that the official body charged with investigating his case formed the view, after extensive consideration, that an innocent man may have been convicted.
As a solicitor whose firm has been in the vanguard in handling UK miscarriage of justice cases over the past 40 years, I believe justice cannot be done or be seen to be done unless there is a judicial trial.
To this end I have written to justice secretary Kenny MacAskill to question the circumstances in which Megrahi withdrew his appeal and I have said that, if indeed the court is functus officio (has discharged its duties], the Scottish Government ought, in the interests of the fair administration of justice in Scotland, to establish an independent public judicial inquiry to ensure that the case painstakingly prepared by the commission does not go by default but receives full, fair and dispassionate consideration.
That many families of the victims of the Lockerbie outrage are distraught at a decision [the compassionate release of Megrahi] that denies them even the consolation of a sacrificial lamb is understandable. But the hysteria, as much in the UK as in the US, has masked the decision of the Scottish Criminal Cases Review Commission in June 2007, following its three-year investigation, to refer the conviction to the High Court. It bears emphasising that its statement of referral extended to more than 800 pages with 13 volumes of appendices and that in its press release it described the investigation as "the longest, most expensive and singularly most complex" in its history. And it concluded " … based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court, that the applicant may have suffered a miscarriage of justice".
Yet, with scant exceptions, comment in the UK media generally, although much less so in Scotland, has ignored the reference or anything that casts doubt on Megrahi's guilt and has focused rather on such matters as his reception back home and the ostensible realpolitik behind his release and repatriation. The assumption has been that, because Megrahi withdrew his appeal before his release while maintaining his innocence, the court cannot now consider the case.
I do not know whether the appeal would succeed. All I know is that the official body charged with investigating his case formed the view, after extensive consideration, that an innocent man may have been convicted.
As a solicitor whose firm has been in the vanguard in handling UK miscarriage of justice cases over the past 40 years, I believe justice cannot be done or be seen to be done unless there is a judicial trial.
To this end I have written to justice secretary Kenny MacAskill to question the circumstances in which Megrahi withdrew his appeal and I have said that, if indeed the court is functus officio (has discharged its duties], the Scottish Government ought, in the interests of the fair administration of justice in Scotland, to establish an independent public judicial inquiry to ensure that the case painstakingly prepared by the commission does not go by default but receives full, fair and dispassionate consideration.
Marquise's response to Peirce
[The following response by Richard Marquise to Gareth Peirce's article in The London Review of Books was sent to me by Frank Duggan, president of Victims of Pan Am 103 Inc.]
The recent piece written by Gareth Peirce entitled “The Framing of al – Megrahi” had numerous errors of fact and the record needs to be corrected. I will ask her these questions-- How many days of the trial did you attend? How many trial transcripts have you read? What do you know—first hand—about the investigation? I think I know the answer to those questions. If I am right, her credibility should be in doubt. There has been so much misinformation published about the Lockerbie case over the past several years. It is time individuals get information from real sources rather than the internet and bloggers. If one of these people who call themselves historians, architects, observers and experts would spend some time with those of us who were there and know the facts, I think a different record develop.
I found I only agreed with Ms. Peirce on one topic. The release of Mr. Megrahi was based on greed—the wishes of officials in the United Kingdom to access Libyan oil and business ventures. My own Government is no better. In 2004, when Gaddafi “accepted responsibility for the actions of his agents,” the United States allowed that to stand as his formal admission of guilt for the Lockerbie attack. It should be noted that he told a reporter, “off the record,” as far back as 1993 that his government was involved in the plot to blow up Pan Am Flight 103. Unfortunately, this “real” admission has received little publicity.
The rest of Ms. Peirce’s lengthy article had so many errors of fact that I will try and address them in “bullet” form to make it easier to follow:
• Ms. Peirce says the investigation should have been conducted by Scottish police alone without interference from other agencies or countries. Clearly she lacks a basic understanding of the world. There is no way the police in Scotland could or should have carried out the investigation alone. We live (and did in 1988) in a global society. Good police and intelligence relationships are key if we are to protect our society from those who would do us harm. These relationships were not as advanced in 1988 resulting in many missteps but we worked through the process of understanding the nuances of each system. This case would not have been solved without the FBI, Scottish police and officers from Germany, Malta, Sweden, Switzerland and England working together, as a team. No one agency could have done it alone.
• Ms. Peirce indicates this investigation should have been conducted with “utter integrity.” I and my colleagues take great exception to this slander. The investigation was conducted with integrity and we only followed the facts and presented them to a court which found Mr. Megrahi guilty.
• There is discussion of unauthorized people (FBI and CIA) at the crime scene in Scotland. This scene which would encompass over 1400 square kilometers could not effectively be secured and police had to constantly tell local citizens not to pick up debris. However, although much has been reported, not one “confirmed” sighting of an American walking unattended has ever been documented (see trial transcripts). The Americans who would eventually come to the site were those who were helping identify bodies and if one went into the field, they were accompanied by a police officer. To believe that both the CIA and FBI had the bureaucratic ability to send large numbers of people to the scene immediately and then to spirit away luggage (assuming one knew where to look in this massive crime scene) is just incomprehensible. Yes, and then there were the helicopters…..also unbelievable.
• There is much discussion about the “original” suspects—the PFLP-GC. Based on available public source information at the time, they indeed were our original suspects. This suspicion was enhanced when a piece of circuit board of a Toshiba radio was found at the crash site. PFLP-GC terrorists had used a similar (but not the same) brand of radio before. However, although this avenue was pursued for over two years, no evidence of any PFLP-GC involvement was ever found. The key word is evidence and I believe Ms. Peirce, as an attorney, knows, that is what one needs to have a court reach a finding of guilty.
• Although not said specifically, it is implied that the shopkeeper in Malta who sold clothing which had been found in the wreckage (by very capable Scottish officers) identified Abu Talb, a Palestinian terrorist living in Sweden, as the purchaser of the clothing. This is just not true. This shopkeeper only identified one photograph in a police photo array—Mr. Megrahi—in February 1991. When the shopkeeper was interviewed in 1989 he had said the purchaser had a “Libyan accent.”
• Ms. Peirce may recall that although Iran and the PFLP-GC were our original suspects and the media reported as much in early 1989, an (at the time) unidentified individual walked into the US Embassy in Austria (January 1989) and left a message for the Ambassador. In it he said that Libya was responsible for the bombing. His note said he had been in Tripoli in December 1988 and believed that if he could believe what he was reading in the press—we were focused on Iran and Palestinians—then we were wrong and investigators should look at Libya. This man would be identified nearly two years later as Edwin Bollier, the man whose company built the timer which was part of the bomb.
• The investigation would prove that only 20 of these timers had ever been made and all had been delivered to Libyan intelligence officials. A statement made nearly 20 years later by Ulrich Lumpert, a technician who worked for Bollier that he had stolen one of the circuit boards from his company and made it available to “someone who was investigating the Lockerbie case” in 1989, has no credibility. No one associated with the Lockerbie investigation had ever heard of the MEBO Company in 1989. We did not find them until late 1990. Bollier and Lumpert each testified in 1990 that they only purchased a small number of the circuit boards and made 20 or 21 timers. When the Libyans came looking for additional timers in December 1988, Bollier had none. Bollier now says he was offered $4 million to link Libya to the attack. That is not true because by the time he alleges this happened he had already linked Libya to his timers at a magistrate hearing in Switzerland. Lumpert and Bollier’s change of heart became clear in 2008. Bollier said on a BBC special he hoped to get up to $200 million from Libya if he helped free Megrahi. Lumpert, before he filed an affidavit stating he had lied at the trial made it clear that he had sought legal advice and determined he could not be prosecuted for these earlier “false statements.”
• One remark (actually interspersed throughout the piece) stated that the CIA took control of the investigation. When I shared that with my colleagues in Scotland, they were amused because somehow, no one had ever relayed that message to them. The Scottish police were always in charge. Yes, we negotiated and often disagreed about what we would do next, but the FBI and Scottish police worked together, neither side forgetting where the crime scene was and who had “primary” jurisdiction. At no time was the CIA (or any intelligence service) “in charge” of the investigation. They supported the police in Scotland, just as the FBI and the other police agencies around the world did. Vincent Cannistraro did retire in 1990—before the EVIDENCE led us to Libya and he did not come back. In fact, if you speak with any police officer in Scotland, I doubt any of them ever met him and I only recall him being at one meeting involving this case. It was not in a leadership capacity.
• A number of assertions were made about the type of timer which was used at Lockerbie. We had initially assumed it was a barometric timer favored by the PFLP-GC. This timer would have exploded after reaching an altitude above 15000 feet. The timing mechanism was erratic (based on examination of similar devices found in Germany) and could have exploded from 1 minute and as long as an hour after being triggered, if it exploded at all. We believed the timer used as part of the bomb was one manufactured by MEBO and given to Libyan officials.
• Ms. Peirce’s attack on the FBI laboratory had more erroneous information. Tom Thurman was not barred from the FBI laboratory and was used as an expert witness after the IG report was written; however, I have no intention of using this forum to do what I consider a needless defense of him. The issue is the FBI lab. The identification of the fragment which led to the MEBO timer was done by Mr. Thurman based on a photograph. As an investigator—something most lab examiners are not—he was able to figure out where to go to look for a possible match to the fragment recovered by Scottish police officers. Once he identified the fragment, he asked Alan Feraday to come to Washington. Feraday brought the original fragment of the timer with him and they both examined it under a microscope. They independently agreed it was identical to the MEBO timer. The fragment was never out of the control of Mr. Feraday and returned with him to the lab at RARDE.
• I am not an attorney and have no idea what Hans Kochler saw at the trial which caused him to doubt the verdict. I do know he is neither a policeman nor is he an attorney. The case which was presented was circumstantial and these cases are often more reliable than those having eyewitness identification
I have only addressed part of Ms. Peirce’s concerns. However, for all of these “circumstances” to have been true as accepted by the three original trial judges, the overall case must have been credible. In order for it all to be wrong, there would have to have been a conspiracy of the grandest order and I will state without hesitation—that is false! Wrong! To somehow believe that dedicated law enforcement officers would somehow take world politics (US-UK intervention in Kuwait) to make a case against an innocent party does not know what makes us who we are. We followed the evidence. To state or even imply otherwise is an insult to all of us who only sought a righteous solution and justice for the victims.
The recent piece written by Gareth Peirce entitled “The Framing of al – Megrahi” had numerous errors of fact and the record needs to be corrected. I will ask her these questions-- How many days of the trial did you attend? How many trial transcripts have you read? What do you know—first hand—about the investigation? I think I know the answer to those questions. If I am right, her credibility should be in doubt. There has been so much misinformation published about the Lockerbie case over the past several years. It is time individuals get information from real sources rather than the internet and bloggers. If one of these people who call themselves historians, architects, observers and experts would spend some time with those of us who were there and know the facts, I think a different record develop.
I found I only agreed with Ms. Peirce on one topic. The release of Mr. Megrahi was based on greed—the wishes of officials in the United Kingdom to access Libyan oil and business ventures. My own Government is no better. In 2004, when Gaddafi “accepted responsibility for the actions of his agents,” the United States allowed that to stand as his formal admission of guilt for the Lockerbie attack. It should be noted that he told a reporter, “off the record,” as far back as 1993 that his government was involved in the plot to blow up Pan Am Flight 103. Unfortunately, this “real” admission has received little publicity.
The rest of Ms. Peirce’s lengthy article had so many errors of fact that I will try and address them in “bullet” form to make it easier to follow:
• Ms. Peirce says the investigation should have been conducted by Scottish police alone without interference from other agencies or countries. Clearly she lacks a basic understanding of the world. There is no way the police in Scotland could or should have carried out the investigation alone. We live (and did in 1988) in a global society. Good police and intelligence relationships are key if we are to protect our society from those who would do us harm. These relationships were not as advanced in 1988 resulting in many missteps but we worked through the process of understanding the nuances of each system. This case would not have been solved without the FBI, Scottish police and officers from Germany, Malta, Sweden, Switzerland and England working together, as a team. No one agency could have done it alone.
• Ms. Peirce indicates this investigation should have been conducted with “utter integrity.” I and my colleagues take great exception to this slander. The investigation was conducted with integrity and we only followed the facts and presented them to a court which found Mr. Megrahi guilty.
• There is discussion of unauthorized people (FBI and CIA) at the crime scene in Scotland. This scene which would encompass over 1400 square kilometers could not effectively be secured and police had to constantly tell local citizens not to pick up debris. However, although much has been reported, not one “confirmed” sighting of an American walking unattended has ever been documented (see trial transcripts). The Americans who would eventually come to the site were those who were helping identify bodies and if one went into the field, they were accompanied by a police officer. To believe that both the CIA and FBI had the bureaucratic ability to send large numbers of people to the scene immediately and then to spirit away luggage (assuming one knew where to look in this massive crime scene) is just incomprehensible. Yes, and then there were the helicopters…..also unbelievable.
• There is much discussion about the “original” suspects—the PFLP-GC. Based on available public source information at the time, they indeed were our original suspects. This suspicion was enhanced when a piece of circuit board of a Toshiba radio was found at the crash site. PFLP-GC terrorists had used a similar (but not the same) brand of radio before. However, although this avenue was pursued for over two years, no evidence of any PFLP-GC involvement was ever found. The key word is evidence and I believe Ms. Peirce, as an attorney, knows, that is what one needs to have a court reach a finding of guilty.
• Although not said specifically, it is implied that the shopkeeper in Malta who sold clothing which had been found in the wreckage (by very capable Scottish officers) identified Abu Talb, a Palestinian terrorist living in Sweden, as the purchaser of the clothing. This is just not true. This shopkeeper only identified one photograph in a police photo array—Mr. Megrahi—in February 1991. When the shopkeeper was interviewed in 1989 he had said the purchaser had a “Libyan accent.”
• Ms. Peirce may recall that although Iran and the PFLP-GC were our original suspects and the media reported as much in early 1989, an (at the time) unidentified individual walked into the US Embassy in Austria (January 1989) and left a message for the Ambassador. In it he said that Libya was responsible for the bombing. His note said he had been in Tripoli in December 1988 and believed that if he could believe what he was reading in the press—we were focused on Iran and Palestinians—then we were wrong and investigators should look at Libya. This man would be identified nearly two years later as Edwin Bollier, the man whose company built the timer which was part of the bomb.
• The investigation would prove that only 20 of these timers had ever been made and all had been delivered to Libyan intelligence officials. A statement made nearly 20 years later by Ulrich Lumpert, a technician who worked for Bollier that he had stolen one of the circuit boards from his company and made it available to “someone who was investigating the Lockerbie case” in 1989, has no credibility. No one associated with the Lockerbie investigation had ever heard of the MEBO Company in 1989. We did not find them until late 1990. Bollier and Lumpert each testified in 1990 that they only purchased a small number of the circuit boards and made 20 or 21 timers. When the Libyans came looking for additional timers in December 1988, Bollier had none. Bollier now says he was offered $4 million to link Libya to the attack. That is not true because by the time he alleges this happened he had already linked Libya to his timers at a magistrate hearing in Switzerland. Lumpert and Bollier’s change of heart became clear in 2008. Bollier said on a BBC special he hoped to get up to $200 million from Libya if he helped free Megrahi. Lumpert, before he filed an affidavit stating he had lied at the trial made it clear that he had sought legal advice and determined he could not be prosecuted for these earlier “false statements.”
• One remark (actually interspersed throughout the piece) stated that the CIA took control of the investigation. When I shared that with my colleagues in Scotland, they were amused because somehow, no one had ever relayed that message to them. The Scottish police were always in charge. Yes, we negotiated and often disagreed about what we would do next, but the FBI and Scottish police worked together, neither side forgetting where the crime scene was and who had “primary” jurisdiction. At no time was the CIA (or any intelligence service) “in charge” of the investigation. They supported the police in Scotland, just as the FBI and the other police agencies around the world did. Vincent Cannistraro did retire in 1990—before the EVIDENCE led us to Libya and he did not come back. In fact, if you speak with any police officer in Scotland, I doubt any of them ever met him and I only recall him being at one meeting involving this case. It was not in a leadership capacity.
• A number of assertions were made about the type of timer which was used at Lockerbie. We had initially assumed it was a barometric timer favored by the PFLP-GC. This timer would have exploded after reaching an altitude above 15000 feet. The timing mechanism was erratic (based on examination of similar devices found in Germany) and could have exploded from 1 minute and as long as an hour after being triggered, if it exploded at all. We believed the timer used as part of the bomb was one manufactured by MEBO and given to Libyan officials.
• Ms. Peirce’s attack on the FBI laboratory had more erroneous information. Tom Thurman was not barred from the FBI laboratory and was used as an expert witness after the IG report was written; however, I have no intention of using this forum to do what I consider a needless defense of him. The issue is the FBI lab. The identification of the fragment which led to the MEBO timer was done by Mr. Thurman based on a photograph. As an investigator—something most lab examiners are not—he was able to figure out where to go to look for a possible match to the fragment recovered by Scottish police officers. Once he identified the fragment, he asked Alan Feraday to come to Washington. Feraday brought the original fragment of the timer with him and they both examined it under a microscope. They independently agreed it was identical to the MEBO timer. The fragment was never out of the control of Mr. Feraday and returned with him to the lab at RARDE.
• I am not an attorney and have no idea what Hans Kochler saw at the trial which caused him to doubt the verdict. I do know he is neither a policeman nor is he an attorney. The case which was presented was circumstantial and these cases are often more reliable than those having eyewitness identification
I have only addressed part of Ms. Peirce’s concerns. However, for all of these “circumstances” to have been true as accepted by the three original trial judges, the overall case must have been credible. In order for it all to be wrong, there would have to have been a conspiracy of the grandest order and I will state without hesitation—that is false! Wrong! To somehow believe that dedicated law enforcement officers would somehow take world politics (US-UK intervention in Kuwait) to make a case against an innocent party does not know what makes us who we are. We followed the evidence. To state or even imply otherwise is an insult to all of us who only sought a righteous solution and justice for the victims.
Call for UN to hold inquiry into atrocity
Archbishop Desmond Tutu, the Private Eye editor Ian Hislop and former shadow Scottish secretary Sir Teddy Taylor have written to the United Nations calling for a public inquiry into the Lockerbie atrocity.
The letter to the UN General Assembly has also been signed by Jim Swire, who lost his daughter Flora on the Pan Am flight, and Professor Robert Black, one of the architects of the Scottish court that convicted Abdelbaset Ali Mohmed al-Megrahi of the bombing.
Both Dr Swire and Prof Black believe Megrahi is innocent.
The letter, which has 19 names, sets out the areas that the investigation should cover, from the destruction of the plane to the trial at Kamp van Zeist. (...)
Today, Megrahi's defence team will release documents that would have been used in the convicted bomber's appeal, had he not abandoned it.
[The above are excerpts from a report in today's edition of The Scotsman. The full text of the letter can be read here.]
The letter to the UN General Assembly has also been signed by Jim Swire, who lost his daughter Flora on the Pan Am flight, and Professor Robert Black, one of the architects of the Scottish court that convicted Abdelbaset Ali Mohmed al-Megrahi of the bombing.
Both Dr Swire and Prof Black believe Megrahi is innocent.
The letter, which has 19 names, sets out the areas that the investigation should cover, from the destruction of the plane to the trial at Kamp van Zeist. (...)
Today, Megrahi's defence team will release documents that would have been used in the convicted bomber's appeal, had he not abandoned it.
[The above are excerpts from a report in today's edition of The Scotsman. The full text of the letter can be read here.]
Wednesday, 16 September 2009
The framing of al-Megrahi
[This is the headline over a long and detailed article -- 6500 words -- by Gareth Peirce in the current issue of the London Review of Books. It is an utterly devastating critique of the Lockerbie trial and what led up to it and flowed from it. Anyone interested in the Lockerbie affair needs to read and digest it in full. The following are extracts.]
Only a simpleton could believe that Abdelbaset Ali al-Megrahi, convicted of responsibility for the Lockerbie bombing, was not recently returned to his home in Libya because it suited Britain. The political furore is very obviously contrived, since both the British and American governments know perfectly well how and for what reasons he came to be prosecuted. More important than the present passing storm is whether any aspect of the investigation that led to al-Megrahi’s original conviction was also about oil, or dictated by other factors that should have no place in a prosecution process. (...)
[A] number of the bereaved Lockerbie families have of necessity themselves become investigators, asking probing questions for two decades without receiving answers; they have learned sufficient forensic science to make sense of what was being presented at al-Megrahi’s trial and make up their own minds whether the prosecution of two Libyans at Camp Zeist near Utrecht was in fact a three-card trick put together for political ends.
Perhaps the result could have been different if there had been an entirely Scottish police investigation, with unrestricted access to all available information, without interference or manipulation from outside. Instead, from the beginning, the investigation and what were to become the most important aspects of the prosecution case against al-Megrahi were hijacked. Within hours, the countryside around Lockerbie was occupied: local people helping with the search under the supervision of Dumfries and Galloway police realised to their astonishment that the terrain was dotted with unidentified Americans not under the command of the local police. (...)
Although the crime was the most hideous Scotland had ever known, the integrity of the crime scene was violated; in part because outsiders were conducting a desperate search for wreckage that it was important for them to find and spirit away. As many police investigations over the years have demonstrated, such distracting irregularities can simply be red herrings, and these intrusions may have no bearing on the question of who blew up Pan Am 103. Was it individuals? Was it a country? And if so which one? From the very beginning, in fact, it seemed that the case could and would be easily solved. Considerable (and uncomplicated) evidence immediately to hand suggested who might be responsible; it was as if giant arrows were pointing towards the solution.
In the weeks before the bombing in December 1988 there had been a number of very specific warnings that a bomb would be placed on a Pan Am aircraft. Among them was a photograph of a bomb in a Toshiba cassette radio wired to a barometric timer switch; a number of such bombs had been found earlier in 1988 in the possession of members of a small group with a history of successfully carrying out bombings, primarily of American targets. One group member told police that five bombs had been made; at least one was missing at the time of the Lockerbie disaster and never recovered. The warnings were sufficiently exact that the staff of the American Embassy in Moscow, who usually travelled by Pan Am when they returned to the US for Christmas, used a different airline. Flora Swire, who was travelling to New York to spend Christmas with her boyfriend, found it surprisingly easy to buy a ticket.
All the Toshiba cassette bombs that had been seized were found, when tested, to run for 30 minutes after they were set. (...) It was precisely 38 minutes after Pan Am Flight 103 took off from Heathrow on 21 December 1988 that it exploded over Lockerbie; when the remnants of the destroyed plane and its contents were put together piece by piece by the Dumfries and Galloway police, fragments of a Toshiba cassette radio were found. (...)
That Iran and the PFLP-GC were responsible had fitted comfortably with UK and US foreign policy in the Middle East. Both countries had severed relations with Syria on the grounds of its persistent support for international terrorism; both had supported Iraq in the Iran/Iraq war, which ended in the summer of 1988. The obvious truth as it appeared at the time was that the Jibril group, sponsored in this instance by Iran, was a logical as well as politically acceptable fit.
Then, in August 1990, Saddam Hussein invaded Kuwait, thereby putting at risk almost 10 per cent of US oil supplies, and the stability of the Saudi and Gulf sheikhdoms on which the West depended to preserve the status quo in the region. A sudden shift of alliances was necessary: if Iraq had to be confronted, then Iran had to be treated differently and the Syrian regime needed to be brought on board. At the beginning of 1991 Syrians joined Western troops in the attack on Saddam Hussein’s invading army.
The centre of the Lockerbie investigation had by this time ceased to be Scotland: the CIA was in charge. Vincent Cannistraro had made his mark under Ronald Reagan, with a clandestine programme to destabilise the Libyan regime. He boasted that he ‘developed the policy towards Libya’ which culminated in the bombing of Gaddafi’s house in Tripoli in 1986 on the basis of intercept evidence later acknowledged to be false. Now brought out of retirement, Cannistraro shifted the investigation’s approach. The suspect country was no longer Iran but Libya, and in November 1991, the UK and the US made a joint announcement that two Libyan Airlines officials, Abdelbaset Ali al-Megrahi and Al Amin Khalifa Fhimah, had planted the bomb in Malta on behalf of Libyan intelligence. Douglas Hurd, the foreign secretary, announced to the House of Commons that Libyans alone were suspected and that other countries were not implicated. (...)
The key features needed to prosecute al-Megrahi successfully were the scientific identification of the circuit-board fragment, which would in turn establish its origin, and the identification of the purchaser of the clothes in Malta. The timers, the indictment stated, were made by a firm in Switzerland; their circuit board matched the fragment retrieved from Lockerbie, and they sold the timers exclusively to Libya. Everything, essentially, hinged on those links.
Who found the fragment? And who understood its relevance? Thomas Hayes of the Royal Armament Research and Development Establishment (RARDE) claimed the find (with his colleague Alan Feraday) and Thomas Thurman of the FBI claimed the analytical victory. All were swiftly hailed (or hailed themselves) as heroes. Thurman appeared on television on 15 November 1991, the day after indictments were issued against the two Libyans, boasting that he had identified the piece of circuit board as part of a timing device that might have been sold to Libyan Airlines staff. ‘I made the identification and I knew at that point what it meant. And because, if you will, I am an investigator as well as a forensic examiner, I knew where that would go. At that point we had no conclusive proof of the type of timing mechanism that was used in the bombing of 103. When that identification was made of the timer I knew that we had it.’ This was the claim – the hard evidence – that linked Libyans to the crime. If the claim was false the bereaved Lockerbie families have been deceived for 20 years.
On 13 September 1995 the FBI’s forensic department was the subject of a programme broadcast in the US by ABC. At its centre was a memorandum from the former head of explosive science at the FBI, Dr Frederic Whitehurst. It was a devastating indictment of a former colleague. The colleague was Thomas Thurman and the accusations related to his investigation of a terrorist attack in which a judge was killed by pipe bombs. Two years later, as a result of a review by the US inspector general, Michael Bromwich, into a large number of criminal investigations, Thomas Thurman was barred from FBI labs and from being called as an expert witness. Bromwich had discovered that he had no formal scientific qualifications and that, according to a former colleague, he had been ‘circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in . . . therefore fabricating evidence’. (...)
There were throughout two aspects of the investigation over which the Scottish authorities exerted little authority: in the US, the activities of the CIA and in particular of Thomas Thurman and the forensic branch of the FBI; in England, the forensic investigations of RARDE, carried out by Hayes and Feraday. Without Hayes’s findings, the Lockerbie prosecution would have been impossible. His evidence was that on 12 May 1989 he discovered and tweezed out from a remnant of cloth an electronic fragment, part of a circuit board. The remnant of cloth, part of a shirt collar, was then traced to a Maltese shop. A number of aspects of the original circuit board find were puzzling. The remnant was originally found in January 1989 by a DC Gilchrist and a DC McColm in the outer reaches of the area over which the bomb-blast debris was spread. It was labelled ‘cloth (charred)’ by him, but then overwritten as ‘debris’ even though the fragment of circuit board had not yet been ‘found’ by Hayes. The fragment found by Hayes, and identified as a MEBO circuit board by Thurman, meant that the thesis of an Air Malta involvement could survive. (...)
No forensic scientist knows when he conducts his examinations whether or when there will be a prosecution that will depend on them; this makes it all the more important that his notes are exact. Hayes confirmed that it was his practice to draw pieces of circuit board where he found them – for instance in the vicinity of blast-damaged material – but he made no such drawings of this item, nor had he given it an exhibit reference number as he had every other exhibit being designated at the time, nor did he carry out a standard test for traces of explosive. Almost a month after his inspection of the timer fragment, Hayes was identifying and drawing exhibits which were given reference numbers smaller than the number of the vital exhibit. He recorded his finding on page 51 of his notes, but the pages originally numbered 51-55 had been renumbered 52-56 at some point. Hayes stated that he had ‘no idea’ when the change in pagination was carried out. The inference put to Hayes was that the original page 51 and the following pages had been renumbered, an original page removed and space made to insert what was now page 51 of his notes.
Curiously, a memorandum from Hayes’s colleague Feraday, written on 15 September 1989, to a detective inspector working on the case, referred to a fragment of green circuit board: ‘Willy, enclosed are some Polaroid photographs of the green circuit board. Sorry about the quality, it is the best I can do in such a short time.’ No one was able to explain why there should have been any shortage of time to make available in September 1989 photographs of an item that had been found on 12 May. Feraday’s note continued: ‘I feel that this fragment could be potentially most important so any light your lads or lasses can shed upon the problem of identifying it will be most welcome.’ Again no one was able to explain what light the lads and lasses could shed on something it was most curious they had not seen before now, given that Hayes had recovered it in May. Clearly it could not have been seen by the police before the cloth was passed to Hayes at RARDE and the fragment extracted by him. If Hayes had photographed the exhibit, as was his normal practice, then Feraday would not have needed to rely on Polaroids of dubious quality. The issue of his notes’ pagination was described by Hayes as ‘an unfathomable mystery’. In view of the importance of exhibit PT/35(b), how could the court have been satisfied by this evidence? (...)
To discover that al-Megrahi’s conviction was in large part based on the evidence of scientists whose value as professional witnesses had been permanently and publicly demolished ten years before his trial is astounding. The discovery nearly two decades ago of a large number of wrongful convictions enabled by scientific evidence rightly led to demands that the community of forensic scientists change its ways. Similarly, a series of catastrophic misidentifications required the introduction of sound new practices for evidence based on that most fragile of human attributes, visual memory. Witnesses must not be prompted; a witness’s memory, as far as possible, must be as safely protected from contamination as a crime scene. The first description is vital. If a witness makes a positive identification of one individual, no subsequent identification of a second is permissible. Equivocation and uncertainty are not enough. Even if the science that convicted al-Megrahi had not offended against every minimum standard, then the second pillar of the prosecution case, his identification by Tony Gauci, the Maltese shopkeeper, would remain spectacular in its noncompliance with any safeguard. He described al-Megrahi as ‘6’0’’’ (he was 5’8’’), ‘50 years old’ (he was 37), and ‘hefty’; said that he ‘had been to the shop before and after’, ‘had been there only once’; that he ‘saw him in a bar months later’; that he ‘will sign statement even though I don’t speak English’; that al-Megrahi ‘was similar but not identical’, ‘perhaps like him but not fully like him’, and, fatally for any identification of al-Megrahi in the first place, that he was ‘like the man in the Sunday Times’ (in other words, like Abu Talb, whose picture Gauci had initially identified). But Gauci’s evidence was needed and, reports suggest, handsomely rewarded. He apparently now lives in Australia, supported by millions of US dollars.
That a court of three experienced judges convicted on such evidence and that an appeal court upheld the conviction is profoundly shocking. Köchler, the UN observer, reported finding the guilty verdict ‘incomprehensible’ in view of the court’s admission that Gauci’s identification was ‘not absolute’. We had come to believe that such an outcome, resting on invalid identification, was no longer possible. ‘The guilty verdict’, Köchler wrote, was ‘arbitrary, even irrational’ with an ‘air of international power politics’ present ‘in the whole verdict’, which was ‘based on a series of highly problematic inferences’. He remarked on the withholding of ‘substantial information’ (‘more or less openly exercised influence on the part of actors outside the judicial framework’) and on the very visible interference with the work of the Scottish prosecutors by US lawyers present in the well of the court. But most seriously, he set out his ‘suspicion that political considerations may have been overriding a strictly judicial evaluation of the case’. All of this harks back to the bad old days when a blind eye was turned to the way convictions were obtained.
Al-Megrahi’s trial constituted a unique legal construct, engineered to achieve a political rapprochement, but its content was so manipulated that in reality there was only ever an illusion of a trial. Dr Köchler recorded at its conclusion that it was ‘not fair’ and that it was not ‘conducted in an objective manner’, so that there were ‘many more questions and doubts at the end than the beginning’.
New UN General Assembly President Ali Treki
The one-year presidency of the United Nations General Assembly was assumed on Tuesday 15 September by veteran Libyan diplomat Ali Abdussalam Treki [or Treiki or Triki], a former Permanent Representative to the UN and Vice-President of the General Assembly, former ambassador to France and to the Arab League in Cairo, and a former Foreign Minister. Treki's candidacy was supported by the 53-nation African Union, which is currently chaired by Libyan leader Muammar al-Gaddafi. Further details can be read here and here.
It is to Mr Treki that the open letter calling for the institution of a commission of inquiry into the Lockerbie disaster has been addressed.
It is to Mr Treki that the open letter calling for the institution of a commission of inquiry into the Lockerbie disaster has been addressed.
Tuesday, 15 September 2009
Why propaganda trumps truth
[This is the heading over an interesting article by Paul Craig Roberts on the VDARE website. The one paragraph that relates to Lockerbie reads as follows:]
For example, consider the case of the Lockerbie bomber. One piece of "evidence" that was used to convict Megrahi was a piece of circuit board from a device that allegedly contained the Semtex that exploded the airliner. None of the people, who have very firm beliefs in Megrahi’s and Libya’s guilt and in the offense of the Scottish authorities in releasing Megrahi on allegedly humanitarian grounds, know that circuit boards of those days have very low combustion temperatures and go up in flames easily. Semtex produces very high temperatures. There would be nothing whatsoever left of a device that contained Semtex. It is obvious to an expert that the piece of circuit board was planted after the event.
For example, consider the case of the Lockerbie bomber. One piece of "evidence" that was used to convict Megrahi was a piece of circuit board from a device that allegedly contained the Semtex that exploded the airliner. None of the people, who have very firm beliefs in Megrahi’s and Libya’s guilt and in the offense of the Scottish authorities in releasing Megrahi on allegedly humanitarian grounds, know that circuit boards of those days have very low combustion temperatures and go up in flames easily. Semtex produces very high temperatures. There would be nothing whatsoever left of a device that contained Semtex. It is obvious to an expert that the piece of circuit board was planted after the event.
Monday, 14 September 2009
Was the 'Lockerbie bomber' framed?
[This is the heading over a long and detailed article on the consortiumnews website by Morgan Strong, a former professor of Middle Eastern History at the State University of New York and advisor on the Middle East for CBS News “60 Minutes.” The following are excerpts.]
President Barack Obama has said Scottish Justice Secretary Kenny MacAskill was wrong to order the compassionate release of Ali al-Megrahi, a former Libyan Intelligence agent who was the only man convicted of the December 1988 bombing of Pan Am Flight 103, an appalling act of terrorism that killed all 259 passengers aboard and 11 more on the ground in Lockerbie, Scotland.
“We have been in contact with the Scottish government, indicating that we objected to this, and we thought it was a mistake," Obama declared.
The President, however, did not appear to be fully informed about the Megrahi case, perhaps understandable given the one-sided coverage that it has received in the U.S. news media. Left out of much of that coverage was the fact that in 2007, the Scottish Criminal Cases Review Commission agreed to reconsider Megrahi’s conviction in 2001 out of a strong concern that it had been a miscarriage of justice. (...)
The [judges'] principal stated reason for finding Megrahi guilty – while exonerating [Fhimah] – was the testimony of Toni Gauci, the owner of a clothing store, Mary’s House, in Malta. Gauci allegedly sold a shirt to Megrahi, the remnants of which were found with the shards of the suitcase that contained the bomb. The shirt was traced to Gauci’s shop.
The remainder of the case rested on a theory that Megrahi could have put the luggage on a flight from Malta to Frankfurt, where it was transferred to a connecting flight to London, where it was transferred onto Pan Am 103 bound for New York, a decidedly idiosyncratic way to undertake an act of terrorism given the random variables involved.
It would be a brilliant example of evil genius – or a case of bewildering stupidity – to assume that at a time of heightened scrutiny about possible airline terrorism that an unaccompanied bag would be mindlessly transferred from plane to plane to plane.
For the prosecution’s theory to be correct, one would have to assume that three separate airport security systems – at Malta, Frankfort and London – failed to give any serious scrutiny to an unaccompanied suitcase or to detect the bomb despite security officials being on the lookout for just such a threat. (...)
The case for the suitcase's hypothetical travels must also deal with the fact that, according to Air Malta, all the documented luggage on KM180 was collected by passengers in Frankfurt and did not continue in transit to London, and that two Pan Am on-duty officials in Frankfurt testified that no unaccompanied luggage was introduced onto Pan Am 103A, the feeder flight to London.
Plus, there was the problem with Gauci’s belated identification of Megrahi as the shirt-buyer 10 years after the fact (and only after Gauci had made contradictory IDs and given a physical description that didn’t match Megrahi). (...)
To get the costly sanctions lifted, Libya was required to accept "responsibility" for the Pan Am 103 bombing and pay about $1.8 billion in compensation to the victims’ families. Libya, however, never admitted that it actually had carried out the bombing and Megrahi continued to protest his innocence.
After Megrahi’s release last month as a humanitarian gesture because he is suffering from terminal prostate cancer, the U.S. news media, American politicians and some victims’ family members went into overdrive with their condemnations of what they called Megrahi’s “hero’s welcome” back to Libya.
The outrage in the United States might have been more measured if the U.S. press corps had reprised the fragility of the case against Megrahi, but his conviction was treated nearly universally as a closed case. (...)
There have been examples of the U.S. news media making brief references to Megrahi’s continued claims of innocence but the evidence of his innocence has been played down or ignored.
For instance, you have to read to the end of a recent New York Times article, which puzzles over why Qaddafi had “overreached” in welcoming Megrahi home, to spot this stunning revelation by Dirk Vandewalle, associate professor of government at Dartmouth.
“I remember talking to one of the judges from the panel that convicted him,” Vandewalle recalled. “He said there was enormous pressure put on the court to get a conviction.”
This comment from one of the Scottish judges – indicating that Megrahi was railroaded – was extraordinary, and it might have gone a long way to explain why the Libyans hailed Megrahi as a hero: because they consider him an innocent man wrongly imprisoned in large part because he was a Libyan. But the judge's admission was ignored by most of the U.S. news media.
Instead, the U.S. press corps joined the outrage over Megrahi’s release and published, without skepticism, a harsh attack from FBI Director Robert Mueller, who had been a U.S. prosecutor involved in the Pan Am 103 investigation. (...)
However, the intensity of Mueller’s protest may have been meant more to obscure the weakness of the case against Megrahi and to further discourage the U.S. press corps from reexamining the evidence, including the possibility that other terrorist elements in the Middle East may have been responsible -- and that the FBI had bungled the whole affair.
Despite the fact that warnings of a possible terrorist attack on Pan Am 103 were circulating in 1988, the FBI and CIA failed to take effective action, especially regarding the chief suspect, the Popular Front for the Liberation of Palestine-General Command, or the PFLP-GC headed by Ahmed Jabril.
At the time, there was strong evidence that Iran was desperate to get revenge for the destruction of Iran Air Flight 655 on July 3, 1988, by a missile fired from the American destroyer, the U.S.S. Vincennes. Though excused by U.S. officials as an unfortunate mistake, the missile killed 290 people aboard, including 66 children.
The PFLP-GC allegedly received several million dollars from Iranians to get revenge. The evidence of this Iranian/PFLP-GC collaboration included interviews with PFLP-GC intelligence officer, Major M. Tunayb [RB: probably means Major Khalil Tunayb] who identified one of the group’s members as the person who planted the bomb in a suitcase that was carried onto Pan Am 103.
Knowledge of this complicated history among Europeans is one of the reasons that there has been a more subdued reaction to the Megrahi release in Europe than in the United States, where the fury has bordered on hysteria. (...)
As for the U.S. news media, it clearly finds selling outrage and pain a lot easier than confronting the difficult issues raised by the Megrahi case. Some journalists also might cringe at the possibility of being labeled “Libyan apologists” or “conspiracy theorists” if they challenge the official story.
President Barack Obama has said Scottish Justice Secretary Kenny MacAskill was wrong to order the compassionate release of Ali al-Megrahi, a former Libyan Intelligence agent who was the only man convicted of the December 1988 bombing of Pan Am Flight 103, an appalling act of terrorism that killed all 259 passengers aboard and 11 more on the ground in Lockerbie, Scotland.
“We have been in contact with the Scottish government, indicating that we objected to this, and we thought it was a mistake," Obama declared.
The President, however, did not appear to be fully informed about the Megrahi case, perhaps understandable given the one-sided coverage that it has received in the U.S. news media. Left out of much of that coverage was the fact that in 2007, the Scottish Criminal Cases Review Commission agreed to reconsider Megrahi’s conviction in 2001 out of a strong concern that it had been a miscarriage of justice. (...)
The [judges'] principal stated reason for finding Megrahi guilty – while exonerating [Fhimah] – was the testimony of Toni Gauci, the owner of a clothing store, Mary’s House, in Malta. Gauci allegedly sold a shirt to Megrahi, the remnants of which were found with the shards of the suitcase that contained the bomb. The shirt was traced to Gauci’s shop.
The remainder of the case rested on a theory that Megrahi could have put the luggage on a flight from Malta to Frankfurt, where it was transferred to a connecting flight to London, where it was transferred onto Pan Am 103 bound for New York, a decidedly idiosyncratic way to undertake an act of terrorism given the random variables involved.
It would be a brilliant example of evil genius – or a case of bewildering stupidity – to assume that at a time of heightened scrutiny about possible airline terrorism that an unaccompanied bag would be mindlessly transferred from plane to plane to plane.
For the prosecution’s theory to be correct, one would have to assume that three separate airport security systems – at Malta, Frankfort and London – failed to give any serious scrutiny to an unaccompanied suitcase or to detect the bomb despite security officials being on the lookout for just such a threat. (...)
The case for the suitcase's hypothetical travels must also deal with the fact that, according to Air Malta, all the documented luggage on KM180 was collected by passengers in Frankfurt and did not continue in transit to London, and that two Pan Am on-duty officials in Frankfurt testified that no unaccompanied luggage was introduced onto Pan Am 103A, the feeder flight to London.
Plus, there was the problem with Gauci’s belated identification of Megrahi as the shirt-buyer 10 years after the fact (and only after Gauci had made contradictory IDs and given a physical description that didn’t match Megrahi). (...)
To get the costly sanctions lifted, Libya was required to accept "responsibility" for the Pan Am 103 bombing and pay about $1.8 billion in compensation to the victims’ families. Libya, however, never admitted that it actually had carried out the bombing and Megrahi continued to protest his innocence.
After Megrahi’s release last month as a humanitarian gesture because he is suffering from terminal prostate cancer, the U.S. news media, American politicians and some victims’ family members went into overdrive with their condemnations of what they called Megrahi’s “hero’s welcome” back to Libya.
The outrage in the United States might have been more measured if the U.S. press corps had reprised the fragility of the case against Megrahi, but his conviction was treated nearly universally as a closed case. (...)
There have been examples of the U.S. news media making brief references to Megrahi’s continued claims of innocence but the evidence of his innocence has been played down or ignored.
For instance, you have to read to the end of a recent New York Times article, which puzzles over why Qaddafi had “overreached” in welcoming Megrahi home, to spot this stunning revelation by Dirk Vandewalle, associate professor of government at Dartmouth.
“I remember talking to one of the judges from the panel that convicted him,” Vandewalle recalled. “He said there was enormous pressure put on the court to get a conviction.”
This comment from one of the Scottish judges – indicating that Megrahi was railroaded – was extraordinary, and it might have gone a long way to explain why the Libyans hailed Megrahi as a hero: because they consider him an innocent man wrongly imprisoned in large part because he was a Libyan. But the judge's admission was ignored by most of the U.S. news media.
Instead, the U.S. press corps joined the outrage over Megrahi’s release and published, without skepticism, a harsh attack from FBI Director Robert Mueller, who had been a U.S. prosecutor involved in the Pan Am 103 investigation. (...)
However, the intensity of Mueller’s protest may have been meant more to obscure the weakness of the case against Megrahi and to further discourage the U.S. press corps from reexamining the evidence, including the possibility that other terrorist elements in the Middle East may have been responsible -- and that the FBI had bungled the whole affair.
Despite the fact that warnings of a possible terrorist attack on Pan Am 103 were circulating in 1988, the FBI and CIA failed to take effective action, especially regarding the chief suspect, the Popular Front for the Liberation of Palestine-General Command, or the PFLP-GC headed by Ahmed Jabril.
At the time, there was strong evidence that Iran was desperate to get revenge for the destruction of Iran Air Flight 655 on July 3, 1988, by a missile fired from the American destroyer, the U.S.S. Vincennes. Though excused by U.S. officials as an unfortunate mistake, the missile killed 290 people aboard, including 66 children.
The PFLP-GC allegedly received several million dollars from Iranians to get revenge. The evidence of this Iranian/PFLP-GC collaboration included interviews with PFLP-GC intelligence officer, Major M. Tunayb [RB: probably means Major Khalil Tunayb] who identified one of the group’s members as the person who planted the bomb in a suitcase that was carried onto Pan Am 103.
Knowledge of this complicated history among Europeans is one of the reasons that there has been a more subdued reaction to the Megrahi release in Europe than in the United States, where the fury has bordered on hysteria. (...)
As for the U.S. news media, it clearly finds selling outrage and pain a lot easier than confronting the difficult issues raised by the Megrahi case. Some journalists also might cringe at the possibility of being labeled “Libyan apologists” or “conspiracy theorists” if they challenge the official story.
An open letter to the President of the General Assembly of the United Nations
“Justice must prevail beyond all other considerations. Beyond politics, convictions, religion, even compassion (and certainly expedience), regardless of one's sympathies, JUSTICE must be the banner that unites us. This is more than pity for a dying man, this is a demand for justice.” (Danton de Vouvray)
In light of the abandonment of Abdelbaset Ali Mohmed al-Megrahi’s second appeal against conviction for the bombing of Pan American flight 103 over Lockerbie with the loss of 270 people, both passengers and citizens of Lockerbie, on the twenty-first of December nineteen eighty-eight, we, the undersigned, hereby formally submit that the General Assembly of the United Nations Organisation institute a full public inquiry, under the provisions of Article 22 of its Charter, into:
• the investigation of the destruction of the aircraft,
• the Fatal Accident Inquiry into the event conducted in 1991,
• the subsequent trial of Abdelbaset Ali Mohmed al-Megrahi and Lamin Khalifa at Camp van Zeist
• both of Mr al-Megrahi’s appeals and the circumstances surrounding the dropping of his second appeal.
We believe that a United Nations public inquiry into the above should call witnesses who have been both directly and indirectly involved to give testimony and account for their actions, decisions and opinions relating to these events. Amongst others, such an inquiry ought ideally to draw on individuals from:
• Dumfries and Galloway Police and other UK police forces involved in the investigation,
• the security services and other governmental agencies of nations involved either at first hand or tangentially in the investigation,
• members of the legislatures of nations involved either at first hand or tangentially in the investigation,
• the Scottish Judiciary,
• the Scottish Criminal Cases Review Commission,
• legal counsel involved in the Zeist trial and subsequent appeals, to the extent permitted by legal professional privilege,
• witnesses from the original Zeist trial list, both those who testified and those who were on the list but not called to testify,
• forensic scientists involved in the investigation (particularly from the Royal Armament Research and Development Establishment, UK),
• and informed experts whose independent research has led them to develop alternative theories concerning the destruction of the aircraft.
Whilst we are aware that, under the terms of Article 22 of the Charter, a United Nations General Assembly inquiry does not possess within its gift the power to subpoena witnesses to testify, we nevertheless feel that such an initiative could make a valuable and highly significant contribution towards removing many of the deep misgivings which persist in lingering over this tragedy.
Now that Mr al-Megrahi has dropped his second appeal and been repatriated to Libya to spend what time is left to him with his family, one of the last best hopes that existed to establish the facts of this disputed and sorry event once and for all has evaporated. Whether or not he is guilty, the alleged abuse of Maltese sovereignty by foreign investigators employing illegal wire-taps, the question mark over the reputation of Luqa airport, the break-in to Heathrow airside shortly prior to Pan Am 103’s fateful departure, in addition to allegations of:
• tampering with material evidence,
• financial and other inducements in order to secure desired testimony,
• harassment of potential witnesses to dissuade them from coming forward at the Zeist trial,
• the with-holding of evidence from the defence counsel at Zeist,
• political obfuscation and serious economies with the truth
have dogged this affair from the very outset and cast considerable doubt over the safety of the Zeist verdict. We now appeal to the General Assembly of the United Nations, which we consider to be an eminently suitable platform under the circumstances given the international nature of events, to take the appropriate steps to set the record straight.
Although we are also fully cognisant that further investigation of this tragic occurrence over twenty years ago will yet again bring pain to the victims’ families and friends, we are confident that they too will wish to see matters concluded beyond reasonable doubt. We do this in the hope of restoring the stature of justice following what has been described as being: ‘a spectacular miscarriage of justice’ (Professor Hans Köchler, International Observer appointed by the United Nations for the trail at Camp van Zeist). Our faith in justice ultimately prevailing now lies in the hands of the United Nations.
Signed:
Mr John Ashton
(Co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie).
Mrs Jean Berkley
(Co-ordinator UK Families Flight 103 and mother of Alistair Berkley: PA103 victim).
Professor Robert Black QC
(Commonly referred to as the Architect of the Camp van Zeist Trial).
Professor Noam Chomsky
(Professor Emeritus of Linguistics, Massachusetts Institute of Technology).
Mr Tam Dalyell
(Member of Parliament: 1962 – 2005, Father of the House: 2001 – 2005).
Mr Ian Ferguson
(Co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie).
Mr Robert Forrester
(Justice for Megrahi Campaign committee member).
Mr Ian Hislop
(Editor of Private Eye: one of the UK’s most highly regarded journals of political comment).
Father Pat Keegans
(Lockerbie Parish Priest at the time of the bombing of Pan Am 103).
Mr Iain McKie
(Retired Police Superintendent and justice campaigner).
Heather Mills
(Reporter for Private Eye specialising in matters relating to Pan Am flight 103).
Denis Phipps
(Aviation security expert).
Mr Steven Raeburn
(Editor of The Firm, one of Scotland’s foremost legal journals).
Doctor Jim Swire
(Justice campaigner. Dr Swire’s daughter, Flora, was killed in the Pan Am 103 incident).
Mr Abdullah Swissy
(Former President of the Libyan Students’ Union in Scotland and Libyan Student Affairs of the Libyan Students’ Union, UK Branch).
Sir Teddy Taylor
(Former Shadow Secretary of State for Scotland and Member of Parliament from 1964 to 2005).
Mr Bob Watts
(Businessman and Justice for Megrahi committee member).
In light of the abandonment of Abdelbaset Ali Mohmed al-Megrahi’s second appeal against conviction for the bombing of Pan American flight 103 over Lockerbie with the loss of 270 people, both passengers and citizens of Lockerbie, on the twenty-first of December nineteen eighty-eight, we, the undersigned, hereby formally submit that the General Assembly of the United Nations Organisation institute a full public inquiry, under the provisions of Article 22 of its Charter, into:
• the investigation of the destruction of the aircraft,
• the Fatal Accident Inquiry into the event conducted in 1991,
• the subsequent trial of Abdelbaset Ali Mohmed al-Megrahi and Lamin Khalifa at Camp van Zeist
• both of Mr al-Megrahi’s appeals and the circumstances surrounding the dropping of his second appeal.
We believe that a United Nations public inquiry into the above should call witnesses who have been both directly and indirectly involved to give testimony and account for their actions, decisions and opinions relating to these events. Amongst others, such an inquiry ought ideally to draw on individuals from:
• Dumfries and Galloway Police and other UK police forces involved in the investigation,
• the security services and other governmental agencies of nations involved either at first hand or tangentially in the investigation,
• members of the legislatures of nations involved either at first hand or tangentially in the investigation,
• the Scottish Judiciary,
• the Scottish Criminal Cases Review Commission,
• legal counsel involved in the Zeist trial and subsequent appeals, to the extent permitted by legal professional privilege,
• witnesses from the original Zeist trial list, both those who testified and those who were on the list but not called to testify,
• forensic scientists involved in the investigation (particularly from the Royal Armament Research and Development Establishment, UK),
• and informed experts whose independent research has led them to develop alternative theories concerning the destruction of the aircraft.
Whilst we are aware that, under the terms of Article 22 of the Charter, a United Nations General Assembly inquiry does not possess within its gift the power to subpoena witnesses to testify, we nevertheless feel that such an initiative could make a valuable and highly significant contribution towards removing many of the deep misgivings which persist in lingering over this tragedy.
Now that Mr al-Megrahi has dropped his second appeal and been repatriated to Libya to spend what time is left to him with his family, one of the last best hopes that existed to establish the facts of this disputed and sorry event once and for all has evaporated. Whether or not he is guilty, the alleged abuse of Maltese sovereignty by foreign investigators employing illegal wire-taps, the question mark over the reputation of Luqa airport, the break-in to Heathrow airside shortly prior to Pan Am 103’s fateful departure, in addition to allegations of:
• tampering with material evidence,
• financial and other inducements in order to secure desired testimony,
• harassment of potential witnesses to dissuade them from coming forward at the Zeist trial,
• the with-holding of evidence from the defence counsel at Zeist,
• political obfuscation and serious economies with the truth
have dogged this affair from the very outset and cast considerable doubt over the safety of the Zeist verdict. We now appeal to the General Assembly of the United Nations, which we consider to be an eminently suitable platform under the circumstances given the international nature of events, to take the appropriate steps to set the record straight.
Although we are also fully cognisant that further investigation of this tragic occurrence over twenty years ago will yet again bring pain to the victims’ families and friends, we are confident that they too will wish to see matters concluded beyond reasonable doubt. We do this in the hope of restoring the stature of justice following what has been described as being: ‘a spectacular miscarriage of justice’ (Professor Hans Köchler, International Observer appointed by the United Nations for the trail at Camp van Zeist). Our faith in justice ultimately prevailing now lies in the hands of the United Nations.
Signed:
Mr John Ashton
(Co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie).
Mrs Jean Berkley
(Co-ordinator UK Families Flight 103 and mother of Alistair Berkley: PA103 victim).
Professor Robert Black QC
(Commonly referred to as the Architect of the Camp van Zeist Trial).
Professor Noam Chomsky
(Professor Emeritus of Linguistics, Massachusetts Institute of Technology).
Mr Tam Dalyell
(Member of Parliament: 1962 – 2005, Father of the House: 2001 – 2005).
Mr Ian Ferguson
(Co-author of Cover-up of Convenience: The Hidden Scandal of Lockerbie).
Mr Robert Forrester
(Justice for Megrahi Campaign committee member).
Mr Ian Hislop
(Editor of Private Eye: one of the UK’s most highly regarded journals of political comment).
Father Pat Keegans
(Lockerbie Parish Priest at the time of the bombing of Pan Am 103).
Mr Iain McKie
(Retired Police Superintendent and justice campaigner).
Heather Mills
(Reporter for Private Eye specialising in matters relating to Pan Am flight 103).
Denis Phipps
(Aviation security expert).
Mr Steven Raeburn
(Editor of The Firm, one of Scotland’s foremost legal journals).
Doctor Jim Swire
(Justice campaigner. Dr Swire’s daughter, Flora, was killed in the Pan Am 103 incident).
Mr Abdullah Swissy
(Former President of the Libyan Students’ Union in Scotland and Libyan Student Affairs of the Libyan Students’ Union, UK Branch).
Sir Teddy Taylor
(Former Shadow Secretary of State for Scotland and Member of Parliament from 1964 to 2005).
Mr Bob Watts
(Businessman and Justice for Megrahi committee member).
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