An epistolary exchange

1.  1 August 2011

Dear Alex Salmond,

In its edition of April 9 the highly influential LexisNexis English law journal Criminal Law and Justice Weekly (vol 175, no.15, pp.221-228) carried an article I wrote about the Lockerbie trial entitled “Masking Justice With ‘Mercy’ ”.

Subsequently, in its numbers for July 16 and 23, CL&JW carried a two-parter by me entitled “Exploding Lockerbie” (sub-captioned “David Wolchover goes to the heart of why the trial court got it so wrong in the Lockerbie case”.)

I don’t know whether these articles have been brought to your attention but I am taking the liberty of attaching hereto the pdfs.

I should mention that I have been in practice at the English Bar for forty years and although now semi-retired I was for a number of years Head of Chambers at 7 Bell Yard, Temple Bar, London WC2A 2JR. I am the author of a number of legal text boooks and of numerous articles in a variety of law journals stretching back some 30 years. Please see my website for details (although the website text is five years old, is in need of updating and still includes no reference to the most recent text book of which I was a contributing co-editor, Witness Testimony, Oxford: OUP, 2006).

“Masking Justice with ‘Mercy’” mainly concentrated on the manifest deficiencies in the evidence of the Maltese witness Anthony Gauci, a topic I came to as an offshoot of my long term interest in the topic of witness interviewing by the police (see website for the titles of relevant articles).

Research for that article inspired a wider interest in the details of the case as a whole and “Exploding Lockerbie” was the result.

You will see that most of part 2 consists of an analysis of the evidence of what happened at Heathrow, focusing in particular on what flowed from the account by Pan Am baggage handler John Bedford of his encounter with the mysterious clone of the bomb-loaded Samsonite suitcase.

Obviously I assume that you are thoroughly familiar with much of the evidence in question but, at the risk of indulging in self-advertisement, I believe I am able to claim that my analysis of the Heathrow angle is unprecedented in its novelty and in the depth and breadth of its reasoning.

Although the judges accepted Mr Bedford’s evidence they treated it as irrelevant because they found that the bag noticed by him before the arrival of Pan Am feeder flight PA 103A was not in fact the bomb bag. They did so in spite of the fact that it was no more than about 3 inches from the position in the container AVE4041 in which the bomb bag was located when, according to the experts, the bomb exploded.  In determining that the bomb bag came from Luqa via Frankfurt they evidently lost sight of the fact that their finding implicitly depended on a series of improbable coincidences which in their totality amounted to nothing less than manifest absurdity. In the light of that central element in the whole trial al-Megrahi’s conviction is entirely unsustainable. 

I understand that you have been invited to institute an inquiry into the atrocity but that there may be procedural difficulties about this.

Might I respectfully suggest that your government would attract little criticism in the long run in releasing a detailed and reasoned pronouncement disavowing the conviction and repudiating the finding of the judges. Although I accept that this might involve difficult political ramifications I would hazard it would face no particular constitutional obstacles and in any event the circumstances are truly exceptional.

If, on the other hand, you are of the opinion that the judgment remains logically sustainable I would invite you to indicate to me the basis of your thinking, with hope making no reference to the mere ex officio authority of the trial judges and those presiding over the concluded appeal proceedings.

I am copying this to Kenny MacAskill and Frank Mulholland. 

I very much look forward to your personal response.

Yours sincerely, 
David Wolchover 

2.  30 August 2011 
Dear Mr Wolchover

Thank you for your e-mail of 1 August to Alex Salmond, First Minister. 

Regarding the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.  I have been asked to reply. 

 

An independent judiciary is a cornerstone of Scottish justice.  It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.  Mr Al-Megrahi was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful.  A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi.

  

The Scottish Government has always been as open and transparent as possible in this matter which is why, following the announcement last December that the Scottish Criminal Cases Review Commission has been unable to secure the necessary consents to release its statement of reasons in the Megrahi case due to the constraints of the current legislation, we now intend to bring forward legislation to overcome the problems presented by the current consent provisions.

This will allow the Scottish Criminal Cases Review Commission to publish a statement of reasons in cases where an appeal is abandoned, subject of course to legal restrictions applying to the Commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

On the broader questions of an inquiry, the Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi.  Nevertheless, there remain concerns with regard to some of the wider issues relating to the Lockerbie atrocity.  The questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots Law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue, international in its nature. The Scottish Government would be entirely happy to co-operate fully with any such properly constituted inquiry.

Thank you for contacting us with your views. 

Lockerbie Team 

Scottish Government

3.  2 September 2011 

Dear Sir or Madam

I find myself obliged to address you as such because, although your letter was expressed in the first person you omitted to identify yourself by name or position.

Suffixed to the text of your message was a notice that “[t]he views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government.” I shall take it that on this occasion you were writing on their behalf.

May I begin by thanking you – whoever you are – for your response to my e-mail of 1 August to Alex Salmond.

I further express my thanks to you for the time and effort which you have taken on behalf of the Government of Scotland in formulating their reply.

You will not be surprised to learn that as a commentator in depth on the Lockerbie case and a practising criminal advocate of some four decades standing I was well aware of the various procedural aspects of this matter to which you advert. However, I was particularly struck by one stark proposition contained in your letter and I am writing for clarification.

In your letter you state:

“An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.”

It might have been understandable if the Scottish Government had confined themselves to this position, albeit it is one which in the very special case of Lockerbie might be regarded as disappointing, not to say pusillanimous.

However, for the Scottish Government to declare, through your letter, that they “do not doubt the safety of the conviction of Mr Al-Megrahi” appears to be a very different proposition from tactfully abiding by a studied silence on the merits.

At the risk of being accused of pedantry, the self-effacing sentence “it is not for us to cast doubt” on such and such is qualitatively quite different from avowing “we do not doubt” that X is the case. On its most natural meaning the latter implies that the Government have formed a rational view of the case after due consideration of the relevant facts.

There will certainly have been no lack of opportunity to do so. The trial transcript, the trial and original appeal court judgements, and the court papers for the second, abandoned, appeal, are available for all to read and the Government’s copying arrangements will have facilitated easy access by cabinet members. It is difficult to believe that on such a vexed issue as Lockerbie some at least of the Scottish body politic have not made some effort to get to grips with the case details.

I would venture to claim that my two recent articles in Criminal Law and Justice Weekly (“Masking Justice with ‘Mercy’” and “Exploding Lockerbie”) which I attached with my August 1 e-mail, together offer a detailed, forensic, critique of the judgment warranting close attention. They will have been available to the Government for perusal for a whole month during the time that your response was in preparation. I must confess to some surprise therefore that your reply makes no reference whatsoever to either article. Criminal Law and Justice Weekly, formally known as Justice of the Peace, is one of England’s most venerable and distinguished law journals. The articles make serious and compelling points which surely deserve at the very least an acknowledgment.

For the purposes of this letter I shall assume that the phrase “do not doubt the safety of the conviction” was chosen with care and expresses a process of rational determination upon the facts. This provokes a number of questions, to which I would respectfully invite the Government’s response.

1.    Are you able to indicate whether the expression “Scottish Government do not doubt” means:

(a)     that all cabinet members individually studied the facts of the case, formed a view, and then came together to take a vote; or

(b)     that only certain members of the cabinet, for example the First Minister, the Minister of Justice and the Lord Advocate (assuming the latter was for present purposes a member of the cabinet), studied the case, and then formulated a summary for their colleagues with a recommendation which was then collectively accepted; or

(c)     that senior cabinet members dictated a view to their junior colleagues who then endorsed that view on command?

2.    In either case are you able to indicate

(a)     on what occasion the cabinet made their determination,

(b)     how much discussion there was on the factual issues,

(c)     whether any such discussion was minuted,

(d)     without indicating the views of individual ministers, the general nature of the points taken,

(e)     whether there was any conscientious dissent from expressing belief in the safety of the conviction,

(f)     whether any dissenting cabinet members have been directed by the First Minister to avoid airing their views publicly.

3.       If the answer to (1)(b) is in the affirmative the extent to which the First Minister, the Minister of Justice and the Lord Advocate have personally studied the evidence in the case.

For your information I am attaching the pdf of another article of mine, published in the current number of CL&JW, entitled “[A Postscript on Lockerbie].” (Regrettably there are two typographical errors which were introduced at a late stage through an electronic communication problem.) I would argue that the novel exposé of the narrow but devastating point focused on in the final section is one which, standing quite alone and apart from all the other problems with al-Megrahi’s conviction, might be met by some very serious soul-searching indeed on the part of judges and ministers alike and might make some men with a conscience very hesitant about declaring they have no doubts as to the safety of al-Megrahi’s conviction.

Your message to me carried the following pro forma warning:

“This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of the addressee(s). Unauthorised use, disclosure, storage, copying or distribution of any part of this e-mail is not permitted.” 

I am going to assume that this was a standard automatically generated appendage which was not intended to require the Government’s consent as a condition of quoting your message in any further excursus into journalism on which I might embark.

Yours faithfully

David Wolchover

From David Cameron's statement on Libya

[What follows is an excerpt from the Prime Minister's statement on Libya to the House of Commons this afternoon:]

Our relationship with the new Libya must of course deal with a series of problems from the past.

On Megrahi, this is obviously a matter for the Scottish Executive. But I have made my position clear. I believe he should never have been sent back to Libya in the first place.

On WPC Yvonne Fletcher, I want to see justice for her family. There is an ongoing police investigation, and the House will wish to know Prime Minister Jabril has assured me of the new Libyan authority’s intention to co-operate fully. [RB: But not, of course, to extradite anyone for trial in England because that, as the Libyan Justice Minister has pointed out, is contrary to Libyan law.]

Pan Am Flight 103 - Lockerbie bombing CIA files

[The CIA has released 262 pages of files relating to the Lockerbie bombing.  They can be downloaded from the Paperless Archives website or directly here.  The following are excerpts from that website's introduction to the documents:]

The files date from 1984 to 1999. This set of files is unique because it includes memos on the direct handling of an intelligence source. This type of information is exempt from the Freedom of Information Act (FOIA) and is not often released by the Agency. (...)

An article appearing in the May 11, 1989 issue of The Washington Post reported that the Central Intelligence Agency had concluded that the Iranian government was responsible. The CIA believed that Iran hired a Palestinian group operating in Syria to perform the bombing. Eventually responsibility would be attributed to Libya.

On November 14, 1991 the United States and Britain announced criminal charges against two Libyan intelligence officers, Abdel Basset Ali Al-Megrahi and Lamen Khalifa Fhimah. In August of 1998, Libyan leader Moammar Gadhafi announced that his country would accept the United States and British plan to put the two suspects on trial by a Scottish court convened in the Netherlands. On April 5th, 1999 the two suspects were transported from Libya to the Netherlands. After a 40 week trial, on January 31, 2001, a three judge panel returned a guilty verdict against Abdel Baset Ali Mohamed al-Megrahi. The panel acquitted Al-Amin Khalifa Fhimah.

This set of files covers the practice of Libya supplying weapons to terrorist groups. The files contain CIA reports created in the years before the Pan AM 103 bombing, covering Libya's methods of sponsoring terrorism. The files contain information on the assassinations of Libyan dissidents living abroad. One document contains a chronology of Libyan-sponsored assassination attempts from 1980 to 1985.

Memos outline contacts with a Libyan intelligence agent working for Libyan Arab Airlines in Malta. He first contacted the CIA on August 10, 1988. He described Malta as "a primary launching point" for Libyan intelligence and terrorist teams en route to and from Europe. Two months before the bombing, a CIA memo mentions information from the informant about a Libyan intelligence officer, Abdelbaset Mohmed Ali al-Megrahi, and the recent removal of explosives from storage in Malta. Al-Megrahi was eventually convicted of bombing Pan Am Flight 103.

[The "Libyan intelligence agent working for Libyan Arab Airlines" is Abdul Majid Giaka, who gave evidence at Zeist and whose evidence was dismissed by the judges as wholly lacking in credibility.  The documents in the current collection contain the CIA cables relating to Giaka that were (eventually) placed in evidence before the court.  The remaining documents (which are heavily redacted) mainly consist of general background information about Libyan invovement in terrorist activities.


Dr Ludwig de Braeckeleer informs me that these documents have not been newly released, but have been declassified and in the public domain since 2008. However that may be, a press release was issued only today.]

The verdict in the Lockerbie case is based on lies and deception

This is a translation of part of the first sentence of an article in Dutch by journalist Daan de Wit published yesterday on the Deep Journal website. It contains long sections in English (including quotes from me) and Google Translate copes pretty well with translation into English of the Dutch passages.

I now discover that resort to Google Translate is unnecessary.  An English-language version of the article is available here on the same website.

Revealed: Gaddafi threat to Britain over Megrahi

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


The Gaddafi regime threatened Britain there would be “dire consequences” for UK-Libya relations if the man convicted of the Lockerbie bombing died in his Scottish jail cell.

The extent of lobbying by the Libyan Government in the lead-up to Abdelbasset Ali Mohmed al Megrahi’s release on compassionate grounds in August 2009 was revealed yesterday after reporters found confidential documents in the abandoned British Embassy building in Tripoli.

According to one, senior Foreign Office official Robert Dixon wrote to then Foreign Secretary David Miliband in January 2009, stating Muammar Gaddafi wanted Megrahi back home in Libya “at all costs”.

“Libyan officials and ministers have warned of dire consequences for the UK-Libya relationship and UK commercial operations in Libya in the event of Megrahi’s death in custody,” he wrote.

Mr Dixon added: “We believe Libya might seek to exact vengeance.” (...)

After a review of the paperwork in the case, Cabinet Secretary Sir Gus O’Donnell said in February ministers in the last Labour Government believed Megrahi’s release would be the “best outcome” as they feared that UK interests in Libya would be damaged if he was allowed to die in a Scottish jail. (...)

A spokesman for Justice Secretary Kenny MacAskill, who took the decision to release him, said: “The Scottish Government were the only ones playing with a straight bat – in stark contrast to the astonishing hypocrisy of the last UK Labour Government.”

[A very similar report appears in today's edition of The Scotsman. It concludes, however, with an account of the opinion poll published in yesterday's Scottish Sunday Express.]

More than half want Lockerbie probe

[This is the headline over a report published today in the Southend Standard, based on material issued by The Press Association.  It reads as follows:]

More than half of Scots think there should be a public inquiry into the Lockerbie bombing, according to a new poll.

The survey, which was carried out by Angus Reid Public Opinion for the Scottish Sunday Express newspaper, also revealed that 32% of the 500 respondents believe Abdelbaset al-Megrahi was guilty of bombing Pan Am flight 103 over Lockerbie, while 35% said they did not and 33% were unsure.

The majority of those polled said they agreed with Justice Secretary Kenny MacAskill's decision to free Megrahi in 2009 on compassionate grounds, when doctors advised that he had around three months to live after he was diagnosed with terminal prostate cancer. A quarter strongly agreed with the decision - even though he is still alive two years on - and 26% moderately agreed.

The newspaper's poll found that 52% of Scots agreed there should be an independent inquiry into the Lockerbie bombing, which killed 270 people, while 34% disagreed and 14% were not sure.

Megrahi, who was the only person convicted of the 1988 bombing, was tracked down to his villa in the Libyan capital of Tripoli at the weekend, where he is apparently comatose and near death.

Dr Jim Swire, whose daughter Flora died in the atrocity, has always maintained that Megrahi is innocent. He told the Sunday Express: "This is hugely encouraging. We have the right to know who really murdered our loved one.

"It is terrific that the message is getting out there. The public inquiry is not for the relatives of those that died, it is for the people of Scotland. They deserve and badly need to be told what has been going on."

[This story does not appear to feature on the website of the Scottish Sunday Express. However, I have seen the full tabulated responses to all three questions. On the independent inquiry question, those supporting an inquiry greatly outnumber those opposed in all age groups, all social classes and both genders. On the 'Was he guilty?' question, the highest proportion of 'No' responses came from those aged 55+ and the ABC1 social group.

The story has now been posted on the Scottish Sunday Express website and can be read here. The following are excerpts:]

However, it is the widespread backing for a Public Inquiry – the first time that public opinion has ever been tested on this issue – that is likely to have the most political impact.

The Holyrood Justice Committee is due to consider a petition calling for a probe, backed by figures such as Archbishop Desmond Tutu, former MP Tam Dalyell and Cardinal Keith O’Brien.

Dr [Jim] Swire, one of the architects of the petition, said: “This is hugely interesting, valuable and encouraging. It is terrific that the message is getting out there.

“The Public Inquiry is not for the relatives of those that died, it is for the people of Scotland. They deserve and badly need to be told what has been going on.

“Namely, that their justice system has been made use of by another country – mostly America, although Westminster was conniving away on Washington’s behalf – for politically desired ends, turning the spotlight away from Iran and Syria ahead of the Gulf War.”

Professor Robert Black, who designed the unique Lockerbie trial under Scots Law at Camp Zeist in Holland and has protested Megrahi’s innocence ever since, said he was “delighted” by the support for an inquiry.

“This is the first such poll that I am aware of,” he said. “It certainly helps our campaign as there must come a point where the disquiet about the conviction becomes so great that they can’t go on stonewalling.”

The Justice For Megrahi campaign secretary Robert Forrester said the poll could help sway the Justice Committee – which is chaired by MSP Christine Grahame, a long-standing supporter of Megrahi’s innocence.

He said: “We are up against the Scottish Government and the Lord Advocate and it takes such a long time to go even a short distance, so it is very refreshing to see the Scottish public is on our side.”

[Today's edition of the Mail on Sunday contains a long article headlined Secret files: Labour lied over Gaddafi... who warned of a holy war if Megrahi died in Scotland, based on documents found in the British ambassador's residence in Tripoli.  These underline something that the WikiLeaks cables had already demonstrated: that the Libyan regime exerted strong pressure on the UK Government to facilitate the repatriation of Abdelbaset Megrahi.  There is, as yet, no evidence from Tripoli showing such pressure being applied to the Scottish Government.

Meanwhile, in today's edition of The Observer, columnist Kevin McKenna writes:]

Their [the Labour group in the Scottish Parliament] support for Kenny MacAskill's sinister proposals for a single national police force is just plain immoral for a party that is supposed to be left wing and healthily suspicious of what is effectively a standing army with truncheons. The same could be said for their obtuse and reactionary opposition to the release of Abdelbaset Ali al-Megrahi.

[The opening paragraph of a report (behind the paywall) in today's edition of The Sunday Times headlined Gaddafi threatened ‘holy war’ unless Lockerbie bomber was released reads as follows:] 

The British government released Abdelbaset al Megrahi, the convicted Lockerbie bomber not on compassionate grounds as they claimed but because Colonel Gaddafi threatened to unleash a ‘holy war’ if he died in prison.

[This is, of course, a perversion of the truth that it is quite disgraceful to find in a supposedly reputable newspaper.  Megrahi was released by a minister of the Scottish Government. It has, however, long been well known that the UK Government was keen for Megrahi to be repatriated and that, had they been the ones to have the power to do so, he would have been returned to Tripoli long before he in fact was.

A report just published on The Guardian website, headlined Darling denies Lockerbie bomber was freed due to pressure from Gaddafi, contains the following:]

[Former Labour cabinet minister Alistair] Darling denied a deal was done to secure Megrahi's release. "There is no doubt that from our point of view we wanted to bring Gaddafi in from the cold because at the time we thought that was possible, and there is no doubt that Gaddafi wanted al-Megrahi out," he told BBC1's The Andrew Marr Show.

"However, all this hangs on the willingness of the British Labour government doing a deal with the Scottish nationalist government, and anyone who knows anything about Scottish politics knows there is such a visceral dislike between the two the idea there was some kind of collaboration between the two just seems to be nonsense."

A Postscript on Lockerbie

[This is the title of an article published in today's edition of the Criminal Law & Justice Weekly by David Wolchover, barrister and Head of Chambers Emeritus at 7 Bell Yard. It forms a postscript to Mr Wolchover's earlier Lockerbie articles which are referred to here and here. One section reads as follows:]

The Smoking Gun of Injustice: X-rays at Frankfurt

We have seen how the court’s reliance on a wildly improbable series of coincidences and a circularity of assumptions might have justified describing the trial as a merry farce had it not amounted to such an unfunny disgrace. But quite aside from all that, there was one very simple error of fact which alone irrevocably destroys the basic premise on which the Crown and the Judges relied, the premise that the suitcase containing the radio-cassette player bomb was flown from Malta on the morning of December 21, 1988 and was interlined at Frankfurt on to Pan Am feeder flight PA103A. Although the error might aptly be described as Lockerbie’s smoking gun of injustice it appears to have been almost entirely overlooked in the critical literature.

A discrepancy in the baggage tally points to the possibility that an item which may have come from Air Malta flight KM180 from Luqa may not actually have ended up on the feeder flight at all. But if it did, it would certainly have been screened by Frankfurt x-ray operator Kurt Maier.

The main article mentioned that giving evidence the US civil proceedings against Pan Am and their insurers in 1992 Maier stated that he would certainly have alerted his supervisor had he seen a radio or radio-cassette player on his screen. It also mentioned that he was not called as a witness at Zeist owing to serious illness. Unfortunately, what it did not also mention was that the judges, incredibly, were never referred to his 1992 evidence but only to the notes of his January 1989 interview (conducted in English) by US Federal Aviation Administration investigators (Zeist Production 1792; Zeist transcript, pp1866-7). The notes record that if “he found something unusual ... he would call his supervisor if necessary,” and that “he could say without question that there was no explosives” [sic] in any of the bags. But the notes also purport to attribute to him the odd notion that an external plug on an electrical device “clears his doubt about any explosive device.” The judges accordingly observed that Maier’s “of what he looked for does not suggest that he would necessarily have claimed to be able to detect explosives hidden in a radio cassette player.” Since this declaration evidently formed the basis of their finding that Maier must have let the bomb through it is clear that they misconceived the nature of his duty in the context of the “Toshiba warning.” That duty was not to “detect explosives” in a radio-cassette player but to look out for and report any radio-cassette player in luggage.

This would have become apparent from what he asserted in the 1992 civil trial. Closely cross-examined on his FAA interview, he insisted that if he had seen a radio-cassette player he would have called his supervisor for the very good reason that in view of the Toshiba warning he had specific instructions to do so (see transcript JA 1099-1100). The crucial point he was making was that in accordance with those instructions he would have called the supervisor regardless of his personal opinion of what made a radio-cassette player suspicious. That he would have followed his instructions is supported by the fact that he was described as a careful and serious-minded employee (Zeist transcript, p1848). He did not call his supervisor. Therefore none of the bags he screened contained a radio-cassette player. QED. It was and remains as simple as that.

Although there was said to be some doubt about the quality of the US court’s German-English translation, it is arguable that any uncertainty is more likely to have originated from the interview, which was conducted in English, a language Maier plainly found difficult else he would hardly have needed an interpreter for court. In contrast with the court video record the interview notes did not represent a verbatim minute and moreover, although the FAA investigator (Saunders) who was called at Zeist to produce the notes stressed that she and her colleague (Tiedge) had signed them, significantly she made no reference to Maier himself having done so.

Because the Zeist judges relied exclusively on the notes and remained blissfully unaware of his sworn courtroom testimony they were precluded from making a valid assessment of the totality of his evidence on the crucial point. It was an elementary and fundamental error of process that was completely avoidable, went to the heart of the allegation and proved catastrophic.

"... how nakedly and cynically successive governments have lied ..."

[Cosmic Hobo's blog The Scarifyers yesterday published a delightful interview with actor David Benson. The section on his play Lockerbie: Unfinished Business reads as follows:]

Last year you got rave reviews and sell-out audiences for your Edinburgh play Lockerbie: Unfinished Business, which on the face of it might not have seemed a sure-fire hit. Were you surprised?

Yes, very. It was a risk, to take on such a serious subject after a string of frivolities; though I should say that all of my shows have some depth to them I hope, a bit of emotional texture. When it comes to choosing an idea to develop into a show, I just take whatever is on my mind at the time and Lockerbie came unexpectedly to the surface as a possible project. I have long known about Jim Swire and his heroic and dogged pursuit of justice for his daughter and the other 269 people murdered. What I find excruciating about the story is how nakedly and cynically successive governments have lied about who did the bombing and done all they could to cover up the truth. I find it shocking beyond belief and I hate these politicians for continuing this massive injustice. So it was a natural thing for me to write a show about it and I put a lot of my own anger into the performance. However, I did not think it would be of interest to many people, so I was delighted and amazed by the reception it got – and still gets on tour.

Clinton: NTC must deal with Lockerbie bomber

[This is the headline over a report (based on news agency material) published today on the Aljazeera website. It reads in part:]

Libyan opposition leaders must deal with the case of Abdel Baset al-Megrahi, the only person convicted over the 1988 Lockerbie bombing, Hillary Clinton, the US secretary of state, has said.

In a meeting with senior members of Libya's National Transitional Council in Paris on Thursday, Clinton said the US would be watching closely how the case was handled. (...)

"The United States categorically disagrees with the decision that was made two years ago by the Scottish executive to release al-Megrahi and return him to Libya," Clinton told reporters.

"We have never wavered from our disagreement and condemnation of that decision. He should be behind bars."

In her meetings, Clinton made clear to Libyan opposition leaders Mustafa Abdul-Jalil and Mahmoud Jibril that the US believed al-Megrahi should never have been freed.

His return to a hero's welcome in Muammar Gaddafi's Libya remains problematic, US officials said.

Clinton said the US also was seeking the Libyan interim government's assistance for more information about possible accomplices in the planning or execution of the bombing in December 1988.

Al-Megrahi, a staunch Gaddafi supporter, is now reported to be near death at his home in Tripoli, the Libyan capital.

The NTC says it will not deport him even though Chuck Schumer, a US senator, has asked Clinton to make the release of billions of dollars in frozen assets from the Gaddafi government contingent on al-Megrahi's return to jail.

The US state department said on Wednesday that Clinton would press the opposition on the case, but would not link it to the assets, given the immediate priorities such as securing and stabilising Libya.

[The official US State Department transcript of the press briefing from which the above report -- and others like it in the media today -- is taken can be read here. The questions on Megrahi from the press and the answers from "Senior State Department Official One" (who is presumably Hillary Clinton herself) clearly indicate -- at least to me -- that the State Department is relaxed about him, but is having to jump up and down a bit for public consumption and because of congressional pressure.]

Refutation of Fox News's claim that CNN's Megrahi footage was staged

[The following are excerpts from a long report published today on the Mediaite website.]

The recent unrest in Libya has brought a fascinating secondary headline: the reexamination of the strange case of convicted Pan Am Flight 103 bomber Abdel Basset al-Megrahi. Last weekend, the controversial and convicted murder was found in his opulent Tripoli home, bed-ridden and in a coma, by CNN’s Nic Robertson. But Frank Duggan, president of Victims of PanAm 103, alleges that there was no 'discovery', and that Robertson had been invited to the house, along with other reporters. These potentially damning allegations were then reported by CNN competitor Fox News. Mediaite caught up with Robertson, who explained how he found al Megrahi.

First, some background. The discovery of al-Megrahi was first reported over the weekend, which Mediaite covered Monday morning of this week. Because of the controversial nature of the release of the convicted bomber, this was then reported by many other news outlets, a nice scoop by Robertson, who is a veteran and well-respected reporter from areas of conflict. During a report on Fox News's Studio B hosted by Shep Smith, made by Jonathan Hunt cited that the head of the Victims of Pan Am 103 group was alleging that Robertson’s discovery was “trash.” Hunt reported on-air:

'In the last couple of minutes we got an e-mail from Frank Duggan, President of the group Victims of Pan Am 103. We do not have that on the screen but I will read part of it. He says in the e-mail to us “Give us a break. His family is trying to make a sympathetic character out of an unrepentant murderous monster.” He then talks about the other network which first claimed to have found Abdel Basset al-Megrahi saying, and I quote, “the CNN exclusive expose that they discovered his hiding place was total,” — (interrupting himself) I will use the word trash but he used a different view — “that reporter was invited to the house as was Sky News and the Telegraph and other newspapers and Abdelbhaset al-Megrahi’s son e-mailed this information to the Libyan people.”'

Hunt went on to report that Senator Chuck Schumer also had issued a statement that claimed “this wouldn’t be the first time that Libyan officials claimed Abdel Basset al-Megrahi was on the death bed,” before adding that there was a “whole lot skepticism that he is near-death.”

Mediaite reached out to Mr Duggan, who told us that he didn’t “have concrete knowledge of the media being invited to Megrahi’s home” and that he was just being “reasonably skeptical.” He then pointed us to a SkyNews report of Megrahi’s family emailing journalists. [RB: The above account demonstrates Mr Duggan's cavalier attitude towards evidence.]

[The following two pages of the Mediaite report consist of the transcript of an interview with CNN's Nic Robertson in which he explains the circumstances of his visit to Megrahi's bedside.]

Jim Swire: one of the noblest men alive

[This is the headline over an article published today in the Scottish Review by the editor, Kenneth Roy. It reads in part:]

As we were packing up for the move [of the editorial office from Kilmarnock to Prestwick], one press cutting, and one alone, fluttered out of a desk drawer stuffed with long-discarded items. It was a three-year-old piece from the Scottish Sunday Express with a familiar byline.

Why did I keep this one small product of British journalism when all the others that had passed through my hands in our nine years at Kilmarnock had been wrapped round the proverbial fish and chips? What was its special quality?

The headline was unusual enough. 'Mercy the best route for us all', it said simply. It would be hard to argue with this conclusion, as we see its truth being worked out in so many daily situations. Yet the media do not generally do mercy. The media do punishment and the media do revenge. Old Testament to a man – or, just as ferociously, woman.

In the case of Megrahi, whose photograph occupies a quarter of the page of this cutting, they would have had him executed years ago. Why, it is only a few days since one of the tabloids – The Sun, of course – used the word 'Fiend' to describe him in a front-page headline, announcing excitedly that the SAS was pursuing him.

In the lexicon of the popular press, the SAS is no longer so much a body of fighting men as a macho symbol of clinical aggression to be invoked, usually symbolically, whenever a target of its homicidal lust hoves conveniently into view. It is impossible to say whether there was a shred of fact in The Sun's latest boys' own adventure, but the SAS would not have had far to look: they would have found their target on his deathbed. How's that for anti-climax?

Meanwhile, the deputy prime minister, the ever-opportunistic Nick Clegg, was not gunning for Megrahi's head, merely for his return to prison – wired up to an oxygen mask, presumably, but not before he was chained to his own stretcher. Charming fellow, Mr Clegg. He reminds me of the old saying about Liberals, that they are the sort of people who fire their staff at Christmas.

So, mercy. Not a lot of it around these days (...)

The familiar byline was that of Dr Jim Swire, spokesman for UK Families Flight 103. At the distance of almost three years, his leader-page article has a certain poignancy. It was written 10 months before Kenny MacAskill, Scotland's justice secretary, freed Megrahi from Greenock prison on compassionate grounds, but already Dr Swire was begging the Scottish government to order his release – 'perhaps to a special facility where he could be with his family, yet be safe and have specialist palliative care to hand'. In August 2009, the special facility, rightly or wrongly, turned out to be Libya.

Unlike the good old British journalist – whom there is no need to bribe 'seeing what he will do unbribed' – Dr Swire and the other UK relatives had no desire for vengeance. 'We wanted the truth,' he writes.

I have spoken at length to the victims of mass murder – at Dunblane and on 7/7 – and the search for the truth is a constant pre-occupation of the families; it over-rides everything else. It is always accompanied by a determination that those who died, and the events themselves, will never be forgotten. (The best book about Dunblane, by Mick North, is actually called Dunblane: Never Forget). So Jim Swire's statement, 'We wanted the truth', should surprise no-one who has explored the psychology of victims.

For Dr Swire, the search for the truth led to one inescapable conclusion: the innocence of Megrahi. It was the evidence at the trial in Holland that convinced him that the case against Megrahi was invalid. Time and again that evidence pointed to the involvement of Iran and Syria, not Libya.

Robert Black QC, the architect of the Camp Zeist trial, recently put it to me another way: the trial persuaded him that there was no evidence to justify conviction, but it was only when he met Megrahi in prison that he knew he was innocent. There is a difference; sometimes all the difference in the world. Robert Black, like Jim Swire, has fought tirelessly to establish Megrahi's innocence and made a thorough nuisance of himself with the Edinburgh legal establishment. I have never asked him how much the campaign has cost him professionally or personally. Perhaps he has given up caring.

With Jim Swire, there is a more painful dimension: the human factor. His daughter Flora was one of the 270 lives – many of them young lives – lost 38 minutes after Flight 103 left Heathrow that day. He had less reason than most – he had no reason at all, other than a personal commitment to humanity and justice – to devote the rest of his life to proving the innocence of the man convicted of Flora's murder. HIs self-sacrifice, in so many ways, is humbling. He is now a man in his 70s, yet still he goes on fighting for Megrahi.

I have met him only once: in the immediate aftermath of 9/11, when I chaired a public meeting at which he spoke. I thought then he was an impressive human being, but my admiration for him has deepened over the years. Now I think he is one of the noblest men alive.

When Jim Swire wrote that piece in the Scottish Sunday Express in 2008, it was almost six years since Megrahi had requested a second appeal. After three years of delays, the Scottish Criminal Cases Review Commission had agreed that his trial might have been unfair, had conceded in effect that there were gaping holes in the prosecution, and that the case should go to further appeal. His frustration at the lack of progress, at the continuing obstruction of justice, leaps from the page.

How much more frustrated must he feel now? The justice secretary's decision to release Megrahi was well-founded, but the subsequent failure of the Scottish Government to release all the facts known to the Scottish Criminal Cases Review Commission is a continuing scandal and a blot on the conscience of Scotland.

Of one thing we can be sure: Megrahi's imminent death will not put a stop to Jim Swire's quest. That will go on as long as it takes.

[A related post on the Ian Hamilton QC blog can be read here.]

Lockerbie in Libya

[This is the heading over a section of a long article by Diana Johnstone entitled Gaddafi’s Libya as Demon published today on the CounterPunch website. The section reads in part:]

My visit to Libya in January 2007, to attend an international conference on the International Criminal Court, gave me the opportunity to hold private conversations with a number of well-educated Libyans who clearly knew a lot more about the West than the West knew about them. I was particularly interested in getting the take of unofficial Libyan citizens on two issues that at the time dominated Western perception of Libya: Lockerbie and the affair of the Bulgarian nurses. I should mention that I never got near Gaddafi, and the conference was sponsored by academics who held diverse opinions on important issues, often unlike those of the Leader, which didn’t seem to bother anyone. But on the issue of Lockerbie, I discovered two general widespread points of agreement.

On the one hand, nobody believed that Libya was responsible for the Lockerbie bombing. It was taken for granted that Libya had been unfairly accused for political reasons.

On the other hand, it was clear that the sanctions imposed by the West to punish Libya for its alleged guilt had caused hardship and discontent. The power of the West both to impose sanctions and to project its images amounts to serious interference in the domestic politics of targeted countries, since very many people, especially the young, want to live in a “normal” country and may resent leaders who cause them to be treated as pariahs by the West. Therefore, it was understood that Gaddafi had finally given in to Western pressure to accept responsibility – but not guilt – for Lockerbie merely in order to get the unpopular sanctions lifted. The fact that he agreed to turn over two Libyan citizens to a Western court to be tried for the crime and to pay over two billion dollars of compensation to the victims was explicitly not an admission of guilt, but rather a response to blackmail by Great Powers in order to normalize relations and improve daily life.

This did not surprise me, since over the years I had read a lot about the Lockerbie case. Indeed, a great deal has been written exposing the weakness of the prosecution’s case, based on a totally implausible scenario (a bomb to blow up a trans-Atlantic flight was allegedly sent via airports in Malta, Frankfurt and London), technical “evidence” that had been tampered with by CIA agents, and a witness who was richly rewarded for testimony which did not fit the facts. All this has been told many times, for instance Andrew Cockburn in the CounterPunch newsletter [RB: A related account by Alexander Cockburn is available here], or the London Review of Books, The Framing of al-Megrahi by British lawyer Gareth Peirce. But the fact that the case has been repeatedly exposed by careful analysis as a probable frame-up has not made the slightest impression on mainstream media and politicians who continue to blast Gaddafi as the monster who ordered the Lockerbie massacre.

One may add that at the time of the event in 1988, it was widely assumed that Iran had ordered the attack in retaliation for US downing of an Iranian airliner over the Persian Gulf. When the United States, switching from its anti-Iran alliance with Iraq to war against Saddam Hussein, decided to accuse Libya instead, no motive was ever produced. But when a “dictator” has been stigmatized as a monster, no motive is needed. He just did it because that is the sort of thing evil dictators are supposed to do.

The two accused Libyan airline employees working in Malta had been put on trial in 2000 by three Scottish judges without a jury in a specially built court in the Netherlands. One of the Libyans was acquitted and the other, Abdel Basset al-Megrahi, was convicted and sentenced to 27 years in prison. The United Nations observer at this peculiar trial, Hans Köchler, called the guilty verdict “incomprehensible”, “arbitrary, even irrational” and noted “an air of international power politics” surrounding the proceedings.

On November 12, 2006, the Glasgow Sunday Herald quoted top State Department legal advisor Michael Scharf, who was the counsel to the US counter-terrorism bureau when the two Libyans were indicted for the bombing, as calling the case “so full of holes it was like Swiss cheese” and said it should never have gone to trial. He claimed the CIA and FBI had assured State Department officials there was an “iron-clad” case against the two Libyans, but that in reality the intelligence agencies knew well in advance of the trial that their star witness was “a liar”. But Great Powers can’t back down. Their sacred “credibility” is at stake. In short, they must keep lying to preserve the illusion of infallibility.

At the time I was in Tripoli, the defense team of the convicted Libyan was trying to appeal the conviction to a higher court. I was able to call on one of the lawyers on Megrahi’s defense team. I spent a long time in her office, trying to overcome her reluctance to speak about the case. Finally, she agreed to talk to me when I promised to keep our conversation to myself, so as not to risk harming the appeal. By now, the circumstances have changed drastically.

Here, briefly, is what she told me.

The Scottish judges were under enormous pressure to convict the two Libyans. After all, for years their guilt had been trumpeted by the United States demanding that they be “brought to justice”. A special court had been set up with the obvious purpose of convicting them. Yet the evidence which would merit conviction in a proper Scottish court was simply not there. The best the judges dared to do was to acquit one of the defendants and pass along the responsibility for acquitting the other to a higher court. But to the dismay of the Libyan defense team, the designated court of appeals evaded the dangerous issue (...)

[O]n June 28, 2007, the Scottish Criminal Cases Review Commission, which had been investigating the case since 2003, recommended that Abdel Basset al-Megrahi be granted a second appeal against his conviction. The Commission said it had uncovered six separate grounds for considering that the conviction may have been an injustice. The announcement caused a sensation in the small circles following the affair. It seemed that Scottish justice was courageous enough to assert itself and allow hearings that would expose the CIA frame-up.

That sort of thing may happen in movies, but the real world is something else.

A sordid bargain

What happened after that helped set the stage for the NATO attack on Libya this year.

Time passed. It was two years later, in April 2009, that the appeal finally was due to get underway. But meanwhile, behind the scenes, secret bargaining was going on, amid leaks and rumors.

On August 21, 2009, on grounds that he was suffering from terminal cancer, Abdel Basset Ali Mohmed al-Megrahi was released from prison in Scotland by the Scottish justice minister Kenny MacAskill and allowed to “go home to die”.

Now, it so happens that in 2007, Tony Blair went to Libya to negotiate a British-Libyan agreement with Gaddafi covering law, extradition and prisoner transfer. Under this Prisoner Transfer Agreement, Libyan authorities asked for Megrahi to be sent home due to his illness.

The catch was that the Prisoner Transfer Agreement could be applied only when no legal proceedings were outstanding. So in order to benefit from it, Megrahi had to drop his appeal.

The matter is confused by the fact that he was formally released on “compassionate” grounds. One way or another, the deal was clear: al-Megrahi could go home, but the appeal was dead. Hans Koechler, UN-appointed special observer to the Lockerbie trial, thought Megrahi may have been subjected to “morally outrageous” blackmail to abandon his appeal against his will.

The sordid aspect of this bargain is that it deprived Megrahi of the right to clear his name, while leaving the CIA frame-up officially unexposed. There was nothing to counter the chorus of protestations from Hillary Clinton on down denouncing Scotland for having “freed the Lockerbie bomber”. Two years later, news that Megrahi has failed to die has elicited further indignation from Western media, who see this as proof that the UK had “sold the Lockerbie bomber for Libyan oil”. Naturally, the impression must be conveyed that the sly Libyan dictator tricked the naïve but greedy Brits into selling out their principles for petroleum.

But it is just as likely that it was the naïve Libyan dictator who was tricked by the unscrupulous British into thinking he had made a “gentleman’s agreement”. Rather than pursue an appeal which risked causing acute embarrassment to Western authorities, Megrahi could be released and the matter forgotten. The popular rejoicing at Megrahi’s return home was muted in Libya, but Western media pretended to be scandalized that a convicted mass murderer received a hero’s welcome. In reality, he was welcomed home discreetly as an innocent man who had been unjustly convicted, not as a mass murderer. And whenever he has been able to make himself heard, he has reiterated his desire to clear his name.

US: No plans to tie Libya aid to Lockerbie case

[This is the headline over a report issued today by The Associated Press news agency. It reads in part:]

The Obama administration said Wednesday it will continue to press Libyan rebels to review the case of the convicted Lockerbie bomber but ruled out making the transfer of frozen Gadhafi regime assets contingent on his return to prison.

Getting the money to the opposition is a higher initial priority than handling the case of Abdel Baset al-Megrahi, the State Department said. (...)

Some lawmakers, including Clinton's former Senate colleague, Democratic Sen. Chuck Schumer have called on the Obama administration to withhold U.S. support for the rebels until Megrahi is jailed and independently examined by medical professionals to determine his health status. Other lawmakers and at least one Republican presidential hopeful, Mitt Romney, have urged the administration to demand that the opposition arrest and extradite al-Megrahi.

But [State Department spokeswoman Victoria] Nuland said that the Libyan opposition's most important tasks are finishing its apparent victory over Gadhafi, restoring stability and starting a democratic transition. She said the administration would keep up pressure over the al-Megrahi case but would not link it to the return of assets. She also noted that it was Gadhafi, not his foes, who had treated al-Megrahi as a hero.

"We all have to take a hard line, and we have been, on Megrahi and anybody else who has blood on their hands from the Lockerbie bombing, and we will continue to do so," she told reporters.

"We need to give the TNC a chance to do job one, which is to finish the job of ousting Gadhafi and his regime; begin the job of establishing Libya on a democratic path," Nuland said. "And we are very gratified by the fact that they have made clear that they are willing to look into this. We will continue to talk to them about it, and we will certainly make sure that Congress's views are conveyed."

The opposition has pledged to look at the handling of the al-Megrahi case once it has established itself as a fully functioning government.

That is apparently not soon enough for some. (...)

New York's other senator, Kirsten Gillibrand, and New Jersey Sens Robert Menendez and Frank Lautenberg have also made the al-Megrahi case an issue.

Where do they get these people?

[The following are excerpts from an item posted this evening on a blog on the US congressional website The Hill:]

Sen Charles Schumer (D-NY) says the United States should cut off aid to the rebel government taking power in Libya if the country refuses to extradite convicted Lockerbie bomber Abdelbaset al-Megrahi.

“If the new Libyan government continues to shield this convicted terrorist from justice, then they should not get one more cent of support from the United States,” Schumer told NBC. “We put American lives and money on the line to help the Libyan people secure their freedom. It’s time the Libyan government lives up to its commitment to create a free and accountable society by handing over al-Megrahi so that justice can finally be done.” (...)

The rebels’ transitional council has ruled out extraditing the convicted bomber back to Scotland.

“We will not give any Libyan citizen to the West,” Libyan Justice Minister Mohammed al-Alagi said. “Megrahi has already been judged once and he will not be judged again. We do not hand over Libyan citizens. (...)"

Libya: Why we should reserve our judgment

[This is the headline over an article by Linda S Heard, a specialist writer on Middle East affairs, published today on the Al Arabiya website. It reads in part:]

The danger for Libyan independence is that NATO member states may attempt to exact some type of quid-pro-quo from the post-Qaddafi leadership such as cheap oil and gas — or worse, permanent military bases. If NATO countries prove me wrong then I’m ready to take to the streets wrapped in the Atlantic Alliance’s flag. Right now, the signs don’t bode well on that score.

Firstly, now that the UN — and more importantly, the Arab League — has blessed the National Transitional Council (NTC) as a responsible caretaker government, there is no excuse for the NTC’s acting prime minister having to plead for the unfreezing of Libya’s assets abroad or being forced to account to foreign governments for the use those funds are put to.

Secondly, neither the US nor the UK has the moral — and doubtfully the legal — right to demand the extradition of the so-called Lockerbie Bomber Abdel Basset Al-Megrahi who has already had his day in court and who served his prison sentence in Scotland before being released on compassionate grounds. OK, so the man didn’t die from prostate cancer within the projected three months, which some in the US Congress interpreted as deceit or defiance, he’s now been tracked to his home where, hooked up to an oxygen bottle, he’s in a near-death coma.

Now some of those who were ghoulishly praying for his demise are upset because he may cheat the arm of the law. Similarly, some UK politicians have prioritized grabbing the Libyan suspected of shooting and killing Yvonne Fletcher a British policewoman in 1984 which is ironic when they’re advising the Libyan people to forgive the past and move on.

I’m comforted by the response of the NTC’s justice minister who confirmed within recent days that his government “will not give any Libyan citizen to the West” and “Al-Megrahi has already been judged once and will not be judged again.” Other council high-ups have fudged this issue. I think this will be a test of the NTC’s independence from their Western collaborators.