Scraping the bottom of the barrel

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

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

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

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

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

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

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

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

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

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

Lockerbie "was more or less settled" says ex-MI5 chief

[What follows is taken from an article headlined Ex-head of MI5 Stella Rimington: Independent Scotland could have own secret service... but setting it up would be complicated published today on the Daily Record and Sunday Mail website:]

The former head of MI5 says there is no reason why an independent Scotland could not set up its own security and intelligence service.

Dame Stella Rimington, the first female director general of MI5, admits the SNP’s plans to set up a new Scottish agency to fight terrorism and cyber security threats would be “quite complicated.”

But she said a precedent had already been set by the UK Government in helping newly independent countries set up their own security services. (...)

As part of the White Paper on independence, the Scottish Government have outlined plans to set up a “single security and intelligence agency for Scotland”. But their estimate that it will cost £206million a year – the same amount Scotland contributes to the cost of UK-wide agencies – has been ridiculed by critics.

Last week, national security experts the Royal United Services Institute said an independent Scotland would face “significant resourcing, capability and legislative hurdles” to replace the security currently provided by MI5, MI6 and GCHQ. (...)

Dame Stella’s career progressed dramatically until, in 1992, she became the first public Director General of MI5.

Among the cases she worked on were the Lockerbie bombing in 1988.

She said: “Our people were working very closely with the Scottish police and the Americans trying to find out what happened and who was responsible.

“Questions about Lockerbie still go on, but as far as I’m concerned it was more or less settled.”

The quality of the Crown's judgement

An item from this blog two years ago today:

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established that 'there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special [defence of incrimination]'. He added: 'there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]

Hands up, all who remember Moussa Koussa!

Three years ago the news media were full of reports and speculation about the defection and arrival in the United Kingdom of Moussa Koussa, then Foreign Minister in the Gaddafi regime.  Here is an excerpt from a post on this blog dated 1 April 2011:

[Reports in today's edition of The Times (accessible only by subscribers) contain the following:]

Scottish police and prosecutors are seeking to interview Moussa Koussa, the defecting Libyan Foreign Minister, raising the prospect of resolving once and for all the truth about the Lockerbie bombing.

Officials at the Crown Office, Scotland’s prosecuting authority, last night contacted the Foreign and Commonwealth Office saying they wished to speak to Mr Koussa in connection with the attack on Pan Am Flight 103 in December 1988, which led to the death of 270 people.

Meanwhile Patrick Shearer, the chief constable of Dumfries and Galloway Police, the force which is still investigating the atrocity, said it would be unusual if they did not seek the opportunity to speak to “a senior member of the Government in Libya”.

David Cameron, the Prime Minister, in response to the Scottish authorities, gave a strong indication that Scottish detectives would be allowed to question him. He told a news conference: “The investigation is still open. They should follow their investigation wherever it leads and we will respond to any request they make.”

However, in an unusual intervention, Whitehall officials insisted that Mr Koussa was not the “prime suspect” over Lockerbie. The Government also failed to rule out the possibility that he might leave the country before lengthy investigations by the International Criminal Court are complete. [RB: surprise, surprise!] (...)

Moussa Koussa visited Abdul Baset Ali al-Megrahi in Greenock Prison where he was serving his life sentence, it emerged yesterday.

Official documents reveal that, at a meeting with Scottish officials in Glasgow in January 2009, he warned that al-Megrahi had only a few months to live, and said that if he were to die in a Scottish prison it “would not be viewed well by the Muslims or the Arabs”. The minute indicates that Mr Koussa also made it clear that it would “not be good for relations” between the UK and Libya. That such a senior figure in the Libyan administration should have had access to al-Megrahi, and have exerted pressure on Scottish officials, will further convince those who opposed the Libyan’s return, that there was more to his release than compassion.

Mr Koussa, it has emerged, met Scottish Government officials twice — in late 2008 and again in early 2009 — after al-Megrahi had been diagnosed with prostate cancer. Curiously, in the minutes of the first meeting on October 27, 2008, which included Foreign Office and Scottish Government officials as well as three Libyans, Mr Koussa is referred to as an “interpreter”. At a meeting in Glasgow on January 22, 2009, attended by six Libyans and four Scottish government officials, Mr Koussa is referred to as “Minister for Security” and the minutes shows that he intervened to draw attending to al-Megrahi’s illness. The minute goes on: “He (Koussa) spoke of al-Megrahi’s medical condition and that he feels that he only has a few months left.”

It was made clear by the Scottish Government last night that although officials had met him, Kenny MacAskill, the Justice Minister who in August 2009 released al-Megrahi, had had no direct contact with Mr Koussa.

Scottish campaigners who met Mr Koussa during their decades spent fighting for the truth about the Lockerbie bombing have told The Times that they found him more frightening than Colonel Muammar Gaddafi. And they said that they gleaned from encounters with the former Libyan foreign minister that, if the country were responsible for the explosion of Pan Am flight 103, then “his fingerprints will be all over it”.

Dr Jim Swire, whose daughter, Flora, was one of the 270 people killed, said he met Mr Koussa in 1991. “I realised straight away that he was a central figure who had everything at his fingertips and was a chief executive in deciding what would happen in the country.”

Two years later, Robert Black, the Scottish QC who was the architect of the trial at Camp Zeist, went to meet Mr Koussa — the first of about nine encounters over 16 years. “The Libyans were very frightened of him. That was transparently obvious. Moussa would come into the hotel where I was staying and I could see everyone else, all the Libyans ... it was as if a shiver was going down their spines.”

“Certainly if Libya was involved in Lockerbie in any capacity then I have no doubt at all that Moussa Koussa knows about it,” said the lawyer. “If Libya was involved then it will have Moussa Koussa’s fingerprints all over it.”

The primary suitcase and its contents

The Primary Suitcase and Its Contents - Rethinking Basic Assumptions is the title of an article published yesterday on baz’s blog The Masonic Verses, prompted by the recent Aljazeera documentary Lockerbie: what really happened?  As with all of baz’s Lockerbie writings, it deserves careful study.

One of the most disgraceful episodes in the Crown Office’s recent history

Two years ago today, I posted on this blog an item headed Former Lord Advocate ... seriously misled the Megrahi Court claims book author.  It bears repeating:

[This is the headline over a report published today on the Newsnet Scotland website.  It reads in part:]

Former Lord Advocate, Colin Boyd QC, [now Court of Session judge, Lord Boyd] has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyans were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen [now a sheriff in Ayr] claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC [now a Court of Session judge].

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashton, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr Boyd explained that according to Crown QC Alan Turnbull: “that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

The defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “I frankly find it inconceivable that it could have been thought otherwise … Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]

Saif-al-Islam Gaddafi on the release of Megrahi: four years ago, with an update

[Another piece from the blog archive during this fallow period for Lockerbie developments. This one is from 25 March 2010:]

“I asked him about Abdelbaset Ali Al-Megrahi, the man convicted in the Pan Am 103 atrocity, in which 270 were killed, when the flight blew up over Lockerbie, Scotland in 1988. The Scottish Judiciary released Megrahi in August on compassionate grounds [RB: the Cabinet Secretary for Justice, who released Megrahi, is a minister in the Scottish Government, not a member of the Scottish judiciary], as doctors gave him just three months to live. Seven months later he is still alive. Gaddafi said, ‘The Americans shouldn’t be angry because this man is innocent, I believe he is innocent. Second, it was not a Libyan decision to release him. They should go to the UK and discuss the issue with the UK and not Libya. And the third issue--he is very sick. This is a fact. But he is still alive. You should ask God about that.’”

[From an interview by Amy Kellogg with Saif Gaddafi, reported in the Live Shots section of the Fox News website. In a later article on the same website, Ms Kellogg writes:]

Though Libya renounced its weapons of mass destruction program back in 2003, a US Embassy didn’t open in Tripoli until late 2008. That was after Libya paid compensation for the families of the victims of Pan Am flight 103. (...)

Despite the normalization of relations, there is much historic baggage weighing on the new relationship, including painful memories of the 1988 Pan Am 103 incident, and for the Libyans, the bombing of Leader Moammar Gaddafi’s home by the Americans in 1986.

When a Scottish court released the man convicted in the Pan Am 103 bombing, Abdelbaset Ali Al-Megrahi, on compassionate grounds, as doctors determined he had just three months left to live, many Americans reacted angrily, as it brought back painful memories. US Ambassador Gene Cretz acknowledges that.

“There’s no doubt that the impact of that picture of Mr. Megrahi being greeted here struck at the very heart of American sensitivities not only in Washington but throughout our country, because it was a reminder of a very very painful past and a present that continues to be painful for the families who lost relatives and friends in that incident and others.”

I asked Seif al-Islam al-Gaddafi, the son of the Libyan leader about the release of Megrahi, who is still alive seven months after his release.

"Americans shouldn't be angry because this man is innocent. I believe he is innocent. Second, it was not a Libyan decision to release him. They should go to the UK and discuss the issue with the UK not Libya. The third issue, he's very sick. This is a fact. That he is still live you should ask God."

Many Libyans make the distinction between Libya’s “accepting responsibility” for the bombing, and actually being guilty of the atrocity, considering Megrahi the fall guy. Yet a Scottish court convicted Megrahi and that fact has not changed. [RB: But an official Scottish body, the SCCRC, has said that that conviction may have been a miscarriage of justice.]

Cretz said even though it was a Scottish court that released him [RB: it was a Scottish Government minister, not a Scottish court], that act caused some damage to US-Libya relations.

“It was a setback no doubt it did impact on relations and this is one of the reasons that we are trying to brick by brick , day by day, discussion by discussion, lay down a path of normalization with this country. So that after 30 years of estrangement and hostility we are able to begin to find a language to talk to each other and to also make each other aware of our cultural and political imperatives and sensitivities.” 

[RB (2014): Shortly after this the “cultural and political imperatives and sensitivities” of the United States embraced logistical and military support for the overthrow of Gaddafi, with the dire results for Libya that are now increasingly apparent. 

Saif al-Islam is amongst those who are due to go on trial in Libya on 14 April. Also among the accused is Abuzed Omar Dorda. In the reports I see no mention of important Lockerbie figures Abdul Ati al-Obeidi and Mohammed al-Zwai, but I suspect that they will also feature.]