"What is it that our states know but still hide from us, the relatives?"

[The recently published  issue of Perspectives magazine contains an article by Dr Jim Swire, written some months ago.  The text submitted for publication reads as follows:]

On a huge hill cragged and steep TRUTH stands, and he that would reach her about must, and about must go.

John Donne 1572–1631

The shock of the recent helicopter crash in Glasgow must have reminded many of the horror that descended upon the little town of Lockerbie way back in late December 1988, and there is a strong link between them. In Glasgow passers by and those involved but surviving gave us a vivid picture of the willingness of ordinary people in Scotland to help each other. Likewise the people of Lockerbie, in spite of the shock and loss in their own community showed us relatives the tenderness and love of those drawn together by a common tragedy.

Yet in the case of Lockerbie it was our Scottish investigating police, later compounded by our Scottish Crown Office, who kept concealed in their files till 2001*, after the court verdict had been reached, that before the loading of the plane that fell upon Lockerbie that night, Heathrow had been broken into close by to where the bags were to be loaded for the flight 16 hours later, and that despite warnings of increased risk to American aircraft, no effort had been made to discover the intruder nor his motive.

But greater powers than Scotland’s were also involved. We did not listen carefully enough to what some were warning us about in the wider world.

Nelson Mandela had warned us that in a trial “No one country should be complainant prosecutor and judge”, yet Scotland was handed all three roles.

The trial started in May 2000, but long before that we had received disquieting information that there might be improper political pressures to undermine our search for truth. Early in 1990 our group had been called to the US embassy in London to hear the findings of a US Presidential inquiry into Lockerbie. In a gap in the proceedings in a quiet aside to one of us a US official said “Your Government and ours know exactly what happened but they’re never going to tell”.

Another blow was added in 1993, two years after the issue of indictments against the two Libyans, through the memoirs of the late Lady Thatcher who had supported the USAF bombing of Libya in 1986. She wrote of it: “It turned out to be a more decisive blow against Libyan sponsored terrorism than I could ever have imagined.... the much vaunted Libyan counter attack did not and could not take place”. Which nation then was responsible for Lockerbie?

Any nation wielding great power such as our American cousins do, will sometimes attract revenge as it carves its way among other nations. Lockerbie like so many other outrages was a revenge attack, upon an American aircraft.

Two possible origins for revenge are particularly relevant:-

1.) The bombing of Tripoli by the USAF in 1986 with the active support of our Prime Minister, the late Lady Thatcher.

2.) The destruction of Iran Air flight 655 in the Gulf five months before Lockerbie, by a rocket fired from the USS Vincennes. This tragedy was coupled to spectacular mismanagement by America of Iran’s ensuing lust for revenge.

So close has been the ‘special relationship’ between America and our country that hatreds elicited by one may be seen as the responsibility of both.

Yet it is always the prime responsibility of a sovereign State to protect its own citizens from harm.

Evidence assembled for and only partly used in the court case, has leaked out into the public domain, and been seized upon by amateur but truth-hungry relatives. It looks to us now as though the prosecution of the Libyan Megrahi should never have been undertaken.

Worse, far worse, the revenge attack that ended 270 innocent lives in the skies above Lockerbie and on the ground below had been predicted and was preventable.

I think of my daughter Flora pressing eagerly down those long Heathrow corridors that evening on her way to see her American boyfriend for Christmas, and submitting readily to the routine security checks, when as we now know, despite advance warnings of increased terrorist risks to American flights, the airport had decided to take no action to investigate the break-in. I conjure up a lurking terrorist resting and unmolested on airside and listening to the eager footsteps and chatter of his unsuspecting victims. This remains a source of fury and fuels our campaign 25 years later. Surely under these circumstances the suspension of outgoing flights until the break-in had been fully investigated was as elementary as it was mandatory? Heathrow’s night watch man who had found the break-in, had worked at the airport for 17 years and called it the worst security breach he had seen. Yet no public inquiry was called nor sanctions placed upon the airport for its lethargy. Flora too sought truth; she hated hypocrisy.

A brief summary of the trial indicates the importance of the break-in.

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The trial

Lockerbie was clearly a revenge attack, the court had to decide who was getting revenge for what.

The prosecution case was that Megrahi of Libya had sent the bomb unaccompanied on a circuitous route via Frankfurt to Heathrow. There was no proof as to how the bomb might have been smuggled aboard in Malta, but obviously such a route required the use of a long running timer in the bomb if it was to survive the long journey and explode after leaving Heathrow. According to the prosecution a small fragment of timer circuit board labelled PT35b was found in the bombed wreckage and ‘in all respects’ matched one corner of timer circuit boards in possession of the Libyan regime. These timers would have enabled the bomb to be set, even from Malta. to explode over mid Atlantic. The origin of the bomb from Malta was also supported by the remains of Maltese originated clothing allegedly bought in Malta by Megrahi. and found in the same police evidence bag as PT35b.

The defence wanted to show that a Syrian group – the PFLP-GC – acting as mercenaries for Iran had made and supplied a very different type of bomb. This type of bomb had been used ‘successfully’ by the group several times before Lockerbie, to destroy or damage aircraft in flight. They contained an air pressure sensitive switch which kept them inactive at ground level, but if put aboard an aircraft, they would sense the ear-popping drop in pressure after the plane had been climbing for about 7 minutes, and then start a simple non-adjustable timer running of a type unique to the PFLP-GC in Damascus but incapable of running for more than roughly half an hour before exploding the charge. These bombs were therefore unalterably locked following take-off to 7 plus about 30 minutes before they would explode, but by the same token such a bomb could only have been put aboard at the airport of origin of the flight (Heathrow), since if put aboard an incoming flight when fully armed, they would have exploded before reaching Heathrow.

The Lockerbie flight had lasted 38 minutes after leaving Heathrow.

The case revolved round which type of bomb had been used, and the significance of the Maltese clothing.

--------------------------

The court did hear that the baggage handler at Heathrow (John Bedford) when he returned from a tea break to the container he had been loading for the Pan Am Lockerbie flight, saw a suitcase which he had not loaded and which was now on the floor of the container close to the very corner of that container which would fit against the fuselage skin of the aircraft. The court was kept unaware of the break-in, nor did it learn where the extra suitcase might have come from. Had the information about the break-in been shared with the defence before the trial, this surely would have aroused reasonable doubt about the device having arrived from Frankfurt, particularly since Bedford saw that mysterious case well before the Frankfurt flight had even landed. He did not remove nor reposition it and the container was then filled up with the bags from Frankfurt on top of the bags which Bedford had seen.

Both sides accepted that the bomb they favoured had contained approximately 400 - 450 grams of Semtex, just capable of being crammed into a tape recorder, but very puny for the task of destroying a robust 747. To be certain of total destruction a terrorist would have needed to ensure that his device was close to the vulnerable fuselage skin of the aircraft, that could only be achieved at Heathrow. Analysis of baggage surrounding the actual point of explosion showed how abruptly the force of such an explosion was damped down by neighbouring bags and their mostly soft contents. The position of the bomb relative to the fuselage skin was crucial.

The man from whom the clothing had been bought in Malta was called Tony Gauci. He and his brother Paul were in line to receive substantial payments from the US Justice Department through their ‘Rewards for Justice’ programme provided their evidence led to the conviction of Megrahi/Fhimah. The Zeist court had failed to review the contents of a Scottish policeman’s diary showing the extent to which the Gauci brothers were aware of this potential reward before giving evidence in the court: this also denied the court full knowledge of whether the identification by Mr Gauci of Mr Megrahi as the buyer of the clothing, conformed to the standards of Scottish criminal law. Serious distortion of evidence of the dates of the clothes being bought was necessary to avoid concluding that it had in fact been bought on a day when Megrahi was known not to have been in Malta.

Sometimes I think that we relatives have been incredibly slow to realise that there might be real world reasons for reaching a verdict which was convenient to the political needs of a country rather than to the needs of truth and justice. Within four days of the issue of the Libyan indictments Iranian backed groups started to release American hostages: President Bush had campaigned for office on getting those hostages back.

But there have also been rich rewards for us since the trial in meeting those who have also realised the deception.

The first person I met afterwards was Professor Robert Black QC, emeritus professor of Scots law at Edinburgh. Not only was he one of Scotland’s leading legal brains, but he had also taken a central role in the devising and setting up of the special neutral country trial at Zeist, It was clear at once that he did not believe that the proceedings had justified the verdict. His own concept had been subverted to become a monumental miscarriage of justice. A disgrace to the very system to which his life had been devoted. It seemed we were not after all the only people to find the verdict incomprehensible. He cannot know the relief that the knowledge that far more erudite people than us, the lay and  obsessed relatives, felt excluded from the truth by that verdict .

Soon to follow were the findings of the UN special observer to the trial, Professor Hans Koechler of Vienna who also found the proceedings fatally flawed. So many others, have studied the evidence since and their ranks continually expand, bless them all. Two of the most significant have been women, solicitor Gareth Peirce at once drew our attention to the disastrous series of miscarriages of justice following events in Northern Ireland, and the similarities with the forensic provision for Zeist, she also injected us with the unshakeable knowledge that we do indeed have an absolute right to the truth over these dreadful murders. Her early article about Lockerbie was eye opening**.

Then came an academic from Bradford, Davina Miller. She had been researching America’s ‘choice of enemies’ in the Middle East, but came across the Lockerbie material. The title to her article*** ‘Who knows about this?’ reflects her astonishment that the trial had blamed Megrahi and his country. By 2011 she was also able to reference an amazing series of mainly US intelligence documents which showed an inexplicable sudden switch from probing Iran’s known  role, to acceptance that it was to be laid at Colonel Gaddafi’s door.

No one yet knows how the above mentioned circuit board fragment (PT35b) came to be found in that Scottish police evidence bag. Astonishingly it has now emerged that the metallic plating on the fragment simply does not match that on the Libyan owned timers. It was plated by a process which the makers of the Swiss timers Libya owned had not even installed in their factory before 1988. The forensic expert advising the prosecution had written in a note to his examination of that fragment that he had realised the discrepancy in the plating, yet he told the court in evidence that the fragment and the Libyan boards were “similar in all respects”

The trials relating to the Guildford Four and the Birmingham Six were similarly bedevilled by distortion or suppression of forensic evidence and convicted the innocent. Similarly at Hillsborough, distortion and suppression of truth by the police blamed the innocent bystanders.

Early on the morning of the day in 2012 when the book Megrahi: You are my Jury was published revealing as it did that the fragment PT35b simply could never have been part of one of the Libyan owned timers because of the plating anomaly, Downing Street released a claim that the book was “an insult to the relatives”. The author of the book tells me that there was no legitimate way that Downing Street could have had access to the file of the book in advance – indeed I had only been allowed to read it myself through the night before launch, in a personally handed-over copy. What is the secret that still drives our state to seek to protect the now clearly false story told in the court?

What if our state were to acquiesce in the perversion of our justice systems to suit the needs of the aspiring President of another State? What was the real origin of the fragment PT35b? How did it enter that Scottish police evidence bag?

From Lady Thatcher’s day, when Lord Parkinson went to ask her cabinet on our behalf for an inquiry, and returned with a metaphorical black eye from a blow from a hand bag, we have been repeatedly refused any inquiry in either England or Scotland always under the rubric of the wonderful criminal investigation and trial. What is it that our states know but still hide from us, the relatives? No recent catastrophe of such proportions has ever been denied an inquiry for twenty five years.

The opacity of Governments and the adherence to falsehood are deeply worrying. What sort of society have we become that we host gigantic intelligence systems spying even on our own innocent citizens, and yet when prevention fails, and some of those innocent citizens are murdered, deny transparency and objective re-examination of the facts to those of their citizens most devastated by that failure?

* Ex Chief Constable Patrick Shearer: letter to Dr Jim Swire 2/4/12.

** Gareth Peirce, London review of Books ‘The framing of Al Megrahi.’

*** Davina Miller Taylor & Francis Online Defense & Security Analysis Volume 27, Issue 4, 2011

Air disaster criminal jurisdiction

[What follows is taken from a report published today by the Reuters news agency:]

The Netherlands or Malaysia is likely to try those responsible for the downing in Ukraine of Malaysia Airlines flight MH17, not the International Criminal Court in The Hague, the Dutch said on Wednesday. (...)

The Dutch, who had 195 nationals onboard the flight from Amsterdam to Kuala Lumpur, are leading an international investigation into the crash and it is unlikely the countries involved "will not be able or willing to lead the investigation and prosecution," [Justice Minister Ivo] Opstelten wrote [in a letter to parliament]. (...)

The Dutch Safety Board, which is leading the inquiry, said this week it had received a large quantity of evidence from sources outside Ukraine and will not need access to the entire crash site, now inaccessible due to fighting. (...)

The world's legal capital, the Netherlands is the home of several international courts, including the Yugoslav war crimes tribunal. It also hosted the trial by British [sic]  judges of two Libyan secret service agents over the 1988 bombing of Pam Am flight 103 over Lockerbie, Scotland.

[My assessment of the jurisdictional possibilities in relation to MH17, as compared with the Lockerbie affair, can be read here.]

Disgraceful behaviour and an inexplicable decision

[At the end of July four years ago, the US Senate Foreign Relations Committee was posturing with a hearing into the release of Abdelbaset Megrahi. Here is an excerpt from a post on this blog on 30 July 2010:]

[A letter in today's edition of The Herald from Iain A D Mann (...) reads as follows:]

It is becoming clearer by the day that an independent judicial inquiry is now essential into all the events surrounding the PanAm 103 disaster and the subsequent conviction of one person, the Libyan Abdelbaset Ali Mohmed al Megrahi, for the crime ...

The pathetic attempt by some US Senators to investigate this deeply complex matter in one afternoon session, by grilling a few foreign politicians on the basis of misguided assumptions and misunderstood facts, underlines how important it now is to have such an inquiry in the United Kingdom (or Scotland) under proper judicial conditions.

If a public inquiry continues to be refused by those in authority, the alternative is to find some way to re-open Megrahi’s second appeal in the Scottish courts. I cannot believe that the Scottish Government and/or the Scottish Justice Department could not devise some way of achieving this if they really wanted to. It pains me to say so, but I believe that the original trial in Camp Zeist, before three High Court judges with no jury, was not the finest hour of our much-vaunted legal system. Its reputation would be repaired, and perhaps enhanced, if it were now seen to provide an opportunity for all the relevant and previously unheard evidence to be reconsidered and tested in court.

Whether that scrutiny is by a public inquiry or a court appeal process, it is imperative that this time both the UK and US governments make available all the relevant documents that they have so far disgracefully refused to disclose, on the spurious grounds of either “national security” or “not in the public interest”. The Scottish Criminal Cases Review Commission, after an exhaustive three-year investigation, reported no fewer than six possible reasons for a possible miscarriage of justice, and these must be properly examined and tested judicially.

I am sure there are many like me who want to prove to the world that our country – Britain and Scotland – is still a true democracy, where justice is not denied or distorted by those in authority for whatever misguided reason. The families of all the 270 victims of the PanAm atrocity deserve to know the whole truth and nothing but the truth.

[A letter from Tam Dalyell in today's edition of The Scotsman reads:]

... Alex Salmond and his justice secretary should travel to Washington to blurt out the unpalatable truth; namely that their decision to release Mr Megrahi had nothing whatsoever to do with BP, compassion or legal precedent.

It had everything to do with avoiding an appeal which would have revealed the delaying and disgraceful behaviour of the Crown Office over 21 years, the "inexplicable" (the UN observer's word) decision by the judges at Zeist and the shortcomings in Mr Megrahi's original defence, not to mention the involvement of the American government in scapegoating Libya, for the crime that was carried out by Jibril, Abu Talb and the PFLP-GC.

The Americans should now be told that the motive for Mr Megrahi's release was the avoidance of the humiliation of Scottish justice in the eyes of the world.

Judicial requirements subordinated to considerations of power politics

[This is the headline over a report by Mark Hirst published today on the website of Russian news agency RIA Novosti.  It reads in part:]

Judicial standards in the UK were “subordinated by power politics” during the Pan Am 103/Lockerbie judicial proceedings, the UN’s official observer to the trial, Hans Koechler, has told RIA Novosti.

Koechler added that he did not believe that a decision by the previous UK Government to withhold “potentially vital” evidence from the defense team of Abdelbaset al-Megrahi, the Libyan convicted of 1988 bombing, would be overturned by the current British coalition Government in London.

Megrahi, terminally ill with prostate cancer, was released on compassionate grounds by the Scottish Government and returned to Libya before passing away in 2012.

“It goes without saying that justice requires transparency and that proper judicial proceedings cannot be conducted in the absence of – potentially vital – evidence,” Koechler told RIA Novosti.

Koechler, a Professor at the University of Innsbruck, said it was important a new appeal, recently launched by Megrahi’s family against his conviction, proceeded.

“It is certainly important that a new appeal goes ahead. The second appeal, that followed the referral by the Scottish Criminal Cases Review Commission, should never have been dropped,” Koechler told RIA Novosti.

“It was obvious to me at the time that Megrahi acted under pressure.”

Six years ago Koechler wrote to the British Foreign Secretary urging him to drop the Public Immunity Interest (PII) certificate that allowed the UK Government to withhold key evidence from the defense team.

“It will be up to the applicants' legal representatives to raise the issue of the PII certificate in the course of a new appeal,” Koechler said.

“However, what I have learned from observing the Lockerbie controversy, when the "supreme interests" of the state and/or a state's allies are concerned, judicial requirements are always subordinated to considerations of power politics,” Koechler told RIA Novosti.

“This was exactly the dilemma of the Lockerbie case from very beginning: that one cannot conduct judicial proceedings as an intelligence operation. Under such circumstances, the rule of law will always be the victim,” Koechler said. “According to my assessment, it is highly unlikely that the previous British Government’s PII decision will be overruled by the present administration in London.”

Koechler was first to call for an independent international public inquiry into the events that led to the atrocity, which remains the worst terrorist attack in British history.

But whilst the Scottish Parliament is formally considering a petition calling for such an inquiry to be established, Koechler believes chances of one proceeding are unrealistic in the current political climate.

“The Security Council is not anymore seized of the matter – the Lockerbie dispute – and a new consensus among the Council's permanent members on the setting up of an investigative committee is not realistic,” Koechler told RIA Novosti.

“Only a coercive resolution would provide the necessary powers – and independence – to international investigators,” Koechler added. “Under these circumstances, everything will depend on the domestic situation in the UK.”

Koechler dismissed efforts to secure a public inquiry set up by the Scottish authorities.

“An investigation mandated by the Scottish Parliament will not be sufficient because the issue is an international one,” Koechler told RIA Novosti. (...)

One man, Libyan Abdelbaset al-Megrahi, was convicted of the attack, but since his trial serious doubts have been raised by campaigners and some relatives of victims of PA103 about the safety of his conviction.

In 2007, the Scottish Criminal Cases Review Commission (SCCRC) referred the case back to the Scottish High Court for a second appeal against the conviction. The SCCRC report determined “a miscarriage of justice may have occurred”.

The second appeal was ultimately dropped by Megrahi’s own defense team in 2009 who told the High Court they believed it would “assist” in the determination of the Libyan’s application to be released on compassionate grounds.

Eight days after formally dropping his appeal Megrahi was released and returned to Libya.

The perils of polyglot proceedings

[Fourteen years ago the Lockerbie trial at Camp Zeist was adjourned for a three-week summer recess. To mark the occasion I produced for The Lockerbie Trial website a light-hearted piece entitled The perils of polyglot proceedings. Here is what it said:]

Tony Gauci, the shopkeeper from whose establishment in Malta the clothes which surrounded the bomb that destroyed Pan Am 103 were allegedly bought, gave his evidence in the Maltese language.  A simultaneous translation of his evidence was provided for the benefit of others in the courtroom.  On a number of occasions Mr Gauci was gently reminded by the presiding judge, Lord Sutherland, not to intersperse his evidence with sentences or phrases in English since that simply confused the interpreter whose job it was to translate his evidence into English.

There are those, consequently, who might find it mildly ironical that the English-speaking lawyers participating in the proceedings, including notably Lord Sutherland himself, should find it necessary liberally to spatter their contributions with phrases in a language other than English.  The language in question is, of course, Latin.  If it is difficult for interpreters to cope with a mixture of Maltese and English, is the same not likely to be true, mutatis mutandis, of English and Latin?

Scottish lawyers of my generation had to be able to demonstrate competence in the Latin tongue before they were allowed to study law at University.  Some of us have never outgrown the temptation to demonstrate our prowess: if you've got it, flaunt it!  Some there are who would say that we do it ad nauseam, if not quite ad infinitum.

One wonders, however, how the interpreters who have to translate the proceedings into Arabic for the benefit of the accused and other Arabic speakers, cope with all this rampant Latinity.  In the Arabic translation, do they leave the relevant phrases in Latin, or do they attempt to provide an Arabic equivalent?  For the latter, of course, it would be necessary that they should be familiar with the meaning of the Latin expression in question. One wonders if, when the interpreters were being selected, it was appreciated that a necessary qualification for the job was not merely fluency in English and Arabic but also familiarity with legal Latin.

If the interpreters are experiencing some difficulty in this regard, however, help is at hand.  That magnificent and indispensable work The Laws of Scotland: Stair Memorial Encyclopaedia (of which I had the honour to be General Editor) is accompanied by a glossary of Scottish legal terms and Latin maxims.  This can be obtained separately (ISBN 0 406 02057 4) from the main 25-volume work.  In it can be found explanations of such expressions used over the past few days as ad longum and quantum valeat.  Perhaps the Court authorities should consider supplying copies to the interpreters (whom I assume to be engaged under a contract locatio operis faciendi under which imperitia culpae enumeratur).  This suggestion to the Court authorities is made pro bono publico, and if they have already done so should, of course, be treated as pro non scripto.

[A much more important article entitled Legal interpreting and translation: a commentary was contributed by Dr Elinor Kelly to the website earlier the same month.]

Lib Dems, Malaysia Airlines 17, Iran Air 655 and Pan Am 103

[I do love a good rant. As a ranter, Hugh Reilly is up there with the best. Here is (part of) what he says in his column in The Scotsman today:]

Nick Clegg’s hand-wringing approach to unwelcome tidings such as the eviscerating of Gazan children by Israeli shells whilst playing on a sandy beach is in stark contrast to his reaction to a pro-Russia rag-tag militia shooting down a Malaysian airliner.

Clegg saved his bubbling ire to snipe at Vladimir Putin for the abhorrent action of a para military group over which he did not/does not have full control. The Lib-Dem leader demands that Russia be stripped of its right to hold the 2018 World Cup (...)

So here we have the man who is a heartbeat away from being PM – well, at least until the Tory party bids adieu to a departed David Cameron and elects a new leader. To be fair, Clegg is hanging on to the coattails of America where Putin is perceived to be the Devil incarnate. Hillary Clinton, a presidential hopeful who makes Sarah Palin seem a Harvard scholar, chipped in with her thoughts on the deplorable surface-to-air missile attack on an airliner that left 300 innocents dead. “Vladimir Putin, certainly indirectly, bears responsibility for what happened.”

It’s something of a pity that in 1988 she and Slick Willy hit the mute button when failing to condemn the shooting down of an Iranian airliner by the USS Vincennes. Flying inside Iranian airspace, the aircraft was blasted out of the sky by the US warship operating inside Iranian territorial water, with a loss of 290 people, 66 of them children. The captain of the ship faced no criminal action; indeed, George H Bush, spawner of Walker Bush, crowed that “the crew acted appropriately”. Just eight years later, Atlanta hosted the Olympic Games.

Unshockingly, the EU did not introduce sanctions against America in an effort to somehow shape its aggressive nature. It was left to the United Nations Security Council to pass Resolution 616 that, in no uncertain terms, expressed “deep distress” and “profound regret” for the callous brutality of the world’s policeman. Oh how the USA quaked on hearing these words.

Back then, of course, Nick Clegg was a callow fellow of some 21 years and an alleged member of the Cambridge University Conservative Association. Menzies Campbell does not have that excuse. He was the recently elected MP for North East Fife, the constituency of his holiday home. I’m certain Ming denounced the USA’s attack on the Iranian airline; after all, it is a matter of public record that this honourable man, like me, shows a keen interest in the deaths of air passengers blown out of the skies. Sir Ming has opined fulsomely on the Lockerbie bombing, declaring that “the decision to release Mr Megrahi was ill-judged”. One but can imagine what his thoughts are on the Iranian dead, or indeed, the decision of the US navy to later award the captain of the USS Vincennes promotion. What is known is that while Pan-Am 103 and MH-17 are forever etched into the consciousness of the Anglo-Saxon axis, the flight number of the equally doomed Iranian aircraft remains a tad anonymous (it was Flight 655, since you ask).

[I look forward with keen anticipation to a comment about Sir Menzies Campbell from Rolfe, who has strong views about the Lib-Dem grandee’s stance on Megrahi and Lockerbie.]

Did the FBI liaise with the CIA in the Lockerbie investigation?

[What follows is an article by Mark Hirst published this afternoon on the website of Russian news agency RIA Novosti. It reads as follows:]

An agent with the Federal Bureau of Investigation (FBI) who led the US probe into the bombing of Pan Am flight 103 over the Scottish town of Lockerbie in 1988 has denied claims made by a Central Intelligence Agency (CIA)’s former officer who told RIA Novosti that FBI investigators did not read vital US intelligence material related to the attack.

Earlier Robert Baer, a retired CIA officer who was based in the Middle East, told RIA Novosti, “I’ve been having exchanges with the FBI investigators and they came right out and said they didn't read the intelligence."

“I just find that extraordinary and then later for them to comment on the intelligence and say it's no good; it’s amazing,” Baer said.

But Richard Marquise, who led the US investigation into the attack, dismissed Baer’s claim.

“Mr. Baer had no role in the investigation and anything he knows or claims to know is either hearsay or speculation,” Marquise told RIA Novosti.

“I find [Baer’s claims] interesting because he has previously said that the CIA did not pass us all the information, something I doubt he would be in a position to know,” Marquise argued.

“I agree that there were a handful of FBI personnel (agents and analysts) who had access to all the intelligence that was passed and it may have been possible that some FBI agents who played a minor role in the case may not have seen it,” he added.

For years controversy has surrounded the case following the 2001 conviction of Abdelbaset Megrahi, a former Libyan intelligence officer. Campaigners, including some relatives of victims of Pan Am 103, believe Megrahi was wrongly convicted and are continuing to call for a public inquiry into the events leading to the bombing.

Baer has previously claimed US intelligence pointed to Iran – not Libya – as the source of the attack that allegedly retaliated for the shooting down of Iran Air Flight 655 by the American warship, USS Vincennes, five months before the attack on Pan Am 103. Baer told RIA Novosti that a convincing case implicating Libya was still to be made.

“Richard Marquise has taken a moral position on the case,” Baer told RIA Novosti. “I can still be convinced the Libyans did it, but I still need to be convinced of that.”

Robert Black, Professor Emeritus of Scots Law at the University of Edinburgh, has spent more than two decades studying the case.

“I'd be absolutely amazed if the FBI didn't consider the intelligence material, if only to reject it as unreliable or unusable as evidence in judicial proceedings,” Black told RIA Novosti.

“Indeed, there's clear evidence that they did make use of it. A key prosecution witness, Majid Giaka, was a CIA asset and was in a Department of Justice witness protection program,” Black added.

“The FBI falls under the Department of Justice. And Giaka was a crucial witness in the Washington DC grand jury hearing that led to the US indictment against Megrahi and Fhimah,” Black said.

Pan Am Flight 103 was flying from Frankfurt to Detroit via London and New York City when it was blown out of the sky over Scotland by a terrorist bomb that killed 270 people, including 11 on the ground. A three-year-long investigation yielded two Libyan suspects who were handed over to the United [Kingdom] (...) in 1999. In 2003, Gaddafi (...) paid compensation, but said he had never given the order for the attack.

Gleefully sweeping Lockerbie conviction concerns under the carpet

[Exactly five years ago, Scottish lawyers’ magazine The Firm published a column by me entitled The waiting game. It is perhaps worth repeating.]

It took three years for the SCCRC to conclude that Abdelbaset Ali Mohmad al- Megrahi may be the victim of a miscarriage of justice, and a further two years will have passed before his appeal is heard, by which time he may have died. Professor Robert Black QC calls on the Scottish authorities to show some courage before it is too late.

Abdelbaset al-Megrahi should never have been convicted for the Lockerbie atrocity. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909.

It should never be forgotten that one crucial ground on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Megrahi’s case, was its view that no reasonable court could have reached the conclusion that the trial court did, on a matter absolutely central to its reasons for convicting.

The delay in bringing Megrahi’s current appeal to the hearing stage has been scandalous. Had a modicum of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. But the issue of the trial court’s unreasonable findings is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007, attributable in large part to the Fabian tactics of the Crown and the spurious public interest immunity claims of the UK Foreign Office. Two whole years have passed since the SCCRC reference. Eighteen months have passed since the appellant’s full written grounds of appeal were lodged with the court. And it was only at the end of April 2009 that the first tranche of the appeal was heard. On the leisurely timetable that the appeal court has set, it would require a minor miracle for the proceedings to be concluded by the twenty-first anniversary of the disaster in December 2009.

What makes all of this worse is that the appellant was diagnosed in October 2008 with terminal, late-stage prostate cancer. His condition has recently deteriorated to such an extent that he was unable to attend court for the first tranche of the appeal or, indeed, comfortably to follow the proceedings over the TV link that had been set up.

The recently lodged prisoner transfer application would enable him to return to Libya to spend his remaining weeks with his wife, children, aged mother and siblings, which is – understandably – now his overriding priority. But, for prisoner transfer to be granted by the Scottish Government, Megrahi would have to abandon his appeal. This, clearly, would bring joy to the hearts of the Crown Office and the Scottish Government Justice Department. The manifold concerns over the Lockerbie conviction could be gleefully swept under the carpet and the pretence maintained that the system had worked perfectly and a guilty man had been justly convicted.

However, there is another course of action open to the Scottish Government, if Ministers have the strength of will and character to withstand the pressure of civil servants assiduously punting the prisoner transfer option. That course of action is compassionate release. This would enable Megrahi to be freed on licence and return to Libya. His appeal would run to its natural conclusion. If he died before the appeal court reached its decision, the appeal could be transferred to his executor or any person having a legitimate interest.

The Scottish public interest demands nothing less than that the concerns over Megrahi’s conviction be ventilated fully in court. Compassionate release provides the only mechanism whereby this can be achieved alongside the humanitarian goal of allowing him to die at home. Have Scottish Ministers the wisdom and the courage to embrace it?

[The answer to my question turned out, of course, to be “No” since the Cabinet Secretary for Justice insisted on treating the prisoner transfer and compassionate release applications concurrently and the former required Megrahi to abandon his appeal.]

"We still don’t know why Pan Am 103 was bombed and who ordered it"

[What follows is an excerpt from a long article about the MH17 disaster in today’s edition of The Sunday Telegraph:]

For the relatives and friends of those who died, including ten British citizens and more than 80 children, the uncertainty and confusion will be deeply upsetting. While the most likely scenario points to the involvement of Russian-backed rebels, the question remains whether Vladimir Putin, Russia’s president, should also be held to account.

Pam Dix, whose brother died in the Lockerbie bombing, fears that victims’ relatives will suffer ongoing anxiety in the search for the truth.

In the case of Lockerbie, in which a Pan Am jet was blown up over the Scottish town, one Libyan intelligence official was jailed for murder but doubts remain 25 years on about the conviction with many blaming Iran rather than Libya for the atrocity.

“The situation for the families from MH17 is agonising – waiting for news of whether they can get the bodies back, for information about what happened, who did it and why,” said Mrs Dix.

“At least after Lockerbie we could travel to the site to see the debris for ourselves, and investigators could have access in order to establish as many facts as they could.

“Twenty-five years later we still don’t know why Pan Am 103 was bombed and who ordered it. For the MH17 families the investigation will be just if not more frustrating. The political situation in Ukraine and Russia means it could be years before any proper information or evidence emerges.”

[A detailed consideration of the available evidence can be found in this article from 21st Century Wire. Its conclusions are very different from The Telegraph’s.]

Criminal jurisdiction: Pan Am 103 and Malaysia Airlines 17 compared

I am being frequently asked whether the mechanisms that led to a criminal trial following the Pan Am flight 103 disaster are, or could be, applicable if suspects can be identified who are alleged to have participated in the destruction of Malaysia Airlines flight 17. Here is a brief description of how the Lockerbie trial at Camp Zeist came about, followed by some reflections on similarities and differences in the MH17 case.

Pan Am 103 (excerpted from From Lockerbie to Zeist)

“[O]n 14 November 1991 the prosecution authorities in Scotland and the United States simultaneously announced that they had brought criminal charges against two named Libyan nationals who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service. (...)

“On 27 November 1991 the governments of the United Kingdom and the United States each issued a statement calling upon the Libyan government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the government of Libya through diplomatic channels.  No extradition treaties are in force between Libya on the one hand and United Kingdom and the United States on the other.

“Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The government of Libya accordingly contended that the affair should be resolved through the application of the provisions of a 1971 civil aviation Convention concluded in Montreal to which all three relevant governments are signatories.  That Convention provides that a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the necessary steps to have the accused brought to trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them. (...) [T]he UK and US governments refused to make available to the examining magistrate the evidence that they claimed to have amassed against the accused, who remained under house arrest until they were eventually handed over in April 1999 for trial at Kamp van Zeist.

“The United Nations Security Council (of which the UK and the USA are, of course, permanent members) first became involved in the Lockerbie affair on 21 January 1992 when it passed Resolution 731 strongly deploring the government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992)  requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and sanctions (including trade and air transport embargos) duly came into effect in April 1992.  The range and application of these sanctions was  extended by a further Resolution passed on 11 November 1993.  The imposition of sanctions under these last two Resolutions was justified by the Security Council by reference to Chapter 7 of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to world peace. (...)

“[I was] asked if I would be prepared to provide (on an unpaid basis) independent advice to the government of Libya on matters of Scottish criminal law,  procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities.  This I agreed to do, and submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. 

“In the light of this material, it was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but that since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision on surrender for trial would have to be one taken voluntarily by the accused persons themselves, in consultation with their independent legal advisers.  For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers which had already been appointed to represent the accused. (...)

“I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. (...)

“The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it. (...)

“Having mulled over the concerns expressed to me by [the Libyan defence lawyer] in October 1993, I returned to Tripoli and on 10 January 1994 presented a letter to him suggesting a means of resolving the impasse created by the insistence of the governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves for trial by jury in either of these countries.“

This scheme was accepted in writing by the suspects and their lawyers (and by the Libyan government) within two days.  It remained unacceptable to the United Kingdom and the United States for a further four years and seven months. But eventually, in late August 1998, a neutral venue proposal was advanced by the UK which eventually led to the Lockerbie trial. 

Malaysia Airlines 17

If suspects are identified, the states with the best claims to hosting a criminal trial are Ukraine (the site of the tragedy) and Malaysia (the state of registration of the aircraft). However, since the states of nationality of all those who died in the aircraft are (along with Ukraine and Malaysia) signatories to the 1971 ICAO Montreal Convention any one of them would also have criminal jurisdiction.

As was the case with Libya, however, the laws of Russia and Ukraine also do not permit the extradition of their nationals for trial in a foreign country.  Accordingly, if the suspects were of Russian or Ukrainian nationality and were still physically present there any trial would have to be held in that country under the provisions of Article 5.2 of the 1971 Convention. The United Nations Security Council could, of course, pass a resolution requiring the country holding the suspects to hand them over to another state wishing to try them (as it did in the Lockerbie case) and that would then become an obligation binding in international law. But Russia, as a permanent member of the Security Council, could veto any such resolution and might be expected to do so if the suspects were Russian or members of a group supported by Russia.

A prosecution for war crimes in the International Criminal Court is not a realistic option. Neither Ukraine nor Russia has yet ratified the Rome Statute setting up the ICC.

Proceedings before the International Court of Justice are also not a realistic proposition. This court deals only with disputes between governments. Its jurisdiction could be invoked only if one state claimed that another state (eg Russia or Ukraine) or its officials was the perpetrator of the outrage. And even then, states are not required to submit to the jurisdiction of the ICJ, and neither Russia nor Ukraine has accepted the permanent jurisdiction of the Court.