CIA Giaka cables surface at Lockerbie trial

[What follows is the text of the report for 22 August 2000 from the University of Glasgow’s Lockerbie Trial Briefing Unit:]

The Lockerbie trial started again this morning following summer recess. Proceedings began with Bill Taylor, defending the first accused making a submission to the court. He said that cable communications  which had been made available to both the Crown and the defence initially had sections which had been blanked out. It has come to light that the Crown had recently obtained further copies of these documents which showed the full text. His submission was that the full documents should now also be made available to the defence.

These documents are significant as they allegedly communicated information provided by Giaka via another CIA agent to the USA prior to the Lockerbie disaster. Giaka, who is expected to give evidence this week is currently on a witness protection programme in the USA and is alleged to be a former Libyan agent who worked under cover as an Libyan Arab Airline employee in Malta from 1986. In August 1988 the Crown allege that he contacted US representatives in Malta and operated for a period as a double agent in Malta. The defence wish sight of the full text of these cable communications in preparation of their cross examination of this witness. Under the European Convention on Human Rights the principle of equality of arms may persuade the judges that the defence claim for this information is well founded. The question remains, however, whether the Court can grant access to unedited versions of such sensitive information when it does not belong to them. The Lord Advocate has stated that he does not have copies of the unedited documents nor does he have the authority to compel the US authorities to hand them over.

The Lord Advocate addressed the court after a lengthy adjournment. He stated that there was nothing in the cable documents that would either assist or hinder the defence case and also in the interests of US security the documents should not be handed over. He claimed that the deleted sections of the cables related to sensitive intelligence information and operations not related to Lockerbie. All of the judges asked the Lord Advocate questions. It was highlighted that the accused, if given sight of the information which relates to other operations, may doubt its accuracy and this in turn would raise questions of the credibility and reliability of information provided by Giaka.

The court adjourned for lunch without the matter being resolved.

The court heard further submissions from the Lord Advocate this afternoon relating to the Defence submission raised this morning regarding access to unedited copies of cables sent by a CIA agent in Malta to Headquarters in Washington. These cables allegedly contain information supplied by Giaka (also referred to as Mr Majid).

Lord Sutherland indicated that while he accepted that certain names and operations required to be protected and not disclosed in these cables that his concerns rested with the submission of the Crown that the redactions included irrelevant information. Lord Sutherland appeared unconvinced that the Crown were necessarily in a position to determine that this information was indeed irrelevant to the credibility of the evidence of Giaka and the defence case.

It was disclosed that the unedited cable documents were made available to the Crown on 1 June 2000 but the defence only became aware of this fact yesterday. It also appears that the documents were consulted in The Netherlands and possibly at Camp Zeist by Mr Turnbull QC, Advocate Depute and Mr McFadyen, the Procurator Fiscal. Lord Sutherland stated that as the court were discussing a document that the Crown had lodged as a production, he was concerned that information contained within the document was now viewed as being irrelevant.

Bill Taylor, QC, addressed the court again. He said that the consultation by the Crown of the cables in June resulted in their positions, which were previously on the same footing in relation to the cables, now being inequitable. If there were security considerations regarding the content of the cable he asked what assurances were sought by the USA and given by the Crown. He further asked why the information could be given to one side and not the other and referred to the concession by the Lord Advocate that information disclosed to the Crown may assist in the establishment of the credibility of the witness.

He referred to problems encountered when precognosing witnesses related to the cables. This was done in the presence of US Department of Justice Attorneys instructed by the CIA. He said the precognition process was characterised by long silences, by "take 5" (to allow consultation with attorneys) answers of "not relevant", refusing to answer and "I've seen the unredacted cables and had no part in the redaction process". He commented that it was of no assistance to the important precognition process when witnesses are instructed by foreign governments not to answer questions. He admitted that he did not know the exact content of the information edited out in the cables but did view it as material in his cross-examination of Giaka.

He requested that the Judges make no orders but invite the Crown to use best endeavours to ensure that the defence receive copies of the cables with no deletions or editing. He said that having read the document he did not agree with the Lord Advocate's suggestion that the blanked out sections were of no relevance. He further noted that US security may already have been breached by the Crown having access to these documents.

Richard Keen, QC, wished to enquire if the Lord Advocate had checked that the defence would also be able to consult the unedited Cables. He said the US Government had upset the balance of fairness in the trial by their actions. He viewed the Lord Advocate's suggestion that the defence were conducting a fishing exercise as unfounded and stated that during precognition CIA agents had referred to offers and counter offers for information being made to Giaka.  Further, the unedited cables may disclose that some defence witnesses are in fact Libyan intelligence agents and if this was only known by the Crown it would prejudice the defence.

The Lord Advocate submitted that all payments which have been made to Giaka were listed in a production. Lord Sutherland said that the issue was not merely how much had been paid but also the negotiations and the witness’s motivation in giving the CIA this information. These issues are relevant to the witness’s credibility.

The judges retired to consider the submission and when they returned one hour later invited the Lord Advocate to use his best endeavours to ensure that the information on the unedited cables was disclosed to the defence. It is now unclear when Giaka will give evidence as the dispute over the cables will require to be resolved first.

I saw the trial – and the verdict made no sense

[This is the headline over an article by Professor Hans Köchler that was published in The Independent on this date in 2009. It reads as follows:]

I am always surprised when people refer to Abdelbaset Ali al-Megrahi as the Lockerbie bomber. Even if he is guilty – something which, personally, I do not believe – he would only be a Lockerbie bomber, just one of many people who carried out a crime which would have taken a large network of people and lots of money to carry out. It amazes me that the British and American governments act as if the investigation into the bombing is somehow complete.

But I welcome the release of Megrahi, because I firmly believe that he is innocent of the charges made against him. Believe me, if I thought he was guilty I would not be pleased to see him released from jail.

His decision to drop his appeal, however, is deeply suspicious – I believe Megrahi made that decision under duress. Under Scottish law he did not need to abandon his appeal in order to be released on compassionate grounds. So why did he do it? It makes no sense that he would suddenly let it go.

In my time as the UN's observer at Megrahi's trial, I watched a case unfold that was based on circumstantial evidence. The indictment against him and al-Amin Khalifa Fhimah went to great lengths to explain how they supposedly planted a bomb on Flight 103, and yet Fhimah was acquitted of all the charges against him. It made no sense that Megrahi was guilty when Fhimah was acquitted.

The prosecution produced key witnesses that lacked credibility or had incentives to bear false witness against Megrahi. Tony Gauci, the Maltese shopkeeper who supposedly sold him the clothes that went around the bomb, had been fêted by the Scottish police who took him fishing. The Americans paid him cash following his testimony. The weakness of that testimony would have been a key component of Megrahi's appeal.

We will probably never really know who caused the Lockerbie bombing. So much key information was withheld from the trial. A luggage storage room used by Pan Am at Heathrow was broken into on the night of the bombing, and yet this information was withheld. The British have yet satisfactorily to explain why.

I want to know when the bomb was placed on the plane and by whom. We have to look more closely into the "London theory" – that the bomb was placed on the plane at Heathrow and not in Malta.

It would be childish to be satisfied with the conviction of just one person for a crime that clearly involved a large number of people. I find it very difficult to understand why there seems to be so little pressure from the British and American public on their governments to investigate the bombing properly.

The UK regularly talks of the need to pursue all terrorist atrocities. Yet how can the Government assure the public they really believe that, when they have virtually abandoned their investigation into the worst terrorist attack in the country's history?

We have to know what happened and the only way is a full public inquiry, either mandated by the House of Commons or by an investigative commission voted for by the UN's General Assembly. Time is of the essence. This crime is already 21 years old. To find out the truth we must act now.

A selection of the Crown's misdeeds

[On this date in 2009 Abdelbaset Megrahi was released from HMP Greenock and flew back to Libya. The report on the BBC News website can be read here.

Two years later, on 20 August 2011, an article by Marcello Mega appeared in the Scottish edition of The Sun. It reads in part:]

The Scottish Sun today lifts the lid on a top-secret dossier that accuses Scots cops and prosecutors of suppressing seven key areas of evidence that cast doubt on the Lockerbie bomber's conviction. (...)

Seven key flaws

Denied fair trial

The Scottish Criminal Cases Review Commission says Megrahi WAS denied a fair trial in their damning report.

They said the Crown suppressed from Megrahi's defence team statements showing how much key witness Tony Gauci changed his mind about crucial details over the years.

Maltese shopkeeper Gauci's evidence fingered Megrahi as the man who bought clothes in his shop on the Mediterranean isle that were linked to the suitcase carrying the bomb that blew up Pan Am flight 103.

The SCCRC report says Gauci was an "unreliable" witness but this was not shown to be the case in court.

They said: "The effect of all of these inconsistencies is powerful. The court was left with a distorted and different impression of the witness. In this way Megrahi was denied a fair trial."

Cop lies

The SCCRC found that police said in evidence they first showed Gauci photos of Megrahi on September 14, 1989 - when he had in fact also been shown them on September 8.

The report said: "This was not disclosed to the defence. There is no statement from Gauci produced, no police witness statements produced."

The SCCRC said if Gauci had been shown Megrahi's pic six days before he picked him out as resembling the buyer at his shop, then that ID was totally undermined.

Diary dispute

In its report, the SCCRC challenges the integrity of evidence given by retired Strathclyde DCI Harry Bell, who had a close bond with Gauci.

The commission found that events recorded in Bell's diaries didn't always match what he said in evidence.

The commission noted that Bell claimed the Megrahi photo shown to Gauci on September 14, 1989, was the first one. This was not true.

It also reveals Bell, DC John Crawford, a retired Lothian and Borders cop, and an FBI agent all made statements claiming that Gauci had talked of a "striking similarity" between Megrahi and the buyer.

But Maltese officers revealed Gauci was unsure, was coached and told to age the photos by ten to 15 years.

The report says: "This is different to DCI Bell's evidence at trial. It also implies the witness is unclear."

Cash for answers

The commission obtained evidence from police memos that Gauci was made aware from his first contact with investigators that his testimony could be worth MILLIONS.

This contradicted evidence given by Scots and US investigators at Megrahi's trial.

One undisclosed memo reveals the FBI discussed with Scots cops an offer of unlimited cash to Gauci - with "$10,000 available immediately".

If a judge was made aware of this in another case, they'd tell a jury to discount the evidence.

Xmas lights lies

In court Gauci was vague about the exact date on which the clothes were bought.

The date was narrowed to either November 23, 1988, when Megrahi was not on Malta, or December 7, 1988, when he was.

Gauci said Christmas lights were NOT on yet in his hometown Sliema when the suspect visited his shop.

Cops said they could not find out when the lights were switched on.

But the SCCRC easily established it was December 6 - a day too early for Megrahi to have been the buyer.

The commission's report says: "It is clear that the police were in no doubt that Gauci was clear in his recollection." It adds "no reasonable court" could have concluded Megrahi bought the clothes from Gauci's shop.

Defence in the dark

It appears efforts were made to cover up key evidence that would have been useful for Megrahi's defence team.

The commission noted that early uncertainty on the part of Gauci was never passed over to the defence, nor was the fact that Scots detectives feared he was trying too hard to please them.

The fact a senior Maltese detective also considered Gauci to be an unreliable witness was never disclosed to lawyers representing Megrahi.

Evidence supressed

The SCCRC claims Colin Boyd QC, who was Lord Advocate at the time of Megrahi's trial and conviction in 2001, suppressed key evidence.

The trial judges maintained Gauci was "entirely reliable" on the list of clothing he claimed the buyer suspect purchased.

Yet a statement he made in 1999, and discovered by the SCCRC, saw him produce "a wholly different list of items and prices". This, along with many other files that could damage the Crown case, was suppressed. The report says Mr Boyd failed in his duty of disclosure to the defence.

Forensics and Feraday

[This is the headline over a report published on the BBC News website on this date in 2005. It reads in part:]

Fresh doubts have emerged over the conviction of the Lockerbie bomber, BBC Scotland has learned.

The evidence of a major prosecution witness who testified during the trial of Abdelbaset Ali Mohmed al-Megrahi has been called into question.

Three men who forensic scientist Allen Feraday gave evidence against have since had their convictions quashed.

BBC Scotland understands papers on one case have gone to the commission reviewing Megrahi's conviction.

Mr Feraday is now retired after 42 years' experience in explosives.

He told the Lockerbie trial he was in no doubt that a circuit board fragment found after the disaster was part of the detonator.

The trial judges accepted his conclusion.

However, in three separate cases men against whom Mr Feraday gave evidence have now had their convictions overturned.

After the first case, which took place seven years before the Lockerbie trial, the Lord Chief Justice said Mr Feraday should not be allowed to present himself as an expert in the field of electronics.

The latest case to be quashed happened just last month.

Papers relating to the most recent case have now been sent to the Scottish Criminal Cases Review Commission, which is looking at the Lockerbie bomber's conviction.

The commission will consider whether the Lockerbie trial judges should have given so much weight to Mr Feraday's evidence.

Gerry Brown, of the Law Society of Scotland, said expert witnesses were "essential" in cases like the Lockerbie trial.

"It is like a string of beads," he told BBC Radio Scotland.

"You have to have the beads held together by string, and if the string is weak at one point the beads fall to the ground.

"That is possibly the situation here, and that is probably what is being investigated now by the commission."

Solicitor Eddie McKechnie, who represents Megrahi, said the information raised "serious issues" about the conviction.

"It is a factor that I take very seriously into account on behalf of Mr Megrahi," he said.

"One would have thought that when a professional and a government forensic expert is impugned in a number of cases... then serious issues arise."

Dr Jim Swire, whose daughter Flora died in the bombing, said: "I'm personally not satisfied of Mr Megrahi's guilt.

"I emerged (from the trial) riddled with doubts. This will of course augment them.

"If one finds that three cases have been overturned, it rather undermines one's confidence."

However, American lawyer Jody Flowers - who represents one woman whose husband died in the bombing - said she thought the latest claims were "much ado about nothing".

"I don't think it has much impact at all. I think it is a bit of a belated and half-hearted attempt," she said.

"Any serious challenge to Mr Feraday's credibility or the specifics of his testimony would have been raised at the trial or the appeal, and they were not.

"The court accepted his testimony as reliable."

Six years ago today Megrahi abandoned his appeal

[What follows is excerpted from a report published on the BBC News website on this date in 2009:]

Judges have accepted an application by the Lockerbie bomber to drop his second appeal against conviction.

The permission of the High Court in Edinburgh was required before the proceedings by Abdelbaset Ali al-Megrahi could be formally abandoned.

It comes as the Scottish Government considers his requests for either release or transfer to a Libyan jail. (...)

The Libyan's legal team outlined his current state of health to the appeal hearing.

QC Margaret Scott said: "The court is aware of Mr Megrahi's medical condition in that he has progressive prostate cancer.

"This has now reached the terminal stage and my client's condition has recently worsened very considerably.

"Up-to-date medical reports from three eminent experts also concurred in the view that he has a very aggressive cancer, that his condition is grave and that the prognosis is extremely limited."

By dropping his appeal, Megrahi has removed one potential obstacle to his transfer to a jail in his homeland.

However, a Crown appeal against the length of his sentence is still ongoing.

Scotland's senior law officer, Lord Advocate Elish Angiolini QC, will now have to consider whether that should also be dropped.

A Crown Office statement said its appeal was "entirely separate" from Megrahi's appeal.

It said the lord advocate had not received any request to indicate whether the appeal would continue.

"The lord advocate has always been prepared to give any request her full and prompt consideration," it stressed.

It added that no information had been received about Megrahi's current medical situation which might need to be taken into account in handling the appeal.

Scotland's senior judge, the Lord Justice General, Lord Hamilton, said it was important the Crown appeal issue was resolved quickly.

"It appears to the court to be of the utmost importance that an early decision be made by the lord advocate as to whether she is to insist or not to insist on that appeal," he said.

He added: "The court urges her to reach a decision on that matter without undue delay."

Some relatives of the victims said the dropping of the appeal meant that many questions would now go unanswered.

The Reverend John Mosey, who lost his daughter in the bombing, described it as a "very sad day for Scottish justice".

"My feeling is that I would be happier if he was going home after the hearing of his appeal, either as an innocent man or as a guilty man," he said.

"Either way, my personal feeling is 85% that he is an innocent man - of this crime anyway - having sat through the whole of the trial in Holland."

It emerged last week that the Libyan had applied to withdraw his second appeal against conviction.

It prompted claims he had been put under pressure to make the move - a suggestion the Scottish Government has strenuously denied.

The Justice Secretary is currently considering whether or not to release Megrahi on compassionate grounds or to allow his transfer to a prison in Libya.

He is expected to announce his decision within the next two weeks.

The British, American and Scottish governments appear shifty

[What follows is the text of an article by Lesley Riddoch published in The Scotsman on this date in 2009:]

Kenny MacAskill is now facing an almost impossible situation over the man convicted in 2001 of the Lockerbie bombing.

Abdelbaset Ali Mohmed al-Megrahi wants early release from his 27-year minimum sentence on compassionate grounds – he's expected to die within three months of prostate cancer. Such compassion has recently been shown to Ronnie Biggs and in Scotland, of the 30 such requests made since 2000, only seven have been denied. Even though there's every prospect he will arrive in Libya like a returning hero, that must have nothing to do with the medical and legal decision here.

But Megrahi's surprise decision to end his appeal has queered the pitch, raising suspicions that a prison transfer has been agreed instead to temper American anger that a convicted mass killer should be shown any compassion at all. The fate of Megrahi is emotive and urgent, but it is not actually the most important issue at stake.

Trust in government and faith in the law also hang in the balance, partly because faith in Scotland's ability to do big things well is easily dented – and Megrahi's conviction by Scottish judges under Scottish law at Camp Zeist was perhaps the biggest ever moment for our distinctive legal system – but mostly because the official explanation for the Lockerbie bombing is at least as unconvincing as the most compellingly argued rivals.

Conspiracy theories abounded in 1994 when the London Film Festival dropped its planned screening of The Maltese Double Cross – a documentary blaming Iran not Libya – and this newspaper took the decision to screen it.

As assistant editor, I sat with a reporter for a full week, checking claims made by American film-maker Allan Francovich.

Scotsman lawyers needed sight of relevant documents and sworn affidavits from interviewees – including one from a witness living in hiding in Sweden. After three small edits, the film was "legalled" and ready, but our booked venue in Edinburgh suddenly discovered a double-booking. The Glasgow Film Theatre (GFT) stepped in – though it received phone calls threatening legal action from men purporting to be lawyers for one of the American Drug Enforcement Agency officials named in the film.

Cuts were still being made in London the night before the GFT screening – so Lockerbie relative Dr Jim Swire was asked to bring the final version north with him the following morning. Jim had attended the first private screening of the film by Tam Dalyell in the House of Commons – protected from possible libel claims by parliamentary privilege – and apparently sat with a blanket at the open front door all night to make sure he didn't miss the dispatch rider who arrived at 3am with the completed film.

That morning, we got news that the only other copy of the film, held by a human rights group in Birmingham, had been destroyed in a mysterious overnight fire. I travelled with the large Beta cassettes of the film in a rucksack, reckoning that a casual appearance was the safest strategy.

The audience settled, the film was shown, there was a question-and-answer session with Jim Swire, and we held our collective breath. Would The Scotsman, as one prominent journalist had warned, find itself frozen out of Crown Office briefings for a decade? Would we be sued, contradicted, even disappeared?

In fact, next to nothing happened. The Edinburgh Film Festival awarded Best Documentary prize to the Double Cross and, bizarrely, Francovich died of a heart attack three years later at the relatively young age of 56. The "unsayable" had been said: that Palestinians, backed by Iran, may have been responsible for Lockerbie. Like all well-formed conspiracy theories, it shook faith in the conventional explanation but didn't offer a foolproof alternative. And, despite the emergence of key bits of information since then, there still is none.

There doesn't have to be. Our legal system works on the basis of reasonable doubt, and even if judges in Camp Zeist had none, key politicians, relatives and lawyers still do. And that matters, especially now.

The public was sold a pup on the existence of WMD in Iraq, and another on the 45-minute warning. We were sold a pup on the health of our banks and an almighty pup on the promise that bankers' bonuses would never reach those judgment- distorting, greedy, heady heights ever again. Governments lie. Bankers lie. And people lie – even under oath.

The stitch-up exists, but the cock-up is infinitely more common. Conspiracies appeal to the anti-authoritarian streak in the Scottish psyche. Yet most are compelling nonsense. So what is the public to believe?

Scottish philosopher David Hume suggested a miracle occurs when believing witnesses are lying is more incredible than believing their claims. That observation describes perfectly the flawed business of human judgment. In the absence of all the facts, the public doesn't suspend judgment; it bases opinion on the demeanour of the parties involved.

The American relatives are still angry and punitive. The British, American and now Scottish governments appear shifty. Jim Swire alone has demonstrated dignity and tenacity, and he wants a public inquiry: even though no public inquiry – from Holyrood to Cullen, from Butler to Bloody Sunday – has ever completely answered the big questions.

And he's right. A public inquiry, or a de facto inquiry based on a court case triggered by human rights legislation, must now take place, and for one simple reason – the same reason that prompted The Scotsman to show The Maltese Double Cross film 15 years ago – 270 people were murdered on Scottish soil. Reasonable doubt about the full circumstances of their murder remains. So we must hear it.

Never mind what Hillary Clinton thinks, and never mind what ultimately happens to Abdelbaset Ali Mohmed al-Megrahi.

US spies blamed Iran for Lockerbie bomb

[This is the headline over a report published in The Sunday Times on this date in 2009. It reads as follows:]

American intelligence documents blaming Iran for the Lockerbie bombing would have been produced in court if the Libyan convicted of Britain's worst terrorist attack had not dropped his appeal.

Abdelbaset Ali Mohmed al-Megrahi, a former Libyan intelligence officer expected to be freed this week, had instructed his lawyers to produce internal US intelligence communications unavailable to his defence team at his trial in 2000.

The cables, from the American Defence Intelligence Agency (DIA), suggest that Iran was behind the attack on Pan Am flight 103, which killed 270 people in 1988, in response to the shooting down of an Iranian commercial airliner by the USS Vincennes, an American warship, five months earlier.

One document that the defence team had planned to produce was a memo from the DIA dated September 24, 1989. It states: "The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar (Mohtashemi-Pur), the former Iranian minister of interior.

"The execution of the operation was contracted to Ahmad (Jabril), Popular Front for the Liberation of Palestine General Command (PFLP-GC) leader, for a sum of 1,000,000 US dollars.

"One hundred thousand dollars of this money was given to Jabril up front in Damascus by the Iranian ambassador to Sy [ie Syria], Muhammad Hussan (Akhari) for initial expenses. The remainder of the money was to be paid after successful completion of the mission."

The document is included in an unpublished report by the Scottish Criminal Cases Review Commission, a public body that considers miscarriage of justice claims and which had cast doubt in 2007 on the safety of Megrahi's conviction.

The report also cites a DIA briefing in December 1989 entitled Pan Am 103, Deadly Co-operation, which named Iran as the probable state sponsor of the bombing.

Robert Baer, a retired senior CIA agent who claims that Iran was behind the attack, has alleged that the Americans were wary of pursuing the country in case it disrupted oil supplies and damaged the economy.

And so it begins...

"I will never apologize for the United States — I don't care what the facts are... I'm not an apologize-for-America kind of guy." - Vice-President George H W Bush on the presidential campaign trail, quoted in Newsweek on 15 August 1988, six weeks after the USS Vincennes had shot down Iran Air flight 655 in the Persian Gulf killing all 290 on board.