Lockerbie appeal raises new questions

[This is the headline over an article by Steve James published on this date in 2002 on the WSWS.org website. It reads as follows:]

Judges have retired in the appeal by Abdelbaset Ali Mohmed al-Megrahi against his conviction last year for blowing up Pan Am flight 103 over Lockerbie, Scotland on December 22, 1988. The judges’ verdict is due in March.

On January 31, 2001, three judges sitting in a specially constructed court in the Netherlands found Al-Megrahi guilty of planting a Semtex-packed cassette player on board the Boeing 747, which destroyed the plane, killing its 259 passengers and crew as well as 11 Lockerbie residents. Al-Megrahi’s co-accused and alleged co-conspirator Amin Khalifa Fhimah was acquitted of the charges in that trial.

The appeal hearing, which began on January 23 this year, was held in Camp Zeist, the Netherlands, the same former US base that hosted the original trial. Under normal legal precedents, the appeal would undoubtedly result in the release of al-Megrahi. Fresh evidence presented during the hearing further undermined the already flimsy circumstantial basis for al-Megrahi’s original conviction in what was a politically motivated verdict primarily designed to retrospectively justify more than a decade of US and UN sanctions against Libya.

In the original verdict, the trial judges ignored the numerous contradictions, and speculative leaps in the case against al-Megrahi and rejected circumstantial evidence pointing to other groups and individuals as having prepared the attack. Such was the political pressure to convict at least one Libyan that the judges rejected the “not proven” verdict, available to them in Scottish law, under which the trial was heard.

During the appeal, defence lawyer William Taylor set about methodically undermining the judges’ published verdict, arguing that it constituted a miscarriage of justice. In particular, Taylor concentrated on the claim made in the original trial that the suitcase containing the bomb was loaded by al-Megrahi onto a feeder flight, KM180, at Luqa airport in Malta and was subsequently transferred on to Pan Am 103.

In concurring with this claim, the judges had rejected any possibility that the bomb could have been loaded at either Frankfurt in Germany, where the feeder flight would have passed on luggage to Pan Am 103, or at London, Heathrow, where the 747 stopped before making its onward transatlantic flight. In their published verdict, however, the judges admitted, “The absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 is a major difficulty for the Crown [prosecution] case, and one which has to be considered along with the rest of the circumstantial evidence in the case.”

In the appeal Taylor showed that records of luggage handling at Frankfurt were sufficiently vague for several flights to have contributed luggage to PA103A. Trial judges had also ignored evidence from an experienced worker scanning all luggage loaded into PA103A, who had insisted that no questionable radio items appeared—the bomb is alleged to have been in a Toshiba radio cassette—he said.

The defence focused on evidence of a bag comparable to the one that allegedly contained the bomb being loaded into a PA103 luggage container under confused circumstances at London’s Heathrow airport.

This aspect of the appeal was dramatically underscored by new evidence of security breaches at Heathrow. After hearing written statements, the judges agreed to hear from several Heathrow workers reporting on evidence of a break-in to the luggage storage area in the early morning of December 21, 1988, revealing a route through which a bomb-laden suitcase could be smuggled into the Pan Am luggage area.

Giving evidence, former Heathrow airport security guard, Ray Manly insisted that a padlock on the door between a Heathrow passenger terminal and a secure luggage area within a short walking distance of the building from where PA103 was loaded had been cut the night before the explosion. Manly stated that a senior police official had interviewed him about the broken padlock in January 1989. Police had taken possession of the padlock, but it had subsequently disappeared and was not produced during the original trial, the appeal heard. This had enabled the prosecution to successfully question Manly’s recollection of events, despite other witnesses corroborating his testimony of a break-in.

Evidence of a break-in at Heathrow seriously compromises the Crown’s case as it presents a much stronger, more internally coherent, circumstantial basis for the bomb being loaded in London rather than Malta. No suggestion was made of who might then have bombed PA103, or why.

Media coverage of the appeal has varied wildly. The British press are reporting the appeal relatively even-handedly. The entire proceedings have been viewable on line via the BBC’s website. Across the Atlantic, however, the appeal into the greatest mass killing of US citizens prior to September 11 has been met with near complete silence. Whilst the New York Times has not reported the appeal at all, a brief comment in the Washington Post —the paper’s only coverage of the recent hearing—attacked even the distorted legal processes at Camp Zeit for being unnecessarily lenient in its observance of certain democratic norms.

Even though no jury had sat in on the original trial, the Post complained that the observance of certain features of due process—the right to a public hearing, centred on the weighing up of evidence and including the defendant’s right to appeal—represented an obstacle to the “war against terror”. In a politically loaded comment aimed at justifying the draconian measures introduced by the Bush administration in the wake of the terror attacks on New York and Washington, the Post argued, “Megrahi’s trial and the acquittal of a fellow defendant illustrate the expense and time of securing convictions in terrorism cases where defendants receive full access to Western courts. In the post-Sept. 11 war on terrorism, the United States has said it intends to try some foreign suspects before military tribunals.”

For its part, the US government is treating the initial guilty verdict as a platform from which to extract a full admission of guilt from Libya, and is treating the appeal with complete contempt. Simultaneous with the first hearings, on January 23, an unnamed State Department official toldAssociated Press that the US would not consider removing Libya from its list of “terrorist” nations unless it paid compensation and accepted guilt for Lockerbie. The official, describing talks by US Assistant Secretary of State for Near East Affairs William Burns, said that even accepting guilt would not remove Libya from the list. “They can’t get off the terrorism list without doing it, but they won’t necessarily get off the list if they do do it...” the same official commented. USA Today suggested that the price for Libya’s removal might be $6 billion.

This ultimatist stand is despite the appeal hearing raising further questions about the original verdict. Shortly before the appeal commenced, presiding judge Lord Cullen rejected a call from Marina de Larracoechea, whose sister was an airhostess on PA103, for the appeal to consider widening the scope of its investigation. Miss de Larracoechea wanted the court to hear further evidence examining why the original trial did not consider evidence on the failure of the intelligence services to prevent the bomb being loaded. She told the judges, “key and central aspects of the case were repeatedly shielded.”

Over the years there have been numerous reports raising allegations that the preparations for the Lockerbie attack were known to the intelligence services of several Western governments or even that the US played a direct part in the explosion. There are a number of alternative scenarios as to who carried out the bombing that have never been fully explored, including the defence’s insistence that the bombing was authored by a Palestinian group.

In May 2001, Hans Koechler, a United Nations observer to the Camp Zeit trial, made a devastating assault on the original verdict, describing it as politically motivated, irrational, and subject to international power politics. Koechler, appointed by Kofi Annan, is a philosophy lecturer and a founder member of the International Progress Organisation think tank. He attacked the failure of the court, including the defence team, to seriously investigate the special defence of incrimination i.e. that other individuals and groups, particularly the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), were responsible for the bombing. He noted the reports which emerged late in the trial, from the leading prosecution official that “an unnamed foreign government” had information relating to the defence case, and that this information was never revealed or investigated, nor followed up by the defence itself. Rather, in Koechler’s view, “the strategy of the defence team by suddenly dropping its ‘special defence’ and cancelling the appearance of almost all defence witnesses...is totally incomprehensible; it puts into question the credibility of the defence’s actions and motives.”

The unearthing by Al-Megrahi’s legal team of the Heathrow evidence blows further holes in his original conviction and when judged by the legal norm of proving guilt beyond reasonable doubt, renders it unsound.

Time to come clean on Rouhani and Lockerbie

[This is the headline over an article by barrister David Wolchover published in Jewish News Online on 18 February 2016. It reads as follows:]

Not long after Hassan Rouhani became president of Iran, Benjamin Netanyahu grimly described him as a wolf in sheep’s clothing. The Islamic Republic’s so-called “moderate” president may have gently smiled his way to a milestone deal over his country’s nuclear development programme and a warm welcome in European capitals, but Israel’s premier was spot on.

Under Rouhani’s administration, a staggering 2,000 people have been executed, mainly by the “traditional” method of slow hanging. For all his cherubic twinkling, Rouhani is as bloodthirsty a customer as the very cruellest of his fellow clerics.

Moreover, his career as a purveyor of death goes way back. In 2013, by simply drawing together biographical details in the public domain, I explained why he was probably implicated in the worst atrocity ever perpetrated in the UK – the bombing of Pan Am 103 over Lockerbie on 21 December 1988.

Now, however, that which was mere supposition has become hard fact, avowed to me by an informant in circumstances lending credence to the individual’s claim to be speaking on behalf of Israeli intelligence. But why do they not come right out with it if they know? Very simply, they are shy of proclaiming officially what they know privately. I’ll come to that.

But first, forget Libya and the two indicted Libyans Al Amin Khalifa Fhimah and Abdelbeset Ali Mohmed al Megrahi. The case against them was palpable nonsense, cobbled together unconvincingly for reasons of state still only half understood. However, before the US government changed course and blamed Libya, it had already accurately identified the true culprits. Lockerbie was retaliation for Iran Air 655, a packed Airbus negligently shot down by an American warship in the Gulf on 4 July 1988, in the mistaken belief it was a hostile warplane.

Selected journalists were briefed about a trawl of National Security Agency telecom intercepts, which furnished clear proof that Iran’s powerful interior minister, Hojatislam Mohtashami-Pur, had contracted Ahmed Jibril’s Popular Front for the Liberation of Palestine – General Command to blow up an American airliner in revenge for IA 655. The PFLP-GC needed the money and had expertise in planting bombs on passenger planes and it is almost certain the device that destroyed Pan Am 103 was the gang’s own barometric pressure type employed by them repeatedly over many years.

Significantly, the NSA intercepts were corroborated and enlarged upon by parallel Israeli intelligence obtained by secreting agents into the heart of terrorist groups. Citing intelligence from such infiltration, my informant asserted the Iranians had not simply been the paymasters but had lent decisive logistical aid. It is certain, contrary to the Crown’s case, that the Lockerbie bomb was planted inside Heathrow’s “interline” shed in the portable luggage receptacle, which in due course was loaded on board the 747.

Records later showed that during the narrow window of opportunity the terrorists had, an IranAir cargo plane was parked not 200 yards from the shed, and departed for Tehran just minutes after the window closed.

In my online treatise Culprits of Lockerbie, I surmised that a terrorist flew in on the cargo jet with the bomb and, masquerading as a baggage handler, placed it in the receptacle. He then immediately flew out on the same plane.

My informant agreed and added that the “porter” was the PFLP-GC’s expert in airport and airline security, Marwad Bushnaq, Ahmed Jibril’s nephew, nom de guerre Abu A’Ali.

Even before Lockerbie, Israel discovered Heathrow was a likely target and warned MI6, but the warning was spurned because of a major row between British and Israeli intelligence services.

Where does Hassan Rouhani fit into this?

Published details about him show three points of particular interest, the first that Rouhani held senior executive positions in intelligence, security and special operations and was on the Supreme Defence Council. In 1989, he was offered the job of minister of intelligence, though he opted instead to become new supreme leader Ayatollah Ali Khamenei’s plenipotentiary on the Supreme National Security Council and its first secretary.

Point two: Mohtashami-Pur was deeply antagonistic to the genuinely more moderate future president, Mohammad Hashemi Rafsanjani. In June 1988, mounting opposition to the war with Iraq led the original supreme leader, Ayatollah Khomeini, to charge Rafsanjani with bringing hostilities to an end. With Rafsanjani eclipsing the extremist Mohtashami, the destruction of the Airbus on 4 July presented the perfect opportunity to spike his opponent’s rising influence.

Three: Rouhani had a very special motive to conspire with Mohtashami in their shared opposition to Rafsanjani. As so often in political intrigue, the key to understanding alliances often lies rooted in personal vendetta. In 1980, Rouhani had joined the Supervisory Council of the Islamic Republic of Iran Broadcasting Authority. Rafsanjani was chief executive and Rouhani was deeply critical of the policy of televising foreign – un-Islamic – content. By 1983, Rouhani was council chair and engineered a revolt against Rafsanjani, triumphantly replacing him at the helm. But Rafsanjani had Khomeini reinstate him, and the egg on Rouhani’s face (for once devoid of smiles) doubtless sowed the seeds of deep and lasting enmity.

We know from informal briefings by US and Israeli intelligence after Lockerbie that the Mohtashami/Jibril deal was sealed in the interior minister’s Tehran office in late August 1988. There was much more. Two senior Iranian officials attended the meeting with Mohtashami. One, Mehdi Karroubi, custodian and treasurer of the Martyr’s Fund, would fund the multimillion-dollar bounty. The other didn’t say much but smiled a lot and was obviously more than a neutral observer. He was none other than our cherubic friend, Supreme Defence Council member Hassan Rouhani.

Why has Israel never breathed a word of this publicly? Since 1989, the United States has turned away from accusing Iran, will hardly do so now and has anyway invested too much in the story of Libyan guilt to relent after all this time. Israel for its part dare not break ranks publicly with its benefactor but, the informant asserted, hoped that a leaked but “plausibly deniable” narrative would do enough damage to the prospect of a nuclear accord without jeopardising relations with US intelligence.

Of course, Bibi could well have ordered the whole thing to be invented to condemn Iran, with your writer as his useful idiot. Who knows?

Crown fights to keep 48 pieces of Lockerbie trial evidence secret

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

Prosecutors are trying to keep secret 48 pieces of evidence relating to the Lockerbie trial, including a secret fax that could discredit a key Crown witness.

Lawyers for Abdelbaset Ali Mohmed al Megrahi, the man convicted of the 1988 bombing, yesterday began a challenge over material they believe will free their terminally ill client.

But the Crown Office and the UK Advocate General are fighting against disclosure, claiming that in some cases the evidence does not exist.

The Herald can today reveal that the first item on the list is a fax which, the Libyan's defence team claims, places a fundamental question mark against the original trial testimony of Tony Gauci, who sold clothes later found in the wreckage of PanAm 103 at Lockerbie.

Judges at Camp Zeist were told that the first "photoshow" with Mr Gauci took place on September 14, 1989, while the fax at the centre of yesterday's proceedings is allegedly dated six days earlier.

Megrahi's team believes that confusion and disparity further compromises the integrity of a man described as an "important witness" at the trial.

His QC, Maggie Scott, revealed that the appeal, due to start on April 27, will be based on fresh evidence, the Lord Advocate's failure to disclose and irregularities in how evidence was obtained.

She said: "The predominant theme is Toni Gauci. He is the centrepiece in a sense."

Another previously unseen fax from the Joint Intelligence Group (JIG) or committee, which was set up after Lockerbie to investigate the case and included representatives from Scottish forces and the security services, refers to a meeting between Mr Gauci and FBI agents when Scottish police were not present. However, no record or statement has been shared with the defence.

Another JIG fax referred to yesterday indicates that there are other missing statements in relation to Mr Gauci, saying he saw the key clothes purchaser the day afterwards, and identified him as someone other than Megrahi.

That document refers to concerns among the Scottish police at the time that "the witness was trying to please them".

The defence also claims that the Crown pre-trial precognition of Mr Gauci was missing and was only recently discovered by the Scottish Criminal Cases Review Commission. The defence is also seeking "undisclosed information about discussion of reward money".

This is thought to relate to undisclosed discussions that Mr Gauci and his brother, Paul, could be influenced by the rumour of financial remuneration.

Ms Scott warned that there was a "reasonable" or "real" possibility that the Crown's failure to hand over the material could constitute a breach of article 6 of the European Convention on Human Rights, relating to a person's right to a fair trial.

She explained that, in its written responses to the defence, the Crown had argued that in some cases the calls for information were too wide, in others that the information does not exist and/or that it is not relevant. The hearing continues until at least tomorrow.

The Crown has not yet responded, but is understood to be refusing to disclose details of the September 8 photoshow, along with 47 other areas of information.

Megrahi's appeal itself could last at least 12 months.

Megrahi, who is suffering from advanced prostate cancer, is determined to clear his name but it is far from certain that he would survive such a long appeal case.

Libyan authorities have been encouraged to apply for a prisoner transfer to allow Megrahi to spend his remaining time with his family.

Secret papers show Thatcher's cabinet ruled out public inquiry within hours of Lockerbie bombing

[This is the headline over a report published today on the website of The Herald. It reads as follows:]

A father who lost his daughter in the Lockerbie bombing has hit out after papers showed Margaret Thatcher's cabinet appeared to rule out a public inquiry within hours of the disaster.

Conservative ministers suggested an independent investigation would “serve no useful purpose” the morning after Pan Am Flight 103 exploded over Lockerbie on December 21, 1988, killing a total of 270 people.

Dr Jim Swire, who daughter Flora was one of those who died, said: “One of the things this indicates is the entrenched view among ministers that they should limit the public's access to the truth about what happened.”

He added: "I believe there should be a full, thorough inquiry into the atrocity.”

Relatives of those killed have pressed for a public inquiry into what is still the worst terrorist incident to happen over British soil.

But the idea has been rejected by successive Westminster governments.

At 9.30am on December 22, Mrs Thatcher's cabinet met in London, with the exception of Scottish Secretary who was already in Lockerbie, to discuss its response to the bombing.

Ministers noted that Labour’s transport spokesman had called for a public inquiry into the tragedy.

An investigation by the then Department of Transport was already under way and the procurator fiscal in Dumfries was also expected to hold a Fatal Accident Inquiry.

Cabinet minutes, released under the 30-year rule, show that ministers suggested that it was "not clear whether any further public inquiry would serve a useful purpose provided that the results of the technical investigation were published".

"In general it was important to avoid a plethora of inquiries that caused distress of individuals while unearthing no new facts."

In her summing up, Mrs Thatcher said it was "essential that the cause of the disaster be identified as soon as possible".

She added that "the present investigation by the Air Accidents Investigation Branch of the Department of Transport should be pressed ahead with and it was not clear that any further public inquiry would be required in addition to the local procurator fiscal’s inquiry, and no commitments about such a further inquiry should therefore be made”.

She also said that the cabinet could not agree the government's contribution to a disaster fund until the extent of the damage suffered by Lockerbie became clear.

Despite the nature and scale of the disaster, she added that "the sum would need to be settled in the light of recent relevant precedents".

She also told ministers that she intended to visit Lockerbie herself later that day.

Dr Swire, who believes that Abdelbaset Ali Mohmed al Megrahi was wrongly convicted of the Lockerbie bombing, has argued that an independent inquiry became "increasingly important" after it emerged that statements about a break-in at Heathrow Airport before the disaster were kept by police until 1999.

Then Prime Minister Gordon Brown ruled out a public inquiry in 2009.

At the time UK ministers suggested that the Scottish Government could hold its own, limited, inquiry.

But Scottish ministers rejected that idea, saying that they did not have power to examine the international dimensions of the case.

Lockerbie: Morag Kerr hits back at Magnus Linklater

[This is the headline over a letter from Dr Morag Kerr in The Café section of the issue of the Scottish Review published on 17 February:]

How dare Magnus Linklater (10 February) repeatedly traduce in print a book he hasn’t even had the courtesy to read! The false assumptions and downright fabrications in his latest sally make it all too clear that this is the case, despite his assurance to me two years ago that he had – even going so far as to call the unread text 'a remarkable piece of work'.

Does Mr Linklater seriously believe that I wrote a book in 2013 based entirely on premises the appeal court rejected in 2002? Of course I didn’t. Does he believe that the book merely points out (for about the ten-thousandth time) that the suitcase John Bedford saw in the baggage container an hour before the connecting flight from Frankfurt landed looks suspiciously like the bomb? There is much more to it than that. Does he imagine that I examined the Heathrow evidence in isolation from the rest of the case? The book would hardly be 220-pages long if that were so.

The break-in into Heathrow Terminal 3 the night before the disaster is irrelevant. It was freely acknowledged in court that airside security in 1988 was abysmal, and it would have been child’s play for anyone to walk in any time they liked. No midnight cutting of padlocks would have been necessary. The break-in happened, but whether it was related to the introduction of the bomb into the baggage container 17 hours later is an entirely moot point. I make this perfectly clear in the book, and I would take it very kindly if Mr Linklater would cease and desist from dragging up this irrelevancy at every turn, as if it somehow discredits my thesis.

The possibility that the bomb might have been in the case John Bedford saw was explored in the original trial, with the defence obviously keen to suggest that it was. What is remarkable is that no evidence was presented of any specific investigation into the provenance of that suitcase by the original inquiry. Apparently, it was merely assumed that it wasn’t the bomb.

The 'meat' of my book is a thorough investigation into the provenance of the case Bedford saw; the investigation which should have been done in 1989 but wasn’t. In the course of this I examine witness statements, passenger and baggage transfer records and detailed photographs of the blast-damaged luggage – evidence that was for the most part not presented either at the original trial or the appeal. The results of this analysis are clear-cut. That was indeed the bomb suitcase, beyond any reasonable doubt. Once again I challenge Mr Linklater, and indeed anyone who has read the book, to explain why they don’t accept this analysis – based on evidence and logic, not dismissive sneers.

Mr Linklater implies that I am ignoring separate evidence of 'an unaccompanied bag coming from Malta that morning'. If he were to read my book he would discover that I pick apart the evidence for the existence of this bag in exhaustive detail, and come down firmly on the side of the German policeman who was originally assigned this task and whose report concludes: 'Throughout the inquiries into the baggage for PA103A there was no evidence that the bomb suitcase had been transferred with the luggage either from or via Frankfurt Main to London'.

Indeed, some clothing packed with the bomb was purchased on Malta, but as that purchase took place several weeks before the disaster it in no way precludes the bomb itself having been introduced at Heathrow. Again I deal with this point in great detail in the book, and in particular with the contention that Megrahi was the man who made that purchase. Clearly he was not, and the SCCRC report of 2007 underlined that pretty effectively.

Far from picking at one small point and ignoring the bigger picture, putting this point in context is exactly what the book is about. Not simply the compelling evidence that the bomb was already in the baggage container an hour before the flight from Frankfurt landed, but the extremely tight and well-documented security at Malta airport that shows no sign whatsoever of an illegitimate item of luggage on Air Malta flight 180. In this context I would refer Mr Linklater to the words of Lord Osborne at the first appeal in 2002. 'There is considerable and quite convincing evidence that that could not have happened.'

Mr Linklater, as always, sets great store by what the various judges concluded. In the context of a reasoned argument showing that these conclusions were wrong, this is an unhelpful begging of the question. The evidence I have analysed was not presented in court. Mine is an entirely new and more detailed dissection of the forensics than anything previously attempted.

I ask once again, although with fading hopes, that Mr Linklater go away and read my book, and then explain exactly where he takes issue with my reasoning or my conclusions. Or else refrain from commenting on something he clearly knows nothing about.

Dewar acts to calm anger as Lockerbie prosecutor quits

Circumstances precluded my posting on this blog yesterday (Thursday, 18 February 2016). What follows is what I would have posted had it been possible.

[This is the headline over a report by Gerard Seenan in The Guardian on this date in 2000. It reads as follows:]

Scotland's first minister, Donald Dewar, yesterday moved to allay fears that the prosecution of the Lockerbie bomb suspects was in disarray by quickly nominating a replacement for the man who had been due to lead the prosecution team.

In less than six weeks, Lord Hardie, the lord advocate, Scotland's senior law officer, was supposed to lead the prosecution against the two Libyan suspects at Kamp van Zeist, in the Netherlands. But he quit late on Wednesday - and appointed himself a judge.

The move prompted accusations that Lord Hardie had left the families of the Lockerbie victims in the lurch, and led opposition politicians to call for an immediate review of the way judges are appointed, particularly the notion of self-appointment.

During an angry exchange at first minister's questions, the Scottish National party leader, Alex Salmond, accused Lord Hardie of letting Scotland down in the eyes of the world. Mr Dewar dismissed this as "over-dramatic".

By yesterday morning there was growing concern north of the border that Lord Hardie's decision would leave a vacuum at the heart of the case against the Libyan suspects.

The Scottish executive denied the departure would affect the trial and Mr Dewar announced he was recommending to the Queen that Colin Boyd, the solicitor general for Scotland, should become the new lord advocate.

Mr Boyd has played a prominent role in the Lockerbie case, appearing in person for the prosecution at some of the pre-trial hearings in Edinburgh and the Netherlands.

Roseanna Cunningham, the shadow justice minister, said many people felt let down by Lord Hardie's departure. "He has been responsible for key decisions in the Lockerbie prosecution, and the least he could have done was see this very important trial through to a close," she said.

Families of those who lost their lives in the Lockerbie bombing said they were appalled by Lord Hardie's decision. Susan Cohen, from New Jersey, in the US, who lost her daughter Theodora, said: "I am appalled and amazed at a moment like this, that the lord advocate just decides to leave."

Lord Hardie recently came under fire over his role in the appointment of Scottish judges after a high court ruling that using temporary sheriffs was in breach of the European convention on human rights.

After the SNP claimed Lord Hardie had mishandled the incorporation of the convention into Scots law, the Scottish justice minister, Jim Wallace, gave Lord Hardie his backing.

Lockerbie, Megrahi and the Prisoner Transfer Agreement: a mystery

[What follows is the text of an article by retired British diplomat Sir Brian Barder that was published in The Scotsman on this date in 2011:]

Megrahi at centre of transfer deal mystery

Why did the UK agree a deal  with Gaddafi to send the Lockerbie bomber to Libya in defiance of a binding United Nations resolution?

There’s a major mystery in the newly released British government  documents containing new revelations about the controversial release of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing.  Moreover it’s puzzling that the mystery was never raised when the prime minister, David Cameron, made a statement and answered questions about the documents in the House of Commons on 7 February.  It’s the hippopotamus in the living-room that everyone is apparently too polite to mention.

Here’s the mystery.  In August 1998 the US and UK governments invited the United Nations Security Council to approve an initiative under which the two Libyans suspected of involvement in the Lockerbie bombing would be tried in a special court in the Netherlands under Scottish law.  The Security Council duly approved the initiative in a formal resolution passed under Chapter VII of the UN Charter, meaning that the resolution has binding force on all UN member states under international law.  But the relevant point is this:  the US-UK letter setting out the initiative, as approved by the mandatory UN resolution, stipulates in terms that if convicted, the suspects “will serve their sentence in the United Kingdom” – in practice meaning in Scotland, since all the proceedings were to be governed by Scottish law.  One of the two suspects was later acquitted:  the other, Megrahi, was convicted and sentenced to life in prison with a 27-year tariff.  Megrahi duly began to serve his sentence in a Scottish prison.

Now fast-forward to 2007.  Western relations with Libya have been ‘normalised’ following Libya’s abandonment of its nuclear weapons programme, sanctions have been lifted and UK firms are negotiating for lucrative and now legitimate contracts with Libya.  Tony Blair, then the UK prime minister, on the last of his visits to Libya, signs an agreement with Colonel Muammar al-Gaddafi in which the two governments promise to sign a Prisoner Transfer Agreement within a year.  The PTA allows a Libyan convict held in a UK prison to be transferred to serve the balance of his or her sentence in prison in Libya (and vice versa).  The Libyans make it clear that agreement to a PTA is the key to approval of various contracts with UK firms.  The only Libyan in a UK jail is Megrahi.  Everyone understands that Libyan insistence on a PTA is intended to open the way to the eventual repatriation of Megrahi to Libya – theoretically to serve the rest of his 27-year sentence in a Libyan prison.  The Scottish Government in Edinburgh, responsible under Scottish law for any decision affecting Megrahi’s future, repeatedly makes it clear that it is strongly opposed to the use of the PTA for transferring him to Libya.  But the PTA is signed under the British government’s foreign affairs power and the Scottish Government has no veto over it.  The mystery here is obvious.  The UK-US initiative approved by the Security Council resolution stipulates that Megrahi must serve his sentence in the UK.  The PTA envisages that he could be transferred to serve the remainder of his sentence in Libya.  The PTA is obviously inconsistent with the initiative and thus with a binding UN resolution.  So what was the point of the PTA?

It emerges from the newly released documents that in the course of discussions about the proposed PTA, the Scottish Government asked the British government whether there would be any obstacle in international law to the transfer of Megrahi to Libya under the Prisoner Transfer Agreement if the Scottish Justice Secretary were to agree to such a transfer.  After scratching its head, the British government replied, surprisingly, that there was not.  The documents don’t explain how the British government arrived at this counter-intuitive conclusion, with which (even more surprisingly) the US government had agreed.  But the documents do reveal a sharp disagreement between London and Washington over whether Megrahi’s transfer to Libya under the PTA would be in breach of the UK’s political (as distinct from legal) commitment to Megrahi serving his sentence in a UK prison.  The Americans said it would;  the UK government said it would not.  Moreover, the Americans maintained that Megrahi could not be transferred to a Libyan prison under the PTA without their prior agreement, since the whole initiative under which Megrahi had been tried and jailed had been jointly devised by the US and UK governments.  Again, the UK government disagreed, claiming that for it to transfer Megrahi under the PTA it would only need to inform the Americans (and the UN): American agreement, said the British, was not required.

How were the UK government’s lawyers to square this awkward circle?  They argued that the UK commitment could not have been “absolute”, because no British government could commit its successor (a novel and inherently subversive doctrine in international relations) and also because it could not have ruled out the possibility of a change in UK relations with Libya – another novel doctrine, allowing any government to wriggle out of its commitments at will.  For whatever reasons, the British government apparently decided not to disclose to the Scottish Government either its disagreement with the Americans over the status of the (“political”) commitment that Megrahi must serve his sentence in the UK, nor the grounds for its contention that there was no conflict between the two instruments.

It’s understandable that Tony Blair and his government were keen to satisfy Libyan demands implicitly concerning Megrahi so that valuable UK-Libyan commercial contracts could go ahead.  Getting Megrahi back to Libya would clearly be in Britain’s commercial and diplomatic interests.  But did Blair point out to the Libyans during the lengthy negotiation of the Prisoner Transfer Agreement that under the US-UK initiative and the UN resolution Megrahi could not be transferred to a Libyan prison?  If not, why not?  Were the Libyans or indeed Blair and his officials aware of the inconsistency?  Could they have failed to notice it?  The feeble grounds devised by the UK for its argument that there was no inconsistency, and that the UK could have legitimately gone ahead unilaterally in obvious breach of a mandatory UN resolution, suggest that the UK decision to have a Prisoner Transfer Agreement was taken first, and the lawyers were only later instructed to devise a justification for its obvious conflict with the UN resolution.

In the event Megrahi’s diagnosis with terminal cancer spared the Scottish Justice Secretary the need to respond to an application for his transfer to a Libyan prison under the PTA, which he had always opposed and would not have agreed to: his decision instead to release Megrahi on compassionate grounds was fully consistent with the US-UK initiative, the UN resolution embodying it, Scottish law and precedent, and humanitarian principles – although that hasn’t stopped the new British prime minister, the President and several Senators and Congressmen of the United States, and some (but not all) of the relatives of the Lockerbie victims passionately denouncing the decision.  There’s no love lost between Mr Cameron on the one hand and the Scottish government or the former Labour government on the other, so his denunciation of Kenny MacAskill’s compassionate release decision is understandable in political terms, if not in human ones.  But  why did David Cameron not point out in his Commons statement that to have transferred Megrahi under the PTA would have flagrantly contravened not only the whole agreed basis for Megrahi’s trial and imprisonment but also a mandatory resolution of the Security Council? How on earth did he fail to spot the dirty great hippo in that living-room next door?

• Sir Brian Barder is a former British ambassador to both Ethiopia and Poland and a former High Commissioner to Nigeria [and Australia — BLB].  He never had any official involvement in relations with Libya or the Lockerbie affair.

US 'maltreating' spy who blew whistle on Lockerbie bomb

[This is the headline over a report that appeared in the Electronic Telegraph, issue 632, on this date in 1997. It reads as follows:]

Lockerbie campaigners in Britain and America are voicing concern over the US authorities' treatment of a renegade American spy who claims there has been a massive international cover-up over the 1988 bombing of Pan Am flight 103.

Lester Coleman, a former agent with the US Defence Intelligence Agency, provoked controversy on both sides of the Atlantic by claiming that the tragedy in which 270 people died was caused by an American drug "sting" operation in Lebanon that went badly wrong. He was serving in the Middle East at the time.

Mr Coleman and his family were forced to go into hiding in Europe after US intelligence chiefs ordered his arrest on charges of perjury. His supporters claim that the charges were brought because he had contradicted the official American view that Libya was responsible for the bombing.

But, after living in exile for six years and in failing health, Mr Coleman returned to the US at the end of last year intending to clear his name. He was arrested at Atlanta airport and has been held since at New York's Manhattan Detention Centre, which houses murderers, rapists and drug-dealers.

Numerous bail applications have been rejected, even though he has been diagnosed as suffering from cancer and the charges he faces are relatively petty ones.

Vivian Shevitz, his defence lawyer, last week wrote to the judge responsible for the case, condemning as "an outrage" the medical treatment Mr Coleman has received since being remanded in custody. Miss Shevitz claims that Mr Coleman, now in his sixties, has been denied proper medical care since being returned to jail a few days after undergoing surgery.

"The way the authorities are treating Coleman is a total overreaction," she said. "There is no justification for treating him like this. It suggests the authorities are afraid of something, and want to keep him quiet."

Dr Jim Swire, the spokesman for British relatives of the Lockerbie victims, said he was disturbed at how the US authorities were handling the case. "The gross maltreatment of Coleman by the American authorities appears to fit a pattern of the victimisation of people who challenge the official version that Libya was solely to blame for Lockerbie," he said.

Certainly, the manner in which various American intelligence agencies have reacted to Mr Coleman's claims over Lockerbie suggest they deserve a more thorough investigation than they have so far received.

When I interviewed Mr Coleman for The Sunday Telegraph in 1993 at a secret location in Portugal, he was escorted by an armed Scandinavian bodyguard who had been lent by a friendly European government that supported his claims.

In essence, Mr Coleman's story, as related in his book, Trail of the Octopus, is relatively straightforward. During the late 1980s, Mr Coleman was working for the Defence Intelligence Agency, based in Cyprus, then a major intelligence-gathering post for the Middle East. Part of his task was to spy on the activities of a second American organisation, the Drug Enforcement Agency.

Mr Coleman claims that the DEA was operating a number of Beirut-based "sting" operations, by which agents allowed "controlled" deliveries of drugs from Lebanon to America through Frankfurt airport, in the hope of arresting US-based drug gangs. But Mr Coleman says the operation was infiltrated by Iranian-financed terrorists, who had been ordered to avenge the shooting down of an Iranian airbus in July 1988: instead of placing a suitcase of heroin on the flight, they checked in a suitcase full of explosives.

Mr Coleman initially made these allegations in an affidavit to Pan Am during the airline's own investigation into the tragedy.

But it was only after he reiterated them in his book, which was published three years later, that the US intelligence establishment responded by accusing him of perjury.