Megrahi applies for compassionate release

[What follows is an item originally posted on this blog on this date in 2009:]

Megrahi requests release from jail on compassionate grounds

[This is the headline over Lucy Adams's coverage in The Herald of the story that was broken yesterday on this blog. Her article can be read here. The following are extracts:]

The man convicted of the Lockerbie bombing has applied to Scottish ministers for release on compassionate grounds, a move which if granted would allow him to return to Libya without dropping his appeal.

Ministers received the application yesterday from Abdelbaset Ali Mohmed al Megrahi, who was diagnosed with terminal prostate cancer last year.

As with the case of prisoner transfer, the decision rests with Kenny MacAskill, the Justice Secretary. Unlike prisoner transfer, compassionate release does not require the prisoner to abandon any ongoing legal proceedings.

The Justice Secretary is thought to have released three terminally ill patients on compassionate grounds last year. Traditionally, only applications from those with three months to live are granted.

In May the Libyan government applied for prisoner transfer of Megrahi, the 57-year-old serving 27 years in Greenock prison for the bombing which killed 270 people in December 1988. (...)

Mr MacAskill is expected to make a decision on the transfer in the first week in August, but there has been some confusion about how the prisoner transfer agreement works. One legal expert said that ministers must give Megrahi a decision "in principle" before he drops proceedings, but officials say that is not the case.

It is thought that some of the US relatives of the victims of the tragedy would push for a judicial review if Mr MacAskill agrees to Megrahi's transfer back to Libya. Many of them are angry that the transfer is even being considered.

The families have taken legal advice in both London and Scotland. Judicial review could significantly delay Megrahi's return to Libya, but compassionate release is not subject to judicial review.

Professor Robert Black, one of the architects of Megrahi's trial in the Netherlands, said: "Compassionate release seems to achieve the humanitarian objective of allowing Megrahi to die in his homeland among his extended family, along with the public interest and criminal justice objectives of allowing a court to rule upon the validity of an appeal in the case of a conviction that has been increasingly called into question."

[The Scotsman also covers the story. Its article reads in part:]

An e-mail sent yesterday from the Crown Office to relatives of those who died said: "It has been confirmed that the Scottish Government has today received an application for compassionate release on behalf of Megrahi.

"We understand that this application will now be considered by the Scottish Government in tandem with the previous application for Prisoner Transfer."

A spokeswoman for the Scottish Government said: "We can confirm an application for compassionate release has been made by Mr al-Megrahi, and forwarded by the Libyan government to the Scottish ministers.

"Scottish ministers will not comment on the content of the application and will now seek advice on the application."

[The BBC News website has now picked up the story, which can be read here.]

Someone, somewhere, has been and still is hiding something

[The following are excerpts from a long article by retired ambassador Sir Brian Barder that was published on his website on this date in 2010:]

Several well informed people believe there are skeletons in this cupboard which powerful people in the UK and the US want to keep securely and permanently locked away right where they are.  For example, an impressive body of respectable opinion, by no means all professional conspiracy theorists, is not convinced that al-Megrahi was properly convicted. It’s impossible to know whether this doubt was a factor in Kenny MacAskill’s mind when he made his decision: fortunately for him, there were ample other grounds for compassionate release.  It does look however as if some of those concerned were anxious that al-Megrahi’s appeal should not be heard, either because it would risk bringing Scottish justice into disrepute by discrediting the original trial as unfair and defective, or for more sinister reasons.  Or were the likely consequences of al-Megrahi’s appeal possibly succeeding simply too awful to contemplate — for example, the reactions to be expected in the US, and the appalling questions then to be answered: if the two Libyan suspects didn’t do it, who did? And what compensation would be due to al-Megrahi or, if he had died in the meantime, his family?

So why did al-Megrahi agree to abandon his appeal before it could be heard? Was it because he feared that he would not live long enough to see it determined, or because abandoning the appeal was a condition, implied or explicit, of his release on compassionate grounds? Perhaps someone should put this question to al-Megrahi while he is still alive.

A recent article in the Independent newspaper alleged that the Libyan government had paid the doctors whose prognosis that al-Megrahi would die within three months had provided the justification for his release on compassionate grounds:

There are several facts that batter these claims with question marks. The most obvious is that, 11 months later, Megrahi isn’t dead. It’s the most amazing medical recovery since Lazarus. Or is it? It turns out the doctors who declared him sick were paid for by the Libyan government, and one of them says he was put under pressure by Libya to offer the most pessimistic estimate of life expectancy. Susan Cohen, whose only daughter died in Lockerbie, asks: “Why didn’t the Scottish Government pay for the doctors?”     [Johann Hari, The Independent, 23 July 2010]

But as a crisp comment on this canard pointed out, —

This is utterly untrue. The medical report was by Scottish doctors, NHS cancer experts. The ones paid for by Libya were not part of the evidence used by the Justice Secretary. Fact checking mate, you call yourself a journalist?

Indeed, the main medical advice on which MacAskill relied was provided by the Director of Health and Care of the Scottish Prison Service, Dr Andrew Fraser,  who has been described by MacAskill as a doctor of “unimpeachable integrity”.  Yet the slanderous claim that the prognosis had been provided by doctors paid by the Libyan government spreads like toadstools all over the blogosphere and into the MSM.  Moreover, it has repeatedly been made clear that the three-month prognosis was accompanied by a warning that he might die earlier, or he might live longer: no forecast in such circumstances could be certain.  And who knows whether al-Megrahi would still be alive if he had been left in his Scottish prison cell to die, in a foreign country miles from his family?  As to the repugnance commonly expressed at the ‘hero’s welcome’ he received on his arrival back in Libya, it needs to be pointed out that he was being welcomed back as a victim of a monstrous injustice, the Libyans believing almost to a man and woman that he had been wrongly convicted;  this was the opposite of a welcome accorded to a mass murderer and terrorist.

I’m generally suspicious of conspiracy theories but in this case I seem to smell a number of rats — not least because of the decision of the Scottish Criminal Cases Review Commission (SCCRC) in June 2007 after lengthy study of the case to refer it to the High Court for a second appeal against conviction.  There were also a number of reports by Hans Köchler, who had been an international observer of the original trial, appointed by the Secretary-General of the United Nations, and who described the decisions of the trial and appeal courts as a “spectacular miscarriage of justice”. Some of the relatives of the victims, who have naturally followed all the proceedings closely, are doubtful whether al-Megrahi was properly convicted. There is a strong suspicion that Iran may have been involved, including a specific Iranian said to have been in the pay of the CIA (I am not of course suggesting that the CIA could have been involved in planning or carrying out the bombing). Al-Megrahi’s fellow-Libyan co-defendant was unanimously acquitted by the judges. There’s a good deal of doubt about (...) the principal prosecution witness, on whose testimony al-Megrahi’s conviction effectively stands or falls, and about his alleged identification of al-Megrahi at the trial, which was both shaky and possibly compromised. Even the vehemence of American protests at al-Megrahi’s release tends to arouse suspicion: what beans did they fear he might spill once out of prison? Why all the effort to prevent the second appeal from coming to court? And so on. It really does look as if someone, somewhere, has been and still is hiding something.

Questions remain over Lockerbie

[This is the headline over four letters that were published in The Guardian on this date in 2010. They read as follows:]

I support President Obama's call for "all the facts to be laid out" regarding the Lockerbie affair (Cameron tells Obama he will release Lockerbie files, 21 July). He should be reminded that the Montreal convention of 1971, enacted under the UN-linked International Civil Aviation Organisation, was the proper legal instrument to address the terrorist bombing of flight PA 103 over Lockerbie.

The US, resenting the convention provision that the two suspects could be tried in Libya, orchestrated UN sanctions in an attempt to force their surrender to an American or British court. The sanctions caused the deaths of most of 15,750 Libyans suffering from serious medical conditions because they could not be evacuated by air for treatment abroad. In addition, more than 780 Libyans died in ambulances en route to neighbouring countries. It was judged that there had been 1,135 stillbirths and 514 maternal deaths caused by the shortage of medicines, serums and vaccines blocked by the sanctions. A UN report in 1998 confirmed the impact of sanctions on Libya.

The conviction of Abdelbaset al-Megrahi was a farce. Even Lord Sutherland, presiding over the arbitrarily contrived Scottish court in Holland, emphasised the "uncertainties and qualifications" in the case, referred to parts of the "conflicting" evidence "which might not fit" and to a conclusion "which is not really justified". The US ignored international law, imposed sanctions on Libya which resulted in 16,000 deaths, and orchestrated a blatant miscarriage of justice.

Geoff Simons

Author of Libya and the West: From Independence to Lockerbie

As politicians in both Britain and the US queue up to comment on the release of Megrahi, they remain silent about the need for an inquiry into the atrocity itself. To deny the families of the 270 victims of Lockerbie an investigation into this gross act of terrorism is an international disgrace, and the failure to seek to identify those responsible encourages more acts of terrorism.

I have a personal concern about the failure to hold an inquiry as I was with Bernt Carlsson, the UN assistant secretary general, shortly before he checked in on Pan Am Flight 103. As president of the development committee of the European parliament I had invited him to Brussels, where he spoke about his hopes for an independent Namibia and the end of apartheid to a packed meeting of MEPs.

David Cameron should call for an independent inquiry led by the UN to find out the truth about Pan Am Flight 103.

Michael McGowan

Former MEP for Leeds (1984-99)

However appalling the bombing of Pan Am flight 103 was, and if Libya were responsible, at worst Megrahi was following orders. That doesn't excuse his putative actions, but it is then hard to identify a moral distinction between his behaviour and eg that of the USAF aircrews attempting Gaddafi's assassination in the US bombing raid on Tripoli that killed 59 people, including Gaddafi's adopted daughter, or the behaviour of the (subsequently decorated) captain of the USS Vincennes when he shot down Iran Air flight 655 in 1988, killing all 290 passengers and crew.

David Cameron has no business trying to curry favour with the US administration by criticising the lawful and probably just decision of the Scottish justice secretary Kenny MacAskill to release Megrahi on compassionate grounds. He should instead have lectured Obama on the subject of motes and beams; there was plenty of material for him to draw on – he could have started with the comfortable retirement in Miami of Luis Posada Carriles, an ex-CIA stringer responsible for the bombing of Cubana Flight 455 in 1976, despite his conviction in absentia in Venezuela and their related extradition requests.

Andy Smith

Kingston upon Thames, Surrey

In all the hype about releasing Megrahi, one crucial fact seems to have got submerged. He was about to appeal with new evidence, and very likely win, when "persuaded" to abandon the appeal and be sent home "on compassionate grounds". Cynics might think this was to avoid the embarrassment of the court deciding that all along they had the wrong man. A case where two wrongs make a right?

Anthony Cheke

Oxford

The Lockerbie secret doc: Khreesat and the Swiss

[This is the headline over an article published today on Dr Ludwig de Braeckeleer’s PT35B website. It reads in part:]

“Marwan Khreesat is still wanted in connection with the bomb on the El Al flight. There can be little doubt that Khreesat is the bomb-maker for the PFLP-GC, that he was brought to West Germany for that purpose and there is a possibility that he prepared the IED which destroyed PA 103. As such he should not be at liberty but should be closely questioned regarding his activities with a view to tracking his associates in the attack.”                                                Supt Connor Report — June 1989

Swiss investigative journalist Otto Hostettler has uncovered a very interesting piece of information.

According to his research:

Khreesat Marwan Abdel-Razzaq Mufdi applied on 6.9.1988 at the Swiss Embassy in Amman for a visa to travel to Switzerland.

Despite being a “person of interest” in Switzerland [unexplained Swissair-Crash from 1970 (Würenlingen)] and being wanted in Italy (El Al Flight August 1972), he was indeed granted a 15 days visa from Switzerland on 12.9.1988. (...)

We know that the secret doc alleges that MST-13 timers had been provided to the PFLP-GC organization.

Nothing more is known at this point. But this trip – if it indeed occurred — could very well be the source of the story covered in the secret doc sent from the King of Jordan to John Major in 1996.

A particularly interesting aspect of this visa is the fact that the paperwork at the Federal Police was handled by Inspector Fluckiger.

Does that name ring a bell?

Inspector Fluckiger met with a MEBO employee (Lumpert) on June 22 1989.

On June 6, 2008, Lumpert told me that he gave a MST-13 timer prototype to Swiss Commissioner Peter Fluckiger

According to Lumpert, Fluckiger requested this device and other material at the demand of a “friendly Intelligence Agency.”

Last night, George Thomson wrote the following comment on this blog:

“During a recent investigation in Switzerland our team managed to get our hands on an official government document which confirms that in June 1989 Swiss Police did receive from a MEBO–source documents and materials in relation to MST timers. THE DOCUMENT GOES ON TO CONFIRM THAT THIS MATERIAL WAS THEN HANDED OVER TO THE AMERICANS.”

REMEMBER: This is one full year BEFORE super FBI genius Tom Thurman identified the link between PT/35(b) and MEBO (June 15 1990). Things are looking up!

Deal done to get Megrahi to drop appeal

[What follows is the text of an article that appeared on the Channel 4 News website on this date in 2010:]

How does an ex-spy link BP, Libya and Lockerbie bomber? Who Knows Who investigates the key players at the heart of a growing transatlantic rift - from deals in the desert to the boardroom, via MI6.

The only man convicted in connection with the 1988 Lockerbie plane bombing over Scotland, Abdelbaset Ali Mohmed al-Megrahi, was released in 2009 on compassionate grounds. He is terminally ill with prostate cancer.

He returned home, personally escorted by Saif Gaddafi, son of Libya's leader Colonel Gaddafi, to a hero's welcome in August 2009.

The celebrations sparked fury around the world and were condemned by President Obama and then prime minister Gordon Brown. Nearly a year on, al-Megrahi is still alive in Libya and his name is back in global headlines.

Thousands of miles away in the US, a group of senators has called for an inquiry into an admission by British energy giant BP that it lobbied UK ministers to get them to speed up the signing of a prisoner transfer agreement, in order to rescue an oil deal with Libya. BP insists it never lobbied about Mr al-Megrahi personally.

The witnesses the US politicians call could include Scotland's Justice Secretary Kenny MacAskill, former justice secretary Jack Straw, Lord Browne, the former BP chief executive, and Tony Blair.

So who sped up the process which may have led to al-Megrahi's release? What did Tony Blair agree at the "deal in the desert"? And what is the BP connection?

Shortly after al-Megrahi's return home, Britain's former "man in Tripoli" Sir Oliver Miles told Channel 4 News he believed a deal had been done between the UK and Libya, to get al-Megrahi to drop an appeal against his conviction.

The former UK ambassador to Libya said: "I think Tony Blair originally thought that he could deal with it quite simply by [sending] al-Megrahi back to Libya under the prisoner transfer agreement. It turned out it wasn't as simple as that."

One man who knows more than most about what took place is Sir Nigel Sheinwald - Britain's ambassador to the US since 2007. Once Blair's right-hand man, he has been at David Cameron's side throughout the new prime minister's first official US trip.

Sir Nigel previously served as an adviser on foreign policy to Blair. Libyan ministers and diplomats are said to refer to the "Nigel and Tony" double act.

In 2003, with US approval, he chaired the secret meetings in London with the Libyans that led to an easing of international relations with Colonel Gaddafi.

Intriguingly, Mr Cameron's coalition partner also has a connection to Gaddafi. Before entering parliament, Deputy PM Nick Clegg worked for a lobby firm called GJW. One of its clients was Libya and a key project is said to have been "improving the reputation" of its controversial leader.

Sir Nigel Sheinwald was at the heart of this rehabilitation of Libya in the eyes of the West. He was sitting next to Tony Blair at the now infamous meeting in Gaddafi's tent in 2004.

Sir Nigel was again at Blair's side in 2007 when a prisoner transfer agreement was struck. On the same day Blair looked on as BP boss Tony Hayward signed a provisional agreement over $900m gas and oil exploration rights in Libya. Both deals later stalled and al-Megrahi's ill-health was the official reason for his release.

Another key player, and a name which should interest the US senators, is Sir Mark Allen. He was in charge of the Middle East and Africa department at MI6 until he left in 2004 to become an adviser to BP.

It is known Sir Mark lobbied then justice secretary Jack Straw to speed up an agreement over prisoner transfers to avoid jeopardising a major trade deal with Libya.

He made two phone calls to Mr Straw - who later let slip Sir Mark's involvement to a select committee. He said: "I knew Sir Mark from my time at the Foreign Office - he has an extensive knowledge of Libya and the Middle East and I thought he was worth listening to."

Sir Mark, an Oxford graduate and a fan of falconry, has been credited with helping to persuade the Libyans to abandon development of weapons of mass destruction in 2003. He is said to have "charmed" Gaddafi out of his international isolation.

But has BP's influence been overplayed? Sir Oliver Miles, the former British ambassador, believes so. He says that the US senators, angry at the Gulf of Mexico oil spill disaster, are trying to "kick BP while it's down".

He said that Libya had signed deals not just with BP, but also with Shell and ExxonMobil - the three biggest energy firms in the world.

Speaking to Channel 4 News he added: "Libya knows the only way it can achieve a boost in oil production is by bringing in the world's biggest oil companies.

"You don't have to look for any dirty business to explain why they're doing business with BP."

First media hints of neutral venue Lockerbie trial

[On this date in 1998 a report headlined Lockerbie Suspects May Be Tried at World Court was published in The New York Times. It reads as follows (with a correction added online three days later):]

The United States and Britain may agree to allow a trial in the Hague, under Scottish law, for two Libyans accused of blowing up a Pan-Am airliner over Lockerbie, Scotland, in 1988, a United States Government official said tonight.

The official, who has followed international negotiations over what to do with the suspects, and who spoke on condition of anonymity, said talks about trying the suspects in the Hague, more formally known as the World Court, have been under way.

The United States and Britain have previously insisted that the suspects, Abdel Basset al-Megrahi and Lamin Khalifah Fhimah, be tried in Scotland or the United States. When Libya refused to allow the two to be extradited in 1992, Britain and the United States successfully pushed for United Nations sanctions against Libya. But support for the sanctions has withered in recent months, especially among African nations, and in February the World Court ruled that it had the authority to decide whether Libya had to surrender its two citizens for trial in another country.

Given the court's decision, a softening of positions in both London and Washington would not appear to be surprising, and The Guardian of London reported on Tuesday that a joint announcement by the British Foreign Office and Secretary of State Madeleine K Albright could come within a few days.

James P Rubin, a spokesman for the State Department, declined comment tonight on the report. The department's position is still that ''Libya must comply with the United Nations Security Council resolutions and surrender the suspects for trial before United States or Scottish courts,'' he said. ''We continue to look for ways to achieve our objective. Beyond that, I can't comment on discussions with other governments.''

Mr Rubin's comments were remarkably similar to those of a British Foreign Office spokesman, who said, ''Our policy remains unchanged, and that is Libya must surrender the suspects for trial in Scotland or the US.''

The bombing of the Pan Am 747 jetliner over the tiny village of Lockerbie on Dec. 21, 1988, killed 270 people, including 11 villagers. An investigation concluded that the bombing was carried out by Libyan agents who put the explosive in a suitcase.

The Guardian reported that Britain and the United States may agree to a trial in the Hague, under Scottish law, with an international panel of judges presided over by a senior Scottish jurist appointed by London.

If that is indeed the arrangement, then the standoff would appear to be nearing resolution in Libya's favor, given its insistence on such terms.

Correction: July 24, 1998, Friday An article in some copies on Tuesday about a possible trial of two Libyans accused of blowing up a Pan Am airliner over Lockerbie, Scotland, in 1988 misstated a possible site for it. The men might indeed be tried in The Hague but not at the International Court of Justice, which is in that city.

[RB: The official announcement of the Lockerbie trial came just over one month later, on 24 August 1998.]

Stumbling along

[What follows is excerpted from an article headlined Stretched to the limits by John Forsyth that was published in The Scotsman on this date in 2009:]

In the courts, the second appeal by the man convicted of planting the bomb on Pan Am 103, Abdelbaset Ali Mohmed al-Megrahi, appeared to stumble earlier this month. A decision was expected on grounds 1 and 2 of Megrahi's appeal on 7 July. Instead the Lord President, Lord Hamilton, stunned everyone present when he announced that one of the five judges, Lord Wheatley, had undergone heart surgery and would not be able to participate further until September.

Lord Hamilton was asked by defence counsel Maggie Scott, QC, to consider appointing a "shadow" judge to the bench in consideration of Megrahi's deteriorating health. It is understood he will nominate a "shadow" shortly.

The problem has been that even with 36 Senators of the College of Justice, its highest-ever membership, it is difficult to find another judge who has not been "cup tied" by participation in a previous Lockerbie-related case – the original Camp Zeist trial, the five-judge bench that rejected Megrahi's first appeal, a role in the original prosecution or involvement in the 1990-91 fatal accident inquiry.

Professor Robert Black says there is an alternative solution available to the Lord President founded in normal Scots law: "The statutory quorum of judges for hearing criminal appeals is normally three. There was never any technical reason why Megrahi's new appeal had to be heard before five judges. They obviously chose to do so because the original trial was before three judges and the first appeal before a bench of five. That was in itself unusual because the number was specified in terms of a special Order in Council. But that Order in Council no longer applies. It expired at the end of the first appeal."

Prof Black's solution is to nominate the junior of the remaining four judges on the bench as the "shadow" in case of further misfortune, allowing the original schedule to be resumed. In parallel to the appeal, there is a separate process initiated by the application lodged by the government of Libya under the prisoner transfer agreement signed with the UK government in November 2008.

Scottish ministers are bound by the agreement and required to consider transfer applications made under it. Megrahi is the only known Libyan presently in jail in the UK. The Scottish Government received an application from the Libyan government in respect of Megrahi on 5 May. Responsibility for considering the application has fallen to justice secretary Kenny MacAskill, who has to carry out a quasi-judicial role in assessing the merits of the competing arguments.

As part of the exercise, MacAskill invited families of the US victims to take part in a video link consultation last week. The president of US Victims of Pan Am 103, retired lawyer Frank Duggan, says about eight family representatives were present in Washington and a similar number in New York. (...)

[Mr Duggan said] "It was very, very difficult and we were all blubbering. I got the impression Mr MacAskill was listening very carefully. Of course, he couldn't make comments, as that would compromise his role, but he was clearly going about his job properly."

Stephanie Bernstein, a recently-ordained Rabbi in Washington, says: "This decision for Mr MacAskill is very difficult, but very important."

Mr Duggan dismisses stories that said the US families had taken legal advice that would underpin an application for immediate judicial review should Mr MacAskill decided to grant the Libyan government application. "That is completely wrong," he says. "We haven't sought such legal opinion, nor do we intend to. There's no suggestion of us raising judicial review – as a group we don't have standing in the Scots jurisdiction. It's not an option.

"Don't get me wrong: if Megrahi is sent back, we will raise hell. It was clear in all the correspondence between the US, UK and the United Nations, if anyone was convicted (at Camp Zeist], they would serve the whole sentence in Scotland. That was the deal."

In terms of the prisoner transfer agreement, Mr MacAskill has 90 days from the date of the Libyan application, 5 May, to reach a decision. The application cannot proceed while legal proceedings continue; Megrahi would have to abandon his appeal to activate the transfer.

The key decision might not be a legal one, however. Megrahi's medical condition might cut across both the appeal and prisoner transfer agreement. If medical opinion were to establish that he is seriously ill and close to death, Mr MacAskill could order his release on compassionate grounds. On that basis, Megrahi would be deemed to have served his sentence in terms of Scots law.

Mr Duggan says: "There are thousands of prisoners in US jails with cancer who serve many years with it. We don't want a horrible death in jail for anyone, but at his bail hearing, it was said he could live for another five years. I think we have more faith in the Scottish legal system than you appear to over there."