The scope of the prisoner transfer agreement

[What follows is excerpted from a report published in The Guardian on this date in 2007:]

Scotland's justice secretary today labelled as "ludicrous" Westminster's claim that a prisoner exchange agreement with Libya did not cover the Lockerbie bomber.

Kenny MacAskill poured scorn on Downing Street's insistence that a memorandum of understanding signed last week during a trip by Tony Blair to Libya did not apply to Abdelbaset Ali Mohmed al-Megrahi.

Alex Salmond, Scotland's first minister, has protested to Tony Blair over the agreement, which he suggested could lead to the Lockerbie bomber being transferred from Scotland to his homeland.

The SNP leader made an emergency statement in the Holyrood parliament complaining that "at no stage" had he been made aware of a British-Libyan agreement on extradition and prisoner release before it was signed.

The agreement has sparked the first major row between the government and the minority SNP administration in Holyrood.

Mr MacAskill told BBC Radio's Good Morning Scotland that Westminster's handling of the affair was "at minimum, discourteous to the first minister and the Scottish parliament".

Mr MacAskill continued: "There's no mention of al-Megrahi [in the memorandum] but we have many people in our prisons ... but we have only one Libyan national in our prisons.

"So when we're talking about the transfer of Libyan prisoners they are not secreted in Barlinnie, Saughton, Perth or anywhere else.

"We have only one Libyan national in custody and when we talk about the transfer of prisoners, frankly it is ludicrous to suggest that we are talking in a context other than this major atrocity that was perpetrated on Scottish soil and which was dealt with by a Scottish court and with a sentence provided by Scottish judges." (...)

No 10 denied Megrahi's case was covered by the document, saying: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan government in this case.

"The memorandum of understanding agreed with the Libyan government last week does not cover this case."

But Mr MacAskill rejected any suggestion that the agreement would only apply to the transfer of al-Qaida suspects.

He said: "We haven't been given clarification [by Downing Street].

"All we've been told is that a memorandum of understanding has been signed.

"Mr al-Megrahi is not specifically excluded. It refers to the transfer of prisoners so this is London's interpretation of it.

"I doubt it very much if it's the interpretation being placed upon it by the government of Libya."

[RB: Here is something previously written by me on this matter:]

It was on [29 May] 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

Straw denies Megrahi release was connected to trade deals

[This is the headline over an article in Monday's edition of The Herald. It reads in part:]

Jack Straw, the UK Justice Secretary, has described as "absurd" suggestions that trade deals had anything to do with the release of the man convicted of the Lockerbie bombing.

Mr Straw was forced into the denial after letters leaked to a Sunday newspaper appeared to show that he had backed away from efforts to stipulate that Abdelbaset Ali Mohmed al Megrahi should be exempt from a prisoner transfer agreement signed with Libya in 2007.

His comments were made as the father of one of the victims of the bombing of Pan Am 103 said it was time "to stop mulling over the why and wherefore of Megrahi’s release" and Nelson Mandela sent a letter of support to the Scottish Government. (...)

Mr Straw said: "The implication that, somehow or other, we have done some back-door deal in order to release Mr Megrahi is simply nonsense.

"What makes this whole debate absurd now is that Mr Megrahi was not released under the prisoner transfer agreement."

Mr Straw admitted that in return for Libya abandoning its nuclear weapons programme there were moves to "establish wider relations including trade", but added: "the suggestion that at any stage there was some kind of back-door deal done over Mr Megrahi’s transfer because of trade is simply untrue". (...)

Nelson Mandela played a central role in facilitating the handover of Megrahi to the United Nations so he could stand trial under Scottish law in the Netherlands, and subsequently visited him in Barlinnie Prison in Glasgow.

His backing emerged in a letter sent by Professor Jake Gerwel, chairperson of the Mandela Foundation.

He said: "Mr Mandela sincerely appreciates the decision to release Mr al Megrahi on compassionate grounds.

"His interest and involvement continued after the trial after visiting Mr al Megrahi in prison.

"The decision to release him now, and allow him to return to Libya, is one which is therefore in line with his wishes."

Dr Jim Swire, whose daughter Flora was killed in the atrocity, called on the authorities in Scotland to "take responsibility" for reviewing Megrahi’s conviction.

In a letter to the media, Dr Swire said he was "delighted" that Megrahi, who has terminal prostate cancer, had been freed.

He said: "Let us stop mulling over the why and wherefore of Megrahi’s release.

"The public’s knowledge of the shifty dealings surrounding the prisoner transfer agreement should help to swell demand for objective assessment of the Megrahi case."

[Notes by RB:

1. It is disingenuous in the extreme for Jack Straw to claim that the debate over a deal between the UK and Libyan Governments over Abdelbaset Megrahi is absurd because he was in fact repatriated, not under the prisoner transfer agreement, but through compassionate release.

The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" (and which paved the way for the formal prisoner transfer agreement) was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

It was only after the memorandum of understanding was concluded that Downing Street and the Foreign Office belatedly realised that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh -- and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

2. The letter from Dr Swire that is referred to in The Herald's article reads as follows:]

Lockerbie: the truth must be known

Before the Lockerbie trial, brokered by Nelson Mandela, had begun, I believed that it would reveal the guilt of the two Libyans in the murder of my daughter and all those others.

I have always believed that we should look for how something of benefit to the world could be somehow squeezed out of the appalling spectacle of brutal mass murder laid before us on those gentle Scottish hills. From before the Lockerbie trial, whilst still believing in Megrahi's guilt, I hoped even then that commercial links could be rebuilt between Libya and Britain for the benefit of both in the future. That was one of the reasons I went to talk to Gaddafi in 1991. It seemed that Libya's 5 million people with that country's immense oil wealth could mesh well with the many skilled people available among the 5 million population of Scotland.

What I heard at Zeist converted me to believing that the Libyan pair were in fact not involved in the atrocity after all. I remembered Nelson's comment at the time when a trial was agreed "No one country should be complainant, prosecutor and Judge". Yet under Clinton's presidency, the composition of the court had been altered so that Nelson's warning had been ignored. It was President Clinton too who told us all to realise 'its the economy, stupid.' But the UK, in the form of Scottish law, was now to exclude any international element, and the methods used to assemble the evidence revealed that the UK/US collusion was so close that it was safe to consider that alliance as Nelson's 'one country' also.

These matters are political and we have no expertise in that field, which appears distasteful to many. I do feel though that Lord Mandelson's disingenuous comments on the issue of the 'Prisoner Transfer Agreement' should lead him to resign (yet again).

More than 20 years later, we, the relatives, are still denied a full inquiry into the real issues for us - Who was behind the bombing? How was it carried out? Why did the Thatcher government of the day ignore all the warnings they got before Lockerbie? Why did they refuse even to meet us to discuss the setting up of this inquiry? Why was the information about the Heathrow break-in concealed for 12 years so that the trial court did not hear of it till after verdict? Why were we constantly subjected to the ignominy of being denied the truth as to why our families were not protected in what even our crippled FAI (crippled because it too was denied the information about Heathrow) found to have been a preventable disaster?

Let us stop mulling over the why and wherefore of Megrahi's release, I for one am delighted that a man I now consider innocent because of the evidence I was allowed to hear at Zeist is at home with his family at last. Let there be a responsible replacement immediately for the appeal a dying man understandably abandoned to ensure his release. Scotland should now take responsibility for reviewing a verdict which her own SCCRC already distrusts.The public's knowledge of the shifty dealings surrounding the 'Prisoner Transfer Agreement' should help to swell demand for objective assessment of the Megrahi case. Overturning the verdict would open the way for a proper international inquiry into why Lockerbie was allowed to happen, who was really behind it, as well as how the verdict came to be reached.

Let us turn our attention now, please, at last to the question of why we the relatives have been denied our rights to know who really murdered their families, and why those precious lives were not protected.

UK and Libya sign prisoner transfer agreement

The United Kingdom Government and the Libyan Government have just signed the prisoner transfer agreement that was negotiated between them some time ago. The relevant Foreign and Commonwealth Office press release can be read here.

Two points are made very clear. (1) The Prisoner Transfer Agreement (PTA) allows the return of a prisoner to serve out his sentence in his home country where both jurisdictions are in agreement. Prisoners do not have an automatic right to transfer: the consent of the authorities in both states is required before transfer can take place. (2) No individual can be transferred under the PTA until all criminal proceedings in relation to that individual have been exhausted.

In the case of a prisoner serving his sentence in Scotland, it is the Scottish (not the UK) Government that would require to decide whether transfer should be allowed; and the Scottish First Minister, Alex Salmond, has so far made it abundantly clear that in his view the PTA negotiated by the UK Government should specifically have excluded anyone convicted in respect of the Lockerbie bombing. On 2 February 2008 he said:

"My role, the role of the government is to defend the integrity of the judicial system in Scotland and that's exactly what we intend to do.

"We've made it quite clear that, in terms of prisoner transfer agreement with Libya, we thought it would be appropriate if anyone connected with the Lockerbie atrocity was excluded specifically from any prisoner transfer agreement.

"Until very recently, that was also the position of the UK Government."

It might therefore appear that, if an application were made for Abdelbaset Megrahi to be transferred back to Libya (and there has been no hint that one is likely to be made), the Scottish Government would not be disposed to grant it.

The decision

The Cabinet Secretary for Justice has granted compassionate release. The separate prisoner transfer request by the Libyan Government has been refused because of the legitimate expectations held by the US Government and the US relatives, on the basis of undertakings allegedly given by the UK Government (but not admitted by that government) at the time of the initial agreement for the Zeist trial, that any sentence imposed on a person convicted would be served in Scotland.

Here is the full text of Mr MacAskill's statement:

STATEMENT BY KENNY MACASKILL, CABINET SECRETARY FOR JUSTICE

Mr Abdelbasit Ali Mohmed Al-Megrahi

Introduction

Good afternoon. I will make a statement and then take questions.

It is my privilege to serve as the Cabinet Secretary for Justice in the Government of Scotland. It is a post in which I take great pride, but one which carries with it great responsibility. Never, perhaps, more so than with these decisions that I now have to make.

On the evening of 21 December 1988 a heinous crime was perpetrated. It claimed the lives of 270 innocent civilians. Four days before Christmas, men, women and children going about their daily lives were cruelly murdered. They included 11 from one small Scottish town. That town was Lockerbie – a name that will forever be associated with the worst terrorist atrocity ever committed on UK soil.

A prisoner transfer application has been submitted by the Government of Libya seeking the transfer of Mr Abdelbasit Ali Mohmed Al-Megrahi. The man convicted of those offences in the Scottish courts. He has also now sought to be released on compassionate grounds due to his prostate cancer that is terminal.

This crime precedes both the election of our Government and even the restoration of a Parliament in Scotland. I now find myself having to make these decisions. However, the applications have been lawfully made, and I am obliged to address them. Final advice from my officials was given late on Friday 14 August 2009. I have now had an opportunity to reflect upon this.

Let me be absolutely clear. As Cabinet Secretary for Justice in Scotland it is my responsibility to decide upon these two applications. These are my decisions and my decisions alone.

In considering these applications I have strictly followed due process, including the procedures laid down in the Prisoner Transfer Agreement and in the Scottish Prison Service guidance on compassionate release. I have listened to many representations and received substantial submissions.

Let me be quite clear on matters on which I am certain. The Scottish police and prosecution service undertook a detailed and comprehensive investigation with the assistance of the US and other authorities. I pay tribute to them for the exceptional manner in which they operated in dealing with both the aftermath of the atrocity and the complexity of a world-wide investigation. They are to be commended for their tenacity and skill. When Mr Al-Megrahi was brought to justice, it was before a Scottish court sitting in the Netherlands. And I pay tribute to our Judges who presided and acted justly.

Mr Al-Megrahi was sentenced to life imprisonment for the murder of 270 people. He was given a life sentence and a punishment part of 27 years was fixed. When such an appalling crime is perpetrated it is appropriate that a severe sentence be imposed.

Mr Al-Megrahi has since withdrawn his appeal against both conviction and sentence. As I have said consistently throughout, that is a matter for him and the courts. That was his decision. My decisions are predicated on the fact that he was properly investigated, a lawful conviction passed and a life sentence imposed.

I realise that the abandonment of the appeal has caused concern to many. I have indicated that I am grateful to and proud of those who have served in whatever capacity in bringing this case to justice. I accept the conviction and sentence imposed. However, there remain concerns to some on the wider issues of the Lockerbie atrocity.

This is a global issue, and international in its nature. The questions to be asked and answered are beyond the jurisdiction of Scots law and the restricted remit of the Scottish Government. If a further inquiry were felt to be appropriate then it should be initiated by those with the required power and authority. The Scottish Government would be happy to fully co-operate in such an inquiry.

I now turn to the matters before me that I require to address. An application under the Prisoner Transfer Agreement and an application for compassionate release have been made. I now deal with them in turn.

Prisoner Transfer

Firstly, the prisoner transfer agreement.

The Libyan Government applied on 5 May 2009 for the transfer of Mr Al-Megrahi. Prisoner Transfer Agreements are negotiated by the United Kingdom Government.

Throughout the negotiations and at the time of the signing of the PTA with Libya, the Scottish Government’s opposition was made clear. It was pointed out that the Scottish Prison Service had only one Libyan prisoner in custody. Notwithstanding that, the UK Government failed to secure, as requested by the Scottish Government, an exclusion from the PTA for anyone involved in the Lockerbie Air Disaster. As a consequence Mr Al-Megrahi is eligible for consideration for transfer in terms of the agreement entered into by the Governments of the United Kingdom and Libya.

I received numerous letters and representations, and recognised that a decision on transfer would be of personal significance to those whose lives have been affected. Accordingly, I decided to meet with groups and individuals with a relevant interest.

I met with the families of victims: those from the United Kingdom who had relatives on board the flight, as well as those whose kinfolk were murdered in their homes in Lockerbie; a lady from Spain whose sister was a member of the cabin crew; and I held a video conference with families from the United States. I am grateful to each and every one of them for their fortitude on a matter which I know is still a source of great pain.

I also spoke to the United States Secretary of State Hillary Clinton and the United States Attorney General, Eric Holder. I met Minister Alobidi and his delegation from the Libyan Government to hear their reasons for applying for transfer, and to present to them the objections that had been raised to their application.

I have noted and considered all the points presented, and also relevant written representations I received.

Prior to ratification of the Prisoner Transfer Agreement, it was scrutinised by the Westminster Joint Committee on Human Rights, to which Jack Straw, UK Secretary of State for Justice, gave a commitment that in cases where applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr Al-Megrahi had the opportunity to make representations, and he chose to do so in person. Therefore I was duty bound to receive his representations. I accordingly met him.

It was clear that both the United States Government and the American families objected to a prisoner transfer. They did so on the basis of agreements they said had been made, prior to trial, regarding the place of imprisonment of anyone convicted.

The United States Attorney General, Eric Holder, was in fact deputy Attorney General to Janet Reno at the time of the pre-trial negotiations. He was adamant that assurances had been given to the United States Government that any person convicted would serve his sentence in Scotland. Many of the American families spoke of the comfort that they placed upon these assurances over the past ten years. That clear understanding was reiterated to me, by the US Secretary of State Hillary Clinton.

I sought the views of the United Kingdom Government. I offered them the right to make representations or provide information. They declined to do so. They simply informed me that they saw no legal barrier to transfer and that they gave no assurances to the US Government at the time. They have declined to offer a full explanation as to what was discussed during this time, or to provide any information to substantiate their view. I find that highly regrettable.

I therefore do not know what the exact nature of those discussions was, nor what may have been agreed between Governments. However, I am certain of the clear understanding of the American families and the American Government.

Therefore it appears to me that the American families and Government either had an expectation, or were led to believe, that there would be no prisoner transfer and the sentence would be served in Scotland.

It is for that reason that the Libyan Government’s application for prisoner transfer for Abdelbasit Ali Mohmed Al-Megrahi I accordingly reject.


Compassionate Release

I now turn to the issue of compassionate release.

Section three of the Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the Scottish Ministers the power to release prisoners on licence on compassionate grounds.

The Act requires that Ministers are satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment. Although the Act does not specify what the grounds for compassionate release are, guidance from the Scottish Prison Service, who assess applications, suggests that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance dates from 2005.

On 24 July 2009 I received an application from Mr Al-Megrahi for compassionate release. He was diagnosed with terminal prostate cancer in September 2008. I have been regularly updated as to the progression of his illness. I have received numerous comprehensive medical reports including the opinions of consultants who have been treating him. It is quite clear to the medical experts that he has a terminal illness, and indeed that there has recently been a significant deterioration in his health.

In order to consider the application for compassionate release, I was provided with reports and recommendations by the Governor of Greenock Prison, the doctors and prison social work staff. Also, as laid out in statute, I have consulted the Parole Board. This is the normal process for consideration of an application for compassionate release and my decision is in accordance with all the advice given to me.

It is the opinion of his Scottish Prison Service doctors who have dealt with him prior to, during and following the diagnosis of prostate cancer, and having seen him during each of these stages, that his clinical condition has declined significantly. Assessment by a range of specialists has reached the firm consensus that his disease is, after several different trials of treatment, “hormone resistant” – that is resistant to any treatment options of known effectiveness. Consensus on prognosis therefore has moved to the lower end of expectations.

Mr Al-Megrahi was examined by Scottish Prison Service doctors on 3 August. A report dated 10 August from the Director of Health and Care for the Scottish Prison Service indicates that a 3 month prognosis is now a reasonable estimate. The advice they have provided is based not only on their own physical examination but draws on the opinion of other specialists and consultants who have been involved in his care and treatment. He may die sooner – he may live longer. I can only base my decision on the medical advice I have before me. That medical advice has been made available to the United States Government at their request and has been published on grounds of public interest.

It has been suggested that Mr Al-Megrahi could be released from prison to reside elsewhere in Scotland. Clear advice from senior police officers is that the security implications of such a move would be severe. I have therefore ruled that out as an option.

Conclusion

Having met the criteria, it therefore falls to me to decide whether Mr Al-Megrahi should be released on compassionate grounds. I am conscious that there are deeply held feelings, and that many will disagree whatever my decision. However a decision has to be made.

Scotland will forever remember the crime that has been perpetrated against our people and those from many other lands. The pain and suffering will remain forever. Some hurt can never heal. Some scars can never fade. Those who have been bereaved cannot be expected to forget, let alone forgive. Their pain runs deep and the wounds remain.

However, Mr Al-Megrahi now faces a sentence imposed by a higher power. It is one that no court, in any jurisdiction, in any land, could revoke or overrule. It is terminal, final and irrevocable. He is going to die.

In Scotland, we are a people who pride ourselves on our humanity. It is viewed as a defining characteristic of Scotland and the Scottish people. The perpetration of an atrocity and outrage cannot and should not be a basis for losing sight of who we are, the values we seek to uphold, and the faith and beliefs by which we seek to live.

Mr Al Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days. No compassion was shown by him to them.

But, that alone is not a reason for us to deny compassion to him and his family in his final days.

Our justice system demands that judgment be imposed but compassion be available. Our beliefs dictate that justice be served, but mercy be shown. Compassion and mercy are about upholding the beliefs that we seek to live by, remaining true to our values as a people. No matter the severity of the provocation or the atrocity perpetrated.

For these reasons – and these reasons alone – it is my decision that Mr Abdelbasit Ali Mohmed Al-Megrahi, convicted in 2001 for the Lockerbie bombing, now terminally ill with prostate cancer, be released on compassionate grounds and allowed to return to Libya to die.

BP and Megrahi's repatriation

[What follows is the text of an interview by Paul Gigot with The Wall Street Journal's columnist Bret Stephens broadcast on Sunday 12 July on FOX News Channel. I am grateful to Frank Duggan for drawing it to my attention.]

Gigot: All right. Still ahead, it's under fire for the Deepwater drilling disaster, but there may be an even better reason to dislike BP. Did the oil giant profit from the Lockerbie bomber's release? The answer when we come back.

***
Gigot: Well, BP has come under blistering criticism in recent months as oil from its Deepwater Horizon well continues to spill into the Gulf of Mexico. But Wall Street Journal foreign-affairs columnist Bret Stephens says there may be even better reason to dislike the oil giant, as evidence grows that BP profited from last summer's release of Lockerbie bomber Abdel Baset al-Megrahi. Bret joins us now.

So Bret, what's the connection between BP and the release of Megrahi?

Stephens: Well, just a few days ago, the Libyan government announced BP would begin deepwater drilling in its--

Gigot: Off of Libya.

Stephens: Off of the Libyan coast.

Gigot: Notwithstanding the Gulf of Mexico?

Stephens: Definitely notwithstanding the Gulf of Mexico. And in fact, that Libya might take a strategic stake in BP. Now, this follows news also in recent days that Abdel Baset al-Megrahi--the only man convicted for the 1988 Lockerbie bombing, who was released last year on the compassionate grounds that he only had a few months to live, and is still alive--might, in fact, live another 10 or 20 years. That was a statement by a doctor who offered the three-month prognosis but now says that he more or less gave that prognosis because he thought it could be, quote, "sort of justified."

Gigot: Well, let's take this in turn. This offshore drilling in Libya is very big, something like a $900 million project. So it's a very big contract. BP itself said it was something like the equivalent of 2,000 blocks, exploration blocks in the Gulf of Mexico.

Stephens: Oh, it's absolutely enormous, because these are oil blocks right off the coast, which Libya itself doesn't have the--the Libyan oil company doesn't have the technology to explore. But they need a big Western oil company that can do the kind of deepwater drilling. And the question is, how did BP get itself to get these contracts?

Gigot: Well, that is the question, because the British deny any quid pro quo between the release of Megrahi and the contracts. BP denies it, I'm sure. So what's the evidence?

Stephens: Well, look, in 2004, when Gadhafi came in from the cold, then--

Gigot: Gave up his nuclear program.

Stephens: Gave up his nuclear program.

Gigot: Said he wanted to normalize relations.

Stephens: Tony Blair paid a number of--

Gigot: Former British prime minister.

Stephens: Former British prime minister, paid a number of visits. And on his second visit, in 2007, BP and the Libyan government inked an oil-exploration deal. But there was a hiccup. The Libyans were insisting on what they call a prisoner transfer agreement between the two countries, which sounds like, you know, one of these vanilla agreements that two countries reach. But the man that was plainly in question in any kind of prisoner transfer agreement was Megrahi, the guy who was then in a Scottish jail.

So they made this agreement, and then the UK took its time with this prisoner transfer agreement. So the Libyan government starting saying, Well, we're not so sure we're going to go ahead with the BP deal. At this point, we know--BP has admitted that it raised the issue of the prisoner transfer agreement with the then Labour government in Britain. It had a special adviser who was a former MI6 intelligence official, who was well connected with Labour Party officials, and who also raised the subject of the prisoner transfer agreement. Lo and behold, at the end of 2007, the UK finally gets around to signing--to signing this agreement, and it's at that point that the BP deal starts going forward.

Gigot: We also have a statement from Gadhafi's son, who has wanted to open up to the West, and is well-known in British circles that the oil contract was at issue.

Stephens: Yeah, no, it's clear both from what--not only from what the Libyans have said, Saif Gadhafi, but also from correspondence that was obtained by the London Sunday Times, in which then-Justice Minister Jack Straw writes to his Scottish counterparts, talking about the, quote, "overwhelming interests of the UK in getting this agreement passed." And it's funny. The Libyans kept dragging their heels all the way up until Megrahi was released.

Gigot: Here's a question, though: Why shouldn't Britain do this? I mean, it's in their national interest, obviously, to have oil exploration--a company do this. Megrahi is ill. We don't know how ill, that's true. And this is 20-some years ago. Here's the question: I mean, if Gadhafi wants to come in from the cold--maybe, shouldn't we just move on?

Stephens: I would say there are 270 reasons not to do that, and those are the 270 people who were murdered on Pan Am 103. I mean, there's no question, the oil companies go into all kinds of dangerous places with regimes that we don't necessarily like, which have spotty human-rights records. But Lockerbie is a case apart. And it's also in the UK's national interest to have good relations with the United States. This was a signal case in the war on terrorism, so there was a line to be drawn, and the British crossed it, in my mind.

Gigot: All right, Bret, thank you.

We have to take one more break. When we come back, our "Hits and Misses" of the week.

***
Gigot: Just as a follow-up to that previous segment, we did ask BP for comment. They promised to get back to us but never did.

"Dirty dealing" by UK Government over Megrahi prisoner transfer agreement

[An article in today’s edition of The Sunday Telegraph discloses that the UK Government linked its conclusion of a prisoner transfer agreement with Libya to an arms-export deal.  It reads in part:]

An email sent by the then British ambassador in Tripoli details how a prisoner transfer agreement would be signed once Libya “fulfils its promise” to buy an air defence system.

The disclosure is embarrassing for members of the then Labour government, which always insisted that Abdelbaset al-Megrahi’s release was not linked to commercial deals.

The email, which contained a briefing on the UK’s relations with Colonel Muammar Gaddafi’s regime, was sent on June 8 2008 by Sir Vincent Fean, the then UK ambassador, to Tony Blair’s private office, ahead of a visit soon after he stepped down as prime minister.

Mr Blair flew to Tripoli to meet Gaddafi on June 10, in a private jet provided by the dictator, one of at least six visits Mr Blair made to Libya after quitting Downing Street.

The briefing, which runs to 1,300 words, contains revealing details about how keen Britain was to do deals with Gaddafi. It also suggests that:

Þ the UK made it a key objective for Libya to invest its £80 billion sovereign wealth fund through the City of London

Þ the UK was privately critical of then President George Bush for “shooting the US in the foot” by continuing to put a block on Libyan assets in America, in the process scuppering business deals

Þ the Department for International Development was eager to use another Libyan fund worth £130 million to pay for schemes in Sierra Leone and other poverty-stricken countries.

The release of Megrahi in August 2009 caused a huge furore, with the Government insisting he had been released on compassionate grounds because he was suffering from terminal cancer, and that the decision was taken solely by the Scottish government. (...)

Libya had been putting pressure on the UK to release Megrahi and in May 2007, just before he left Downing Street, Mr Blair travelled to Sirte to meet Gaddafi and Al-Baghdadi Ali al-Mahmoudi, Libya’s then prime minister.

At that meeting, according to Sir Vincent’s email, Mr Blair and Mr Baghdadi agreed that Libya would buy the missile defence system from MBDA, a weapons manufacturer part-owned by BAE Systems. The pair also signed a memorandum of understanding (MoU) for a prisoner transfer agreement (PTA), which the Libyans believed would pave the way for Megrahi’s release.

The British government initially intended the agreement to explicitly exclude Megrahi. However, ministers relented under pressure from Libya.

In December 2007, Jack Straw, then justice secretary, told his Scottish counterpart that he had been unable to secure an exclusion, but said any application to transfer Megrahi under the agreement would still have to be signed off by Scottish ministers.

With Mr Blair returning a year later — as a guest of Gaddafi on his private jet — the government appears to have used the chance to press its case for the arms deal to be sealed. At the time, Britain was on the brink of an economic and banking crisis, and Libya, through the Libyan Investment Authority, had billions of pounds in reserves.

Sir Vincent wrote: “There is one bilateral issue which I hope TB [Tony Blair] can raise, as a legacy issue. On 29 May 07 in Sirte, he and Libya’s PM agreed that Libya would buy an air defence system (Jernas) from the UK (MBDA). One year on, MBDA are now back in Tripoli (since 8 June) aiming to agree and sign the contract now — worth £400 million, and up to 2,000 jobs in the UK. (...)

“Linked (by Libya) is the issue of the 4 bilateral Justice agreements about which TB signed an MoU with Baghdadi on 29 May. The MoU says they will be negotiated within the year: they have been. They are all ready for signature in London as soon as Libya fulfils its promise on Jernas.”

The PTA was signed in November 2008 by Bill Rammell, a foreign office minister.

The disclosure of the email, which was obtained by The Sunday Telegraph as a result of a Freedom of Information request, angered the relatives of victims of the bombing.

Pam Dix, whose brother Peter died at Lockerbie, said: “It appears from this email that the British government was making a clear correlation between arms dealing with Libya and the signing of the prisoner transfer agreement.

“We were told Megrahi’s release was a matter strictly for the Scottish government but this shows the dirty dealing that was going on behind the scenes.”

Lord Mandelson, who was business secretary when Megrahi was released, said he was unaware of any possible links between commercial deals and negotiations over a release.

He said: “Based on the information that I was given at the time, I made clear the government’s position. I was not aware of the correspondence covered in this FOI request.”

Prisoner Transfer Agreement

Justice Secretary Kenny MacAskill today spoke with United States Attorney General Eric Holder as part of the ongoing consideration of the application for the prisoner transfer for Mr Abdelbaset Ali Mohmed Al Megrahi.

As part of the process of consideration of the application, Mr MacAskill has already made clear that he would meet groups and individuals who have submitted relevant representations to the Scottish Government and listen to their views.

In addition to today's discussions with Mr Holder, Mr MacAskill will also be listening to the views of representatives of family members of victims from the UK and US as well as the Libyan Government.

Mr MacAskill said:

"As part of my thorough consideration of the Prisoner Transfer Agreement submitted by the Libyan Government on behalf of Mr Al Megrahi, I want to ensure I have all the relevant information available to me before reaching decisions.

"Hearing these representations is a key part of that process.

"As I have said before, any decision will be made on judicial grounds alone. Economic and political considerations have no place in the process."

The Prisoner Transfer Agreement was signed on November 17 2008 and following scrutiny by the Joint Committee of Human Rights at Westminster, was ratified by the UK and Libyan Governments.

Scottish Ministers are now bound by this Agreement and required to consider transfer applications made under it.

The Scottish Government received an application from the Libyan Government in respect of Mr Al Megrahi on May 5, 2009.

The application is now being determined on its merits in line with the Agreement and relevant legislation by the Cabinet Secretary for Justice who will take all relevant considerations into account.

The Prisoner Transfer Agreement states that the decision should normally be given within 90 days of being received although it could be longer if further information is required in relation to the application or for any other reason.

[This is the text of a news release issued today by the Scottish Government. The Sun's report on the topic can be read here, and The Scotsman's here.]

Megrahi may return to Libya, Lockerbie families told

This is the heading over an article by Lucy Adams in today's edition of The Herald. It reads in part:

'Senior legal officials, in a tacit acknowledgement that the man convicted of the Lockerbie bombing is likely to be allowed to return home, have written to all relatives of the victims explaining the transfer process.

'After years of denial by ministers and officials, the Crown Office e-mail suggests that Abdelbaset Ali Mohmed al Megrahi, currently serving 27 years in Greenock Prison for the bombing that killed 270 people, will be allowed to return to Libya under a transfer agreement to be ratified before the end of this month.

'The e-mail also suggests that ratification may take place on April 27, the day before Megrahi's long-awaited appeal begins in Edinburgh.

'Earlier this year, The Herald revealed that Libyan officials had been encouraged by senior civil servants from both sides of the border, including Robert Gordon, the head of the Justice Department in Scotland, to apply for Megrahi to be transferred as soon as the agreement is ratified. (...)

'Yesterday's revelation coincided with the publication of a critical report on the transfer agreement by the Joint Committee on Human Rights at Westminster.

'The report makes apparent the committee's disdain of Jack Straw, the UK Justice Secretary, for failing to delay ratification to allow for proper scrutiny.

'Mr Straw wrote to the committee in March to say he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya in regards to our willingness to conclude this and three other judicial co-operation agreements".'

The full article can be read here.

An accompanying piece headlined ‘The relatives of the victims also have human rights’, also by Lucy Adams, contains the following:

'Little has been allowed to get in the way of plans to return the man convicted of the Lockerbie bombing back to his home country since the global political axis turned. (...)

'Talks to establish a Prisoner Transfer Agreement (PTA) between Libya and the UK began in 2005, but the Foreign Office has consistently denied that such discussions bear any relevance to Abdelbaset Ali Mohmed Al Megrahi.

'The agreement, signed by Westminster and due to be ratified by the end of the month, means that any Libyan serving a sentence in the UK, who has no pending appeal, could be returned home. Those in Scottish prisons could be moved only with the permission of Scottish ministers.

'But the wheels are turning in spite of concerns and opposition. While the appeal itself has taken years to begin, the machinery behind the transfer agreement is moving with haste.

'Westminster's Joint Committee on Human Rights publicly stated last month that the treaty raises concerns and requested that ratification be delayed until the end of April so that it could publish a substantive report.

'However, Jack Straw, the UK Justice Secretary, said he would delay ratification only until the Easter recess because "a delay beyond early April is likely to lead to serious questions on the part of Libya".

'The committee report states: "In our view, when a select committee states that it intends to scrutinise a treaty, ratification should be delayed until the committee's inquiry has concluded."

'Despite the pleas of relatives of the victims of the tragedy and Scottish ministers demanding that Megrahi be exempt from the agreement, it appears from both the Crown Office e-mail and official sources that he may be the first prisoner to be dealt with.

'First Minister Alex Salmond made clear in April 2008 that Megrahi would serve his full sentence in Scotland and that he would "defend the integrity of the Scottish judicial system". However, officials have privately made clear to the Libyans that they are prepared to go back on such claims, which were allegedly "made more in relation to the murky politics of the deal in the desert than Megrahi". (...)

'Dr Jim Swire, whose daughter, Flora, died in the tragedy, said: "Jack Straw has overridden the wishes of the Joint Committee on Human Rights and refused to delay ratification in order to ensure it can be active by April 27 - the day before the appeal starts.

"For those who think the Scottish legal process is nothing more than a political pantomime, here's the confirmation. The whole thing has nothing to do with justice and everything to do with convenience and financial gain.

'"The relatives also have human rights, including the right to know what happened to a loved one and why they were not better protected."

'A Scottish Government spokeswoman said last night: "The PTA was negotiated and signed by the UK and Libyan Governments and so is it is a matter for those governments. Once ratified, it will be for the Scottish ministers to decide on any application for prisoner transfer in relation to all prisoners in Scotland.

'"We do not discuss hypothetical applications and will not prejudge any decision."

'A Crown Office spokeswoman said: "Since the day the UK signed the agreement, we have communicated with the families because of their interest in any prisoner transfer arrangements between the UK and Libya."'

The full text of the article can be read here, and a short piece entitled Dialogue and denial on the way to a deal, which contains a catalogue of governmental prevarication and obfuscation on the prisoner transfer issue, can be read here.

The prisoner transfer débâcle

[What follows is excerpted from a report published in The Guardian on this date in 2007:]

Scotland's justice secretary today labelled as "ludicrous" Westminster's claim that a prisoner exchange agreement with Libya did not cover the Lockerbie bomber.

Kenny MacAskill poured scorn on Downing Street's insistence that a memorandum of understanding signed last week during a trip by Tony Blair to Libya did not apply to Abdelbaset Ali Mohmed al-Megrahi.

Alex Salmond, Scotland's first minister, has protested to Tony Blair over the agreement, which he suggested could lead to the Lockerbie bomber being transferred from Scotland to his homeland.

The SNP leader made an emergency statement in the Holyrood parliament complaining that "at no stage" had he been made aware of a British-Libyan agreement on extradition and prisoner release before it was signed.

The agreement has sparked the first major row between the government and the minority SNP administration in Holyrood.

Mr MacAskill told BBC Radio's Good Morning Scotland that Westminster's handling of the affair was "at minimum, discourteous to the first minister and the Scottish parliament".

Mr MacAskill continued: "There's no mention of al-Megrahi [in the memorandum] but we have many people in our prisons ... but we have only one Libyan national in our prisons.

"So when we're talking about the transfer of Libyan prisoners they are not secreted in Barlinnie, Saughton, Perth or anywhere else.

"We have only one Libyan national in custody and when we talk about the transfer of prisoners, frankly it is ludicrous to suggest that we are talking in a context other than this major atrocity that was perpetrated on Scottish soil and which was dealt with by a Scottish court and with a sentence provided by Scottish judges." (...)

No 10 denied Megrahi's case was covered by the document, saying: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan government in this case.

"The memorandum of understanding agreed with the Libyan government last week does not cover this case."

But Mr MacAskill rejected any suggestion that the agreement would only apply to the transfer of al-Qaida suspects.

He said: "We haven't been given clarification [by Downing Street].

"All we've been told is that a memorandum of understanding has been signed.

"Mr al-Megrahi is not specifically excluded. It refers to the transfer of prisoners so this is London's interpretation of it.

"I doubt it very much if it's the interpretation being placed upon it by the government of Libya."

The row comes in the middle of an examination of Megrahi's case by the Scottish Criminal Cases Review Commission.

The body will decide later this month whether to refer his conviction back to an appeal court.

Mr MacAskill said: "It [the memorandum] is undermining the fabric of the Scottish judicial system that has been independent long before the Scottish parliament was established.

David Mundell, the Tory MP whose Dumfriesshire constituency covers Lockerbie, said he was "appalled" by Mr Blair's handling of the matter.

"Not only has he ridden roughshod over Scotland's parliament and legal system, but his actions threaten to undermine a legal process which took years to put in place and was agreed with the United Nations and international community," he said.

[RB: Here is something previously written by me on this matter:]

It was on [29 May] 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

Blair challenged over claims Megrahi was 'excluded’ from Prisoner Transfer Agreement

[This is the headline over a report published yesterday evening on the Newsnet Scotland website.  It reads as follows (links omitted):]

Tony Blair’s version of events over the Prisoner Transfer Agreement he hatched with Colonel Gaddafi has been challenged after he claimed that Abdelbaset al-Megrahi had been “specifically excluded” from the secret deal.

The Scottish National Party has today accused the former Prime Minister of being “economical with the truth” after Mr Blair claimed in a New York Times interview that Lockerbie bomber Al-Megrahi was “specifically excluded” from the “prisoner transfer programme” when he left office. 

Asked about a series of visits he made to Libya in order to speak with the former dictator Muammar Gaddafi and whether he had been seeking the release of Megrahi the former Labour leader replied:

“This really is objectionable.  When I was British prime minister, when I left office, Megrahi was specifically excluded from the prisoner transfer program.  In any event he wasn’t released under that.”

Mr Blair added: “Everyone is always saying, “Didn’t the Libyans ever raise it.”  In fact they were always raising it, and I was always explaining the same thing to them which is there’s nothing that can be done about it.  You have to go to the Scottish executive, not the British government.”

In fact, the Prisoner Transfer Agreement was not in place when Mr Blair left office.  Correspondence between the Scottish and UK government’s indicate that a pledge from the then Lord Chancellor Lord Falconer to the Scottish Justice Secretary Kenny MacAskill in June 2007 that “any Prisoner Transfer Agreement with Libya could not cover Mr al-Megrahi” was never honoured.

A letter from Lord Chancellor Jack Straw in December 2007 subsequently confirmed that “in view of the overwhelming interests for the United Kingdom”, Megrahi would not be excluded.

Mr Straw wrote: “I had previously accepted the importance of the al-Megrahi issue to Scotland and said I would try to get an exclusion for him on the face of the agreement.  I have not been able to secure an explicit exclusion.”

In all, the First Minister Alex Salmond and Justice Secretary Kenny MacAskill wrote to the UK Government on eight separate occasions – and as late as September 2008 – insisting that Megrahi should be excluded from the terms of the PTA.   However the UK Labour Government refused the requests because of trade and diplomatic factors with the Gaddafi regime.

Tony Blair’s claim that Mr Megrahi had been excluded from any PTA when he left office was further undermined when his former aide, who was with him at the time of the ‘Deal in the Desert’ John McTernan, claimed that al-Megrahi had indeed been part of the deal.

Speaking on Newsnight last summer, Mr McTernan said that the Libyan had been included in the deal in recognition of Gaddafi having given up nuclear weapons and that the British government would have been happy to see Megrahi sent back to Libya.

Commenting, SNP Westminster Leader and Foreign Affairs Spokesperson Angus Robertson MP said: “Not for the first time, Tony Blair has been caught out being economical with the truth.  The reality is that the Scottish Government repeatedly called on the UK Labour Government to exclude Megrahi from the terms of the PTA, but they reneged on their pledge to do so.  It is inconceivable that it would have been any different had Tony Blair remained in office.

“The fact is – as we know from Sir Gus O’Donnell’s report – that the UK Labour Government did ‘all it could’ to facilitate Megrahi’s release for reasons of trade and diplomacy with the Gaddafi regime.

“Just as Tony Blair was incapable of telling the truth about the invasion of Iraq, he is being extremely economical with the truth about Labour’s hypocrisy over Megrahi.”

Controversy has always surrounded Mr Blair’s now notorious ‘Deal in the Desert’ with Gaddafi.  In 2007 there was anger after details of the secret deal was made public by the then newly elected First Minister Alex Salmond.

The First Minister’s exposing of the secret negotiations between the British government and the former Libyan dictator led to an infamous spat between Mr Salmond and the BBC presenter Kirsty Wark.  The BBC were subsequently forced to issue an apology.

[The Herald's report on the matter can be read here.]