Giaka's evidence ends

[On this date in 2000 the evidence of Libyan defector Abdul Majid Giaka mercifully came to a conclusion. What follows is taken from TheLockerbieTrial.com’s contemporary report:]

Today saw the Libyan informer Abdul Giaka, endure his third day of questioning at the trial.

Much of the questioning today centred on money, starting with the $30,000 Giaka claimed he had saved. Richard Keen suggested that this money was made in illegal black market currency deals.

When questioned about how he supported himself when his salary from the JSO (Libyan Intelligence service) was stopped, Giaka answered that it was cheap to live in Libya. He denied the suggestion put again by Keen that the Black market money deals were the source of his income.

When Keen asked him if he had been promised a $4 million dollar reward, Giaka denied this although he admitted that he was aware of it.

Keen moved on to ask Giaka if he read much American literature and specifically had he read The secret life of Walter Mitty. The witness said he could not recall.

The Crown's attempt to rehabilitate Giaka and salvage even a modicum of his credibility failed miserably and Giaka finally left the witness box.

Later the court heard from witness number 689, Harold Hendershot a Special Agent with the Federal Bureau of Investigation.

Hendershot agreed that he had interviewed Giaka on board a US warship on July 14 1991 and on a number of other dates in Tyson's Corner, near Washington DC and on other dates in July and August.

Hendershot confirmed that on board the warship on July 14 Giaka had given him information regarding a suitcase.

Much of the detail of this information relating to the suitcase was vague and Giaka had not been able to specify the month he had seen the suitcase. Over the next few months further details emerged, he said.

During cross-examination by William Taylor, Hendershot was asked about Mohammed Abu Talb.

Taylor asked if the witness had attempted to interview Abu Talb in connection with Pan Am 103. Hendershot said the interview had been conducted in a prison as Talb was incarcerated. He could not recall Talb refusing to be seen by any American and only agreeing to speak to Swedish Police. Taylor asked where his notes were and the witness said that his notes were in Washington. Taylor said that his evidence was valueless without the notes and confirmed to the Judge that he may require to recall the witness after taking instructions.

Richard Keen referred to a number of trips made by Hendershot to Sweden in 1989 in connection with the Lockerbie bombing. These investigations involved obtaining search warrants from the Swedish police and Talb was named on the warrant. The Swedish Police executed the search warrants with Hendershot in attendance and he was asked if he remembered the recovery of a quantity of clothing manufactured in Malta from the home of Abu Talb. Hendershot did not recall this and said he did not believe he had made notes in respect of the search. Keen suggested it was unusual to have attended such a search without taking notes. The FBI special agent said that in foreign countries there were procedures that could uncover this information. Hendershot was asked if he recalled the recovery of watches and other electrical items, which were in stages of being, dismantled but he could not recall.

Hendershot could not recall whether Talb was in police custody or had already been convicted when he met with him. He said he did know he was at some point convicted of bombing incidents but said he did not know these had occurred outside Sweden. He was asked if he recalled the seizure of a calendar from Talb's house, which was relevant to Pan Am 103. This calendar, Keen said, had December 21 ringed or marked. The witness said that he did not remember but would presumably have noted this if it had been brought to his attention.

Keen suggested another reason Hendershot was in Sweden was because he had been informed of links between Talb and PFLP in Germany and the witness said he recalled travel between Sweden and Germany, which was believed to have something to do with the movement of explosives and the PFLP. Hendershot said he would be able to answer more fully if he had his notes with him.

Taylor asked him if he recalled that a reward was available in connection with the bombing of Pan Am 103. He said yes but could not confirm the exact amount but knew it was more than $1 million. Bill Taylor then confirmed that he would not require to recall the witness.

The next witness from the FBI spoke to money recorded spent on Giaka. In total payments of $110,800 had been made up to the present. (...)

Comment

Now you see him now you don’t. By the time the trial resumes Friday, Giaka is likely to be well on his way back to his US hideaway.

We may never know his thoughts on his camp Zeist experience, but his name will live on in the annals of Pan Am 103 as the most expensive witness ever to testify at any trial. This might have been acceptable if the evidence he gave was even remotely persuasive, but only the most blinkered of observers could say anything positive about Giaka's testimony.

The Department of Justice, who have touted Giaka as the greatest thing since sliced bread, will undoubtedly have some explaining to do when the dust settles.

Whatever the outcome of the trial, Giaka's contribution has been described as "totally useless" by one family member and a "complete waste of time" by another.

But should we be blaming Giaka or those who promoted him. It was clear from the moment that the CIA wrote the cables suggesting that he was providing no useful information that the FBI should have taken that assessment into consideration before making a lifetime commitment to protecting Giaka and his family.

So desperate was the FBI for anything that resembled evidence in the Pan Am investigation they jumped at the chance of getting Giaka, warts and all. They denounced any journalist or commentator who dared suggest that Giaka would prove to be a witness whose testimony was shot full of holes. They sang his praises and talked in glowing terms of having "dinner with Majid."

Today they dismiss his testimony to family members as "never having been really important in the scale of things."

We understand that the recriminations are already underway and if "buck passing" was an Olympic event there are certain DOJ personnel at Zeist who would be stepping up to collect gold.

"Poorest excuse of the day" prize has to go to FBI Special Agent Harold Hendershot, a senior agent who came all the way to the trial of the century and was overcome with a case of "I cannot recall". (He was unsure of many issues relating to Talb, which is surprising, considering Talb was at one time, THE number-one suspect for this bombing.) On top of this our intrepid FBI agent claimed that he had left his notes in Washington. Obviously Special Agent Hendershot missed the class at Quantico which dealt with "preparation for a trial."

[A verbatim transcript of Giaka’s evidence can be found here.]

It remains a mystery how Megrahi came to be convicted

[On this date in 2000, the Crown at Camp Zeist closed its case against Abdelbaset Megrahi and Lamin Fhima. In an article that I wrote at the time for The Lockerbie Trial website, I attempted to assess what the evidence led by the Crown might be held to establish:]

What could the Crown be held to have proved?

On the assumption that the witnesses who have so far given evidence which is favourable to the Crown case are accepted by the judges as being credible (ie honest and truthful) and reliable (ie accurate in their observation and recollection of events) and having regard to the matters that have been agreed between prosecution and defence in Joint Minutes, it is possible that the following might be held to have been provisionally established, always subject to any later contrary evidence which may be led by the defence.

1. That the seat of the explosion was in a particular Samsonite suitcase (which contained clothing manufactured in Malta and sold both there and elsewhere) at or near the bottom of a particular aluminium luggage container (AVE 4041).

2. That the bomb had been contained in a black Toshiba RTSF-16 cassette recorder.

3. That a fragment of circuit board from an MST-13 timer manufactured by MeBo AG formed part of the timing mechanism which detonated the bomb.

4. That MeBo AG supplied MST-13 timers to the Libyan army, and may have done so also to other customers such as the East German Ministerium fuer Staatssicherheit (Stasi).

5. That the first-named accused, Abdelbaset Ali Mohmed al-Megrahi, was a member of the Libyan intelligence services; was known to the owners of MeBo AG; was involved, in an official capacity, in obtaining for Libya electronic equipment (including timers) from MeBo; and that a company of which a Libyan intelligence operative was a principal for a time had office accommodation in the premises occupied by MeBo in Zurich.

6. That Megrahi possessed and used Libyan passports in false names.

7. That Megrahi, on occasion under the false name of Ahmed Khalifa Abdusamad, visited Malta on a number of occasions in 1988, including the night of 20/21 December.

8. That Megrahi arrived in Malta by air from Tripoli with a hard shelled brown suitcase at some point in the two or three weeks following 7 December 1988. [RB: This evidence came from Abdul Majid Giaka whose testimony on this and all other issues, except the structure and membership of the Libyan intelligence services, was ultimately held by the judges to be wholly lacking in credibility and rejected.]

9. That some weeks before 21 December 1988 a person who “resembled a lot” Megrahi, but who also “resembled a lot” Mohamed Abu Talb (a Crown witness named in the special defence of incrimination lodged by the defence) bought in Malta items of clothing that the Crown claims were in the suitcase that contained the bomb.

10. That in 1986 a conversation took place between Megrahi and Abdul Majid Giaka regarding the possibility of a piece of unaccompanied baggage being inserted onto a British aircraft at Malta. In the course of that conversation Megrahi used the words “Don't rush things.” [RB: This evidence, along with most of Giaka’s testimony, was ultimately rejected by the judges as wholly lacking in credibility.]

11. That the second-named accused, Al Amin Khalifa Fhima, travelled by air to Malta on 20 December 1988 and departed by air the following day.

12. That Fhima was then in possession of a permit (obtained when he was station manager for Libyan Arab Airlines) which allowed him access to airside at Luqa Airport.

13. That Fhima when he was station manager for LAA (which he ceased to be some time before the Lockerbie bombing) kept blocks of plastic explosive in his desk drawer at Luqa Airport. [RB: This evidence emanated from Giaka and was ultimately rejected by the judges as lacking in credibility.]

14. That a diary kept by Fhima contained entries for a date six days before the Lockerbie bombing referring (a) to the arrival of Megrahi in Malta from Zurich and (b) to getting tags from Air Malta.

15. That a piece of interline baggage arrived at the luggage station at Frankfurt Airport used for baggage destined for flight Pan Am 103A (the feeder flight to Heathrow) on 21 December 1988 at a time consistent with its having been offloaded from flight KM 180 from Malta.

16. That it would have been theoretically possible for a suitcase to be introduced into the interline baggage system at Luqa, although there is no documentary record of any such piece of baggage on Air Malta flight KM 180 to Frankfurt on 21 December 1988.

Apart from the consistency in timing referred to in paragraph 15 and the theoretical possibility mentioned in paragraph 16, no evidence has been led which could be held to establish that the Samsonite suitcase containing the bomb was launched on its fatal progress from Malta (as distinct from being directly loaded onto Pan Am 103 at Heathrow, or starting its journey at Frankfurt).

[RB: Having regard to the above and to the rejection by the court of the testimony of the mercenary fantasist Giaka, it remains a mystery to me how, at the end of the trial, Megrahi came to be convicted, particularly after the defence’s meteorological evidence established to the very highest degree of probability that the purchase of the clothing on Malta took place on a date on which Megrahi was not on the island.]

A date which will live in infamy

[What follows is excerpted from items contributed by me in 2000 to TheLockerbieTrial.com (and now accessible here and here):]

When the trial resumed on Tuesday 22 August [2000], the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion that there was nothing within the cables which bore on the Defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence...

"There is nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

The Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables.

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material. (...)

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made.

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."

...

In the light of the use actually, and entirely properly, made by the defence of material from those CIA cables in attacking, in the course of cross-examination [on 26, 27 and 28 September 2000], the credibility and reliability of Giaka’s evidence on matters relevant to the responsibility of the two accused men for the bombing of Pan Am 103, it may be that the Lord Advocate will (or at least should) feel that he owes an explanation of the statements made by him on 22 August 2000 which are quoted above.

Anonymous CIA officers say was evidence that supported fantasist Giaka

[What follows is excerpted from a report published today on the website of The Sun:]

CIA agents have revealed evidence that could have helped the controversial Lockerbie bombing prosecutions was withheld from trial, The Sun Online can reveal.

The revelation comes in an internal memo written by agents involved in the case following the 1988 bombing over Scotland that killed 270 people.

Campaigners say the document provides further evidence the plot was carried out by Libya and that the bomb was placed on the jet in Malta – not in Heathrow, as some have claimed.

It comprises interviews with seven anonymous CIA officers reflecting on the case and was published for one of the agency’s internal publications.

Much of it centres on Abdul Majid Gialka, a prosecution witness in the trial who had been nicknamed the CIA’s “Libyan asset” and “Puzzle Piece” because of his ability to link aspects of the plot.

Majid was a double agent who defected to the US from the Libyan intelligence service and leaked top secret information to the Americans.

His work with the CIA helped point the finger towards Abdelbaset al-Megrahi as the man who planted the bomb.

This was despite trial judges ruling they were “unable to accept Abdul Majid as a credible and reliable witness on any matter”.

But the CIA memo reveals there were further intelligence cables not shown in trial that could have supported his testimony.

It states: “[REDACTED] the court didn’t believe Majid on a lot of his points because the justices never saw a second, more extensive, batch of redacted cables, which would have confirmed much of what he said in court.”

It does not specify which of his claims could have been supported but suggests the reason for this could have been an attempt to protect CIA methods and US state secrets.

Today controversy continues to swirl around the guilt of al-Megrahi. Some claim he was innocent, while others say the bomb could have been placed on the jet in London and not Malta, where he operated.

The memo also notes a number of CIA operatives were denied the opportunity to give evidence – this time a strategic decision taken by the lead prosecutor – in support of Majid’s claims.

It states: “We all felt that it was unfortunate that they did not testify. They felt frustrated that they did not appear, because, had they appeared, they probably would have been able to bolster Majid’s credibility.

“They would have been able to corroborate and expand on a number of things that Majid had testified about but on which he had been badgered and belaboured and picked apart by the defence.”

Kenny MacAskill, the Scottish MP who made the decision in 2009 to free al-Megrahi back to Libya on compassionate grounds, told The Sun Online Majid had been rejected by the court as a “supergrass”.

“That he was, but it was clear he was telling the truth about a lot of what was going on by Megrahi and his co-accused.”

MacAskill, the author of the book The Lockerbie Bombing: The Search for Justice, added: “Moreover, it shows that the CIA had other informants not just in Libya but at the airport in Malta.

“That has never been put before the courts. All this shows Libya was responsible and Megrahi had a role in it.”

John Ashton, the author of a book that suggests al-Megrahi was innocent of the bombing, told The Sun Online the note about additional cables was “interesting, but I have trouble believing it”.

He added that Majid “was such a problematic witness that the CIA would have been keen to disclose anything that supported his testimony”.

[RB: It does not surprise me that CIA officers should try now to contend that the disaster that Giaka was for the prosecution case was not their responsibility and that, notwithstanding what his CIA handlers said about him in the notorious cables to Langley HQ, there was material that supported him. It does surprise me (but, alas, only slightly) that Kenny MacAskill should seek to lend weight to this blatant CIA self-justification attempt.]

The Crown and the CIA

[This is the title of an article that I wrote for The Lockerbie Trial website in August 2000. It reads as follows:]

When the trial resumed on Tuesday 22 August, the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion that there was nothing within the cables which bore on the Defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... 

"There is nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

The Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables.

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material.  The Court, wishing to avoid the delays which would necessarily be caused by any recourse to the American courts, has instructed the Lord Advocate again to use his best endeavours to secure the release by the CIA of these additional cables.  Only if he is unsuccessful will the Scottish Court reluctantly consider the option of a formal request through the American courts. 

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made. 

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."

The Crown and the CIA

[This is the headline over an article authored by me that was published on this date in 2000 on TheLockerbieTrial.com website which Ian Ferguson and I ran during the period of the Zeist trial and first appeal. It reads as follows:]

When the trial resumed on Tuesday 22 August [2000], the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion that there was nothing within the cables which bore on the Defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... 

"There is nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

The Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables. 

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material.  The Court, wishing to avoid the delays which would necessarily be caused by any recourse to the American courts, has instructed the Lord Advocate again to use his best endeavours to secure the release by the CIA of these additional cables.  Only if he is unsuccessful will the Scottish Court reluctantly consider the option of a formal request through the American courts. 

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made. 

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."

Legal doubt over Megrahi's guilt

[This is the headline over an article by Jason Allardyce in today's edition of The Sunday Times. The following are excerpts.]

The legal body charged with assessing the guilt of the man convicted of the Lockerbie bombing concluded his conviction may be unsafe because it relied on evidence provided by a discredited witness who had been paid by American intelligence services.

A report by the Scottish Criminal Cases Review Commission (SCCRC), due to be published later this year, is said to suggest that the testimony of Abdul Majid Giaka, a paid informer for the Central Intelligence Agency (CIA) should have been discounted by judges at Abdelbaset Ali Mohmed al-Megrahi’s trial in the Hague in 2001. [Note by RB: This is a reference to the SCCRC's full 2007 report, only a brief summary of which has so far been published.]

Giaka testified that Megrahi was an agent for the Jamahiriya Security Organisation (JSO), the Libyan intelligence service. He claimed to have seen Megrahi carrying a suitcase containing the bomb used to blow up Pan Am Flight 103, which exploded over Lockerbie in December 1988 killing 270 people, and to have discussed the plot with him.

However, declassified documents released during the trial revealed that American intelligence officials doubted Giaka’s claims to be connected to the highest level of Libyan intelligence and threatened to stop paying him $1,000 (£612) a month unless he provided better information.

The informant claimed that he worked in the secret files section of the JSO, but he was a garage mechanic. Giaka’s credibility was further undermined when he claimed to be related to royalty and that the Libyan leader was a freemason.

The defence alleged Giaka had been paid £1.6m by the American government to help secure a guilty verdict against Megrahi and his co-accused Lameen Fhima.

The judges at Camp Zeist in The Hague discounted most of Giaka’s testimony on the grounds that his co-operation with the American authorities was “largely motivated by financial considerations”. However, they accepted his testimony that Megrahi was a member of the JSO, a suggestion the accused denied. (...)

While the commission’s concerns about the reliability of Tony Gauci, a key Crown witness at Megrahi’s trial, have been made public, its doubts about Giaka’s testimony were kept secret.

A source who has seen the SCCRC document, told The Sunday Times: “The report says there was no sufficient explanation made of why the court discounted him as a credible witness yet seemed to accept elements within his evidence which asserted that Megrahi was a senior member of the Libyan intelligence service and was involved in the wider conspiracy.

“There was no actual evidence to support that, but the court accepted it. It undermined [sic; presumably "underlined" or "supported" is what is meant] the Crown’s narrative of the offence — that Megrahi was acting on behalf of Libyan intelligence. That information came from Giaka and all his other evidence was utterly discredited — yet they accepted that element.” (...)

At the trial, Megrahi’s defence team denied their client was employed by the JSO and dismissed Giaka’s testimony as “pure fantasy”.

The SCCRC’s concerns about Giaka’s testimony are shared by Michael Scharf, who was the counsel to the US counterterrorism bureau when Megrahi and Fhima were indicted for the bombing. He believes that the case should never have gone to trial.

He claimed the CIA had assured State Department officials that Giaka was “the perfect witness” and there was an “airtight” case against Megrahi and Fhima, who was cleared. “This is a bit like the OJ Simpson case, where the prosecution, together with the US government, tried to sex up the case and tried to hide the flaws,” he said.

“Unfortunately, because Megrahi’s appeal is not going to go forward we’ll never really know the full story.”

The commission’s full report, expected to be published in redacted (edited) form within weeks, is said to conclude that the failure to disclose a document thought to pertain to the bomb’s timer device, may have led to a miscarriage of justice. The evidence belonged to an unnamed foreign country, which refused to hand the material over. The British government at the time claimed public interest immunity against disclosure.

Deliberately false and misleading allegations, says rattled Crown Office

[A report in today’s edition of The Scotsman, about Justice for Megrahi’s letter to Kenny MacAskill alleging serious wrongdoing in the Lockerbie investigation and prosecution contains the following:]

But the Crown Office yesterday branded the allegations “defamatory and entirely unfounded”. A spokesman added that one of the allegations had been investigated by the Scottish Criminal Cases Review Commission (SSCRC) which found no basis for appeal, while it was also found there was “no basis” for claims that any police officers or officials fabricated evidence.

“It is a matter of the greatest concern that deliberately false and misleading allegations have been made in this way,” he added. The Lockerbie conviction has already been upheld by five appeal court judges, while Megrahi abandoned a second appeal.

[Justice for Megrahi has undertaken not to make public the allegations of serious wrongdoing in the Lockerbie investigation and prosecution until 30 days after the date of its letter (13 September 2012).  However, since the article from which the following is excerpted has been in the public domain since its publication in The Scotsman on 23 July 2007, I see no reason not to reproduce it:]

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction.

To illustrate this in the context of the Lockerbie trial, it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been more difficult, and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables. At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Second, they considered whether there was anything which would appear to reflect on the credibility of Majid... On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One judge, Lord Coulsfield, then intervened: "Does that include, Lord Advocate... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

[The allegations in Justice for Megrahi’s letter to the Cabinet Secretary for Justice are equally weighty and equally strongly founded on evidence.]

A contemporary comment on Crown's shameful conduct

[What follows is an article by me that was published on TheLockerbieTrial.com website on this date in 2000:]

It will have been apparent to anyone who has followed even cursorily the cross-examination of the Libyan defector and long-term CIA asset, Abdul Majid Giaka, by defence counsel William Taylor QC and Richard Keen QC on 26, 27 and 28 September, that much of the devastating effectiveness of their questioning derived from their ability to refer the witness to the cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings.

Discrepancies between Giaka's evidence-in-chief to Advocate Depute Alistair Campbell QC and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony.  Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the Court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

It is in this context that the submissions of the Lord Advocate, Colin Boyd QC, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unredacted or uncensored form, must be viewed.  On that occasion the Lord Advocate said that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 (Advocate Depute Alan Turnbull QC and procurator fiscal Norman McFadyen) were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence teams material relevant to the defence of the accused and, to that end, considered the contents of those cables with certain considerations in mind. 

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether there was anything which might bear upon the special defences which had been lodged and intimated in this case.  On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made on may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

Lord Coulsfield then intervened:   "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied:  "Well, I'm just checking with the counsel who made that.  In the sense in which My Lord put it to me at the start, that there may be material which relates to a completely different matter, then that cannot be said...  But, in the sense, My Lord, that there is nothing within the -- -- there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

In the light of the use actually, and entirely properly, made by the defence of material from those CIA cables in attacking, in the course of cross-examination, the credibility and reliability of Giaka’s evidence on matters relevant to the responsibility of the two accused men for the bombing of Pan Am 103, it may be that the Lord Advocate will (or at least should) feel that he owes an explanation of the statements made by him on 22 August 2000 which are quoted above.

[RB: Explanation came there none, either then or at any later time. This disgraceful Crown conduct forms the basis of one of Justice for Megrahi’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial that are currently under investigation by Police Scotland.]