Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

  

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 
          

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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 [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

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.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]

Giaka's second day in witness box

[On this date in 2000, Libyan defector Abdul Majid Giaka spent his second day in the witness box at the Lockerbie trial. What follows is the contemporaneous report published on TheLockerbieTrial.com:]

The Crown's star witness returned to the witness box today for a continuation of the defence counsel's attacks started yesterday by William Taylor QC for Megrahi. Today he was branded a "liar" and as a desperate man who made "incredible" claims to his CIA paymasters.

Giaka was accused by both Richard Keen QC for Fhimah and Taylor of fabricating crucial evidence to stay on with the CIA when it became clear that they were about to ditch him.

William Taylor said that two years after the Lockerbie bombing, CIA telegrams revealed Giaka was a "shattered" man who desperately needed to come up with new information for his CIA handlers.

He suggested Giaka offered new information within hours of a make-or-break meeting with the CIA and US Department of Justice officials.

The Americans, he suggested were saying "come up with something and the future is rosy, come up with nothing and you're cut off without a penny."

The court heard, that only then did Giaka say he saw one of the defendants with a suitcase like the one which contained the bomb, a "fact" that he had failed to mention in his previous two years as a CIA informer.

The defence team also highlighted the bizarre claims Giaka made to the CIA about Libyan leader Colonel Qadafi being a freemason. In one episode, more reminiscent of a farce than a Scottish murder trial, Richard Keen QC asked Giaka about some of the "incredible" claims he had made to the CIA.

Keen said Giaka had told his CIA handlers and the US Grand Jury that he was a relative of King Idris of Libya and that Colonel Qadafi was involved in an international Masonic conspiracy.

The question: "How did you discover that Colonel Gadaffi is a mason?" was put to Giaka six times.

Giaka repeatedly asked Keen for the source of his question before Lord Sutherland intervened and ordered Giaka to answer the question.

"The person is in Libya and for security considerations I can't mention the name of that person" replied Giaka.

Mr Keen asked how Giaka knew the president of Malta and the Libyan foreign minister were also masons, and Giaka said he did not remember.

"Do you remember suggesting that they were somehow conspiring together as masons over a political matter," said Mr Keen.

"I don't recall," replied Giaka.

"It's such a strange accusation to make that it would surely stick in your memory," responded Keen.

Later in his testimony responding to more awkward cross-examination, Giaka said, "I was not given any offer to act as a witness or any other offer. They did not try to buy me off."

"You also told the Americans that you were a relative of King Idris, the last king of Libya."

Giaka said he had never made this claim, suggesting the comment might have arisen from a translation error during an interview with CIA agents.

Keen pressed on, "Mr Giaka, you are a liar, aren't you? You tell big lies and you tell small lies, but you lie, do you not?"

Giaka said, "I do not lie about anything."

Secret cables revealed the CIA were disappointed with the information Giaka had given them into the Libyan intelligence service, said Taylor.

American agents reported Giaka was pressing them to boost his $1,000 per month CIA pay by $500 and was becoming "desperate" as he struggled to find himself a new role in life after leaving the Libyan secret service.

He even asked the CIA to give him $2,000 so he could import bananas from Malta to Libya and make a large profit, said one CIA telegram.

William Taylor said none of the scores of CIA documents about Giaka in the two years after the bombing mentioned his account of seeing defendant Fhimah collect a brown Samsonite suitcase from the luggage carousel at Malta airport and walking out without it being checked by Customs.

Taylor went on: "There's no mention of any incident like the one you described involving a brown Samsonite suitcase in the CIA cables at all. There is a deafening silence on this."

Taylor said Giaka requested an emergency meeting with the Americans on July 13, 1991, and met them on a US warship off Malta, when the CIA was going to decide whether to retain his services.

"Lo and behold, the deafening silence ends the very next day when you come up with a brown Samsonite suitcase and this rubbish about Customs," said Taylor.

"The very next day is the first mention by you, Giaka, of these matters."

Giaka replied that the American officials were very good investigators who could distinguish between truth and lies.

Comment

After day two of the testimony of the Libyan informer, Abdul Giaka, the Crown must be breathing a sigh of relief that tomorrow will be his last day in the witness box.

The court was once again treated to the "evidence" of the crown star witness and it plumbed new depths in terms of Giaka's bizarre statements of high level Masonic conspiracy.

The very mention of Freemasonry in court today must have set several hearts fluttering as it is a well known fact that Freemasonry can count many lawyers amongst its brethren.

It was clear from Giaka's demeanour that he was ill prepared for the cross-examination he is undergoing. Although it is common practice to coach witnesses with mock cross-examination, a number of questions put to Giaka seemed to throw him. This suggests either that his coaching by the Department of Justice was not as thorough it might have been or that they were completely outmanoeuvred by Taylor and Keen.

It now appears that the US Department of Justice is downplaying the importance of Giaka as a witness, as they told one American relative today that the Crown had "done enough to secure convictions, without Giaka." This of course is a complete reversal of the mantra coming from Washington and Edinburgh for years.

Many relatives have been putting very awkward questions to the DOJ today regarding what they see as evidence from Giaka which has been very unhelpful to the Crown's case.

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

Crown caught out misleading the court

[On this date in 2000, the procurator fiscal in charge of preparations for the Lockerbie trial wrote a highly significant memorandum to two of the senior advocate deputes prosecuting the case. A redacted copy of the memorandum can be read here. When the memorandum eventually came into the public domain more than a decade later John Ashton commented as follows:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March [2012], Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case.

    

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter.  

    

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted.

    

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta.

    

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court.          

    

But it's what followed a few paragraphs later that's key. MacFadyen reported that, having inspected the cables:

    

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

    

MacFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

    

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that MacFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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 [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in MacFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

    

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling.

    

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which MacFadyen and Turnbull were seemingly unaware.

    

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'.

    

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

    

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'.

    

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that MacFadyen and Turnbull deliberately concealed evidence that they knew would by helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement.

    

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi.

    

The big remaining question raised by the MacFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one. 

Majid Giaka's CIA handler speaks out "after a lifetime of silence"

[What follows is excerpted from a report by Paul Martin headlined Former CIA agent reveals he was excluded from Lockerbie bombing inquiry published today on The Telegraph website:]

A former CIA agent has claimed he was excluded from the original Lockerbie bombing trial and that investigators should turn their attention to the "true culprit" – Iran.

John Holt, 68, says he was the author of secret cables showing that the Libyan double agent put forward by Scottish prosecutors as the star witness in the Lockerbie bombing trial had a history of "making up stories".

Mr Holt was never sent to the trial by his bosses, even though he had been the CIA handler for Libyan double agent and principal witness Abdul-Majid Giaka.

"I have reason to believe there was a concerted effort, for unexplained reasons, to switch the original investigations away from Iran and its bomb-making Palestinian extremist ally the PFLP General Command. Now we should focus a new investigation on the Iranians and their links with the bomber," he told The Telegraph in an exclusive interview.

"I would start by asking the current Attorney General, William Barr, why he suddenly switched focus in 1991, when he was also Attorney General, from where clear evidence was leading, toward a much less likely scenario involving Libyans."

Mr Holt spoke out for the first time as Scottish Supreme Court judges consider whether to quash the conviction of Abdelbaset al-Megrahi, who died of cancer in 2012. (...)

Giaka became a US asset after claiming he had information about Libyan involvement with terrorism while working as an assistant to the station manager of Libyan Arab Airlines (LAA) in Malta.

Explaining the key importance of his cables, Mr Holt said: "I handled Abdul-Majid Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing.

"My cables showed he was a car mechanic who was placed by Libyan Intelligence as Malta Airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs – or Lockerbie.

"He felt humiliated by Megrahi, who was an official with the Libyan Intelligence Service. 'I was treated,' he said, 'like a dog when Megrahi came to the office.'  

"That's all reported in my cables, so the CIA knew Giaka had a grudge against Megrahi.

"Every time I met Giaka, which was each month or two, I would also ask him if he had any information at all about the Pan-Am bombing. All of us CIA and FBI field officers were asked by the CIA to keep pressing our assets for any answers or clues.  His answer was always: No.

“I expressed my opinion to the FBI that Giaka was nothing more than a wannabe who was not a real Intel Officer for the Libyans. He had no information re Lockerbie, and I told the CIA all this in comments I made in my cables. He went back to Libya at the end of 1989 and I moved on to another assignment.  

"In 1991 Giaka told the CIA that he had been exposed and the Libyans would kill him. When he was told he was useless to our intelligence services [the CIA and FBI], he began making up stories.

"It was only when he needed desperately to get some financial and logistical support from the US to flee Libya in 1991 that he started telling the CIA things relevant to the PanAm-103 bombings – like hearing Megrahi and another man talking about a plan to bomb an American airliner." (...)

Mr Holt alleges he first realised there was an effort to distort the realities when called into the office of the CIA director George Tenet.  

There, his description of Giaka was not included in the initial presentation of evidence to the trial. Later, summoned a second time to the director's office, his cables were thrust in front of him by FBI agents and he claims he was told to sign that they were written by him. He says no explanation was given. These were eventually released to the trial by the CIA, with some 'redaction', in 2000.

"Operational cables that I wrote did not get sent to the original trial," he revealed. "They were withheld by the CIA and the FBI, who – even when my cables did emerge – declined to let me give evidence to the Scottish court hearing, held in Camp Zeist near Utrecht.  

"We now all need to admit we got the wrong man, and focus on the real culprits."

After 24 years of distinguished service with the CIA, Mr Holt has had deep concerns about speaking out. He has chosen his words with great caution, anxious to avoid accusations that he has leaked any secrets that could compromise his former agency.

"I'm speaking out now, after a lifetime of silence. But I feel deeply frustrated and I want justice to be done," he said.

Mr Holt believes intelligence services worldwide already have enough evidence to pinpoint the Lockerbie perpetrators.

"Whatever the Scottish Supreme Court decides, Britain should reopen the whole Lockerbie saga, have a heart-to-heart with the Americans, and go after Iran," he told The Telegraph.

"I have reason to believe that the three security agencies of the US Government were working on evidence pointing directly to Iran, before the Libyan connection was brought into play.  I believe the US Government tried to hide evidence for political reasons, and Britain also was willing to go along with this.

"I have reason to believe that a crucial decision was made in 1991 by the US Justice Department and its enforcement arm the FBI: to drop all evidence pointing toward Iran and instead manipulate the evidence to place blame on Gaddafi's Libya. Gaddafi was a long-time nemesis to numerous US presidents."

Mr Holt feels that Americans were particularly keen to pin the blame for Lockerbie on Libya because of an ongoing feud. After the coup that brought Gaddafi to power, the Libyans had expelled American oil companies from oil drilling fields, and US forces from a massive American-built airbase constructed during the Cold War.

And in the 1980s the Gaddafi regime was suspected of being a massive danger to the West by developing a secret WMD programme.

He said the first thing British and US intelligence officers should do is demand access to the former chief of Libyan intelligence, Abdallah Senoussi, son-in-law of Colonel Gaddafi, who is still languishing in a Libyan jail under sentence of death. 

Gaddafi and his henchmen were overthrown, with British military intervention, in 2011 and Senoussi, now aged 60, was convicted in 2015 for crimes against humanity that had no connection with Lockerbie.

"An interpretation is that the British and the US are not demanding to see him – because they already know Libya did not do it," says Mr Holt.

One might have expected more in the way of hard evidence

[What follows is the text of an article by Ian Ferguson that was published on this date in 2000 by Middle East Intelligence Bulletin:]

Set in the tranquility of the Dutch countryside, the trial of the two Libyans accused of bombing Pan Am flight 103 and killing 270 persons on December 21, 1988 has not yet reached it's 50th day in session, yet it is already clear that the prosecution's case is showing signs of major cracks. The investigation, which led to the charges being brought against Al-Amin Khalifa Fhimah and Abdel Basset Ali al-Megrahi, was heralded as the largest criminal investigation in history. With the combined resources of the Scottish Police, the FBI and the CIA being brought to bear on this case, one might have expected a case which contained more in the way of hard evidence. Thus far, however, the Crown has presented a case composed entirely of circumstantial evidence and recent revelations at the trial show that some of it may be fatally flawed.

In the last few weeks we have seen an issue develop at the trial concerning the evidence of Libyan informer Abdul Majid Giaka. Prosecuting authorities on both sides of the Atlantic have for many years now indicated that this man would be their star witness. Skeptics were told to stay quiet and await his testimony at the trial. Giaka, who has been in the U.S. Witness Protection Program since July 1991, arrived at Camp Zeist on August 14 expecting to testify at the trial. The nearest he got to the courtroom was driving past it in his motorcade of US deputy marshals who provide his protection and he flew back to the United States on August 31. During those two weeks, instead of hearing the testimony of Giaka, the court has been preoccupied with legal submissions and arguments over a number of classified CIA cables sent by Giaka's handlers in Malta back to CIA headquarters in Langley, Virginia.

The legal row erupted on August 22 when the court reconvened after the summer recess. William Taylor, QC for Megrahi, informed the judges that there were some 25 CIA cables relating to Giaka and that he had been informed the day before that the prosecution had seen much fuller versions of these cables than had been provided to the defense, thus placing the defense at distinct disadvantage. The Crown admitted that they had been shown a version of these cables on June 1 and that what they had seen was "blacked out" or redacted from the version given to the defense.

The Lord Advocate of Scotland, Colin Boyd, told the court that what Advocate Depute Alan Turnbull QC had seen was irrelevant to the defense's case and was also information which could be a threat to the national security of the United States. The judges were not impressed with this argument and ordered Boyd to use his best endeavors to approach the CIA and have these edited portions made available to the defense. Meanwhile, the court agreed with the defense that they could not hear the testimony of Giaka until the issue of the CIA cables was resolved.

Alongside the CIA cables, the defense also challenged another item--a diary belonging to Fhimah that the Crown wished to present to the court. The court was told that the diary was obtained without a search warrant and as such they challenged its admissibility.

By Friday of that week, Boyd had produced for the defense and the court the largely unedited versions of the CIA cables. The contents were regarded by the defense as being "highly relevant" to their case. During lengthy legal debates we were treated to some of the "irrelevant" information that the Crown had decided should be denied to the defense. The idea that the Crown saw themselves as the arbiters of this information was at best an appalling lack of judgment and at worst an attempt to suppress information damaging to their case.

The new information showed that the CIA agents in Malta had questioned the value of Giaka as an informer. In a cable dated September 1989 (over a year after the CIA recruited him as an informer), they contemplated cutting off his $1000 per month salary as he had not provided them with the quality of information they had hoped he would. They doubted that he was an agent for the JSO (Libyan External Intelligence) and had decided to inform him that he would be put on "trial" status until January 1990. This is hardly a ringing testimonial for any informer and its importance to the defense was enormous.

If the CIA agents closely involved with Giaka held this opinion in September 1989, what happened in the intervening period to July 1991 to alter this opinion and make his testimony so crucial to this trial? If he possessed any information linking either of the two accused to the Pan Am 103 bombing, why was it not offered in the months leading up to the attack in December 1988, at which point Giaka had already been on the CIA's payroll for four months? Could it be that he was not able to supply them with this information until a decision was made to shift the focus of the investigation from Syria and Iran to Libya?

Evidence already given at the trial by a senior Scottish Police detective, Harry Bell, shows that a photograph of Megrahi was first shown to Maltese shopkeeper Tony Gauci in February 1991, after Bell was contacted by Special Agent Philip Reid of the FBI. Once again we are forced to ask why it took so long for Giaka to implicate Megrahi or Fhimah. Did it take from August 1988 until February 1991 for Giaka to implicate either of the accused? We certainly can deduce that it must have been at least after September 1989, when coincidentally his source of CIA money was threatened with withdrawal.

The use of information gathered by paid informers is already a contentious issue before courts in many jurisdictions and it has certainly become a major issue at this trial. The issues relate to motivation and credibility. Giaka would have been made aware that the US Department of Justice was offering a huge reward (around $4 million) for information leading to the conviction of those responsible for the bombing of Pan Am 103 and this may prove to be yet another hurdle for the prosecution to overcome.

The defense, sensing that the CIA may hold further information on Giaka, as well as on other groups that were originally the prime suspects in the investigation, successfully petitioned the court to once again have the Lord Advocate use his "best endeavors" with the CIA and request that it hand over all information it had on Giaka and the Damascus-based Popular Front for the Liberation of Palestine-General Command (PFLP-GC), specifically Mohammed Abo Talb, a member of the PFLP-GC.

On September 21, the court will hear whether or not the Lord Advocate has been successful in his requests to the CIA. If he is unsuccessful in his "best endeavors" route, the judges have left the door open to revisit another submission from Richard Keen QC for Fhimah, which they rejected in favor of asking Boyd to explore his present course of action. The legal remedy sought by Keen was for formal "letters of request" to be submitted to the U.S. government so that a federal judge can review all the pertinent documents held by the CIA and sanction the release of such documents (excluding those which pose a real threat to American national security). The judges originally rejected this request because Boyd informed the court that this procedure might take anywhere from six months to two years, during which time the court would have to be adjourned. Such a lengthy adjournment would likely be greeted by an outcry from many of the families of those murdered on Pan Am flight 103, but it may be the only solution for the judges to ensure that the accused receive a fair trial.

In any case, the Crown still has other problems with regard to the testimony of another contentious witness: Mohammed Abo Talb, who is currently serving a life sentence in Sweden for terrorist attacks in Copenhagen. Talb was originally the prime suspect in the Pan Am 103 bombing and has been named in the special defense cited by lawyers for both accused Libyans.

Talb has been linked to a PFLP-GC cell that was operating in Malta during 1988 and police found a diary in his Swedish apartment in which the date of December 21, 1988 (the day of the Pan Am bombing) is circled. Needless to say, this circumstantial evidence incriminates Talb at least as much as the note in Fhimah's diary saying "get Air Malta taggs" (sic) incriminates the accused. When Maltese shopkeeper Tony Gauci was asked to look at the photograph of Megrahi, he commented that this photograph "most resembled the man who bought clothes" in his shop, but went on to say "other than the picture of the man shown to me by my brother." The other picture Gauci was referring to was a photograph of Talb shown to him by his brother Paul.

The clothes in question are alleged to have been bought by Megrahi on the December 7, 1988, remnants of which the Crown alleges were found among the wreckage of the Pan Am plane. The defense will claim that the clothes were bought earlier by Talb and will present evidence of this to challenge the prosecution's claims.

So we have as good an identification of Talb as we have of Megrahi. Moreover, Talb is a convicted bomber with connections to a group that was making bombs hidden in Toshiba tape recorders that were nearly identical to the one alleged to have brought down Pan Am flight 103. We have also learned that Talb has agreed to testify at the Camp Zeist trial in return for a reduction in his sentence. A senior source in the Swedish police, who spoke on condition of anonymity, confirmed that an arrangement has been reached between the UK and Swedish authorities which will allow Talb to apply successfully for a "time limit" to be put on his sentence in return for his cooperation with Scottish prosecutors.

Talb, who has consistently refused to be interviewed by the defense, was thought extremely unlikely to attend as a witness and, as the Scottish court has no power of subpoena, there has been speculation for months as to why he would even contemplate attending. It is now clear that the prospect of a release date was the price for his cooperation, but it will no doubt be another issue raised prior to or during his testimony. Whether the case against the Libyans will stand up to scrutiny in court cannot be predicted, but clearly the events of the last few weeks have been the biggest setback to the Crown since the trial started on May 3.

Amid all of the publicity generated by the CIA cables about Giaka, the Crown has tried to reassure the families that all is not lost, that its case does not rely on the testimony of a single witness. For years they have been hinting at DNA, fingerprint and other hard evidence which we were told would be produced at the trial. With the Crown's case admittedly on their last evidentiary chapter, we are still waiting.

Promotions for prosecutors involved in CIA Giaka cables scandal

[What follows is the text of an item posted on TheLockerbieTrial.com on this date in 2000:]

The Lord Advocate [Colin Boyd QC] announced on Monday [9 October 2000] that Alan Turnbull QC, one of the senior Crown counsel at the Lockerbie trial, was being promoted to Home Advocate Depute. [RB: The Home AD was the most senior prosecutor in the Crown Office after the Lord Advocate and the Solicitor General for Scotland.]

The announcement has come as a surprise to many including Turnbull himself, who has of late been keeping a very low profile at the Camp Zeist trial.

Turnbull's low profile in the courtroom has had a good deal to do with the results of his trips to the CIA "reading room" at the US Embassy in The Hague.

Accompanied by Senior Procurator Fiscal Norman McFadyen, Turnbull read through the secret text of numerous CIA documents.

Presumably both he and McFadyen decided that what was hidden behind the redacted versions of the CIA cables and shown to them was not relevant to the defence case or that it did not undermine the Crown case.

Subsequent events in court have shown that the text that lay behind the redacted cables was highly relevant to the defence. What compounded the problems for the prosecution was that Turnbull and McFadyen, knowing now what lay behind the some of the redactions, must also have known that the notations written along side the redacted areas which were supposed to describe in general terms what was hidden, turned out to be utterly misleading and bogus.

These notations were obviously designed to throw any interested party off the track of what really lay behind the blacked out sections of the cables.

Turnbull clearly was clearly involved in this exercise in preparation for the Crown's examination of the Libyan informer Giaka but that task fell to Advocate Depute Campbell and Turnbull took a back seat.

Turnbull and McFadyen, both highly experienced prosecutors, must have been aware that allowing this deception to go forward could be damaging to the Crown's relationship to the court, leaving aside the legalities and ethical consideration of their actions.

Sources close to the trial have told us that Alastair Campbell QC, was very concerned about this and was not prepared to allow this situation to go unresolved and his actions ensured that the defence was informed.

That Turnbull and McFadyen stayed silent on these matters for so long is a real cause for concern. We do know that they had to sign confidentiality documents before the CIA would allow them to see material and one could fairly ask if they had any authority to do so, bearing in mind the Crown's responsibility to the Court. What form of undertaking Turnbull and McFadyen gave the CIA should be made public. 

Given the background to these events, the timing of the announcement of Turnbull's promotion caused surprise in many quarters.

Informed sources have told us that that there are several members of the legal profession considering lodging formal complaints with the Faculty of Advocates and the Law Society of Scotland regarding the conduct of Alan Turnbull and Norman McFadyen in relation to the CIA cables. 

[RB: In March 2003 there was also promotion for Norman McFadyen. He became Crown Agent, the civil service head of the Crown Office and Procurator Fiscal Service. These two promotions tellingly illustrate just how seriously Lord Advocate Boyd took the Crown’s shameful behaviour over the CIA Giaka cables.

All four of the prosecution lawyers mentioned above are now judges in Scotland.]