The Times of Malta on the CIA Giaka cables

[Today's edition of the Maltese newspaper The Times contains a report on the CIA cables relating to the Pan Am 103 bombing that were referred to in a post on this blog on 5 September 2011. The report reads in part:]

Malta was a “primary launching point” for Libyan intelligence and terrorist teams transiting Europe, according to a recent compilation of declassified CIA cables dating between 1988 and 1991.

But campaigners for justice in the Lockerbie bombing case have slammed such claims, describing the CIA’s main informant as a “money-grubbing fantasist” who led the CIA by the nose.

The informant quoted extensively in the 255-page document (taken predominantly from declassified CIA cables released in 2008 and compiled by an international organisation) is Abdul Majid Giaka, whose testimony, as an informant, was pivotal in convicting Abdelbaset al-Megrahi for the Lockerbie bombing, despite the court having cast doubts on Mr Giaka’s credibility and reliability as a witness. [RB: Giaka's testimony was not "pivotal" in convicting Megrahi. The Lockerbie judges rejected his evidence in its entirety, with the exception of that part relating to the structure of the Libyan security and intelligence services and Megrahi's alleged position in them.]

According to Lockerbie campaigner Robert Forrester, the recently compiled cables are so heavily redacted that any effort to corroborate the veracity of intelligence is impossible.

“Giaka was showered with US tax dollars in return for nothing of substance,” he told The Times.

Mr Forrester – who forms part of a group of Lockerbie victim family members who believe Mr al Megrahi was wrongly convicted – also criticised the CIA for showing no indication of having tried to independently corroborate any of the “so-called intelligence”. [RB: The Justice for Megrahi group, of which Robert Forrester is secretary, is not, of course, "a group of Lockerbie victim family members" but a group of concerned persons, some of whom are Lockerbie family members.]

“It really does look like [the CIA] swallowed it all, hook, line and sinker, until it finally dawned on them that he was worthless,” he said.

“These additional papers detailing the CIA’s relationship with Mr Giaka, add little to what is already known and to the doubts which have always hung over this case... Malta has absolutely no reason to think that these documents taint the island’s good name any more than it has been.”

However, he added that it is up to the Maltese government to take “concrete steps” to lift the cloud of Lockerbie which hangs over the island.

“The evidence is there which proves that there is no evidence to support this conviction.”

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.

CIA memos reveal doubts over 'key' Lockerbie witness

[This is the headline over a report published in The Independent on this date in 2008. It reads as follows:]

A Libyan "double agent" who was central to the CIA's investigation into the Lockerbie bombing exaggerated his importance in Tripoli's intelligence apparatus and gave little information of value, yet is still living at the US taxpayers' expense in a witness protection programme, according to previously unseen CIA cables.

Five months before the destruction of Pan Am flight 103 in December 1988, 27-year-old Majid Giaka turned up at the US embassy in Malta and "expressed a desire to relocate ... in return for sensitive information on Libya", in the words of a cable sent by a CIA case officer to his headquarters in Langley, Virginia, the same day. Mr Giaka claimed he was an agent of Libya's feared Jamahiriya security organisation, but it later turned out that he worked in the agency's garage.

More than 60 cables, uncovered in a BBC investigation, detail the relations between the Americans and a man later described in court as a real-life Walter Mitty. Mr Giaka, who said that he worked for Libyan Arab Airlines at Malta's Luqa airport as a cover, told the CIA that he wanted to remain in Malta. He promised he would co-operate fully with the CIA – in return for money.

At the time Libya was public enemy number one. But the CIA had few sources of information on the country, and Mr Giaka was put on the payroll. In return for information about Libyan officials coming and going from Malta, he received $1,000 a month and gifts. His handlers even agreed to fund $6,000 of fake surgery on his arm, so that he could avoid military service back home.

In the summer of 1989, the Lockerbie investigation was uncovering evidence which pointed to a Libyan connection, and the FBI believed the suitcase which blew up Pan Am flight 103 had started its journey from Luqa airport. The CIA hoped its Libyan agent would have inside knowledge, but the case officers reported back: "Giaka does not believe explosives hidden in an unaccompanied suitcase could be inserted into the handling process at Luqa International Airport."

The Libyan mole acknowledged that it could have been theoretically possible for officials in Tripoli to bring explosives on to the island via the diplomatic pouch, but "because Giaka believes he had the best contacts of LIA [Luqa International Airport], he does not think this type of operation could have been slipped by him".

The case officers cabled: "It is clear that Giaka will never be the penetration of the ESO [Libyan External Security Organisation] that we had anticipated ... unfortunately, it appears that our assisting him in scam surgery on his arm to avoid military service has had the reverse result that we had intended – it has also allowed him to avoid further service with the ESO, Giaka's true intention from the beginning".

But even after it turned out that he had only worked in the ESO garage, he was the only Libyan agent the CIA had in Malta, so it kept him on. By the autumn of 1989, a former Libyan Arab Airlines security official, Abdelbaset Al-Megrahi, was chief suspect for having planted the bomb on an Air Malta flight to Frankfurt (where it was transferred on to a Pan Am flight via London). But Mr Giaka "had no further information" on his one-time colleague.

Mr Giaka eventually returned to Tripoli in 1990 after the CIA money dried up. But the agency kept in touch with him and finally persuaded him in 1991 to come to America. Nine years later, Majid Giaka arrived at the Lockerbie bombing trial in the Netherlands. He described how he had seen Megrahi and his co-accused, Khalifa Fhimah, at Luqa airport before the bombing with a large brown suitcase. But the CIA cables confirm that nearly two years before, Mr Giaka didn't remember anything.

At the Lockerbie trial, the four judges described some of his evidence as "at best grossly exaggerated and at worst simply untrue" and concluded he was "largely motivated by financial considerations".

CIA memos reveal doubts over 'key' Lockerbie witness

[This is the headline over an article published in The Independent on this date in 2009. It reads as follows:]

A Walter Mitty type convinced the Americans he was a Libyan intelligence agent when he worked in the agency's garage

A Libyan "double agent" who was central to the CIA's investigation into the Lockerbie bombing exaggerated his importance in Tripoli's intelligence apparatus and gave little information of value, yet is still living at the US taxpayers' expense in a witness protection programme, according to previously unseen CIA cables.

Five months before the destruction of Pan Am flight 103 in December 1988, 27-year-old Majid Giaka turned up at the US embassy in Malta and "expressed a desire to relocate ... in return for sensitive information on Libya", in the words of a cable sent by a CIA case officer to his headquarters in Langley, Virginia, the same day. Mr Giaka claimed he was an agent of Libya's feared Jamahiriya security organisation, but it later turned out that he worked in the agency's garage.

More than 60 cables, uncovered in a BBC investigation, detail the relations between the Americans and a man later described in court as a real-life Walter Mitty. Mr Giaka, who said that he worked for Libyan Arab Airlines at Malta's Luqa airport as a cover, told the CIA that he wanted to remain in Malta. He promised he would co-operate fully with the CIA – in return for money.

At the time Libya was public enemy number one. But the CIA had few sources of information on the country, and Mr Giaka was put on the payroll. In return for information about Libyan officials coming and going from Malta, he received $1,000 a month and gifts. His handlers even agreed to fund $6,000 of fake surgery on his arm, so that he could avoid military service back home.

In the summer of 1989, the Lockerbie investigation was uncovering evidence which pointed to a Libyan connection, and the FBI believed the suitcase which blew up Pan Am flight 103 had started its journey from Luqa airport. The CIA hoped its Libyan agent would have inside knowledge, but the case officers reported back: "Giaka does not believe explosives hidden in an unaccompanied suitcase could be inserted into the handling process at Luqa International Airport."

The Libyan mole acknowledged that it could have been theoretically possible for officials in Tripoli to bring explosives on to the island via the diplomatic pouch, but "because Giaka believes he had the best contacts of LIA [Luqa International Airport], he does not think this type of operation could have been slipped by him".

The case officers cabled: "It is clear that Giaka will never be the penetration of the ESO [Libyan External Security Organisation] that we had anticipated ... unfortunately, it appears that our assisting him in scam surgery on his arm to avoid military service has had the reverse result that we had intended – it has also allowed him to avoid further service with the ESO, Giaka's true intention from the beginning".

But even after it turned out that he had only worked in the ESO garage, he was the only Libyan agent the CIA had in Malta, so it kept him on. By the autumn of 1989, a former Libyan Arab Airlines security official, Abdelbaset Al-Megrahi, was chief suspect for having planted the bomb on an Air Malta flight to Frankfurt (where it was transferred on to a Pan Am flight via London). But Mr Giaka "had no further information" on his one-time colleague.

Mr Giaka eventually returned to Tripoli in 1990 after the CIA money dried up. But the agency kept in touch with him and finally persuaded him in 1991 to come to America. Nine years later, Majid Giaka arrived at the Lockerbie bombing trial in the Netherlands. He described how he had seen Megrahi and his co-accused, Khalifa Fhimah, at Luqa airport before the bombing with a large brown suitcase. But the CIA cables confirm that nearly two years before, Mr Giaka didn't remember anything.

At the Lockerbie trial, the four judges described some of his evidence as "at best grossly exaggerated and at worst simply untrue" and concluded he was "largely motivated by financial considerations".

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."

Former Lord Advocate ... seriously misled the Megrahi Court claims book author

[This is the headline over a report published today on the Newsnet Scotland website.  It reads in part:]

Former Lord Advocate, Colin Boyd QC, has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyan’s were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC.

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashcroft, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr Boyd explained that according to Crown QC Alan Turnbull: “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 case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “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.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

The defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “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”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]

Lockerbie court rejects bid for further CIA Giaka cables

[This is the headline over a report published on the BBC News website on this date in 2000. It reads as follows:]

Judges at the Lockerbie trial have ruled that a Libyan double agent working for the CIA should enter the witness box next week.

Abdul Majid Giaka, who is living under protection in the US where he defected 10 years ago, is expected to be flown to The Netherlands to begin giving evidence on Tuesday.

When the trial resumed on Thursday after a three-week adjournment, defence lawyers sought a further delay in his appearance.

But that has been overruled and Giaka is expected to give evidence over several days to the Scottish Court at Camp Zeist.

Giaka's appearance has been held up repeatedly by defence objections and legal debate.

At the heart of the objections has been the issue of the availability of notes of interviews held between Giaka and his CIA handlers in America.

These papers - or cables - have been trickling out with varying degrees of censorship.

Defence lawyers William Taylor QC confirmed on Thursday they had received 36 additional cables.

But their contents suggested there was even more key CIA evidence they wanted to see, particularly relating to possible Palestinian involvement in the bomb plot.

Scotland's Lord Advocate Colin Boyd QC, who heads the prosecution team, said the latest CIA evidence provided more details on Giaka himself.

There were also details about his CIA "rewards" and information about two Palestinian terror groups which, he acknowledged, had originally been strong suspects in the Lockerbie inquiry.

Presiding judge Lord Sutherland said the request for more information could only be accepted if there was a "valid basis" for calling on the CIA to produce them, if the documents had "proper purpose" and if they would be of "material assistance" to the defence.

The court also had to consider whether failure to produce such documents would jeopardise the fairness of the trial of the two men accused of the 1988 Lockerbie bombing.

After consulting his two fellow judges he told the court: "On the information placed before us we are not satisfied that the criteria have been met."

At the time of the Lockerbie bombing in December 1988 Giaka was already on the CIA payroll, working for Libyan Arab Airlines at Malta airport.

His court appearance is likely to be behind screens.

Giaka is believed to have been pressing for a disguise as well. When he gave a statement to prosecution lawyers last year he met them on a moving bus while wearing a Shirley Bassey wig.

His concern not to be seen reflects constant fears that Libyan agents have been out to murder him ever since his defection to America.

[RB: The history of this disgraceful episode can be followed here.]

One of the most disgraceful episodes in the Crown Office’s recent history

Two years ago today, I posted on this blog an item headed Former Lord Advocate ... seriously misled the Megrahi Court claims book author.  It bears repeating:

[This is the headline over a report published today on the Newsnet Scotland website.  It reads in part:]

Former Lord Advocate, Colin Boyd QC, [now Court of Session judge, Lord Boyd] has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyans were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen [now a sheriff in Ayr] claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC [now a Court of Session judge].

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashton, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr Boyd explained that according to Crown QC Alan Turnbull: “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 case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “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.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

The defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “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”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]