Lockerbie: Human rights lawyer states Megrahi was framed

[This is the headline over an article on the World Socialist Web Site. It consists largely of a summary of Gareth Peirce's recent contribution in the London Review of Books. The following are excerpts from the new article.]

Leading British human rights lawyer Gareth Peirce has stated that, in her opinion Abdel Baset Ali al-Megrahi, the only man ... convicted of the 1988 bombing of PanAm flight 103 over Lockerbie, Scotland, was framed.

Peirce has a long track record of defending those caught in the British legal system’s most notorious miscarriages of justice. Her clients have included the Birmingham Six, the Guildford Four and Judith Ward, all of whom were Irish people accused and wrongly convicted of IRA bomb attacks in the 1970s. More recently Peirce has taken up a number of high profile cases of individuals accused in the so-called “war on terror”, including the Tipton Three and Moazam Begg, held illegally by the US government in Guantánamo Bay. She has represented the family of Jean Charles de Menezes, an innocent man shot dead by British police in Stockwell underground station in 2005.

Writing in the September edition of the London Review of Books, Peirce, of the law firm headed by Benedict Birnberg, summarises some of the most concerning, and well known, aspects of the entire Lockerbie disaster in which 270 people died, and the subsequent investigation. (...)

Abdel Baset Ali al-Megrahi and his co-accused, Llamen Khalifa Fhimah, were handed over by the Libyan government in 1999. The trial opened at a converted US airbase in the Netherlands in 2000. The indictment against Megrahi read that an MST 13 bomb timer was made in Switzerland, by MEBO AG, and sold exclusively to Libya.

Identification of the timer rested on the efforts of Thomas Hayes and Alan Feraday of the Royal Armament and Development Establishment (RARDE), along with Thomas Thurman of the Federal Bureau of Investigation (FBI).

In 1997, following an investigation by the US inspector general, Michael Bromwich, Thurman was barred from being called as an expert witness. Bromwich described Thurman as “circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in...therefore fabricating evidence”.

Thomas Hayes claimed that on May 12, 1989, he found a fragment of circuit board in the collar of a shirt later traced to a Maltese shop. The fragment itself had been found in January 1989 by British police investigating the crash site.

Peirce states, “Even if one knew nothing of the devastating findings of the public inquiry in the early 1990s into the false science that convicted the Maguire Seven or of the succession of thunderous judgments in the Court of Appeal in case after case in which RARDE scientists had provided the basis for wrongful convictions, Hayes’s key evidence in this case on the key fragment should be viewed as disgraceful”.

“Hayes”, Peirce continues, “played his part in the most notorious [miscarriage case] of all, endorsing the finding of an explosive trace that was never there, and speculating that a piece of chalk mentioned to the police by Vincent Maguire, aged 16, and a candle by Patrick Maguire, aged 13, ‘fitted the description better’ of a stick of gelignite wrapped in white paper”.

Hayes’s information regarding this crucial piece of Lockerbie evidence was also flawed. Despite having carefully documented every other piece of evidence he found, Hayes had made no drawing of this particular item and had not assigned it a reference number on discovery. He had not carried out a test for explosives. Hayes said he had “no idea” when the pagination of his notes recording findings had been altered to include an additional page, and it was an “unfathomable mystery” as to why the alterations should have occurred. (...)

She describes the verdict delivered in 2001 by three experienced judges, upheld later by five appeal court judges as “profoundly shocking”, and makes the following devastating assessment:

“Al-Megrahi’s trial constituted a unique legal construct, engineered to achieve a political rapprochement, but its content was so manipulated that in reality there was only ever an illusion of a trial”.

Peirce concludes that there is “pressing need to investigate in details how it has come about that there has been a form of death in this case—the death of justice—and who should be found responsible”.

Subsequent to Peirce’s comments, more revelations have emerged about the crucial piece of MST 13 circuit board. Following a Freedom of Information request raised by Scottish Nationalist Member of the Scottish Parliament Christine Graham, the Scottish Crown Office has confirmed that evidence item PT-35, the piece of circuit board found by Hayes, was taken for examination to both Germany and the US. Graham claimed that this was done with the knowledge of the then chief prosecutor, Lord Fraser of Carmyllie, who recently told a Dutch television company that he was unaware of the fragment’s movements.

Megrahi was released by Scottish Justice Secretary Kenny Macaskill in August, allegedly on humanitarian grounds. It occurred at a time when the Libyan government had made clear that, if the terminally ill Megrahi had been allowed to die in Greenock prison, British oil contracts would have been imperilled. In addition, Megrahi had agreed to drop a long delayed appeal against his conviction in order to secure his release.

The release triggered outrage from the US in particular and was attacked by President Barack Obama, US Secretary of State Hillary Clinton, the head of the FBI, and the US Joint Chief of Staff amongst many. Commentary went as far as suggesting that the so-called “special relationship” between British and US imperialism, and Scotland in particular, was imperiled.

All this has been forgotten. On September 21, US State Department spokesman Ian Kelly informed the world that the US had “deep abiding ties with Scotland”. Kelly continued, “We are very close allies, and I don’t think we’re looking to punish anybody per se. There’s no tit for tat here”.

Three weeks later, speaking before a meeting with UK Prime Minister Gordon Brown, Clinton stated, “I have a special relationship with the prime minister. And of course, I think it can’t be said often enough, we have a special relationship between our countries”.

What was said between the two regarding Lockerbie is not clear, but the meeting came immediately prior to the British government’s decision to send an additional 500 troops to Afghanistan. Brown has subsequently ruled out a public inquiry into the bombing, while the Scottish government have denied they had the power to hold an authoritative inquiry in the first place.

Clinton also called in the Libyan government, speaking for 15 minutes en route to Egypt with Libyan Foreign Minister and former intelligence chief Musa Kusa. According to US Assistant Secretary Philip Crowley, the two talked of “Sudan, Darfur, cooperation about terrorism and the possibility of advancing our relationship”.

Crowley claimed that Megrahi was not discussed, lamely stating that “the Libyans understand our concerns about Megrahi very, very well”.

Stalinist thinking about the infallibility of police and prosecutors

[On this date in 2009, I posted on this blog an item headed That letter from the FBI to the Justice Secretary: is it real?  The first of its two sentences read simply “This is the heading over a devastating exposure by Jonathan Mitchell QC on his blog of the misconceptions and errors of fact and law in the letter from the Director of the FBI to Kenny MacAskill.” Mr Mitchell’s article reads as follows:]

My last post covered two issues; the hypocrisy of the attack on the decision to release Megrahi, and the law relative to compassionate release of prisoners in Scotland. But in linking these I noted in passing that much of the attack on MacAskill was simply ignorant, and wrote “FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘.“. That touched a nerve with one anonymous commenter, who wrote me a poison-pen message in the middle of which he stated:

The first paragraph of the FBI director’s letter he’s clearly putting it forth that he generally stays out of another jurisdiction’s case–in his experience as a prosecutor the cases of other prosecutors–though the phraseology might be a good target for a pendant punching above his weight class. Indeed, in the US and presumably Scotland, the prosecutor’s ultimate boss is the Attorney General of the US (or Justice Minister there). When the director talks about the effect of the release it is on terrorists in general and their conviction in a ‘…the conviction of trial by jury’. He obviously means it in a general sense or perhaps you’d have his sentence read something like ‘…the conviction of trial by jury–unless of course the crime is one that the statute allows the defendant to select a panel of judges or a judge instead–after the defendant is given all due process…’.

Now, I wouldn’t normally bother about poison-pen writers, but this made me go back to the letter to see if I had misread it. I didn’t. It contains glaring errors about the Lockerbie process. But what on reflection is interesting is that Robert Mueller is an extremely experienced lawyer who worked for many years on the Lockerbie prosecution, (although he was not, as the letter claims, ‘in charge of the investigation and indictment of Megrahi in 1991‘; that was the Lord Advocate). It seems inconceivable that he would not have known the truth; and I don’t believe he actually can have been as ignorant as I suggested. I apologise for that. I have to wonder if he actually wrote this letter, with its collection of howlers. Let’s look at what it says, and at the true facts.

The first weird statement is the one about staying out of another jurisdiction’s cases, to use the commenter’s re-hash. This is what Mueller wrote:

Over the years I have been a prosecutor, and recently as the Director of the FBI, I have made it a practice not to comment on the actions of other prosecutors, since only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

Your decision to release Megrahi causes me to abandon that practice in this case.

Now, the ‘practice‘ he says he’s abandoning is the practice that he does not ‘comment on the actions of other prosecutors‘. But the Justice Secretary is not a prosecutor; he has nothing to do with the prosecution process. He is not the ‘prosecutor’s ultimate boss‘; that’s the Lord Advocate, whose constitutional independence of the Justice Secretary is fundamental to the system. Section 48 (5) of the Scotland Act states “Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.” 1. If the Justice Secretary tried to tell prosecutors what to do, or how to do it, he would be told to sling his hook; and vice versa. Robert Mueller knows this. He is not stupid. He worked with several Lord Advocates over many years. If Robert Mueller wrote the quotation above, he was telling a deliberate untruth. That seems strange. Why should he bother, just for a minor rhetorical flourish? It seems more likely that the author was some minion who shared the lazy assumption of my commenter that the Justice Secretary just had to be a prosecutor, because that’s the American system.

Now, later in the letter the same howler is repeated in different language:

You apparently made this decision without regard to the views of your partners in the investigation and prosecution of those responsible for the Lockerbie tragedy.

The Justice Secretary is not a ‘partner in investigation and prosecution‘, any more than he is a ‘partner’ of the accused or the defence. He is independent of both, as a judge is. Here again we see language that suggests a basic ignorance of the separation of powers.

There’s another error which I didn’t mention, the reference to ‘conviction by jury‘, which Anonymous nevertheless identifies and defends:

Your action gives comfort to terrorists around the world who now believe that regardless of the quality of the investigation, the conviction by jury after the defendant is given all due process, and sentence appropriate to the crime, the terrorist will be freed …

It seems obvious from this language that its author thought Megrahi was convicted ‘by jury‘. But Mueller knows as well as Megrahi himself that he was not. He sat through much if not all of the trial. Here, again, it seems extraordinary that for a pointless two words Mueller would write something which he knew perfectly well was wrong. Juries are fundamental to the American system (except, of course, for alleged terrorists), but surely Mueller knows they aren’t the norm in most countries affected by terrorism.

There are other errors, most notably the central fatuous and hysterical claim that the release will give comfort to terrorists: what will actually give them comfort is the Faustian pact of successive American and British governments to forgive the entire chain of command in the Libyan intelligence service and government so as to encourage business opportunities2. If you cheerfully sup with the devil, you… the reader can complete this sentence.

Yet neither Mueller nor the FBI have ever gone on record as critical of the decision of successive US administrations to grant amnesty and forgiveness to those who, they say, gave Megrahi his orders; to give them hospitality, trade with them, sell them military equipment.

So I have to ask: who actually wrote this letter? If it was Robert Mueller, he must have been on the juice, which may perhaps have been what Lord Fraser had in mind when he kindly suggested Mueller visit Scotland to ‘discuss some good whisky‘. If it was some underling, he didn’t do his homework.

Whoever it was, it was someone with the Stalinist thinking about the infallibility of police and prosecutors which coloured the UK governments strenuous efforts to keep the evidence in the recent appeal effectively secret, but in a less disguised form. Look at this:

… only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

That’s the thinking that led to the founding of the Cheka in 1918. As Hector MacQueen pointed out, it’s the old chestnut that we don’t need courts or judges to “reach the appropriate decision“; still less any defence. The prosecution, after all, is infallible. No wonder then, perhaps, that the writer of this letter, whoever he or she may have been, was so appalled at anyone not following its instructions. Thus the complaint “You never once sought our opinion” on the release. As the Justice Secretary rightly pointed out in Parliament, however, in Scotland “we have separation of powers“. Someone in the FBI, however, does not believe in this.

There’s a phrase for this, and the phrase is ‘police state’.

1. See this description in a recent paper by the Judiciary on reform of the Lord Advocate’s status for a fuller analysis.
2. Musa Kusa, who the British government expelled in 1980 after he announced “The revolutionary committees have decided last night to kill two more people in the United Kingdom. I approve of this“, and who the CIA found had direct responsibility for the PanAm 103 bomb (and indeed many other murders), was in 2003 entertained by both governments in the Travellers Club in Pall Mall, London. The last time I was in the Travellers Club, I noticed the fine portrait of Lord Castlereagh half-way up the staircase. He was the Foreign Secretary of whom Shelley wrote in ‘The Masque of Anarchy’ ‘I met Murder on the way/He had a mask like Castlereagh/Very smooth he looked, yet grim/Seven bloodhounds followed him/All were fat, and well they might/Be in admirable plight/For one by one and two by two/He tossed them human hearts to chew/Which from his wide cloak he drew…‘ . Was the setting deliberate? Castlereagh would have been an appropriate host.

“It is not difficult to achieve a conviction of the innocent"

[What follows is the text of an article by Steve James that was published on the World Socialist Web Site on this date in 2009:]

Leading British human rights lawyer Gareth Peirce has stated that, in her opinion Abdel Baset Ali al-Megrahi, the only man accused and convicted of the 1988 bombing of PanAm flight 103 over Lockerbie, Scotland, was framed.

Pierce has a long track record of defending those caught in the British legal system’s most notorious miscarriages of justice. Her clients have included the Birmingham Six, the Guildford Four and Judith Ward, all of whom were Irish people accused and wrongly convicted of IRA bomb attacks in the 1970s. More recently Peirce has taken up a number of high profile cases of individuals accused in the so-called “war on terror”, including the Tipton Three and Moazam Begg, held illegally by the US government in Guantánamo Bay. She has represented the family of Jean Charles de Menezes, an innocent man shot dead by British police in Stockwell underground station in 2005.

Writing in the September edition of the London Review of Books, Peirce, of the law firm headed by Benedict Birnberg, summarises some of the most concerning, and well known, aspects of the entire Lockerbie disaster in which 270 people died, and the subsequent investigation.

She points to the advance warnings of an attack on Pan Am flights from London, the role of the FBI and others who flooded the crash site, the lack of security on the site and tampered evidence, including moved bodies. She notes the initial trajectory of the investigation, which pointed to the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) acting on behalf of Iran having used a barometric bomb to bring down the 747. She also notes that a barometric bomb, one triggered by changes in air pressure, would have exploded only after PA 103 reached a certain height—some 38 minutes into the flight from Heathrow—precisely when the plane disintegrated.

She reviews the subsequent change in focus from Syria and Iran to Libya, which was in line with US foreign policy objectives at the time. Firstly, then US President George Bush, senior, instructed then UK Prime Minister Margaret Thatcher to keep the Lockerbie investigation “low key” to assist hostage negotiations underway in Beirut. As a result, rather than a judicial inquiry and prosecution, a Fatal Accident Inquiry (FAI) with no powers of subpoena was held.

Then, following the Iraqi invasion of Kuwait in 1991, Iran and Syria both assisted the US invasion of Iraq. It was at this time that the focus of the Lockerbie investigation was shifted. Vincent Cannistraro, the architect of the Reagan administration’s CIA campaign of destabilisation against the Libyan government of Colonel Muammar Gadhaffi, was brought out of retirement to head the new line of investigation.

Peirce writes, “It is not difficult to achieve a conviction of the innocent. Over many decades several common factors have been identified, and the majority of them are present, centre stage, in this case: achieving the cooperation of witnesses by means of a combination of inducements and fear of the alternative (the tried and tested method of obtaining evidence for the prosecution on which many US cases rely); the provision of factual information by scientists where there is no proper basis for it (a recurrent theme in UK convictions as well as in the US); reliance on ‘identification’ evidence which is no such thing. Add to that the political will to achieve a prosecution, and the rest is easy”.

Abdel Baset Ali al-Megrahi and his co-accused, Llamen Khalifa Fhimah, were handed over by the Libyan government in 1999. The trial opened at a converted US airbase in the Netherlands in 2000. The indictment against Megrahi read that an MST 13 bomb timer was made in Switzerland, by MEBO AG, and sold exclusively to Libya. Identification of the timer rested on the efforts of Thomas Hayes and Alan Feraday of the Royal Armament and Development Establishment (RARDE), along with Thomas Thurman of the Federal Bureau of Investigation (FBI).

In 1997, following an investigation by the US inspector general, Michael Bromwich, Thurman was barred from being called as an expert witness. Bromwich described Thurman as “circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in...therefore fabricating evidence”.

Thomas Hayes claimed that on May 12, 1989, he found a fragment of circuit board in the collar of a shirt later traced to a Maltese shop. The fragment itself had been found in January 1989 by British police investigating the crash site.

Peirce states, “Even if one knew nothing of the devastating findings of the public inquiry in the early 1990s into the false science that convicted the Maguire Seven or of the succession of thunderous judgments in the Court of Appeal in case after case in which RARDE scientists had provided the basis for wrongful convictions, Hayes’s key evidence in this case on the key fragment should be viewed as disgraceful”.

“Hayes”, Peirce continues, “played his part in the most notorious of all, endorsing the finding of an explosive trace that was never there, and speculating that a piece of chalk mentioned to the police by Vincent Maguire, aged 16, and a candle by Patrick Maguire, aged 13, ‘fitted the description better’ of a stick of gelignite wrapped in white paper”.

Hayes’s information regarding this crucial piece of Lockerbie evidence was also flawed. Despite having carefully documented every other piece of evidence he found, Hayes had made no drawing of this particular item and had not assigned it a reference number on discovery. He had not carried out a test for explosives. Hayes said he had “no idea” when the pagination of his notes recording findings had been altered to include an additional page, and it was an “unfathomable mystery” as to why the alterations should have occurred.

Following an investigation into RARDE by Sir John May, Hayes resigned and is now reported to be working as a chiropodist.

Pierce then turns to the visual identification of Megrahi.

“Even if the science that convicted al-Megrahi had not offended against every minimum standard, then the second pillar of the prosecution case, his identification by Tony Gauci, the Maltese shopkeeper, would remain spectacular in its noncompliance with any safeguard”.

Pierce notes the numerous failings in the evidence provided by Gauci, his initial identification of Abu Talb, of the PFLP-GC, and reiterates the suggestion that Gauci was “handsomely rewarded” for his services.

She describes the verdict delivered in 2001 by three experienced judges, upheld later by five appeal court judges as “profoundly shocking”, and makes the following devastating assessment:

“Al-Megrahi’s trial constituted a unique legal construct, engineered to achieve a political rapprochement, but its content was so manipulated that in reality there was only ever an illusion of a trial”.

Peirce concludes that there is “pressing need to investigate in details how it has come about that there has been a form of death in this case—the death of justice—and who should be found responsible”.

Subsequent to Peirce’s comments, more revelations have emerged about the crucial piece of MST 13 circuit board. Following a Freedom of Information request raised by Scottish Nationalist Member of the Scottish Parliament Christine Grahame, the Scottish Crown Office has confirmed that evidence item PT-35, the piece of circuit board found by Hayes, was taken for examination to both Germany and the US. Graham claimed that this was done with the knowledge of the then chief prosecutor, Lord Fraser of Carmylie, who recently told a Dutch television company that he was unaware of the fragment’s movements.

Megrahi was released by Scottish Justice Secretary Kenny Macaskill in August, allegedly on humanitarian grounds. It occurred at a time when the Libyan government had made clear that, if the terminally ill Megrahi had been allowed to die in Greenock prison, British oil contracts would have been imperilled. In addition, Megrahi had agreed to drop a long delayed appeal against his conviction in order to secure his release.

The release triggered outrage from the US in particular and was attacked by President Barack Obama, US Secretary of State Hilary Clinton, the head of the FBI, and the US Joint Chief of Staff amongst many. Commentary went as far as suggesting that the so-called “special relationship” between British and US imperialism, and Scotland in particular, was imperiled.

All this has been forgotten. On September 21, US State Department spokesman Ian Kelly informed the world that the US had “deep abiding ties with Scotland”. Kelly continued, “We are very close allies, and I don’t think we’re looking to punish anybody per se. There’s no tit for tat here”.

Three weeks later, speaking before a meeting with UK Prime Minister Gordon Brown, Clinton stated, “I have a special relationship with the prime minister. And of course, I think it can’t be said often enough, we have a special relationship between our countries”.

What was said between the two regarding Lockerbie is not clear, but the meeting came immediately prior to the British government’s decision to send an additional 500 troops to Afghanistan. Brown has subsequently ruled out a public inquiry into the bombing, while the Scottish government have denied they had the power to hold an authoritative inquiry in the first place.

Clinton also called in the Libyan government, speaking for 15 minutes en route to Egypt with Libyan Foreign Minister and former intelligence chief Musa Kusa. According to US Assistant Secretary Philip Crowley, the two talked of “Sudan, Darfur, cooperation about terrorism and the possibility of advancing our relationship”.

Crowley claimed that Megrahi was not discussed, lamely stating that “the Libyans understand our concerns about Megrahi very, very well”.