Lockerbie suspect 'killed in al-Qaeda bomb blast'

[This is the headline over a report by Martin Williams in today’s edition of The Herald.  It reads as follows:]

A terrorist suspected of being the real mastermind of the Lockerbie bombing has been killed in a bomb blast, according to unconfirmed reports.

Ahmed Jibril who has been on America's 'most wanted' list for decades was reported to have been assassinated by an al-Qaeda affiliated group.

Jordanian media reported that Jabhat al-Nusra, an off-shoot of al-Qaeda, used an improvised explosive device to kill the 76-year-old who is a strong supporter of Syria's President Assad.

The reports state that the attack on Jibril took place several days ago and although the Palestinian leader survived the initial attack he succumbed to his injuries in a Damascus hospital on Monday.

Yesterday the Liberation of Palestine General Command (PFLP-GC), which Jibril founded and remains general secretary, denied that he was dead or even wounded.

Robert Black, Professor Emeritus of Scottish Law at the University of Edinburgh, often referred to as the architect of the Lockerbie trial at Camp Zeist in the Netherlands did not believe that if Jibril died that it would make much difference to the search for the truth about the disaster.

He said: "He was never likely himself to admit responsibility.

"It is possible, though unlikely, that his absence from the scene might give others the courage to speak up about his involvement.

"But I think we will just be left with what evidence already exists, particularly the $10million payment from Iran into the PFLP-GC's coffers a few days after 21 December 1988.

"There are those in the West and in the Middle East who think that Jibril and the PFLP-GC were never really important figures in the Palestinian struggle: good at raking in funds but leaving the fighting to others.

"Certainly, Jibril and the PFLP-GC are thought by some to be seriously in the frame, as contractors for Iran which was seeking revenge for the shooting down of Iran Air flight 655 by the USS Vincennes in July 1988, six months before Lockerbie.

He added: "And at the Camp Zeist trial the defence lodged a special defence of incrimination blaming Jibril and the PFLP-GC for the crime."

In March an Iranian defector, a former intelligence agent, claimed that the Lockerbie attack was ordered by Iran in revenge for the accidental downing of an Iranian commercial jet by the US Navy in 1988.

It was carried out by Palestinian terrorists based in Syria, he said, and not on the orders of Libyan dictator Muammar Gaddafi. The atrocity killed 243 passengers, 16 crew and a further 11 people on the ground in Lockerbie.

Ex-spy Abolghassem Mesbahi claimed in a documentary that former Iranian leader Ayatollah Khomeini wanted to mirror the 1988 US strike on an Iranian Airbus and recruited a Syrian-based group to plan an attack.

Evidence unearthed by the documentary-makers included the names of four suspects belonging to the Syrian-based radical group, the PFLP-GC, with Ahmed Jibril identified as the plot's mastermind.

It was claimed he recruited one of his most trusted deputies Hafez Dalkamoni, a Palestinian PFLP-GC member, and Jordanian bomb-maker Marwan Khreesat

These recruits were arrested by German police, who discovered four bombs, months before Lockerbie. A US intelligence cable obtained by Megrahi's defence team is alleged to have said: "The execution of the operation was contracted to Ahmed Jibril…money was given to Jibril upfront in Damascus for initial expenses - the mission was to blow up a Pan Am flight."

PFLP-GC's name was identified during the Lockerbie trial - in which Libyan agent Abdelbaset al-Megrahi was convicted of the bombing of Pan Am flight 103 in 1989. Megrahi, who was released from jail by the Scottish Government on compassionate grounds after being diagnosed with prostate cancer, died in 2012 protesting his innocence and his family said they planned to appeal against his conviction.

Inconvenient Truths

[This is the headline over a long article by Hugh Miles that was published in the London Review of Books on this date in 2007.  The following are excerpts:]

From the outset the Lockerbie disaster has been marked by superlatives. The bombing was the deadliest terror attack on American civilians until 11 September 2001. It sparked Britain’s biggest ever criminal inquiry, led by its smallest police force, Dumfries and Galloway Constabulary. It spelled the end of Pan Am, which never recovered from the damage to its reputation. The trial at Camp Zeist was the longest and – at a cost of £75 million – the most expensive in Scottish legal history. The appeal hearing was the first Scottish trial to be broadcast live on both television and the internet.

Lawyers, politicians, diplomats and relatives of Lockerbie victims now believe that the former Libyan intelligence officer is innocent. (...)

Al-Megrahi applied to the SCCRC for a review of his case in 2003 and the commission has been reinspecting evidence from the trial for the last four years. It will submit its findings at the end of June. It looks likely that the SCCRC will find that there is enough evidence to refer al-Megrahi’s case back to the appeal court. The Crown Office has already begun reinforcing its Lockerbie legal team in anticipation of a referral.

If al-Megrahi is granted a second appeal, it will, like the original trial, be held before a panel of Scottish judges, without a jury. This time the trial will take place in Scotland, and if the glacial pace of proceedings in the past is anything to go by, it will probably not be heard before the summer of 2008. Al-Megrahi’s defence team would be ready to launch an appeal in a matter of weeks, but the prosecution would be likely to delay the hearing for as long as possible. If an appeal takes place, al-Megrahi’s defence team will produce important evidence that was not available at the time of the first appeal, evidence that seems likely not only to exonerate al-Megrahi but to do so by pointing the finger of blame at the real perpetrators of the Lockerbie bombing and revealing some inconvenient truths.

Even the [official] who presided over the Lockerbie investigation and issued the 1991 arrest warrants for the two Libyans has cast doubt on the prosecution’s case. In an interview with the Sunday Times in October 2005, Lord Fraser of Carmyllie, Scotland’s larger-than-life lord advocate from 1989 to 1992, questioned the reliability of the shopkeeper Tony Gauci, the prosecution’s star witness. ‘Gauci was not quite the full shilling. I think even his family would say [that he] was an apple short of a picnic. He was quite a tricky guy, I don’t think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer.’ Lord Fraser made it clear that this did not mean he thought al-Megrahi was innocent. But he had presented Gauci as a reliable witness; he went on to become the heart of the prosecution’s case. Now he was casting doubt on the man who identified al-Megrahi. (...)

Hans Köchler, the UN observer at Camp Zeist, reported at the time that the trial was politically charged and the verdict ‘totally incomprehensible’.

In his report Köchler wrote that he found the presence of US Justice Department representatives in the court ‘highly problematic’, because it gave the impression that they were ‘“supervisors” handling vital matters of the prosecution strategy and deciding … which documents … were to be released in open court and what parts of information contained in a certain document were to be withheld.’ ‘The alternative theory of the defence,’ he went on, ‘was never seriously investigated. Amid shrouds of secrecy and national security considerations, that avenue was never seriously pursued – although it was officially declared as being of major importance for the defence case. This is totally incomprehensible to any rational observer.’ The prosecution, Köchler noted, dismissed evidence on the grounds that it was not relevant; but now that that evidence has finally – partially – been released, it turns out to be very relevant indeed: to the defence.

Whatever happens, al-Megrahi may not have to wait long. As soon as a further appeal is scheduled, he can make an application to be released from custody: the convicted Lockerbie bomber, who was supposed to serve no fewer than 27 years in a Scottish jail, might well be free this summer. Whether al-Megrahi is freed pending his appeal – and what conditions would be applied if he were – depends largely on whether his defence team can convince the judge that he is not a flight risk. This may be hard to do. The judge might decide that if he left the country, he might choose to stay in Libya rather than come back next year for another round in court. If al-Megrahi is exonerated, many tricky questions will resurface, not least what to do about the $2.7 billion compensation paid by Libya to the relatives of the victims of the bombing. And then, of course, there is the question of who really bombed Flight 103.

In the first three years following the bombing, before a shred of evidence had been produced to incriminate Libya, the Dumfries and Galloway police, the FBI and several other intelligence services around the world all shared the belief that the Lockerbie bombers belonged to the Popular Front for the Liberation of Palestine General Command (PFLP-GC), a Palestinian rejectionist organisation backed by Iran. The PFLP-GC is headed by Ahmed Jibril, a former Syrian army captain; its headquarters are in Damascus and it is closely allied with the Syrian president and other senior Syrian officials. In the 1970s and 1980s the PFLP-GC carried out a number of raids against Israel, including a novel hang-glider assault launched from inside Lebanon. Lawyers, intelligence services and diplomats around the world continue to suspect that Jibril – who has even boasted that he is responsible – was behind Lockerbie.

The case against Jibril and his gang is well established. It runs like this: in July 1988, five months before the Lockerbie bombing, a US naval commander aboard USSVincennes in the Persian Gulf shot down an Iranian airbus, apparently mistaking it for an attacker. On board Iran Air Flight 655 were 270 pilgrims en route to Mecca. Ayatollah Khomeini vowed the skies would ‘rain blood’ in revenge and offered a $10 million reward to anyone who ‘obtained justice’ for Iran. The suggestion is that the PFLP-GC was commissioned to undertake a retaliatory bombing.

We know at least that two months before Lockerbie, a PFLP-GC cell was active in the Frankfurt and Neuss areas of West Germany. On 26 October 1998, German police arrested 17 terrorist suspects who, surveillance showed, had cased Frankfurt airport and browsed Pan Am flight timetables. Four Semtex-based explosive devices were confiscated; a fifth is known to have gone missing. They were concealed inside Toshiba radios very similar to the one found at Lockerbie a few weeks later. One of the gang, a Palestinian known as Abu Talb, was later found to have a calendar in his flat in Sweden with the date of 21 December circled. New evidence, now in the hands of al-Megrahi’s defence, proves for the first time that Abu Talb was in Malta when the Lockerbie bombing took place. The Maltese man whose testimony convicted al-Megrahi has also identified Abu Talb. During al-Megrahi’s trial Abu Talb had a strange role. As part of a defence available in Scottish law, known as ‘incrimination’, Abu Talb was named as someone who – rather than the accused – might have carried out the bombing. At the time he was serving a life sentence in Sweden for the bombing of a synagogue, but he was summoned to Camp Zeist to give evidence. He ended up testifying as a prosecution witness, denying that he had anything to do with Lockerbie. In exchange for his testimony, he received lifelong immunity from prosecution.

Other evidence has emerged showing that the bomb could have been placed on the plane at Frankfurt airport, a possibility that the prosecution in al-Megrahi’s trial consistently ruled out (their case depended on the suitcase containing the bomb having been transferred from a connecting flight from Malta). Most significantly, German federal police have provided financial records showing that on 23 December 1988, two days after the bombing, the Iranian government deposited £5.9 million into a Swiss bank account that belonged to the arrested members of the PFLP-GC.

The decision to steer the investigation away from the PFLP-GC and in the direction of Libya came in the run-up to the first Gulf War, as America was looking to rally a coalition to liberate Kuwait and was calling for support from Iran and Syria. Syria subsequently joined the UN forces. Quietly, the evidence incriminating Jibril, so painstakingly sifted from the debris, was binned.

Those who continued to press the case against the PFLP-GC seemed to fall foul of American law. When a New York corporate investigative company asked to look into the bombing on behalf of Pan Am found the PFLP-GC responsible, the federal government promptly indicted the company’s president, Juval Aviv, for mail fraud. Lester Coleman, a former Defense Intelligence Agency operative who was researching a book about the PFLP-GC and Lockerbie, was charged by the FBI with ‘falsely procuring a passport’. William Casey, a lobbyist who made similar allegations in 1995, found his bank accounts frozen and federal agents searching through his trash. Even so, documents leaked from the US Defense Intelligence Agency in 1995, two years after the Libyans were first identified as the prime suspects, still blamed the PFLP-GC.

Suspicions and conspiracy theories have swirled around Lockerbie from the beginning. Some of them are fairly outlandish. In Diplomatic Baggage: The Adventures of a Trailing Spouse (2005), Brigid Keenan, the wife of the British diplomat Alan Waddams, reported that over dinner in Gambia, a former Interpol agent told her and her husband that the bombing had been a revenge attack by Iran, in retaliation for the downed airliner (though she didn’t say how he knew this). The Interpol agent claimed the cargo had not been checked because the plane was carrying drugs as part of a deal over American hostages held by Hizbullah in Beirut. Militant groups were being allowed to smuggle heroin into the US in exchange for information; the bomb had gone on board when the PFLP-GC found a loophole in this drug-running operation.

At least four US intelligence officers, including the CIA’s deputy station chief in Beirut, were on the Flight 103 passenger list. In the days following the bombing, CIA agents scoured the Scottish countryside, some reportedly dressed in Pan Am overalls. Mary Boylan, then a constable with Lothian and Borders police, has said that senior police officers told her not to make an official record of the CIA badge she recovered from the wreckage, asking her instead to hand it over to a senior colleague. Her testimony, too, is now in the hands of the SCCRC. Jim Wilson, a farmer from the village of Tundergarth, reported shortly after the bombing that he had found in his field a suitcase packed with a powdery substance that looked ‘like drugs’. He last saw the suitcase when he handed it over to the police, he said; he was never asked about it again.

When al-Megrahi was handed over for trial, Libya declared that it would accept responsibility for his actions. But it never accepted guilt. This distinction was spelled out clearly in Libyan letters to the UN Security Council. In a BBC radio interview in 2004, the Libyan prime minister, Shukri Ghanem, underlined once again that compensation had been paid because this was the ‘price for peace’ and to secure the lifting of sanctions. When asked if Libya did not accept guilt, he said: ‘I agree with that.’

If the court that convicted al-Megrahi now reverses its decision, then Libya would clearly have a case for demanding its money back. Since recovering the compensation from the relatives would be unthinkable, it is more likely Libya would pursue those responsible for the miscarriage of justice. ‘What they might try to do,’ Black suggests, ‘is to recoup the money from the British and American governments, who after all are responsible for the initial farce and the wrongful conviction in the first place. They paid that money on the basis of a miscarriage of justice perpetrated by the British courts.’ Al-Megrahi’s acquittal on appeal would not ipso facto make a compelling case for Libya to have its money back: even if guilt can’t be proved beyond reasonable doubt – the test of the criminal burden of proof – it could still be shown that it was more likely than not (which is the burden applied to civil cases such as compensation cases). If Libya paid the money for purely political reasons then, one could argue, it might have to live with that decision. When I asked the Foreign Office whether Britain would consider reimbursing Libya in the event of al-Megrahi’s exoneration, a spokesman declined to comment.

If al-Megrahi is acquitted, he will also have the right to sue for wrongful conviction. He could claim compensation to the tune of several tens of thousands of pounds. The Crown Office, which is headed by the Scottish lord advocate, is responsible for what happened, which means that al-Megrahi would sue the Scottish Executive. The lord advocate is now one of the ‘Scottish ministers’, whereas previously he – now she – was one of the law officers of the UK Government. The Scottish Executive might refuse to pay, blaming Westminster. Westminster, meanwhile, would argue that Lockerbie is and always has been a Crown Office matter and that the UK government has no say. A political storm is on its way, especially now that the SNP is in charge in Scotland.

Since the case against al-Megrahi was so weak, it is hard to understand how the judges who presided over the trial could have got it so wrong. Black has a view:

It has been suggested to me, very often by Libyans, that political pressure was placed upon the judges. I don’t think for a minute that political pressure of that nature was placed on the judges. What happened, I think, was that it was internal politics in Scotland. Prosecutions in Scotland are brought by the lord advocate. Until just a few years ago, one of the other functions of the lord advocate in Scotland was that he appointed all Scottish judges. I think what influenced these judges was that they thought that if both of the Libyans accused are found not guilty, this will be the most fiendish embarrassment to the lord advocate.

The appointment system for judges has changed since the trial, but another controversial aspect of the al-Megrahi case may also be re-examined: the policies on disclosure. Compared to almost any other similar criminal justice system, Scotland does not have a proper system of disclosure of information. In England and Wales, the Crown has to disclose all material to the defence, according to rules set out in statute. In Scotland the Crown is allowed to modify or withhold evidence if it considers that withholding is in the ‘public interest’. At least the Scottish criminal justice system doesn’t have the death penalty.

When truth is inconvenient

[On this date ten years ago a long article by Hugh Miles headlined Inconvenient Truths was published in the London Review of Books.  The following are excerpts:]

From the outset the Lockerbie disaster has been marked by superlatives. The bombing was the deadliest terror attack on American civilians until 11 September 2001. It sparked Britain’s biggest ever criminal inquiry, led by its smallest police force, Dumfries and Galloway Constabulary. It spelled the end of Pan Am, which never recovered from the damage to its reputation. The trial at Camp Zeist was the longest and – at a cost of £75 million – the most expensive in Scottish legal history. The appeal hearing was the first Scottish trial to be broadcast live on both television and the internet.

Lawyers, politicians, diplomats and relatives of Lockerbie victims now believe that the former Libyan intelligence officer is innocent. (...)

Al-Megrahi applied to the SCCRC for a review of his case in 2003 and the commission has been reinspecting evidence from the trial for the last four years. It will submit its findings at the end of June. It looks likely that the SCCRC will find that there is enough evidence to refer al-Megrahi’s case back to the appeal court. The Crown Office has already begun reinforcing its Lockerbie legal team in anticipation of a referral.

If al-Megrahi is granted a second appeal, it will, like the original trial, be held before a panel of Scottish judges, without a jury. This time the trial will take place in Scotland, and if the glacial pace of proceedings in the past is anything to go by, it will probably not be heard before the summer of 2008. Al-Megrahi’s defence team would be ready to launch an appeal in a matter of weeks, but the prosecution would be likely to delay the hearing for as long as possible. If an appeal takes place, al-Megrahi’s defence team will produce important evidence that was not available at the time of the first appeal, evidence that seems likely not only to exonerate al-Megrahi but to do so by pointing the finger of blame at the real perpetrators of the Lockerbie bombing and revealing some inconvenient truths.

Even the [official] who presided over the Lockerbie investigation and issued the 1991 arrest warrants for the two Libyans has cast doubt on the prosecution’s case. In an interview with the Sunday Times in October 2005, Lord Fraser of Carmyllie, Scotland’s larger-than-life lord advocate from 1989 to 1992, questioned the reliability of the shopkeeper Tony Gauci, the prosecution’s star witness. ‘Gauci was not quite the full shilling. I think even his family would say [that he] was an apple short of a picnic. He was quite a tricky guy, I don’t think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer.’ Lord Fraser made it clear that this did not mean he thought al-Megrahi was innocent. But he had presented Gauci as a reliable witness; he went on to become the heart of the prosecution’s case. Now he was casting doubt on the man who identified al-Megrahi. (...)

Hans Köchler, the UN observer at Camp Zeist, reported at the time that the trial was politically charged and the verdict ‘totally incomprehensible’.

In his report Köchler wrote that he found the presence of US Justice Department representatives in the court ‘highly problematic’, because it gave the impression that they were ‘“supervisors” handling vital matters of the prosecution strategy and deciding … which documents … were to be released in open court and what parts of information contained in a certain document were to be withheld.’ ‘The alternative theory of the defence,’ he went on, ‘was never seriously investigated. Amid shrouds of secrecy and national security considerations, that avenue was never seriously pursued – although it was officially declared as being of major importance for the defence case. This is totally incomprehensible to any rational observer.’ The prosecution, Köchler noted, dismissed evidence on the grounds that it was not relevant; but now that that evidence has finally – partially – been released, it turns out to be very relevant indeed: to the defence.

Whatever happens, al-Megrahi may not have to wait long. As soon as a further appeal is scheduled, he can make an application to be released from custody: the convicted Lockerbie bomber, who was supposed to serve no fewer than 27 years in a Scottish jail, might well be free this summer. Whether al-Megrahi is freed pending his appeal – and what conditions would be applied if he were – depends largely on whether his defence team can convince the judge that he is not a flight risk. This may be hard to do. The judge might decide that if he left the country, he might choose to stay in Libya rather than come back next year for another round in court. If al-Megrahi is exonerated, many tricky questions will resurface, not least what to do about the $2.7 billion compensation paid by Libya to the relatives of the victims of the bombing. And then, of course, there is the question of who really bombed Flight 103.

In the first three years following the bombing, before a shred of evidence had been produced to incriminate Libya, the Dumfries and Galloway police, the FBI and several other intelligence services around the world all shared the belief that the Lockerbie bombers belonged to the Popular Front for the Liberation of Palestine General Command (PFLP-GC), a Palestinian rejectionist organisation backed by Iran. The PFLP-GC is headed by Ahmed Jibril, a former Syrian army captain; its headquarters are in Damascus and it is closely allied with the Syrian president and other senior Syrian officials. In the 1970s and 1980s the PFLP-GC carried out a number of raids against Israel, including a novel hang-glider assault launched from inside Lebanon. Lawyers, intelligence services and diplomats around the world continue to suspect that Jibril – who has even boasted that he is responsible – was behind Lockerbie.

The case against Jibril and his gang is well established. It runs like this: in July 1988, five months before the Lockerbie bombing, a US naval commander aboard USSVincennes in the Persian Gulf shot down an Iranian airbus, apparently mistaking it for an attacker. On board Iran Air Flight 655 were 270 pilgrims en route to Mecca. Ayatollah Khomeini vowed the skies would ‘rain blood’ in revenge and offered a $10 million reward to anyone who ‘obtained justice’ for Iran. The suggestion is that the PFLP-GC was commissioned to undertake a retaliatory bombing.

We know at least that two months before Lockerbie, a PFLP-GC cell was active in the Frankfurt and Neuss areas of West Germany. On 26 October 1998, German police arrested 17 terrorist suspects who, surveillance showed, had cased Frankfurt airport and browsed Pan Am flight timetables. Four Semtex-based explosive devices were confiscated; a fifth is known to have gone missing. They were concealed inside Toshiba radios very similar to the one found at Lockerbie a few weeks later. One of the gang, a Palestinian known as Abu Talb, was later found to have a calendar in his flat in Sweden with the date of 21 December circled. New evidence, now in the hands of al-Megrahi’s defence, proves for the first time that Abu Talb was in Malta when the Lockerbie bombing took place. The Maltese man whose testimony convicted al-Megrahi has also identified Abu Talb. During al-Megrahi’s trial Abu Talb had a strange role. As part of a defence available in Scottish law, known as ‘incrimination’, Abu Talb was named as someone who – rather than the accused – might have carried out the bombing. At the time he was serving a life sentence in Sweden for the bombing of a synagogue, but he was summoned to Camp Zeist to give evidence. He ended up testifying as a prosecution witness, denying that he had anything to do with Lockerbie. (...)

Other evidence has emerged showing that the bomb could have been placed on the plane at Frankfurt airport, a possibility that the prosecution in al-Megrahi’s trial consistently ruled out (their case depended on the suitcase containing the bomb having been transferred from a connecting flight from Malta). Most significantly, German federal police have provided financial records showing that on 23 December 1988, two days after the bombing, the Iranian government deposited £5.9 million into a Swiss bank account that belonged to the arrested members of the PFLP-GC.

The decision to steer the investigation away from the PFLP-GC and in the direction of Libya came in the run-up to the first Gulf War, as America was looking to rally a coalition to liberate Kuwait and was calling for support from Iran and Syria. Syria subsequently joined the UN forces. Quietly, the evidence incriminating Jibril, so painstakingly sifted from the debris, was binned.

Those who continued to press the case against the PFLP-GC seemed to fall foul of American law. When a New York corporate investigative company asked to look into the bombing on behalf of Pan Am found the PFLP-GC responsible, the federal government promptly indicted the company’s president, Juval Aviv, for mail fraud. Lester Coleman, a former Defense Intelligence Agency operative who was researching a book about the PFLP-GC and Lockerbie, was charged by the FBI with ‘falsely procuring a passport’. William [Chasey], a lobbyist who made similar allegations in 1995, found his bank accounts frozen and federal agents searching through his trash. Even so, documents leaked from the US Defense Intelligence Agency in 1995, two years after the Libyans were first identified as the prime suspects, still blamed the PFLP-GC.

Suspicions and conspiracy theories have swirled around Lockerbie from the beginning. Some of them are fairly outlandish. In Diplomatic Baggage: The Adventures of a Trailing Spouse (2005), Brigid Keenan, the wife of the British diplomat Alan Waddams, reported that over dinner in Gambia, a former Interpol agent told her and her husband that the bombing had been a revenge attack by Iran, in retaliation for the downed airliner (though she didn’t say how he knew this). The Interpol agent claimed the cargo had not been checked because the plane was carrying drugs as part of a deal over American hostages held by Hizbullah in Beirut. Militant groups were being allowed to smuggle heroin into the US in exchange for information; the bomb had gone on board when the PFLP-GC found a loophole in this drug-running operation.

At least four US intelligence officers, including the CIA’s deputy station chief in Beirut, were on the Flight 103 passenger list. In the days following the bombing, CIA agents scoured the Scottish countryside, some reportedly dressed in Pan Am overalls. Mary Boylan, then a constable with Lothian and Borders police, has said that senior police officers told her not to make an official record of the CIA badge she recovered from the wreckage, asking her instead to hand it over to a senior colleague. Her testimony, too, is now in the hands of the SCCRC. Jim Wilson, a farmer from the village of Tundergarth, reported shortly after the bombing that he had found in his field a suitcase packed with a powdery substance that looked ‘like drugs’. He last saw the suitcase when he handed it over to the police, he said; he was never asked about it again.

When al-Megrahi was handed over for trial, Libya declared that it would accept responsibility for his actions. But it never accepted guilt. This distinction was spelled out clearly in Libyan letters to the UN Security Council. In a BBC radio interview in 2004, the Libyan prime minister, Shukri Ghanem, underlined once again that compensation had been paid because this was the ‘price for peace’ and to secure the lifting of sanctions. When asked if Libya did not accept guilt, he said: ‘I agree with that.’

If the court that convicted al-Megrahi now reverses its decision, then Libya would clearly have a case for demanding its money back. Since recovering the compensation from the relatives would be unthinkable, it is more likely Libya would pursue those responsible for the miscarriage of justice. ‘What they might try to do,’ Black suggests, ‘is to recoup the money from the British and American governments, who after all are responsible for the initial farce and the wrongful conviction in the first place. They paid that money on the basis of a miscarriage of justice perpetrated by the British courts.’ Al-Megrahi’s acquittal on appeal would not ipso facto make a compelling case for Libya to have its money back: even if guilt can’t be proved beyond reasonable doubt – the test of the criminal burden of proof – it could still be shown that it was more likely than not (which is the burden applied to civil cases such as compensation cases). If Libya paid the money for purely political reasons then, one could argue, it might have to live with that decision. When I asked the Foreign Office whether Britain would consider reimbursing Libya in the event of al-Megrahi’s exoneration, a spokesman declined to comment.

If al-Megrahi is acquitted, he will also have the right to sue for wrongful conviction. He could claim compensation to the tune of several tens of thousands of pounds. The Crown Office, which is headed by the Scottish lord advocate, is responsible for what happened, which means that al-Megrahi would sue the Scottish Executive. The lord advocate is now one of the ‘Scottish ministers’, whereas previously he – now she – was one of the law officers of the UK Government. The Scottish Executive might refuse to pay, blaming Westminster. Westminster, meanwhile, would argue that Lockerbie is and always has been a Crown Office matter and that the UK government has no say. A political storm is on its way, especially now that the SNP is in charge in Scotland.

Since the case against al-Megrahi was so weak, it is hard to understand how the judges who presided over the trial could have got it so wrong. Black has a view:

It has been suggested to me, very often by Libyans, that political pressure was placed upon the judges. I don’t think for a minute that political pressure of that nature was placed on the judges. What happened, I think, was that it was internal politics in Scotland. Prosecutions in Scotland are brought by the lord advocate. Until just a few years ago, one of the other functions of the lord advocate in Scotland was that he appointed all Scottish judges. I think what influenced these judges was that they thought that if both of the Libyans accused are found not guilty, this will be the most fiendish embarrassment to the lord advocate.

The appointment system for judges has changed since the trial, but another controversial aspect of the al-Megrahi case may also be re-examined: the policies on disclosure. Compared to almost any other similar criminal justice system, Scotland does not have a proper system of disclosure of information. In England and Wales, the Crown has to disclose all material to the defence, according to rules set out in statute. In Scotland the Crown is allowed to modify or withhold evidence if it considers that withholding is in the ‘public interest’. At least the Scottish criminal justice system doesn’t have the death penalty. 

Behind the Lockerbie frame-up

[This is the headline over an article by Norm Dixon published on this date in 2001 on the Links website. It reads as follows:]

The eminent barrister Horace Rumpole has often noted that the “golden thread running through the history of British justice” is that a defendant is innocent until proven guilty by the prosecution “beyond a reasonable doubt”. Of course, Rumpole is a fictional character created by writer John Mortimer. As the verdict handed down in the Lockerbie bombing trial proves, the “golden thread” is just as fictional.

On January 31, the three Scottish lords sitting in judgement on the charges against two Libyans accused of planting the bomb that felled Pan Am flight 103 over Scotland on December 21, 1988, found Abdelbaset Ali Mohmed al Megrahi guilty of the murders of the 270 people killed in the disaster. Al Amin Khalifa Fhimah was found not guilty.

The nine-month trial was held in the Netherlands and conducted according to Scottish law. It was the result of an agreement between Libya and the US and British governments that finally allowed the trial — which had been stalled for almost five years by London's and Washington's insistence that the case be held in either the United States or Britain — to be heard in a “neutral” third country.

In their 82-page judgement, the three judges found that, despite “uncertainties and qualifications”, “there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused [Megrahi]”.

According to the judges, the evidence showed that Megrahi, Libyan Arab Airlines' security chief at Malta's Luqa airport, had purchased items of clothing from a shop in Malta that were of the same brand and type as those that forensics experts had determined were in the Samsonite suitcase that contained the bomb that destroyed Pan Am 103. From the presence of these brands and types of clothes in the suitcase, the judges inferred that Megrahi had somehow succeeded in having the “item of baggage”, unaccompanied by a passenger, transferred from Malta, via Frankfurt, to London's Heathrow airport, where it was loaded onto the doomed aircraft.

The judges added that with “other background circumstances” — such as Megrahi's previous (and seemingly continuing) service with Libya's security organisation (JSO), his “association” with the Swiss company that manufactured a type of timer which the prosecution claimed was attached to the bomb and “his movements [between Malta and Libya] under a false name at or around the material time” — “a real and convincing pattern” formed.

Unexpected

Ian Bell wrote in the Scottish Sunday Herald on February 4, “Last week you would have been hard-pressed to find an Edinburgh lawyer willing to bet on any guilty verdict being reached at Camp Zeist. The same belief was evident, it is reported, in Whitehall.”

Robert Black QC, the highly respected professor of Scottish law at Edinburgh University who in 1994 first suggested the plan for a third country trial, told the BBC on February 4: “This was a very, very weak circumstantial case. I am absolutely astounded, astonished. I was extremely reluctant to believe that any Scottish judge would convict anyone, even a Libyan, on the basis of such evidence.”

Michael Scharf, a law professor at the New England School of Law, agreed, telling the February 2 New York Times: “It sure does look like they bent over backwards to find a way to convict, and you have to assume the political context of the case influenced them.”

Even some of the British relatives of the Lockerbie victims were sceptical: “All we know from this trial is that one of the two was innocent. I think we should be grateful... But we have our doubts about the guilt of Megrahi”, Martin Cadman, whose son was killed in the disaster, told the February 2 London Independent.

Beyond reasonable doubt?

The prosecution case, and the judges' verdict, rested fundamentally on two points: it was Megrahi who purchased the clothes which were packed into the suitcase that contained the bomb, and that suitcase began its fateful journey in Malta rather than either Frankfurt airport or at Heathrow.

Yet, Megrahi was never positively identified as the man who purchased the clothing, the prosecution did not provide any physical or documentary evidence to link Megrahi to the suitcase or the bomb components, and no evidence was offered to prove that the suitcase began its journey in Malta, let alone that it was Megrahi who sent it on its way.

The guilty verdict hinged most on the testimony of Tony Gauci, the owner of the clothes shop in Malta. In their judgement, the judges stated: “We are nevertheless satisfied that his identification so far as it went of the first accused as the purchaser was reliable and should be treated as a highly important element in this case.”

In their verdict, the judges described the torturous path Gauci's “identification” of Megrahi had taken. The shopkeeper was first interviewed by police on September 1, 1989, and described the purchaser as being “six feet or more” in height and well-built. On September 13, he told police the man was about 50 years old.

Megrahi is five feet, eight inches tall, of medium-build and was 36-years-old in December 1988.

On September 14, 1989, Gauci was shown 19 photos and identified a man as being “similar” to the purchaser but added that the purchaser was 20 years older. The man's photo — who was not Megrahi — was included because police thought he resembled an artist's impression and an identikit portrait based on Gauci's description.

On September 26, 1989, Gauci viewed more photos and pointed out another man included at the suggestion of German police. On August 31, 1990, Gauci was shown 24 photos and pointed out a man who, he said, had a face with a similar shape and style of hair to the purchaser. It was not Megrahi.

On December 6, 1989, and again on September 10, 1990, Gauci was shown photos but did not identify anybody. Included both times were photos of Abo Talb, a Palestinian jailed in Sweden in 1989 for terrorist bombings. Yet, Gauci told the court that in late 1989 or early 1990 his brother had shown him a newspaper article about the Lockerbie disaster which included a photo of a man with the word “bomber” printed across it. Gauci said he thought it was the man that bought the articles from him or that it resembled the person who bought the clothes from him. The man was Abo Talb.

On February 15, 1991, police showed Gauci 12 photos. Gauci told police that all the men in the photos were younger than the purchaser. The police pressed Gauci to “allow for any age difference” and look again. He pointed to a photo and said the man “resembles the man who bought the clothing ... of all the photographs I have been shown, this photograph 8 is the only one really similar to the man who bought the clothing, if he is a bit older, other than the one my brother showed me [of Abo Talb].” Photograph 8 was Megrahi's 1986 passport photo.

Towards the end of 1998 or the beginning of 1999, Gauci approached police after he was shown a magazine article about the Lockerbie disaster which named Megrahi as a suspect. He told police that the photo of Megrahi in the article “looks like the man” he sold clothes to.

On August 13, Gauci picked out Megrahi from an identification parade with the words: “Not exactly the man I saw in the shop. Ten years ago I saw him, but the man who look a little bit like exactly [sic] is number 5”. At the trial, Gauci pointed to Megrahi and said he “resembles him a lot”.

The defence lawyers protested that Gauci's eventual, less than positive identification of Megrahi had taken place after the defendant's photo had been in the world news for years.

In their verdict, the judges admitted that Gauci “never made what could be described as an absolutely positive identification”. The judges defended their assessment of Gauci's “identification” with the incredible statement that, “There are situations where a careful witness who will not commit himself beyond saying that there is a close resemblance can be regarded as more reliable and convincing in his identification than a witness who maintains that his identification is 100% certain.”

Gauci was also unclear as to when the items were purchased. On the witness stand, he agreed the date was either November 23 or December 7, 1988. The prosecution insisted it was December 7 and in the verdict, the judges did too.

However, in his statements to police and in his testimony at the trial Gauci said that it had been, or was, raining when the purchaser entered the shop. The nearby Luqa airport's chief meteorologist testified that it did not rain on December 7, but did so on November 23.

Interestingly, before the indictment of the two Libyans, the press reported that the police had stated that the clothing had been purchased on November 23.

Why is this important? First, because Megrahi was in Malta on December 7 but investigators could find no evidence that he was there on November 23, and second, because Abo Talb, who Gauci first identified as the purchaser, might have been. Talb had visited Malta from Sweden in late October 1988. When he left on October 26, he flew to Sweden on a return ticket valid for one month, raising the possibility could have returned.

Talb, who testified at the Lockerbie trial, could only prove he was in Sweden until November 10 and most of December, including on December 7. Talb presented no evidence to prove he was in Sweden after November 10 and before December 5. It is therefore possible that Talb entered Gauci's shop on November 23.

In December 1989, it was reported in several major newspapers that Scottish police, in papers filed with the Swedish legal authorities, had named Talb as the suspect “in the murder or participation in the murder of 270 people”.

The judges, however, chose to declare that “there is some support for Abo Talb when he said that he remained in Sweden and did not return to Malta after 26 October 1988”.

PFLP-GC

Talb's possible involvement is in line with the defence team's argument that there was a more plausible — and simpler — theory of how the bomb-laden suitcase reached Heathrow than the prosecution's convoluted speculations.

Talb was a member of the Syria-based Palestinian Popular Struggle Front, which worked closely with another Syria-backed terrorist group, the Popular Front for the Liberation of Palestine-General Command (PFLP-GC). On October 26, 1988 — less than a month before the Lockerbie disaster — West German police raided PFLP-GC safe-houses and seized Toshiba radio cassette players, explosives, detonators, timers, barometric pressure devices, as well as Pan Am timetables and unused airline baggage tags.

The cache suggested a plot to bomb an aircraft. A trade mark of the PFLP-GC's bombs at the time were that they were concealed within Toshiba radio cassette players. The bomb that brought down Pan Am 103 had been concealed in a Toshiba player, although a different model from that generally used by the PFLP-GC. That not all the PFLP-GC's stock of bombs had been discovered was proven when, in April 1989, three explosive devices were seized in a raid.

At first, US and British investigators also were convinced that the PFLP-GC — with the backing of the Syrian and Iranian governments — was the prime suspect in the Lockerbie disaster.

The FBI in April 1989 leaked news that the PFLP-GC had smuggled the bomb onto flight in Frankfurt. The Washington Poston May 11, 1989, reported that the US State Department had stated that the CIA was “confident” that the PFLP-GC had carried out the attack on behalf of the Iranian government. The attack was said to be in retaliation for the 290 pilgrims massacred while returning from Mecca when a US warship blew a Iranian passenger jet out of the sky as it passed over the Persian Gulf.

On December 16, 1989, the New York Times reported that Scottish investigators had announced that they had “hard evidence” that the PFLP-GC was behind the bombing.

In October 1990, US and British authorities suddenly did a backflip as the US build-up in the Gulf was gathering pace following Iraq's invasion of Kuwait. Investigators attention suddenly shifted from the Syria-backed PFLP-GC to Libya. In 1991, the two Libyans were formally indicted.

What changed between 1988 and 1991? Syrian dictator Hafiz Assad was an enthusiastic participant in the 1991 Gulf War against Iraq, whereas Libya's leader Moammer Qadhafi opposed the war and campaigned for a peaceful settlement.

The judges rejected this alternative theory, although they did “accept that there is a great deal of suspicion as to the actings of Abo Talb and his circle, but there is no evidence to indicate that they had either the means or the intention to destroy a civil aircraft in December 1988”.

This contention is based on the claim that the Lockerbie bomb was triggered by a Swiss-made timer of a type (MST-13) that had been supplied to the Libyan army in the mid-1980s. Yet the owner of the company that made the devices testified that MST-13s had also been supplied to the East German Stasi spy agency. East Germany is known to have harboured the PFLP-GC.

Despite the judges' proviso that “we are unable to exclude the possibility that any MST-13 timers in the hands of the Stasi left their possession, although there is no positive evidence that they did and in particular that they were supplied to the PFLP-GC”, their verdict stated that “the evidence relating to [the terrorist activities of the PFLP-GC] does not create a reasonable doubt in our minds about the Libyan origin of this crime”.

‘Major difficulty for Crown’

The judges' verdict doggedly insisted that “we are satisfied that it has been proved that the primary suitcase containing the explosive devise was dispatched from Malta, passed through Frankfurt and was loaded onto PA103 at Heathrow”.

Yet, the judges contradict themselves by admitting that there were no records that showed any unaccompanied baggage was carried on the flight to Frankfurt and that all luggage in Malta was checked by military personnel for the presence of explosives. The judges noted that the Luqa airport had a “relatively elaborate security system” and security procedures that “seem to make it extremely difficult for an unaccompanied and unidentified bag to be shipped on a flight out”.

The judges conceded that: “If therefore the unaccompanied bag was launched from Luqa, the method by which that was done is not established, and the Crown accepted that they could not point to any specific route by which the primary suitcase could have been loaded... The absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 [the Malta to Frankfurt flight] is a major difficulty for the Crown case.”

The judges' determination to deny that the bomb could have been introduced at a point other than Malta, and by a culprit other than Megrahi, led them to ignore that the security at Frankfurt airport was notoriously lax — something the US law enforcement authorities knew about at the time.

According to an October 30, 1990, US NBC television news report, “Pan Am flights from Frankfurt, including 103, had been used a number times by the [US Drug Enforcement Agency] as part of its undercover operation to fly informants and suitcases of heroin into Detroit as part of a sting operation to catch dealers in Detroit... Informants would put suitcases of heroin on the Pan Am flights apparently without the usual security checks ... through an arrangement between the DEA and the German authorities.”

The report stated that the DEA was investigating the possibility that a young man who lived in the US and regularly visited the Middle East may have unwittingly carried the bomb aboard flight 103.

An investigation commissioned by Pan Am's insurance company in 1989 also concluded that the most likely source of the bomb was that the PFLP-GC had infiltrated the DEA's protected drug smuggling operation and succeeded in having the bag containing the bomb placed on Pan Am 103 in Frankfurt.

Megrahi should have been found not guilty because the prosecution did not prove him guilty beyond “reasonable doubt”. A terrible miscarriage of justice has taken place because the three loyal servants of the British imperialist ruling class who sat in judgement on the fate Megrahi and Fhimah had already decided to find one of them guilty regardless of the facts.

The lords knew that the political stakes were too high to allow both Libyans to walk free. Such a verdict would have exposed the lies upon which nine years of UN sanctions, which have cost Libya US$33 billion and 10,000 lives, have been based. It would have also shed some light on the cynical, sleazy and embarrassing political operations that the US government is involved in throughout the world.