Q: If Libya, then Megrahi? A: No

[What follows is an item originally posted on this blog on this date in 2010:]

Gadhafi admitted it!

This is the subject-heading of an e-mail sent by Arnaud de Borchgrave to Frank Duggan and copied by the latter to me. It reads as follows:

"As Gaddafi explained it to me, which you are familiar with, it was indeed Iran's decision to retaliate for the Iran Air Airbus shot down by the USS Vincennes on its daily flight from Bandar Abbas to Dubai that led to a first subcontracting deal to Syrian intel, which, in turn, led to the 2nd subcontract to Libyan intel. As he himself said if they had been first at this terrorist bat, they would not have put Malta in the mix; Cyprus would have made more sense to draw attention away from Libya."

According to Arnaud de Borchgrave, Gaddafi made the admission, off the record, in the course of an interview in 1993. His published account reads:

"Megrahi was a small cog in a much larger conspiracy. After a long interview with Gaddafi in 1993, this editor at large of The Washington Times asked Libya's supreme leader to explain, off the record, his precise involvement in the bombing of Pan Am Flight 103, which killed 270 over Lockerbie, Scotland, on Dec 21, 1988, and for which Libya paid $2.7 billion in reparations. He dismissed all the aides in his tent (located that evening in the desert about 100 kilometers south of Tripoli) and began in halting English without benefit of an interpreter, as was the case in the on-the-record part of the interview.

"Gaddafi candidly admitted that Lockerbie was retaliation for the July 3, 1988, downing of an Iranian Airbus. Air Iran Flight 655, on a 28-minute daily hop from the Iranian port of Bandar Abbas in the Strait of Hormuz to the port city of Dubai in the United Arab Emirates on the other side of the Gulf, was shot down by a guided missile from the Aegis cruiser USS Vincennes. The Vincennes radar mistook it for an F-14 Tomcat fighter (which Iran still flies); 290 were killed, including 66 children. A year before, in 1987, the USS Stark was attacked by an Iraqi Mirage, killing 37 sailors. The Vincennes skipper, Capt William Rogers, received the Legion of Merit, and the entire crew was awarded combat-action ribbons. The United States paid compensation of $61.8 million to the families of those killed on IR 655.

"Gaddafi told me, 'The most powerful navy in the world does not make such mistakes. Nobody in our part of the world believed it was an error.' And retaliation, he said, was clearly called for. Iranian intelligence subcontracted retaliation to one of the Syrian intelligence services (there are 14 of them), which, in turn, subcontracted part of the retaliatory action to Libyan intelligence (at that time run by Abdullah Senoussi, Gaddafi's brother-in-law). 'Did we know specifically what we were asked to do?' said Gaddafi. 'We knew it would be comparable retaliation for the Iranian Airbus, but we were not told what the specific objective was,' Gaddafi added.

"As he got up to take his leave, he said, 'Please tell the CIA that I wish to cooperate with America. I am just as much threatened by Islamist extremists as you are.'

"When we got back to Washington, we called Director of Central Intelligence Jim Woolsey to tell him what we had been told off the record. Woolsey asked me if I would mind being debriefed by the CIA. I agreed. And the rest is history."

On the assumption that this account of an off-the-record conversation in 1993 is accurate, it in no way affects the wrongfulness of the conviction of Abdelbaset Megrahi. As I have tried (without success) to explain to US zealots in the past, the fact -- if it be the fact -- that Libya was in some way involved in Lockerbie does not entail as a consequence that any particular Libyan citizen was implicated. The evidence led at the Zeist trial did not justify the guilty verdict against Megrahi. On that basis alone his conviction should have been quashed had the recently-abandoned appeal gone the full distance. That conclusion is reinforced (a) by the material uncovered by the Scottish Criminal Cases Review Commission and (b) by the material released on Mr Megrahi's website.

Lockerbie trial is an historic miscarriage of justice

[This is the headline over an article by Hugh Miles published on this date in 2008 on The Cutting Edge website. It reads in part:]

December 2008 has had more than its share of stories about miscarriages of justice. But little has been said the victim of what many see as the biggest miscarriage of justice in Scottish legal history: Abdelbaset Ali Mohmed al-Megrahi, the man convicted of blowing up Pan Am Flight 103 en route from London to New York on December 21, 1988.

For many years, it looked as if there would be no trial over Lockerbie. British and US governments believed Colonel Gaddafi would never hand over the two Libyan intelligence officers accused of the bombings, which some regarded as fortunate, as they believed the evidence against Libya would not stand up in a court of law.

But thanks largely to the persistence of Nelson Mandela, 12 years after the bombing a trial did take place. In exchange for the lifting of sanctions, Gaddafi handed over the two accused men and the Scottish court swallowed almost the whole improbable story. On January 31, 2001, Megrahi was convicted of the mass murder of 259 passengers and crew, as well as 11 people on the ground in the village of Lockerbie. He is now serving a life sentence in a Scottish jail. His co-accused, Al Amin Khalifa Fhimah, was acquitted.

Megrahi's conviction was a shocker. No material evidence was presented linking him to the bombing, let alone any evidence that he put the bomb on the plane or that he handled any explosives. Even the prosecution subsequently questioned the credibility of its star witness.

Nevertheless, keen to move on, Libya accepted responsibility for the bombing although it never accepted guilt. Gaddafi paid $2.7 billion (£1.8 billion) in compensation to the victims' families  $10 million for every victim. The final payment was made in 2008. US lawyers took approximately a third of the final amount. But the economic and humanitarian price for Libya was far higher: UN sanctions over an 11-year period inflicted billions of dollars' worth of economic damage on Libya and prevented thousands of Libyan citizens from traveling abroad.

The central pillar of the prosecution's case was that Megrahi wrapped the bomb in clothes before checking it onto a plane in Malta without boarding it himself. The bomb, the prosecution alleged, was subsequently transferred at Frankfurt onto the flight to London, and then loaded onto the flight to New York. Two years after the bombing, Granada TV in Britain ran a program about the bombing featuring a dramatic reconstruction, in which a bag containing a bomb was loaded onto an Air Malta flight by a sinister-looking Arab, who then sloped off without boarding. Upset by the damage to its reputation, Air Malta sued Granada TV. The airline's solicitors compiled a dossier of evidence demonstrating that all the bags checked onto that flight were accompanied by passengers and none traveled on to London. The evidence was so convincing that Granada TV settled out of court.

Since the British Crown never had much of a case against Megrahi, it was no surprise when the Scottish Criminal Cases Review Commission (SCCRC) found prima facie evidence in June 2007 that Megrahi had suffered a miscarriage of justice and recommended that he be granted a second appeal.

For 11 years, while legal proceedings were pending and throughout the trial, the British Government argued that a public inquiry into Lockerbie was not appropriate as it would prejudice legal proceedings. After the conviction, it switched tack, arguing instead that no public inquiry was necessary. But if the conviction were overturned, there would no longer be a reason to hold back. For Megrahi, this cannot come soon enough. In September, he was diagnosed with advanced terminal prostate cancer.

The British Government is preparing for Megrahi to be transferred to Libya for the rest of his sentence. This would eliminate the risk of an acquittal and lessen the chance of a subsequent inquiry. Applications for a transfer cannot be submitted while an appeal is pending, which for the Government raises the convenient prospect that Megrahi will abandon his appeal so he can die at home. But letting Megrahi die a condemned man reduces the chance of Scottish prosecutors, the police, various British intelligence services plus many American and other foreign bodies being asked a lot of difficult questions. In November 2008, a general agreement on the exchange of prisoners was signed between Libya and Britain paving the way for such a transfer. The agreement will be ratified in January 2009.

"The Crown and the prosecution are using every delaying tactic in the book to close off every route available to Megrahi except prisoner transfer, as this means he has to abandon his appeal," commented Professor Robert Black QC, the Scottish lawyer who was the architect of the original trial who feels partly responsible for the miscarriage that occurred. "It is an absolute disgrace. It was June 27, 2007 when the SCCRC released its report and sent its case back to the criminal appeal court, and here we are 18 months later and the Crown has still not handed over all of the material that the law requires it to hand over and it is still making every objection conceivable."

There are, however, two obstacles to the British plan. Firstly, the decision to transfer Megrahi lies with the Scottish First Minister, Alex Salmond. Upset that the Government reached an agreement over Megrahi without consulting him first, Salmond has ruled out any transfer.

Secondly, whether Megrahi dies in jail in Scotland or Libya, under Scottish law his appeal can still go ahead without him. "Any interested person can continue the case. In this case one of Megrahi's children could continue with the appeal to clear their father's name," says Professor Black.

If Megrahi didn't do it, who did?

Prosecution case in Lockerbie trial was itself a conspiracy theory

[What follows is an excerpt from a long article by Professor Hugh Roberts entitled Who said Gaddafi had to go? that was published in the London Review of Books on this date in 2011:]

Since February [2001], it has been relentlessly asserted that the Libyan government was responsible both for the bombing of a Berlin disco on 5 April 1986 and the Lockerbie bombing on 21 December 1988. News of Gaddafi’s violent end was greeted with satisfaction by the families of the American victims of Lockerbie, understandably full of bitterness towards the man they have been assured by the US government and the press ordered the bombing of Pan Am 103. But many informed observers have long wondered about these two stories, especially Lockerbie. Jim Swire, the spokesman of UK Families Flight 103, whose daughter was killed in the bombing, has repeatedly expressed dissatisfaction with the official version. Hans Köchler, an Austrian jurist appointed by the UN as an independent observer at the trial, expressed concern about the way it was conducted (notably about the role of two US Justice Department officials who sat next to the Scottish prosecuting counsel throughout and appeared to be giving them instructions). Köchler described al-Megrahi’s conviction as ‘a spectacular miscarriage of justice’. Swire, who also sat through the trial, subsequently launched the Justice for Megrahi campaign. In a resumé of Gaddafi’s career shown on BBC World Service Television on the night of 20 October, John Simpson stopped well short of endorsing either charge, noting of the Berlin bombing that ‘it may or may not have been Colonel Gaddafi’s work,’ an honest formula that acknowledged the room for doubt. Of Lockerbie he remarked cautiously that Libya subsequently ‘got the full blame’, a statement that is quite true.

It is often claimed by British and American government personnel and the Western press that Libya admitted responsibility for Lockerbie in 2003-4. This is untrue. As part of the deal with Washington and London, which included Libya paying $2.7 billion to the 270 victims’ families, the Libyan government in a letter to the president of the UN Security Council stated that Libya ‘has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103, and accepts responsibility for the actions of its officials’. That this formula was agreed in negotiations between the Libyan and British (if not also American) governments was made clear when it was echoed word for word by Jack Straw in the House of Commons. The formula allowed the government to give the public the impression that Libya was indeed guilty, while also allowing Tripoli to say that it had admitted nothing of the kind. The statement does not even mention al-Megrahi by name, much less acknowledge his guilt or that of the Libyan government, and any self-respecting government would sign up to the general principle that it is responsible for the actions of its officials. Tripoli’s position was spelled out by the prime minister, Shukri Ghanem, on 24 February 2004 on the Today programme: he made it clear that the payment of compensation did not imply an admission of guilt and explained that the Libyan government had ‘bought peace’.

The standards of proof underpinning Western judgments of Gaddafi’s Libya have not been high. The doubt over the Lockerbie trial verdict has encouraged rival theories about who really ordered the bombing, which have predictably been dubbed ‘conspiracy theories’. But the prosecution case in the Lockerbie trial was itself a conspiracy theory. And the meagre evidence adduced would have warranted acquittal on grounds of reasonable doubt, or, at most, the ‘not proven’ verdict that Scottish law allows for, rather than the unequivocally ‘guilty’ verdict brought in, oddly, on one defendant but not the other. I do not claim to know the truth of the Lockerbie affair, but the British are slow to forgive the authors of atrocities committed against them and their friends. So I find it hard to believe that a British government would have fallen over itself as it did in 2003-5 to welcome Libya back into the fold had it really held Gaddafi responsible. And in view of the number of Scottish victims of the bombing, it is equally hard to believe that SNP politicians would have countenanced al-Megrahi’s release if they believed the guilty verdict had been sound. The hypothesis that Libya and Gaddafi and al-Megrahi were framed is to be taken very seriously indeed. And if it were the case, it would follow that the greatly diminished prospect of reform from 1989 onwards as the regime battened down the hatches to weather international sanctions, the material suffering of the Libyan people during this period, and the aggravation of internal conflict (notably the Islamist terrorist campaign waged by the LIFG between 1995 and 1998) can all in some measure be laid at the West’s door.

Lockerbie: the alternate theories

[This is the headline over a long article by Katie Worth that was published yesterday evening on the PBS website to accompany Ken Dornstein's films. It reads as follows:]

The only person ever convicted for the bombing of Pan Am Flight 103 over Lockerbie, Scotland was Libyan. And although the former Libyan dictator, Muammar Qaddafi, never accepted personal blame for the attack, in 2003 his government took responsibility “for the actions of its officials” and agreed to pay $2.7 billion in compensation to families of the bombing’s 270 victims.

But the case against Libya has never been universally accepted. Nearly 30 years since the attack, some victims’ family members, journalists, and investigators dispute the prosecution’s version of events. Among those who have found fault with the case include a United Nations observer to the Lockerbie trial, the trial’s legal architect and an independent review commission established by the Scottish government.

Over the years, alternative theories have proliferated, as have books and documentaries that purport to present the “real story” of what was one of the worst terrorist attacks against Americans before 9/11.

QUESTIONS ABOUT LIBYA

Two men were originally indicted for the Lockerbie attack: Abdel Basset al Megrahi, who was convicted in 2001, and a second Libyan, Lhamen Fhimah, who was acquitted. Over the course of their months-long trial, prosecutors alleged that Megrahi, a man U.S. investigators identified as a member of Libyan intelligence, and Fhimah, a station manager for Libyan Arab Airlines, were responsible for getting the suitcase believed to have carried the bomb onto Flight 103. The bomb was built into a Toshiba cassette recorder, and tucked inside a brown Samsonite suitcase with clothes that Megrahi was said to have purchased.

The court accepted the prosecution’s arguments against Megrahi and sentenced him to life in prison, but it acquitted Fhimah, stating that there was “insufficient corroboration” of the evidence against him.

This outcome was emphatically criticized by the United Nations observer to Megrahi’s trial, Hans Kochler, who in 2001 stated in his official report that the court’s decision was “exclusively based on circumstantial evidence and on a series of highly problematic inferences,” and that the guilty verdict “appears to be arbitrary, even irrational.”

The outcome was similarly decried by the man credited with creating the unique legal framework of the trial — a non-jury trial under Scots Law held in the neutral country of Netherlands — Edinburgh University emeritus law professor Robert Black. He has spent years blogging about his disagreement with Megrahi’s conviction, which he says was unwarranted considering the evidence, and would not have been replicated in a jury trial.

In 2007, the Scottish Criminal Cases Review Commission, after more than three years of investigating, validated several of these misgivings, concluding that “some of what we have discovered may imply innocence” and referred Megrahi’s case to an appeal court in the interests of avoiding “a miscarriage of justice.”

The commission rejected several points of contention raised by critics, saying they found no signs that evidence had been tampered with, that the Libyans had been framed, or that there had been “unofficial CIA involvement” in the investigation. But other points were worrying enough that the case merited an appeal.

One point of concern for the commission involved a key witness for the prosecution — a shopkeeper from Malta named Tony Gauci, who testified that Megrahi had purchased the clothes that accompanied the bomb from his shop.

However, the commission found Gauci’s testimony problematic. He said it was raining the day Megrahi went shopping, but weather reports show it was likely not raining when Megrahi was in Malta. And Gauci said that Christmas lights on his streets were not yet on, when there is evidence that they were.

Gauci also identified Megrahi from a lineup as the man who came into his shop — but only after being shown a picture of him in a magazine. The commission said this detail “undermines the reliability of his identification” of Megrahi.

Megrahi’s defenders say there is still more to consider. In an interview with FRONTLINE filmmaker Ken Dornstein, John Ashton, who worked as a defense investigator during Megrahi’s first appeal and has written three books arguing that Megrahi was innocent, said the origin of the timer used in the bomb is questionable. According to metallurgists hired by the defense in 2009, the timer’s circuit board was a different color and coated in a different substance than those designed by MEBO, the Swiss company that the timer was linked back to and that had a relationship with the Libyans. This discrepancy “breaks the link with those timers, breaks the link with Libya, breaks the link with Megrahi,” said Ashton.

Ashton has also dismissed the prosecution’s allegation that the suitcase originated from Malta and travelled through Frankfurt, writing in a recent opinion piece that a researcher “has effectively proved that the bomb originated from Heathrow.” This theory hangs on evidence of a security breach at Heathrow Airport in London — where Pan Am Flight 103 originated — 18 hours prior to the attack. However, an appeals panel rejected this argument as grounds for a retrial. [RB: Dr Morag Kerr’s evidence establishing that the bomb suitcase was in luggage container AVE4041 before the baggage ever arrived on the feeder flight from Frankfurt is in no way linked to, or dependent upon, the break-in at Terminal 3.]

Many of these points have never seen their day in court, because Megrahi abandoned his second appeal right before he was released from Scottish prison in 2009 on compassionate grounds due to ill health.

“The appeal, had it gone forward, would have dragged the Scottish criminal justice through the mud,” Ashton said. “I believe they wanted this buried.”

EARLY THEORIES

The Libyans weren’t initially on investigators’ radar, according to a 1991 fact sheetreleased by the U.S. State Department: “The dominant hypothesis of the early stages of the Pan Am 103 investigation focused on indications that the bombing was the outcome of joint planning by the Iranian Revolutionary Guard Corps (IRGC) and the Popular Front for the Liberation of Palestine – General Command (PFLC-GC).”

This theory stemmed from what the fact sheet described as “reliable intelligence” that indicated those groups were planning to attack a U.S. target in retaliation for an incident in which American warship USS Vincennes accidentally shot down an Iranian Airbus in July 1988, five months before Lockerbie.

Further, the bomb that exploded on Pan Am 103 was strikingly similar to one found in the car of a PFLC-GC militant during a raid in Frankfurt, Germany less than two months earlier. Both were concealed in a Toshiba radio and consisted of similar explosives. The PFLC-GC was also reportedly in possession of flight schedules. And the Frankfurt connection — the Pan Am 103 flight came from Frankfurt before landing in Heathrow and then departing for New York — seemed unlikely to be coincidental, some have said.

But investigators eventually turned away from this theory. Per the State Department, the Toshiba radios were different in appearance and used different bomb technology.  The PFLC-GC’s bomb used an altimeter for activation, while the bomb on Pan Am 103 used a sophisticated timer. And even though the origin of the suitcase that is believed to have carried the bomb onto Flight 103 would later raise questions, investigators said that it was most likely transferred from Malta to Frankfurt. This, the State Department memo said, pointed investigators’ attention to the Libyans, who had been traveling in and out of Malta.

Though investigators say they never found hard evidence of an Iranian-Palestinian conspiracy, last year, an Iranian defector to Germany gave the theory new life when he claimed the attack was ordered by Iran’s Supreme Leader Ayatollah Khomheini “to copy exactly what happened to the Iranian Airbus” that had been shot down by the U.S. warship.

This theory has proved durable and, for many, convincing. In its 800-page review of the Lockerbie evidence, the Scottish Criminal Cases Review Commission said the evidence found in the Frankfurt raid shortly before the Lockerbie bombing — including the Toshiba bomb and the flight timetable — led it to determine that “there was some evidence that could support an inference of involvement by” Palestinian terrorists.

Dr. Jim Swire, whose daughter was one of the 270 victims of Flight 103, is among those who believe Megrahi was innocent. Swire has repeatedly told reporters that he believes Iran was primarily responsible for the attack, and that the U.S. did not pursue this angle because officials wanted  “to blame somebody, anybody, rather than Iran.”

Investigating the Iran link, says Swire, would have caused diplomatic problems at a time when Americans were negotiating over hostages in Lebanon.

“It seems to me that by far the most likely explanation for the blaming of Libya was to secure the release of Terry Waite and other hostages from Beirut,” Swire told The Telegraph in 2013.

A MULTINATIONAL CONSPIRACY?

The main competing theories of who was behind the attack — Libyans or a cohort of Iranian and/or Palestinian extremists — are not mutually exclusive for some of those who’ve looked into the case. After all, Libya, Iran and Palestinian terrorist groups had close ties, and had worked together in previous attacks.

Two years before Lockerbie, the State Department reported that Qaddafi had provided “safe haven, money and arms” to the PFLP-GC and had also announced a “strategic alliance” with Iran, which he hoped to “use as a foundation for joint operational planning for terrorist attacks against various regional foes.”

Nor did he express qualms about using these links to attack American targets. During a speech in 1985, Qaddafi remarked that “we have the right to fight America, and we have the right to export terrorism to them.”

Syria may have also been involved, according to some theories. Libya, Iran and Palestinian extremists all had links in Syria, and according to the State Department’s fact sheet, Syria was the primary political sponsor of PFLP-GC, and “was at least broadly aware” of the group’s alliances and operations.

So did the leaders Libya, Iran, Syria and a Palestinian extremist group collaborate to bring down Pan Am 103? The State Department did not dismiss the possibility in its 1991 memo.

“We cannot rule out a broader conspiracy between Libya and other governments or terrorist organizations,” the fact sheet stated. “Despite these links, we lack information indicating direct collaboration.”

Today, nearly 30 years after the attack, many such questions around Lockerbie have yet to be definitively answered. For some at least, that means the bombing will remain a mystery.

Dubious evidence and suspect witnesses

[What follows is taken from an item originally posted on this blog on this date in 2007:]

Was Libya framed for Lockerbie bombing?

http://archive.gulfnews.com/opinion/columns/region/10151176.html

09/04/2007 12:37 AM | By Linda S Heard Special to Gulf News

On December 21 1988, a Pan Am plane mysteriously exploded over Scotland causing the death of 270 people from 21 countries. The tragedy provoked global outrage. In 1991, two Libyans were charged with the bombing.

In the event, only Abdulbaset Ali Mohammad Al Megrahi, a Libyan agent, was pronounced guilty by a panel of three judges, who based their decision on largely circumstantial evidence. Al Megrahi and the Libyan government have protested their innocence all along.

Nevertheless, after suffering punitive UN sanctions which froze overseas Libyan bank accounts and prevented the import of spare parts needed for the country's oil industry, Tripoli reluctantly agreed to pay $2.7 billion to victims’ families ($10 million per family), on condition the pay-out would not be deemed as admission of guilt.

In February, 2004, the Libyan prime minister told the BBC that his country was innocent but was forced to pay-up as a "price for peace".

Al Megrahi is currently serving a life sentence but earlier this year the Scottish Criminal Cases Review Commission ruled there may have been a miscarriage of justice on the basis of lost or destroyed evidence.

Later this month, a Scottish appeals court is due to revisit the case and is expected to overturn Al Megrahi's conviction as unsafe.

The Libyan leader's son Saif Al Islam recently said he is confident Al Megrahi will soon be found innocent and will be allowed to return home.

On Sunday, an Observer expose written by Alex Duval Smith reported "a key piece of material evidence used by prosecutors to implicate Libya in the Lockerbie bombing has emerged as a probable fake" with allegations of "international political intrigue and shoddy investigative work" levelled at "the British government, the FBI and the Scottish police".

The Observer story maintains Ulrich Lumpert a Swiss engineer who was "a crucial witness" has now confessed that he lied about the origins of a timer switch.

Recently, Lumpert gave a sworn declaration to a Swiss court, which read "I stole a prototype MST-13 timing device" and "gave it without permission on June 22, 1989 to a person who was officially investigating the Lockerbie affair".

The owner of the company that manufactured the switch - forced into bankruptcy after being sued by Pan Am - says he told police early in the enquiry that the timer switch was not one his company had ever sold to Libya.

Moreover, he insists the timer switch shown to the court had been tampered with since he initially viewed it in Scotland, saying the pieces appeared to have been "carbonised" in the interim. He also says the court was so determined to prove Libya's guilt it brushed aside his evidence.

In 2005, a former Scottish police chief signed a statement alleging the CIA had planted fragments of a timer circuit board produced at trial, evidence supporting earlier claims by a former CIA agent to the effect his agency "wrote the script" to ensure Libya was incriminated.

There are also allegations that clothing allegedly purchased by the bomber in Malta before it was wrapped around the bomb, was intact when discovered but by the time it reached the court it was in shreds.

Life sentence

The shopkeeper who sold the item made a statement to the effect Al Megrahi had never been a customer. Instead, he identified an Egyptian-born Palestinian Mohammad Abu Talb - now serving a life sentence in Sweden for a synagogue bombing.

Professor Hans Koechler, appointed by the UN to be an observer at the trial, has termed its outcome "a spectacular miscarriage of justice". Koechler has repeatedly called for an independent enquiry, which, to date, the British government has refused to allow.

Oliver Miles, a former British ambassador to Libya, insists "no court is likely to get to the truth, now that various intelligence agencies have had the opportunity to corrupt the evidence".

Jim Swire, the father of one of the Lockerbie victims, said "Scottish justice obviously played a leading part in one of the most disgraceful miscarriages of justice in history."

Craig Murray, a former British ambassador, who was earlier second-in-command of Britain's Aviation and Maritime Department from 1989 to 1992, writes about a strange incident on his website.

Murray says a colleague told him "in a deeply worried way" about an intelligence report indicating Libya was not involved in the Pan Am bombing. When he asked to see it, his colleague said it was marked for named eyes only, which Murray describes as "extremely unusual". Earlier, a CIA report that had reached a similar conclusion had been conveniently buried.

If Al Megrahi walks, as is likely, Libya will be vindicated and would presumably be able to reclaim monies paid in compensation along with its reputation.

This would also be a highly embarrassing turn of events for Britain and the US not to mention their respective intelligence agencies, and would leave the question of who bombed Pan Am Flight 103 unanswered.

In a perfect world, Libya should also receive an apology from its accusers and should be allowed to sue for damages for all that it lost as a result of UN sanctions.

But in a world where political expediency often triumphs, the appeal has no foregone conclusion despite the exposure of dubious "evidence" and suspect "witnesses".

Linda S Heard is a specialist writer on Middle East affairs. She can be contacted at lheard@gulfnews.com.

Shifting of blame

[What follows is excerpted from an article by Gwynne Dyer published on this date in 2007 in the New Zealand Herald:]

Over a period of several years in the later 1990s, 438 children in a Benghazi hospital in eastern Libya were infected by HIV-contaminated blood transfusions. By now, 56 of the children have died of Aids.

Similar tragedies have happened in other countries, and those who made the mistakes have been disciplined - but this was Libya, where it's always the fault of foreign enemies if things go wrong.

So in 1999 the Libyans charged five Bulgarian nurses and a Palestinian doctor who were working at the hospital with murder. Gaddafi claimed that they were working for the Central Intelligence Agency and Mossad, the Israeli intelligence agency, seeking to destabilise his regime by undermining confidence in Libyan health care.

They all confessed to it, too, after they had been tortured for a while, but it was absurd: just another tinpot dictator shifting the blame for his regime's incompetence. The HIV infections, which began before the six foreign scapegoats arrived in Libya, were probably due to poor hygiene in the hospital, but the foreigners were convicted of murder and sentenced to death.

Early this month, however, as part of a deal with the EU, the Libyan high court commuted their sentence to life imprisonment, and then allowed them to go to Bulgaria to serve out their sentences. On arrival in Sofia, they were immediately "pardoned," and the case was closed.

Nobody admitted any blame, nobody lost face, and no blackmail was paid. The fact that each of the 438 Libyan families involved will get $1 million from EU sources is purely coincidental. Colonel Gaddafi may be a head case, but Libya still has some oil, so his peccadilloes are overlooked.

And before people in other places start feeling superior, let us recall another case involving Libya in which some shifting of blame may have occurred.

On December 21, 1988, Pan American flight 103 exploded over Lockerbie, Scotland, killing 270 people. Most were Americans, and it was initially suspected that Iran carried out the operation - possibly with the help of its Syrian ally - in revenge for the killing of 290 Iranians six months earlier aboard a civilian Iran Air flight that was shot down by a US warship in the Gulf.

(The United States was backing Saddam Hussein in his war against Iran, and the American warship mistakenly believed that it was under attack by the Iranian Air Force.)

US and British investigators started building a case against Iran and Syria - but a year and a half later Saddam Hussein invaded Kuwait, turning overnight from an ally to an enemy of the United States.

In the US-led war to liberate Kuwait that was being planned, the co-operation of Iran and Syria was vital - so suddenly the Lockerbie investigation shifted focus to Libya, and in due course (about 10 years) two Libyan intelligence agents were brought to trial for the crime.

In 2001 one of them, Abdelbaset al-Megrahi, was convicted and sentenced to life imprisonment in Scotland, where the plane came down. Libya paid $2.7 billion in "compensation" to the victims' families, without ever admitting guilt, but the verdict always smelled fishy.

Jim Swire, father of one of the victims on Pan Am 103, said: "I went into that court thinking I was going to see the trial of those who were responsible for the murder of my daughter. I came out thinking [al-Megrahi] had been framed."

Late last month, the Scottish Criminal Cases Review Commission declared al-Megrahi's conviction "unsafe" and granted him the right to appeal against the verdict because "the applicant may have suffered a miscarriage of justice".

That may well be true, and it may not have been an accident either. But, as former British ambassador to Libya Oliver Miles told the BBC recently, "No court is likely get to the truth, now that various intelligence agencies have had the opportunity to corrupt the evidence."

And so it goes.

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.