News breaks of UK & US volte face on Lockerbie trial

[It was on this date in 1998 that The Guardian broke the story that the governments of the United Kingdom and the United States were about to drop their opposition to a trial of the two Libyan suspects under Scots law in the Netherlands. Two articles by the newspaper’s Diplomatic Editor, Ian Black (which are not wholly accurate and no longer seem to appear on The Guardian website) read as follows:]

New move to force trial of Lockerbie bomb suspects

Tuesday July 21, 1998

Britain and the US have decided that two Libyans accused of the Lockerbie bombing can be tried in The Hague under Scottish law, reversing their position that justice can only be done under their jurisdiction - and shifting the onus on to Colonel Gadafy to hand them over.

Robin Cook, the Foreign Secretary and Madeleine Albright, the US secretary of state, are to make the announcement simultaneously in London and Washington in the next few days, The Guardian has learned.

The U-turn follows growing evidence that the campaign to isolate Libya through sanctions was beginning to crumble in the face of an obdurate Libyan leader.

The two allies reached agreement earlier this month but the announcement has been held up pending a new government in Holland, whose approval is required for the trial to go ahead.

Abdel Basset al-Megrahi and Lamin Khalifah Fhimah, described as Libyan intelligence agents, were accused in November 1991 of planting the suitcase bomb that killed 270 people on Pan Am flight 103 over Lockerbie on December 21, 1988.

It was the worst act of terrorism in British history, and there have been several conflicting theories and much speculation about who was responsible.

Libya has consistently refused to hand over the men, despite the imposition of United Nations sanctions which Britain and the US are finding increasingly hard to maintain in the face of their refusal to accept a third country trial.

For nearly seven years both have insisted that the trial can be held only in Scotland or the US. They rejected as disingenuous Libyan claims that the two could not get justice under such jursidiction.

The move will be welcomed by families of the British victims, long frustrated at the impasse. They have urged London and Washington should show flexibility.

Libya has not yet been informed of the new position, which is likely to follow closely a proposal made by the Arab League and the Organisation of African Unity, which have said Colonel Gadafy will accept a court operating under the Scottish legal procedure.

Under this proposal, it would have an international panel of judges instead of a jury, presided over by a senior Scottish judge appointed by Tony Blair.

The Hague is home to the International Court of Justice and the Bosnia War Crimes Tribunal. If the two men are handed over, and convicted, special arrangements will have to be made for their imprisonment.

Diplomats believe it is unlikely that Colonel Gadafy will agree to surrender the men but argue that if he does not, it should be easier to reinforce the sanctions.

In recent months both governments have watched with mounting alarm as they have become isolated over the sanctions in the Arab world, Africa, and beyond. They have concluded that they need to regain the initiative.

Both countries also want to focus their energies on maintaining the far more important UN sanctions against Iraq, still seen as a significant international threat in the way that Libya no longer is.

Only last week Italy said it wanted to normalise relations with its former colony, while Mrs Albright was furious when the Egyptian President, Hosni Mubarak, sought and obtained UN permission on humanitarian grounds to fly to Libya to see Colonel Gadafy, suffering from a broken hip.

Lockerbie: the West takes a gamble

Most of the world has lost its taste for punishing Libya. Ian Black reveals how the US and Britain are hoping to regain the whip hand

Tuesday July 21, 1998

Nearly 10 years after the worst act of  terrorism in contemporary British history, the decision to agree to the Lockerbie bombing suspects being tried in a neutral venue -  expected to be announced later this week - offers the first chance for justice to be done.

It represents a dramatic turning point in the long and exhausting battle of wills between the United States and Britain on the one hand and Colonel Muammar Gadafy on the other - a battle that began when Libya's leader was blamed for the deadly suitcase bomb placed on a Boeing jet, probably in Malta, just before Christmas 1988, and which brought mayhem and carnage to the Scottish town over which the plane broke up.

For Libyans and many Arabs, Lockerbie has become a byword for American-inspired arrogance, another example of superpower readiness to use the blunt instrument of sanctions, like those imposed on Libya, to bully smaller countries.

For relatives of the 270 victims of Pan-Am flight 103 - American, British and others - it was a personal tragedy. Many had all but given up hope of seeing the two Libyans under suspicion brought to trial.

Britain and the US always insisted that the two, members of the Libyan intelligence services, must face trial either in Scotland or  the US, and argued that Libyan claims that the men could not expect justice in these venues were simply disingenuous.

Pressure from the relatives has certainly had some effect in changing the stance of London and Washington. But the key lies in the sense both capitals now have that without some movement on the Western side, Col Gadafy would never budge.

Lockerbie has been high on the Labour Government's agenda since it took office in May last year, when it ordered a review of the evidence, though so far there has been no public hint from the Foreign Office or elsewhere of the extraordinary turnaround in the case.

Indeed, Libya itself has yet to be to informed of the change of heart by Britain and the US, but there have been preliminary contacts in recent days through the United Nations secretary-general, Kofi Annan.

There must be grave doubts, however, that Col Gadafy will allow two secret agents to appear in any court. Most Libya-watchers agree that to do so would be to expose his own regime to a charge of state terrorism.

So while there is clearly no guarantee that the suspects will come to court, the British-American agreement to a neutral venue puts the onus squarely on Libya to comply. This - given that international support for the Anglo-American position has been withering away - should make it easier to maintain Libya's isolation if it does not comply.

Few details are known of the precise offer to be made to Tripoli, but it is likely to follow closely one made by two key supporters of  Libya - the Arab League and the Organisation of African Unity - which have said Col Gadafy will accept a court operating under the criminal law and procedure of Scotland.

In place of a jury, the envisaged court would have an international panel of judges, presided over by a senior Scottish judge appointed by Tony Blair.

It is understood that the court would sit in The Hague, already home to the International Court of Justice and the Bosnia War Crimes Tribunal. If the two were handed over, and convicted, there would be the question of where they would be imprisoned.

The Britain-US decision will be applauded by many of the Lockerbie relatives, led at the British end by Jim Swire, who lost his daughter, Flora, in the atrocity on December 21, 1988.

Dr Swire asked recently: "What do Britain and America have to lose by agreeing to a neutral-country trial, except perhaps a smidgeon of national pride? Are not justice and truth more important than that?"

Years of pain and frustration have led many of the bereaved to believe in complex conspiracy theories about the bombing, variously blaming Iran, Palestinian radicals or Syria, even though the evidence gathered in this country by Dumfries and Galloway Police is said to provide a strong case against the two Libyans.

Indictments against the two agents were issued in November 1991 but Libya has always refused to hand the men over. In 1992 the United Nations imposed an air and arms embargo intended to isolate the North African country until it complied.

The curbs were tightened in 1993 to include a freeze on some Libyan assets abroad and a ban on some types of equipment used in oil terminals and refineries.

But because of the scale of European dependence on Libyan oil the sanctions were not allowed to affect the country's oil exports or oil drilling equipment.

Recently international enthusiasm has waned sharply and the US and Britain have found themselves almost alone as Col Gadafy has bought friends and influence in Africa with cheap oil deals and outright bribes.

The Organisation of African Unity is threatening to cease complying with the sanctions from September this year, unless the UN Security Council agrees to a third-country trial. Last October, South Africa's influential president, Nelson Mandela, visited Libya on his way to and from the Commonwealth summit in Edinburgh.

Last week, Egypt's moderate president, Hosni Mubarak - the largest recipient of US aid after Israel - flew to Libya to visit Col Gadafy after the Libyan leader broke his hip.  The UN gave permission on humanitarian grounds, but the message was clear: patience with Libya's punishment was running out.

[RB: The official announcement came just over a month later, on 24 August 1998.]

Not the monster he has been portrayed as

[What follows is the text of a report by Lucy Adams that was published in The Herald on this date in 2009:]

An eminent psychologist and expert in cancer support who assessed the man convicted of the Lockerbie bombing has spoken for the first time about his fears for the Libyan.

Dr James Brennan, consultant clinical psychologist at the Bristol Haematology and Oncology Centre, warned that Abdelbaset Ali Mohmed al Megrahi is so culturally isolated that it is almost impossible for him to come to terms with his terminal illness.

In an exclusive interview with The Herald, Dr Brennan, who is also a senior lecturer in palliative medicine at Bristol University, said that Megrahi was "desperate", partly because he cannot spend his remaining time with his family.

Megrahi, who is serving 27 years in Greenock prison for the bombing of Pan Am 103 in December 1988, was granted the right to a new appeal more than two years ago on six different points that suggested his conviction may have been a miscarriage of justice.

Since then, the appeal has been blighted by delays and last September Megrahi was diagnosed with terminal prostate cancer.

Dr Brennan said: "Physically he is deteriorating, and emotionally he will deteriorate further without suitable support. It would seem to me that the best form of support would be from his family in his own country.

"Human beings can only cope and conceptualise the end of life through language and it is impossible to imagine how to do this in isolation or through occasional telephone calls with family."

In May, the Libyan government applied for prisoner transfer of Megrahi and Justice Secretary Kenny MacAskill has 90 days to make a decision. The transfer cannot go ahead while legal proceedings are live.

Megrahi has signed a document saying he would drop proceedings, but the move has led to an international political impasse as Mr MacAskill says he cannot complete the transfer until Megrahi has dropped the appeal.

Supporters, including Christine Graham MSP, are pushing for his "compassionate release" as a preferable alternative. Others, including many of the relatives in the US, are furious that the transfer is even under consideration.

"What struck me is just how isolated he is," said Dr Brennan. "He has got so few people he can talk to or relate to. He is cut off from natural systems of support and there is no-one there of a similar cultural background.

"The most important thing when we are facing our mortality is the opportunity to talk about it with friends and family. I have worked in cancer for 17 years and have worked with a lot of people facing the end of their lives and the way they prepare themselves for death is through talking.

"As someone who works in the NHS, it seems inhumane to tell someone they have a fatal illness and then just take them back to their cell. He cannot attend to the things that most people would want to - including preparing their children for the fact he is going to die."

Dr Brennan added: "He seemed very motivated to get his appeal heard. Nonetheless, he seemed desperate and I felt he was very much heading for a major depression.

"He has not made friends in prison. There was someone who worked in the kitchen from India that he got to know, but he has left. This is an educated man and he is pretty offended by the language and blasphemy he hears there.

"To me, he felt very genuine and open. Even though he knows I have no power, he wanted me to know that he is not the monster he has been portrayed as, but a father and husband.

Crown Office behaving "deceitfully and disgracefully"

[What follows is excerpted from an item posted on this blog five years ago on this date:]

Dalyell attacks Scottish Crown Office over Megrahi case

A former Labour MP has accused the Scottish Crown Office of behaving "deceitfully and disgracefully" over its handling of the Lockerbie bombing case.

Veteran Labour figure Tam Dalyell made the comments after a Tory MP called for a public inquiry into the release of the only man convicted of the atrocity Abdelbaset Ali Mohmed al-Megrahi.

Mr Megrahi was finally released last year on compassionate grounds by Scottish Justice Secretary Kenny MacAskill. Many, including a number of families of those killed, believe that Mr Megrahi was a scapegoat and should never have been convicted of the bombing. Others, including the US government, condemned Mr MacAskill's decision.

Mr Dalyell, an ex-Father of the Commons who repeatedly raised the issue of Lockerbie, said: "My political opponents Mr Salmond and Mr MacAskill were quite right to release Mr Megrahi.

"They know perfectly well that he is an innocent man in relation to Lockerbie. It is I suppose understandable that they cannot as SNP leaders say so, since to do so would reflect appallingly on the Crown Office in Edinburgh which has behaved deceitfully and disgracefully over 20 years and on the quality of Scottish justice."

He continued: "If in their heart of hearts they had thought Mr Megrahi guilty they would in my opinion certainly not have released him."

"I will never understand your motives or your methods"

[In an email of 16 July 2015 addressed to Dr Jim Swire and me, Frank Duggan, President of the US Lockerbie relatives organization Victims of Pan Am Flight 103 Inc wrote: “Prof Black and Dr Swire. Even if you honestly believe that Gadhafi had nothing to do with the Lockerbie bombing, he certainly did enough to lead this list of monsters. I will never understand your motives or your methods.”

The “list of monsters” refers to the Evolution of Evil television series, particularly the programme Gaddafi: Mad Dog of the Middle East.

What follows is the text of Dr Swire’s reply to Mr Duggan, dated 17 July:]

Dear Frank,

I agree with your statement (copied below) that:-

" I (Frank Duggan) will never understand your (Jim Swire's et al) motives or your methods."

My motive is so simple and has been so many times stated that it is clear you are unable to understand that it is simply to know the truth - which includes as much of the truth about what my Government and yours really know as can be forced from their unwilling grasp.

That is my motive: what is yours in maintaining adherence to the story accepted by the Zeist court?

Where were you as the evidence unfolded? Were you there?

I was.

As for my methods they are to question those directly involved wherever possible and make an assessment upon what they say.

Therefore my motive in repeatedly meeting with Gaddafi and other Arab leaders was to see what they had to say and more significantly to try to persuade them to send the accused for trial under Scottish law.

Of course the likes of Nelson Mandela (did you ever meet him? - I did) were of far greater importance than we could ever hope to be, but at least we did our utmost to persuade the late Colonel to send them over.

Did you try to do that?

In the case of Gaddafi I decided that he was inscrutable and that I could never find out what he did or did not know. That is why if you review all that I have said, you will find that since the Zeist trial I have never claimed to know whether he was involved or not, only to being sure (largely courtesy of the Zeist trial evidence) that his man Megrahi was not involved.

I confess that before the trial I believed him to be involved and I wanted his men to be tried, in order to learn the truth. This was wrong in so far as all accused are entitled to a presumption of innocence, but my Government had told me that there was irrefutable evidence about Libyan involvement but none about any other country. I was naive and that is my excuse

As early as February 1989 I had been shown a detailed warning received by the UK Government from the West German BKA in October 1988. It showed that the PFLP-GC of Damascus had perfected bombs which were inert at ground level but, having no user adjustments except an arming plug, on sensing the drop in pressure as an aircraft climbs, they were committed to exploding around 35, plus or minus five, minutes following take off.

Such devices had to be infiltrated at the airport of take off of the target flight, in this case Heathrow: if inserted at Frankfurt they would explode over Europe before reaching Heathrow. All this was repeated with further details by Herr Gobel during the Zeist trial.

Perhaps you remember that the Lockerbie flight lasted 38 minutes from take off?

If you re-examine the evidence led by Mr Bedford, the chief baggage handler at Heathrow, you will see that he reported that two suitcases had been put into the Pan Am baggage container AV4041 with no known security clearance and in his absence, long before the Frankfurt flight had even landed, that no one would admit having put them there, and that one of them was a dark coloured hard sided 'Samsonite type' suitcase occupying the position where the origin of the explosion occurred.

Funny that, it fits the description of the primary suitcase containing the bomb and the court decided without justificatory evidence of any kind that in fact one of the late arriving cases from Frankfurt 'must' have displaced it, apparently using the circular argument that the bomb must have come from Frankfurt.

The point of origin of the explosion can be explored in the Air Accident Investigation Branch report 2/90.

You  might also like to read the book Adequately explained by stupidity? by Morag Kerr which details events at Heathrow.

Of course, the Scottish police/Crown Office had also known from February 1989 that the Heathrow airside security had been broken into 16 hours prior to Lockerbie, but for whatever reason they kept that concealed from the defence and the court.

As the trial progressed we learned that the identifying of Megrahi as the buyer of the famous Maltese clothing depended on the evidence of a man who knew that if his evidence convicted the Libyan he was in line for several million dollars.

Is that a sound basis for reliable evidence do you think?

Then there was the fact, as their Lordships themselves had to admit in their summary, that there simply was no evidence to show how Megrahi  was supposed to have got the bomb on board at Malta.

When I pushed for trial under Scottish criminal law, I believed that the task of the court was to prove a case 'beyond reasonable doubt'.

Do you believe that these proceedings reached that standard?

But of course you will say a fragment of circuit board proved that a long running timer sold to Libya had been used, not one of the cruder fixed run-time devices made in Damascus.

Do you know that that fragment was found by a UK forensic officer within the only Scottish police evidence bag whose label, the court heard, had been illegally tampered with? Could there be reasonable doubt about the authenticity of the bag's contents also?

Do you know that that same forensic officer told the court under oath that the fragment was "similar in all respects" to the boards in the timers owned by Libya?

Have you seen the dated report from him which shows that he knew before giving that evidence that the plating was incompatible?

Have you read the scientific academic reports which confirm that this plating difference could not have been caused by exposure to a Semtex explosion?

In this country we had a philosopher now commonly referred to as 'William of Occam' he was born in 1285 (rather before the Pilgrim Fathers got their act together I fear) in the little Surrey village of Occam.

His best known philosophical statement is nowadays currently rendered along the lines that 'The simplest explanation that fits the known facts is usually the correct one'.

Having studied all the available evidence as best I can I think the bomb was built by Marwhan Khreesat of the PFLP-GC, and put aboard at Heathrow with the dreadful consequences we all know.

William of Occam would no doubt have preferred that conclusion to the complexities of the Megrahi/Malta/Frankfurt scenario.

I am satisfied that the Megrahi/Malta story is nothing more than a fable, because there is far more evidence against it than for it, and that in this case it is wise to follow William's advice.

I wonder what your guess would be as to the origin of the fragment known as PT35b? The realisation that it really could not have come from one of the timers owned by Libya destroys the one anomaly which seemed to genuinely support the Malta hypothesis.

I have not been able to find out what happened between October 1988 when the Germans lost track of at least one of the PFLP-GC type bombs and December 1988 at Heathrow, nor have I been able to discover who broke into Heathrow airside.

I therefore have no idea whether Gaddafi himself was responsible in some way, and that is why I do not claim to know whether he was a guilty party. Study the records again.

You Frank say "Even if you honestly believe that Gaddafi had nothing to do with the Lockerbie bombing, he certainly did enough to lead this list of monsters", I have tried to explain that I do not know whether the late colonel was involved over Lockerbie or not. It looks likely that his right hand man Moussa Koussa probably at least knew of the plot, his body language suggested guilt when I met him, but that would make an even weaker case than the story I heard at Zeist, would it not.

I doubt I shall respond to your emails in future, there is no point if your eyes and ears are closed to fact based discussion, but there are two favours I would ask of you all the same.

1.) I have always been aware that our search for the truth has upset certain US relatives by disturbing what they see as their closure. Of course they would see this email as just 'Swire trotting out the same old arguments again' but it may none the less be upsetting for them to read. Some will have seeds of doubt in their minds aware that the constancy of our position could most easily be explained (though you say you cannot understand it yourself) by having the simplicity of truth; by being in other words correct. I have not found a way to avoid upsetting the US relatives, but if you have their real interests at heart, I think you should not make them read this, instead your time might be better spent in pondering for yourself some of the very real weaknesses of the case we heard at Zeist, perhaps following William of Occam's advice.

2.) I beg you not to encourage 'your' members to hate. The heading "EVOLUTION OF EVIL - Premiering 16th July 2015 on The American Heroes Channel" ... suggests incitement to hate. We have experienced the outpourings of some unfortunate relatives in the form of hatred, hatred for Arabs, hatred for Gaddafi, even hatred for those of us who seek the truth. This is what terrorists do, they thrive on hatred. Every time someone descends to hatred, the terrorists score again, for the consequence of harbouring hatred is destruction of the personal lives of those who harbour it.

No man is simply "AN EVOLUTION OF EVIL" we are all flawed and imperfect, but capable of both good acts and evil ones. I can tell you that Gaddafi was both inscrutable and cyclothymic, but in the running of his country he seems, albeit at terrible cost to his people, to have been rather more effective than the chaos that our Western actions have triggered. following his murder. I fear we do not have the luxury of simplification offered by describing individuals as either pure good or pure evil. The world and we ourselves are far more complex than that.

Of course those who do evil acts like Lockerbie must be brought before the law and agreed punishments administered if found guilty through valid evidence, but you might care to remember the axioms "judge not, that ye be not judged", or perhaps " Send not to ask for whom the bell tolls: it tolls for thee".

[The following are two emailed responses from Mr Duggan:]

1. Dr Swire: there is nothing new in your lengthy email, and no evidence to support any of your theories. Theories are not admissible in court without some proof.

Regards,

Frank Duggan

2. Dr Swire: attached is a review of Hurley's book which recounts the Channel 4 panel discussion we had in London. The moderator was certainly not impartial, but I was able to explain the warnings you have been talking about for 25 years. I would also note that you were defending the Libyans at this point, before the trial and before you had heard any evidence in court. It is not true that you went into that court with an open mind, and there are other family members who recall conversations with you as to the innocence of the Libyans. One family member said that you had all the arguments that had been prepared by Prof Black, who maintains to this day that no court would find the Libyans guilty.

Regards,

Frank Duggan

https://books.google.com/books?id=0TcZMd9TioYC&pg=PA390&dq=Frank+Duggan+Pan+Am+103&hl=en&sa=X&ved=0CB4Q6AEwAGoVChMIpoTkwNTixgIVDD4-Ch1Wwwe_#v=onepage&q=Frank%20Duggan%20Pan%20Am%20103&f=false

Every delaying tactic in the book

[What follows is an item posted on this blog on this date seven years ago:]

Justice delayed…

More than a year has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months have passed since the first procedural hearing in the new appeal was held. More than six months have passed since the appellant’s full written grounds of appeal were lodged with the court.

Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.

And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.

It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:

“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”

[RB: It is perhaps worth pointing out that the delay that I was complaining about above followed the delay of three years and nine months between the submission of the application to the SCCRC and the Commission’s delivery of its decision.]

The Gauci "identifications"

[What follows is the text of a report published on the BBC News website on this date in 2008:]

The man convicted of the Lockerbie bombing has called in an American psychologist to help clear his name.

Abdelbasset al Megrahi, 56, claims an identity parade line-up was unfair and has challenged the way photos were shown to potential witnesses.

Prof Steve Clark, of the University of California, is said to be an expert on identification procedures.

At Edinburgh's Court of Criminal Appeal, Megrahi's defence team sought the right to show photos to Prof Clark.

Margaret Scott QC said it was "unprecedented" that she should have to ask judges to order the handover of the original photos.

Appeal judges are expected to hear further legal argument on the question next month.

Megrahi is currently serving life in jail for the 1988 atrocity, in which 270 people died.

He lost one appeal against conviction but the Scottish Criminal Cases Review Commission, which investigates possible miscarriages of justice, told the courts to look at the case again.

Megrahi's second attempt to overturn his conviction has led to a number of legal wrangles - including a long-running row about whether defence lawyers should be allowed access to secret documents.

[RB: The report that Professor Clark produced can be read here. A similar report by Professor Tim Valentine can be read here. The views on the case of the doyenne of the psychologists of eyewitness memory, Professor Elizabeth Loftus, can be read here. Their unanimous conclusion is that the “identification” of Megrahi by Tony Gauci is valueless.]