Onus now on Scottish government to establish a judicial inquiry

[The letter from Benedict Birnberg that follows was published in The London Review of Books on this date in 2009:]

As a partner of Gareth Peirce until my retirement may I add a sequel to her penetrating analysis of the al-Megrahi case (LRB, 24 Sepember). First, to point out that the Scottish Criminal Cases Review Commission (SCCRC) after an investigation lasting over three years referred his conviction to the Scottish court of appeal in June 2007; its statement of referral extended to more than 800 pages with 13 volumes of appendices. It is that appeal which, as Gareth Peirce says, al-Megrahi abandoned before his release and repatriation to Libya, thus denying the court the opportunity to consider the case, even though the SCCRC stated in its press release: ‘based upon our lengthy investigations, the new evidence we have found and other evidence which was not before the trial court ... the applicant may have suffered a miscarriage of justice.’ Why did al-Megrahi withdraw his appeal? Was it because he was put under pressure to secure his release on compassionate grounds? Or was it voluntarily done because he lacked confidence in the impartiality of the court? Whatever the truth may be, the onus now rests on the Scottish government to establish a public judicial inquiry, so that the case so painstakingly prepared by the SCCRC does not go by default.

Second, to add to the suspicions Peirce’s article exposes, it needs to be said that the Scottish justice secretary Kenny MacAskill’s decision has unleashed a hysterical torrent of vilification, not least in the US where many of the relatives of the Lockerbie victims are convinced of al-Megrahi’s guilt. We have witnessed a campaign of denigration on which even Obama, Hillary Clinton and the late Edward Kennedy have bestowed their benediction. On this side of the Atlantic too the irrational commentators abound. The overwhelming weight of media comment has been hostile to al-Megrahi. On 3 September the Guardian carried a long article by Malcolm Rifkind, the former foreign secretary and a prominent Scottish lawyer, headed ‘Megrahi’s return has been a sorry, cocked-up conspiracy’: it failed even to mention the SCCRC reference. Even pillars of the human rights establishment, such as Geoffrey Robertson, have shouted themselves hoarse: ‘We should be ashamed that this has happened’ (Guardian, 22 August) and ‘Megrahi should never have been freed: the result is a triumph for state terrorism and a worldwide boost for the death penalty’ (Independent, 2 September).

Yet, when al-Megrahi releases part of the SCCRC case on the internet, his declared aim being to clear his name and ostensibly to prove his innocence, pat comes the Scottish lord advocate (Scotland’s chief prosecutor) joining relatives of the victims convinced of his guilt to denounce him for his ‘media campaign’. Meanwhile pleas from those who, like Dr Jim Swire, believe justice has not been done and who, for the sake of the memory of the victims as much as al-Megrahi, wish there to be a genuine and far-reaching inquiry, fall on deaf ears.

Libyan linked to Lockerbie welcome in UK

[This is the headline over a report published in The Guardian on this date in 2001. It reads as follows:]

A senior Libyan official accused of involvement in the Lockerbie bombing and branded 'the master of terror' has been welcomed by the Foreign Office as part of a charm offensive in the wake of the 11 September attacks.

Musa Kusa, head of Libya's external security organisation - which masterminded the bombing of Pan Am Flight 103, the worst mass murder in Britain - arrived in London last month for talks with MI6, the secret intelligence service, and members of the CIA.

The invitation is a measure of how seriously the Foreign Office regards the Islamic threat. The move will infuriate British relatives of the 270 Lockerbie victims, many of whom believe that justice was not done when a Dutch court convicted a low-ranking member of the Libyan intelligence service for the bombing.

Kusa is known in Libyan dissident circles as the master of terror. He was behind the liquidation of Libyan dissidents in Britain and was expelled from London in 1980 for orchestrating the killing of a BBC World Service journalist, Mohamed Mustafa Ramadan, outside Regent's Park mosque.

He is also wanted in France in connection with the downing of a French DC-10 of the UTA airline in 1989 with 170 passengers aboard, an attack similar to the 1988 bombing of Flight 103.

The rehabilitation of Kusa - who was visiting Britain for the first time in 20 years without an alias - is seen as a reward for Tripoli's backing for the US coalition against terrorism. On his visit, which ended last week, Kusa is understood to have met William Burns, the US Assistant Secretary of State for Near East Affairs, in what is thought to be the highest-level official contact between the United States and Libya since the US aerial bombardment of Tripoli in 1986.

'We welcome all attempts at close coordination and assistance whatever the source,' said a US official. 'I'm not aware we've ruled out anyone speaking on behalf of the Libyan government.'

The Foreign Office confirmed a Libyan delegation had been in Britain but refused to disclose its members. But Mohamed Azwai, the Libyan ambassador in London confirmed that Kusa had met British and American officials and provided a list of more than a dozen Libyans in the UK suspected of links to Osama bin Laden.

The list included members of the Libyan Islamic Fighting Group (IFG), which Libya claims is active in Britain. Azwai appeared to accede to Washington's demands to admit responsibility for acts of its officials convicted of the Lockerbie bombing.

'Mr Kusa came to Britain and met with his MI6 and the CIA counterparts,' Azwai said. 'Libya will not have difficulty accepting responsibility [for the Lockerbie bombing]. Under international law, the state must accept responsibility for the wrongdoing of its officials.'

[RB: Lots more about Musa Kusa can be read here.]

The obfuscation of reality

[What follows is the text of an article by Dr Ludwig de Braeckeleer that was published on OhmyNews International on this date in 2007:]

"Proper judicial procedure is simply impossible if political interests and intelligence services -- from whichever side -- succeed in interfering in the actual conduct of a court … The purpose of intelligence services -- from whichever side -- lies in secret action and deception, not in the search for truth. Justice and the rule of law can never be achieved without transparency."

--Hans Koechler, UN observer at the Zeist trial

On Sept 6, OhmyNews International published a story related to a sensational document known as the Lumpert affidavit. (See "Key Lockerbie Witness Admits Perjury.)

Ulrich Lumpert was a key witness (No 550) at the Camp Zeist trial, where a three-Judge panel convicted a Libyan citizen of murdering 270 persons who died in the bombing of Pan Am 103 over Lockerbie. "I confirm today on July 18, 2007, that I stole the third hand-manufactured MST-13 Timer PC-board consisting of 8 layers of fiberglass from MeBo Ltd. and gave it without permission on June 22, 1989, to a person officially investigating in the Lockerbie case," Lumpert wrote. On Sept 7, the agent who led the Lockerbie investigation for the FBI wrote to me and criticized the article on several grounds, but most importantly, he alleged that the Lumpert affidavit was a "total fabrication." Richard Marquise led the US task force that investigated the Lockerbie bombing. He has authored a book on the subject: Scotbom: Evidence and the Lockerbie Investigation. He wrote to me: Lumpert's new statement is a total fabrication. He was interviewed several times, including at a judicial hearing in Switzerland as well as the trial itself and he never wavered in his story. His statement that he gave a "stolen timer" to a Scottish officer in 1989 does not even fit the timeline since we had no idea about the origins of PT-35 at that time. We identified MeBo in the summer of 1990. With all due respect, I must state very unambiguously that I remain convinced that the document is authentic and that the story is not a hoax. Moreover, I have obtained a document that strongly suggests that the timeline of the events related to the identification of the MST-13 timer has been fabricated. Since the publication of the article, a well-informed source has told me that Lumpert has signed four affidavits. The documents were certified by notary Walter Wieland under Nr 2069 to 2072. I am now in possession of one of these four documents and I have received confirmation from the proper Swiss authority that Wieland indeed certified these documents on July 18 and that he is competent for doing so. Although I was initially very skeptical of the Lumpert affidavit, I came to the conclusion that I have no reason to doubt its authenticity or the truthfulness of its content. Indeed, both the timing of Lumpert's admission of perjury, his motivation for doing so as stated in the affidavit, as well as the content of the document led me to believe that the story is not a fabrication. Lumpert wrote that he wishes to clear his conscience and that he can no longer "be prosecuted for stealing, delivering and making false statements about the MST-13 Timer PC-board, on grounds of statutory limitation." Moreover, as I explained at length in the Sept 6 article, the Lumpert affidavit, in just seven paragraphs, elucidates all of the longstanding mysteries surrounding the infamous MST-13 timer, which allegedly triggered the bomb that exploded Pan Am 103 over Lockerbie on Dec 21, 1988. Conspiracy Theory? I wish to add that I am obviously not the only one who had reached such a conclusion. The possibility that evidence has been fabricated in order to secure the conviction of the Libyans has gained support among many people who could hardly be described as conspiracy theorists. Jim Swire, Robert Black and Hans Koechler are among the best-informed people about the extremely complex Zeist trial. Black QC FRSE (Queen's Council and Fellow of the Royal Society of Edinburgh) has been Professor of Scots Law in the University of Edinburgh since January 1981, having previously been in practice at the Scottish Bar. He is now professor emeritus. For various periods he served as head of the Department of Scots Law (later Private Law). He has been an advocate since 1972 and a QC since 1987. From 1987 to 1996 he was general editor of The Laws of Scotland: Stair Memorial Encyclopedia (25 volumes). From 1981 to 1994 he served as a temporary sheriff (judge). He has taken a close interest in the Lockerbie affair since 1993, not least because he was born and brought up in the town, and has published a substantial number of articles on the topic in the United Kingdom and overseas. He is often referred to as the architect of the Lockerbie trial at Camp Zeist in the Netherlands. Black's support for the story is obvious from the fact that he posted my article on his website. In a comment posted on OMNI, Black went out of his way to express his agreement with the 18-page analysis of the consequences of the Lumpert affidavit. "A masterly review of the weaknesses in the Lockerbie court's conviction of [Abdelbaset Al] Megrahi," Black wrote. In April 2000, professor Koechler was appointed by UN Secretary General Kofi Annan as international observer at the Lockerbie bombing trial that was held at Camp Zeist, Netherlands. Koechler has also posted the article on his Web site. He wrote this comment on OMNI: This is a well-researched analysis which precisely reveals the serious mistakes and omissions by the official Scottish investigators as well as the carelessness and lack of professionalism of the judges in the Lockerbie case. The Scottish judicial authorities are under the obligation to investigate possible criminal misconduct in the investigation and prosecution of the Lockerbie case. On July 4, 2007, Koechler wrote to Scottish First Minister Alex Salmond, reiterating his call for a "full and independent public inquiry of the Lockerbie case." Dr Swire, who lost his daughter in the Lockerbie bombing, is a founder and the spokesperson of the UK Families Flight 103, which campaigns to seek the truth about the worst act of terror ever committed in the UK In a letter addressed to my editor, he wrote that the article was "one of the best informed and most realistic" he had seen. I promised Richard Marquise that I would make an effort "to see things from the other side." And I will. But for now, we must agree to disagree. I leave him with a comment posted by Iain McKie -- someone who knows all about the consequences of forensic mistakes. Another Lockerbie mystery is why, given this latest opportunity [Megrahi's second appeal] to uncover the truth about this terrorist outrage that claimed the lives of people from 21 countries (including 189 Americans), and given the US and British high profile "war on terror," is the political silence so deafening? I find it increasingly difficult to argue with Dr De Braeckeleer's conclusion: "Shame on those who committed this horrific act of terror. Shame on those who have ordered the cover-up. Shame on those who provided false testimony, and those who suppressed and fabricated the evidence needed to frame Libya. And shame on the media for their accomplice silence." The McKies know best than most the cost of injustice. Shirley McKie was a successful policewoman until her life was shattered in February 1997 when four experts from the Scottish Criminal Records Office incorrectly identified a thumbprint from a crime scene as hers. Marquise has made other comments about the article that I will discuss at a later time. However, I wish to point out that Marquise is right to state that the quotes attributed to Michael Scharf, formerly of US State Department's Office of the Legal Adviser for Law Enforcement and Intelligence, although correct do not represent exactly his opinion, as they have been printed out of context by the British media. (Scharf helped draft the sanctions against Libya.) Scharf wrote to me, The text of the quotes is more or less accurate but is out of context, giving the misimpression that I thought that the two Lockerbie defendants were innocent and the US government knew this all along. In fact, I referred to them as "fall guys" because I felt the case should not have focused exclusively on them, but rather should have gone up the chain of command all the way to Khadaffi [Muammar al-Qaddafi], and should also have focused on the possible involvement of third countries. It is true, as your quote indicates, that I felt the evidentiary case presented at Camp Zeist was not as strong as the Department of Justice had led the Department of State to believe it would be at the time we were pushing for sanctions against Libya in the UN, but that is not to say that I thought the defendants were actually innocent of wrong doing, which is the impression left by the quotes. If there is one thing we can all agree on, it is the fact that no one except the judges is satisfied with the Lockerbie trial. Meanwhile, new extraordinary revelations have surfaced that support my view that the Lockerbie trial was engineered by Western intelligence services to frame Libya. 'Secret' Lockerbie Report Claim Crucial information in the possession of the CIA that is related to the timer issue was withheld from the defense. The Herald of Glasgow revealed on Oct 2 that "a top secret [CIA] document vital to unearthing the truth about the Lockerbie bombing was obtained by the Crown Office but never shown to the defense team." "The Scottish Criminal Cases Review Commission (SCCRC) has uncovered there is a document which was in the possession of the crown and was not disclosed to the defense, which concerns the supply of MST-13 timers. Moreover, the commission has determined the decision to keep the document from the defense may have constituted a miscarriage of justice," the paper reported a source as saying. The prosecutors have refused to make public the ultra secret document on the basis of national security. Many have been wondering what national security has to do with the Lockerbie bombing. "It is shocking to me that after 19 years of trying to get to the truth about who murdered my daughter national security is being used as an excuse," said Swire. After having seen the CIA document, the Scottish Criminal Cases Review Commission team that investigated the conviction of Abdelbaset Al Megrahi decided to grant him a second appeal. The document has not yet been seen by the defense. The document is thought to dispute the pivotal fact that the bomb was triggered by the MST-13 timer that linked the case to Libya. The non-disclosure agreement was signed by Norman McFadyen, then one of the leading members of the prosecution, on June 1, 2000. In an exclusive interview earlier this week, Koechler told Gordon Brewer of the BCC's "Newsnight Scotland," The withholding of evidence by the investigators and the prosecution from the defense at the Lockerbie court is a serious breach of the fundamental norms of a fair trial. If such action occurs on the basis of a written commitment given to a foreign intelligence service, as has now been revealed concerning crucial evidence related to the timer that allegedly triggered the explosion of Pan Am 103 over Lockerbie, the judicial nature of the entire proceedings is to be put into question. If a foreign intelligence service is allowed to determine what evidence may be disclosed in court and what not, judicial proceedings before a court of law are perverted into a kind of intelligence operation the purpose of which is not the search for the truth, but the obfuscation of reality. Black has said, If a foreign intelligence agency says they would be prepared to give the crown access only if they promise to keep the information secret, then it is the responsibility of the crown to say we cannot do that. They have an ethical responsibility not to sign such agreements. This tends to indicate that the crown has not changed its fundamental stance that says they will decide what the public interest is and what information should or should not be disclosed. That is fundamentally wrong. The source in the Herald's report agrees: "The commission was unable to obtain authority for its disclosure. Without access to this document, the defense is disabled from putting before the court full and comprehensive grounds of appeal as to why the conviction should be quashed." CIA Offered $2m to Lockerbie Witnesses It now appears that huge amounts of money were offered by US officials to at least three key witnesses. The defense was never told that the CIA had offered millions of dollars to their star witnesses. "We understand the commission found new documents which refer to discussions between the US intelligence agency and the Gaucis [Tony and his brother Paul] and that the sum involved was as much as $2m," a source close to the case told The Herald, according to an Oct 3 report. "Even if they did not receive the money, the fact these discussions took place should have been divulged to the defense." Tony Gauci was an instrumental witness in the case. On Oct 5, Edwin Bollier, head of the Zurich-based company MeBo, told Koechler that during a visit to the headquarters of the FBI in Washington, DC, at the beginning of 1991, he was offered an amount of up to $4 million plus a new identity in the US if he would testify in court that the timer fragment that was allegedly found on the crash site around Lockerbie stemmed from a MST-13 timer that his company had delivered to Libya. Media Silence Will the media finally cover this extraordinary affair? Perhaps. In France, Le Figaro has published a couple of stories, one of which was entitled: "And if Libya Was Innocent …" Television channel France 3 reported the story of the Lumpert affidavit. In the UK, The Herald has picked up the latest developments in the story. The BBC has published a few lines about it. The London journal Private Eye is rumored to be running the story in its next edition. US media remain amazingly silent. Quo Vadis? "In view of all these revelations and serious allegations, Koechler renewed his call for an independent international investigation of the handling of the Lockerbie case by the Scottish and British authorities," wrote Gordon Brewer of the BCC's "Newsnight Scotland." "It remains to be seen whether the Scottish judicial and political system will live up to the challenge and whether the authorities will allow a full and objective inquiry," Brewer said. I have very little hope that the Scottish judicial and political system will allow an independent international investigation. For now, I encourage my readers to reflect upon a Persian saying. "Shame on those who committed the deed. Shame on those who allowed the deed to be committed."

Lockerbie experience is no model for the effective prosecution of MH17 bombers

[This is the title of an article by Dr Amy Maguire of the Law School of the University of Newcastle, Australia, that appears today on The Conversation website. It reads in part:]

[Australian Foreign Minister Julie] Bishop has recently suggested that a Lockerbie-style tribunal could be established as an alternative forum for prosecutions of those responsible for the downing of MH17.

On December 21, 1988, a Pan Am jet exploded over the Scottish town of Lockerbie. All 259 people on board and 11 people on the ground were killed. An investigation revealed the explosion was caused by a bomb planted on the plane.

According to Bishop, a Lockerbie-style prosecution would involve:

… a tribunal that’s set up by the international community.

But the Lockerbie trial was a prosecution under Scots law, with some international collaboration to establish a special venue for the court. Two Libyan nationals – Abdelbaset al-Megrahi and Lamin Khalifah Fhimah – were accused of murder and related crimes under Scottish law. Special arrangements were required for their prosecution because Libyan President Muammar Gaddafi refused to extradite them to Scotland.

A treaty between the UK and the Netherlands established a site for the Scottish High Court of Justiciary to sit on the neutral territory of the Netherlands. Eleven years on from the bombing, a trial was undertaken with three Scottish judges presiding.

After a lengthy trial, Fhimah was acquitted, as the judges were not satisfied that the available evidence supported his conviction.

However, the judges accepted the evidence of a Maltese shop owner that Megrahi resembled a man who bought clothing in his shop, remnants of which were found surrounding the bomb. They found that Megrahi was an agent of the Libyan intelligence service. On the basis of this and other circumstantial evidence, the court decided that Megrahi was guilty beyond reasonable doubt.

A court of five Scottish judges later rejected Megrahi’s appeal. He was sentenced to life imprisonment in Scotland in 2001. He was returned to Libya in 2009 on compassionate grounds, suffering prostate cancer, and died in 2012.

A weak example for international justice

A 2007 Scottish Criminal Cases Review Commission report cast doubt on the fairness of the trial and the reliability of Megrahi’s conviction.

Also, the UN observer criticised the Scottish court for relying on unreliable witnesses (some of whom received large sums of money for their testimony), evidence that had likely been tampered with, and dubious expert opinions.

The chief architect of the scheme to permit the Scottish trial on Dutch territory, Scottish law professor Robert Black, has argued since the first trial that Megrahi’s conviction was a miscarriage of justice.

I am satisfied that not only was there a wrongful conviction, but the victim of it was an innocent man. Lawyers, and I hope others, will appreciate this distinction.

In 2015, two new suspects were detained in Libya in relation to the bombing.

The Lockerbie trial illustrates several challenges that are likely to arise again in the pursuit of justice for those killed on MH17.

A central problem, as Bishop recognises, will involve the extradition of accused persons from Russia, Ukraine or elsewhere. Fair trials require that accused persons stand before the court. Trials in absentia would be purely for show and of no greater justice value than investigators’ reports.

In the Lockerbie case, the two accused were eventually extradited by Libya to be tried in the special Scottish court in the Netherlands. This agreement was reached in the context of the Security Council having called on Libya to comply with demands for justice from the UK, US and France, and imposed economic sanctions on Libya.

Should the MH17 accused be within Russian jurisdiction, it is highly unlikely Russia will surrender them for trial elsewhere. The Security Council will lack the capacity to impose the same pressure as was brought to bear on Libya due to Russia’s veto power.

Even if one or a few people are brought before a court in relation to MH17, there is a real question about whether their trial could generate a sense of justice. In the Lockerbie case, only one person was convicted and – 28 years on – questions persist over his guilt. (...)

Another challenge for any special court will be the complexity of the questions of fact and law that arise. In the Lockerbie case, Megrahi was convicted on the basis of purely circumstantial evidence and the court’s confidence that the evidence added up to an inevitable conclusion of guilt. This has made the judgment more vulnerable to question.

Russia and Russian-based separatists in Ukraine have been accused of destroying evidence at the MH17 crash site. At any rate, investigators lacked full and speedy access to the site; this has seriously weakened the evidence base available to a court.

Lockerbie trial: an intelligence operation?

[This is the heading over a press release issued by Professor Hans Köchler on this date in 2007. It reads as follows:]

In an exclusive interview earlier this week with Gordon Brewer of the BCC’s Newsnight Scotland, Dr Hans Koechler said that the withholding of evidence by the investigators and the Prosecution from the Defense at the Lockerbie court is a serious breach of the fundamental norms of a fair trial. If such action occurs on the basis of a written commitment given to a foreign intelligence service, as has now been revealed concerning crucial evidence related to the timer that allegedly triggered the explosion of PanAm 103 over Lockerbie, the judicial nature of the entire proceedings is to be put into question. If a foreign intelligence service is allowed to determine what evidence may be disclosed in court and what not, judicial proceedings before a court of law are perverted into a kind of intelligence operation the purpose of which is not the search for the truth, but the obfuscation of reality.

This evaluation is further confirmed by the offer of huge amounts of money by US officials to at least three key witnesses.

Dr Koechler, a professor of philosophy of law at the University of Innsbruck, Austria, served in the period May 2000 – March 2002 as international observer, appointed by the United Nations, at the Lockerbie trial and appeal before the Scottish Court in the Netherlands. In his trial and appeal reports, issued in January 2001 and March 2002, he had highlighted the problematic role of intelligence services in the trial and stated that proper judicial proceedings cannot be conducted under conditions in which extrajudicial forces are allowed to intervene.

It is noteworthy that now – more than six years after Dr Koechler’s first report – more and more details emerge that confirm the UN observer’s original doubts:

• One of the “secret” grounds of referral of the convicted Libyan national’s case back to the appeal court has been revealed to be the fact that crucial information in the possession of the CIA that is related to the timer issue was withheld from the defense;
• Another of the “secret” grounds of appeal has now been revealed to be the offer of a huge payment by the CIA to the Maltese shopkeeper Tony Gauci, a key witness of the prosecution, for identifying the Libyan Al-Megrahi as the one who bought clothes in his shop in Malta;
• The Libyan-US double agent Abdul Majid Giaka had similarly been offered a huge amount for his testimony as a prosecution witness;
• At least two forensic “experts” who were invited as witnesses by the prosecution had links to intelligence agencies and were proven to be totally unreliable;
• One of the directors of the “Lockerbie Trial Briefing Unit” at the University of Glasgow which was set up at the beginning of the trial with the purpose of providing expert legal information to the interested public, was exposed by the British media as a member of British intelligence and had to step down.

Furthermore, Mr Edwin Bollier, head of the Zurich-based company MEBO, today confirmed vis-à-vis Dr Koechler that during a visit to the headquarters of the American FBI in Washington DC at the beginning of 1991 he was offered an amount of up to USD 4 million plus a new identity (name) in the United States if he would testify in court that the timer fragment that was allegedly found on the crash site around Lockerbie stemmed from a MST-13 timer that his company had delivered to Libya. Mr Bollier told Dr Koechler that he did not make use of the offer and did not make the requested statement, and that he  reported this incident after his return from the US to the Swiss Federal Police. The name of the FBI officer and another US official present at the meeting in Washington DC were given to Dr Koechler who is also in the possession of a brief memo written by Mr Bollier about this affair.

In view of all these revelations and serious allegations Dr Koechler renewed his call for an independent international investigation of the handling of the Lockerbie case by the Scottish and British authorities. It remains to be seen whether the Scottish judicial and political system will live up to the challenge and whether the authorities will allow a full and objective inquiry.

It is to be recalled here what Dr Koechler had stated in his original report on the Lockerbie trial of 3 February 2001, which was submitted to the United Nations:

“… proper judicial procedure is simply impossible if political interests and intelligence services − from whichever side − succeed in interfering in the actual conduct of a court. […] The purpose of intelligence services − from whichever side − lies in secret action and deception, not in the search for truth. Justice and the rule of law can never be achieved without transparency.”