Monday 21 December 2020

Why now?

[What follows is the texr of a statement by Aamer Anwar Lockerbie appeal lawyer for the family of the late Abdelbaset al-Megrahi, Dr Jim Swire and the Rev'd John Mosey:]

On Thursday information was released through The Wall Street Journal that the US Attorney General William Barr was due to unseal indictments against two other possible suspects for the Lockerbie Bombing.

On Friday evening we were informed by some of the British relatives that instruct us, that they had received an email from the Crown Office Lockerbie Appeal Team that the US Department of Justice, the US Attorney’s Office, the FBI, Attorney General William Barr was inviting all the families of the victims of the Pan Am Flight 103 attack, to join him for an important public announcement and update regarding the investigation on Monday December 21, 2020, at 10:30 am EST/3:30 pm GMT. Internet live stream: http://www.justice.gov/live.

The families I represent are horrified at the intrusion on their grief, on the day that they wish to remember their loved ones. The fact that the outgoing Attorney General William Barr thinks it is appropriate to invite families to watch his ‘grandstanding’ at a press conference is deeply disrespectful to the families and victims.

Many of the families will refuse to do so and suspect the motivation of choosing to prosecute 32 years after the bombing.

The Rev'd John Mosey father of 19 year old Helga who was murdered on Pan Am Flight 103 wrote to the Crown Office and Attorney General to express his disgust at the invitation:

We consider the timing and particularly the choice of this specific day, which is special to many of us, to be bizarre, disrespectful, insensitive and extremely ill considered.

Why exactly when the Attorney General is about to leave office, has he waited 32 years to bring charges?

Why would you use the anniversary of our daughter Helga’s death along with 269 others to parade once more a highly suspect prosecution…..

Your own Department, and perhaps some parts of the Scottish legal system, should also investigated for spending over three decades trying to divert the course of justice and hide the truth.

Ali Megrahi the son of the late Abdelbasset Al-Megrahi whom I represent in the appeal had the following to say:

Monday is just another desperate excuse to accuse Libya and after 32 years want to accuse another Libyan. Why now?

Where were they in the past 32 years, especially when we have been fighting for an appeal over the last 6 years, so why release this information now? 

They want to perpetuate lies against Libya and will not let us live in peace- I lost my father and yet America continues to cause our family as well as those of the victims more pain.

As for the  American families of the victims of this atrocity, you lost loved ones and I lost my father, I am not against what you are doing, but I assure you that your government have lied to you for the past 32 years and my family and I will not give up  fighting for truth and justice.

Robert Black QC stated:

I wonder... why now? Masud’s name (and Senussi's) has featured in the Lockerbie case since the very beginning, when charges were brought against Megrahi and Fhimah in 1991. I think the answer is that Bill Barr, the US Attorney General, is wanting to go out with a bang.

He’s now about to leave the scene and he wants his name to be remembered: Lockerbie at the beginning of his career and Lockerbie at the end. 

The other possibility is that it is a blatant attempt to influence the Scottish judges when they have got the latest Megrahi appeal before them and we await their judgement.

To conclude, the actions of the US Department of Justice can only be described as a cynical attempt to use 270 dead victims for propaganda purposes.

The Attorney General must know that if the conviction of the late Al-Megrahi is overturned then the case against Abu Agila Masud is likely to fall apart. The real questions at 3.30pm will be is why now and what ‘dirty deals’ have taken place behind closed to doors to engineer these indictments.

Both the British and US Governments know that if the conviction is overturned then real questions would need to be answered as to why an innocent man Al-Megrahi was sent to prison whilst also punishing the people of Libya for a crime they did not commit.  

As we await the decision of the appeal court on the Megrahi case it would be inappropriate to comment any further.

Sunday 20 December 2020

"I wonder why they are still trying to blame the wrong people for my daughter’s death"

[What follows is excerpted from a long interview of Dr Jim Swire by Marcello Mega in today's edition of The Scottish Mail on Sunday:]

My daughter was murdered 32 years ago tomorrow on Pan Am Flight 103 over Lockerbie. For us, the anniversary is no different to the other 364 days. We remember Flora and feel her loss every day.

She would have celebrated her 24th birthday in America with her boyfriend the next day. I’m sure she would have been a mother by now. That day, our family lost a beloved daughter and sister, and all the future joy she would have brought us.


I have no doubt she would have had a wonderful career. She wanted to specialise in neurology and had done so brilliantly at nottingham University that she had been given time out to set up her own research project at Queen Square Hospital, London, l ooking at how HIV affected the brain.


I have many reasons to be angry. Much of my anger is directed at our Government and prosecution service, and the US authorities.


I wonder why they are still trying to blame the wrong people for my daughter’s death.


To hear last week the US intends to pursue another Libyan suspected of making the bomb that murdered 270 people fills me with despair, as does the news there is ‘fresh evidence’ linking a second suspect.


American investigators refuse to acknowledge the many flaws in the case that blamed Libya, and they continue the charade, ignoring all the evidence pointing to Iran. Now, cynically I believe, while five Scottish judges consider the posthumous appeal raised by the family of Abdelbaset Ali Mohmed Al Megrahi – the only man convicted of the bombing – outgoing US attorney-general William Barr will announce they want to try Abu Agila Mohammad Masud, allegedly a bomb-maker for the late Libyan leader Muammar Gaddafi.


The second suspect, Abdullah Al Senussi, is the ex-intelligence chief and brother-in-law of Gaddafi.


Mr Barr held the same position when Megrahi was first charged in 1991. Having suddenly and inexplicably changed the focus of the investigation from Iran to Libya in the beginning, he appears to have rounded the circle when no credible evidence remains against Libya. I wonder if the timing now was contrived to put pressure on the judges.


To believe the Crown’s case against Megrahi, you have to believe in a series of astonishing coincidences.


In October 1988 a European cell of the PFLP-GC terror group was raided by the German secret police in Neuss. Four bombs were recovered, all hidden in Toshiba cassette-recorders. Members admitted one device had been taken away by their leader.


The devices had a simple timer that ran for half an hour after being triggered by lowered air pressure at altitude. On a Boeing 747 this would occur seven minutes into the flight. The explosion was 37 minutes after take-off. The evidence label for the fragment supposedly linked to Libya was the only one of thousands of productions to be altered. Originally it read ‘charred cloth’, but the word ‘debris’ was overwritten, presumably when the debris itself was added.


The case for Iran as culprit is far stronger. Five months before Lockerbie, the USS Vincennes, a warship patrolling the Gulf, shot down an Iranian Airbus, killing all 290 on board. Iran vowed the skies would run with the blood of Americans. The US offered no apology.


Security warnings were shared by Western intelligence services from October 1988 that terrorists intended to bomb a US aircraft.


The later warnings were specific to Pan Am, prompting the US to offer embassy staff in Moscow the chance to fly home for Christmas with another airline. But the UK Government did nothing, failing to protect Flora and the other 269 victims, despite Heathrow having been notified of a bomb threat.


The story that saw Megrahi wrongly convicted of mass murder has the bomb on flights from Malta to Frankfurt and then on to Heathrow, but that did not happen. Even the judges who found Megrahi guilty in 2001 acknowledged the Crown had failed to show an unaccompanied bag flew on the flight from Malta. The Maid of the Seas, the Boeing 747 that would disintegrate over Lockerbie, was loaded from empty at Heathrow.


Evidence of a break-in at Heathrow the night before – which would have let someone plant the suitcase with the bomb in the relevant area – was known to the Scottish police, and must therefore have been known to the Crown, but was not revealed to Megrahi’s defence.


At the time, Heathrow had been notified by the UK department of Transport of the threat of bombs in Toshiba cassette-recorders.


We have a copy of a telex sent to Heathrow two days before Lockerbie, warning that such bombs would be hard to see on X-rays.


Incredibly, it told security staff at the airport that if an item looked uncertain on X-ray and was to be carried, it ‘could only be carried in the hold of the aircraft’.


The suppression of evidence that did not fit their case was a deliberate tactic of prosecutors.


They did not reveal that star witness Tony Gauci, owner of the shop that sold the clothing packed around the bomb, was to get $2 million (£1.5 million) for his testimony, even though he never once said the buyer was definitely Megrahi. The judges acknowledged his doubt in their verdict, but, uniquely in a criminal case where certainty is everything, made a virtue of it.


The statements Gauci made that didn’t fit the case were never shared but the judges later ruled on two matters Gauci was 100 per cent reliable on: the list of clothing and prices – not knowing that in an unseen statement he made in 1999 he had produced a different list – and that the buyer was Libyan.


The clothes purchase was agreed to have occurred on November 23, when Megrahi was in Malta. Other evidence, including Gauci’s brother Paul’s statement, pointed to december 7. Paul Gauci was not called to give evidence and received a $1 million (£740,000) reward. 


Megrahi received a life sentence.


The new appeal has not heard any of the considerable fresh evidence relating to the timer fragment.


The Scottish Criminal Cases Review Commission referred the case back to appeal but restricted the terms. There is copious evidence the fragment could not have been part of the bomb, yet the judges must decide if the conviction is safe without hearing it.


UK Families Flight 103 has always wanted to know why our loved ones were not protected despite the warnings, who killed them and why.


Our Government has always refused us a public inquiry. I am 84 and still hope to see justice done. It still brings tears to my eyes when I remember clearing out Flora’s London flat after her murder.


We found an offer to complete her studies at Cambridge, where I was an undergraduate. She would have been saving the news to tell us on Christmas day, or on her return from the States. I owe it to my wonderful daughter and to the man wrongly blamed for her death to keep fighting for the truth.

Saturday 19 December 2020

Lockerbie files show Scots police doubted key witness

[This is the headline over a report in today's edition of The Times. It reads in part:]

Scottish detectives distanced themselves from a key Lockerbie witness, it has emerged, casting further doubt on the conviction of the only person ever found guilty over the attack.

Abdul Majid Giaka, a Libyan agent turned CIA informant, gave evidence that Abdul Baset Ali al-Megrahi collected a brown Samsonite suitcase from a Maltese airport the day before the 1988 bombing.

However, newly declassified files show that Scottish officers investigating the case admitted that his involvement had put them in a “delicate position”.

“The ‘birth’ of that witness was totally the making of the Americans,” they said in a document from 1991 that was marked secret.

It emerged this week that American prosecutors were seeking the extradition of the Libyan operative Abu Agila Mohammad Masud, accusing him of making the bomb that blew up Pan Am Flight 103, killing 270 people. He worked under Colonel Gaddafi and is serving a ten-year sentence for other crimes in a Tripoli prison.

The FBI is also believed to be interested in Abdullah Senussi, Gaddafi’s brother-in-law and security chief, who is suspected of overseeing the bombing and is in prison with Masud.

Lawyers carrying out a posthumous appeal on behalf of al-Megrahi, who died in 2012, say that the case against him was first made by Mr Giaka, whom they describe as “discredited”. They say that any charges levelled against Masud would fall apart if al-Megrahi’s conviction was overturned.

A report by the joint intelligence group of Dumfries and Galloway Constabulary has been declassified and placed in the National Archives at Kew. The dossier, seen by The Times, dates to October 1991, when reports of Mr Giaka’s emergence as an American asset began to circulate.

The document, written by Detective Chief Superintendent Stuart Henderson, the senior investigating officer, says: “The development of the ‘new witness’ has placed us in a delicate position. The ‘birth’ of that witness was totally the making of the Americans. The Americans must be ‘as one’ with us in anything we propose to expose to the Maltese.”

The document also mentions Tony Gauci, a Maltese shopkeeper whose evidence played a decisive role in al-Megrahi’s conviction at a Scottish court convened in the Netherlands in 2000. It states: “The Americans are keen to approach the witness Tony Gauci and ‘ascertain’ if he feels insecure or otherwise. Their intention is to take Gauci to America.” (...)

However, in 2005 Lord Fraser of Carmyllie, the former lord advocate who drew up the indictment against al-Megrahi, expressed doubts over Gauci’s testimony, describing him as “not quite the full shilling”. Last month appeal judges were told that Mr Gauci had asked for money in return for giving evidence.

The court was also told that Mr Gauci had been shown a photograph of al-Megrahi before he picked him out in an identity parade.

Aamer Anwar, the lawyer representing the al-Megrahi family, said: “These documents shine a light on dark and desperate actions taken by the US intelligence services over Lockerbie.

“We can only surmise that the ‘new witness’ who had been ‘birthed’ by the Americans was Abdul Majid Giaka.

“Megrahi’s family understands he was first accused of being involved in a conspiracy by Giaka. There has always been a suggestion that Giaka may have fabricated matters to make himself more valuable to the Americans. If the conviction of the late Megrahi was overturned then the case against Abu Agila Masud is likely to fall apart.”

John Holt, a former CIA agent who worked closely with Mr Giaka, claimed that the informant was a fantasist and an opportunist.

“I handled Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing,” he said. “He was a car mechanic who was placed by Libyan intelligence as Malta airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs or Lockerbie.

“He felt humiliated by Megrahi, who was an official with the Libyan intelligence service, so the CIA knew he had a grudge.”

Mr Holt claimed that Mr Giaka changed his story in 1991 after fearing that his cover had been blown.

This month Mr Holt said: “When he was told he was useless to our intelligence services he began making up stories. It was only when he needed desperately to flee Libya in 1991 that he started telling the CIA things relevant to the Pan Am bombing, like hearing Megrahi and another man talking about a plan to bomb an American airliner.” (...)

Friday 18 December 2020

“Is this an American attempt to influence the judges?"

[What follows is excerpted from an article by Tom Peterkin in today's edition of The Press and Journal:]

The FBI agent who led the original Lockerbie investigation has revealed the atrocity’s latest suspect was on his “radar” 30 years ago but there was a struggle to prove the case against him.

Richard Marquise said it was strongly suspected Abu Agila Mohammad Masud was the “technician” responsible for the bomb that killed 270 people in the worst terrorist outrage committed on UK territory.

Mr Marquise was reacting to reports suggesting that US prosecutors will seek the extradition of Mr Masud and he will be charged in a matter of days, to stand trial in America.

As the man who led the US side of the inquiry into the bombing, Mr Marquise welcomed reports that Mr Masud could face justice, claiming any progress would be appreciated by the families who lost loved ones on Pan Am Flight 103.

“If there is going to be another trial, I’m sure the families will be… I’m not going to use the word thrilled…. because it doesn’t bring a loved one back. But I am sure they will be grateful,” Mr Marquise said. (...)

“He’s been on my radar for around 30 years,” Mr Marquise said. “He was someone we were very interested in, but we never quite found out who he was. The Libyans disavowed any knowledge of him. We knew he existed but he was never really identified.

“Back in 1991, we knew his name. We knew what he looked like and we knew what he allegedly was responsible for. He was the technician.”

The retired FBI agent added: “In my mind I always felt he was connected to it somehow But we didn’t have the clues to prove it.”

Kenny MacAskill, the former Justice Secretary who controversially released Megrahi on compassionate grounds, agreed.

“He was the one with the skills. He was on the original indictment, I’m led to believe. So he was always a wanted man,” Mr MacAskill said. “The idea that Megrahi did this on his own was absurd.”

Reports from the other side of the Atlantic suggest Mr Masud had been in custody in Libya on unrelated charges but his current whereabouts are unknown.

Since Mr Marquise’s official involvement in the investigation, there have been some developments. At the forefront of these have been the work of Ken Dornstein, a journalist whose brother David was on the London to New York flight.

In 2015 Mr Dornstein produced a investigative documentary, Lockerbie: My Brother’s Bomber, which linked Mr Masud to the bombing of Berlin’s La Belle nightclub in 1986.

Mr Dornstein interviewed a Libyan intelligence officer who said Mr Masud was involved in the bombing before the unification of Germany, which killed two US servicemen.

The same source alleged Mr Masud, by then in jail in Tripoli, was involved in the Lockerbie bombing and said he was still alive.

Mr Dornstein also claimed Mr Masud met Megrahi after the latter was freed from a Scottish jail in 2009 and given a hero’s welcome when he landed back in Libya. (...)

Mr MacAskill has already made it plain that he believes that people other than Megrahi should be held to account for the bombing.

“Question arise as to why, if they are going for Masud, aren’t they going for Senussi?” asked the former Justice Secretary. 

Mr MacAskill was referring to Abdullah Al Senussi, the late Libyan dictator Colonel Gaddafi’s brother-in-law and former spy chief who has long been associated with the crime. (...)

“I heard over recent years the view of the Libyans was they don’t like Senussi and they don’t like Masud, but giving them up to the Americans is a step too far,” Mr MacAskill said.

“I think this is probably the juncture for Britain and America to be a bit more open in information they do have and produce it, as opposed to hiding it.”

What can be read into the timing of Masud’s extradition?

That is an interesting question, according to Professor Robert Black, an the Edinburgh University legal academic who has been a keen student of the Lockerbie case.

Professor Black is regarded as the architect of the Scottish court that was set up in Camp Zeist, Netherlands, to try Megrahi and his co-accused, Al Amin Khalifa Fhimah, who was found not guilty.

“I wonder…. why now?” asked Professor Black. “Masud’s name has featured in the Lockerbie case since the very beginning, when charges were brought against Megrahi and Fhimah in 1991.”

“I think the answer to that is William Barr, the US Attorney General, is wanting to go out with a bang.”

This week it was announced that Mr Barr, who has been one of Donald Trump’s staunchest allies, is to step down as head of the US’s Justice Department.

Professor Black pointed out that Mr Barr was actually acting Attorney General way back in 1991 and was the one to announce that Megrahi and Fhimah were being charged.

“Now that he’s about to leave the scene, I think he wants to go out and his name to be remembered: Lockerbie at the beginning and Lockerbie at the end,” Professor Black said. (...)

Professor Black, who has long argued that Megrahi should not have been convicted on the evidence brought before Camp Zeist, suggested cynics might view attempts to extradite Musad as an attempt to make an impact on the appeal process.

“The other possibility is that it is a blatant attempt to influence the Scottish judges because they have got the latest Megrahi appeal before them and we await their judgement,” Professor Black said.

The argument would be that the existence of another high-profile Libyan suspect, alongside Megrahi, would back up the case for Libyan involvement in the crime.

“Is this an American attempt to influence the judges to uphold the Megrahi conviction? That’s a very, very cynical view.”

But cynicism was how the development was greeted by Megrahi family’s lawyer, Aamer Anwar.

“It’s difficult not to be cynical about the motivation of the Americans, that on the eve of the anniversary of the Lockerbie bombing as well as the appeal decision, the US now wish to indict an individual, 32 years after the bombing, what exactly have they been doing up until now?” said Mr Anwar

“Why would the Attorney General William Barr wait until just as he is about to step down from the Justice Department, considering that he was involved with this case since 1991.”

“It’s difficult not to be cynical about the motivation of the Americans"

[What follows is excerpted from a report in today's edition of The National headlined Lockerbie appeal lawyer raises questions over timing of US suspect announcement:]

A lawyer representing the family of the late Abdelbaset al-Megrahi in their court bid to clear him of blame for the Lockerbie bombing has criticised America’s timing in announcing it intended to indict another man for the atrocity. (...)

American media reports claimed the US Justice Department expected to unseal charges in the coming days, with Abu Agila Mas’ud named as the suspect that will be indicted.

Five appeal judges in Edinburgh are currently deliberating whether to acquit Megrahi after the conclusion of the third appeal against his conviction last month.

Lawyer Aamer Anwar, who is acting for the Megrahi family, said the timing of the American announcement was suspect.

“How ‘convenient’ that this should happen just as the decision of the Megrahi miscarriage of justice appeal in the Scottish courts is awaited,” he said. “It’s difficult not to be cynical about the motivation of the Americans, that on the eve of the anniversary of the Lockerbie bombing as well as the appeal decision, the US now wish to indict an individual, 32 years after the bombing, what exactly have they been doing up until now?

“Why would the Attorney General William Barr wait just as he is about to step down from the Justice Department, considering that he has been involved with this case since 1991 … It is once again a matter of deep concern that the Americans claim to have shared information with Scottish authorities in 2017, yet for some reason this information was never disclosed to the Megrahi family’s legal team.”

Anwar’s comments came as Jim Swire, who lost his daughter Flora in the attack and is convinced that Megrahi was innocent, said he hoped the truth would come out. He told BBC Breakfast: “My position has been difficult in that I cannot bring myself to feel that the evidence we’ve heard so far does in fact point us towards the truth of who committed those 270 foul murders back in 1988 … I do hope that with what’s going on at the moment, coming up to the 32nd anniversary of this awful business on Monday, that some truth will come out of what’s happening now.”

US journalist Ken Dornstein told the Today programme on BBC Radio 4 that he had passed fresh information about Mas’ud to the FBI after he discovered more details about him.

He added: “I think a little bit of truth, if it can be established beyond any real doubt in this case, is always important to fight for.”

Wednesday 16 December 2020

Lockerbie bombing: US said to be near charges for another suspect in 1988 plane crash

[This is the headline over a report just published on the website of The Wall Street Journal. It reads in part:]

US prosecutors are expected to unseal charges against a suspect they allege was a top bomb-maker for the late Libyan dictator Moammar Gadhafi and assembled the device that blew up Pan Am flight 103 over Lockerbie, Scotland, in 1988, opening a new chapter in one of the world’s longest and most sprawling terrorism investigations.

The Justice Department is expected to unseal a criminal complaint against Abu Agila Mohammad Masud, who is currently held by Libyan authorities, in the coming days and to seek his extradition for trial on charges in US federal court, according to senior department officials. (...)

The case, filed by prosecutors in the US attorney’s office in Washington, DC, is based largely on a confession that Mr Masud gave to Libyan authorities in 2012, which was turned over to Scottish authorities in 2017, as well as travel and immigration records of Mr Masud, US officials said.

Libyan officials didn’t immediately respond to a request for comment on the charges against Mr Masud.

Only one man — Abdel Baset al-Megrahi — was convicted by Scottish judges of playing a role in the attack, leaving many of the victims’ families saying they felt robbed of justice for the crimes. Megrahi was released eight years after his 2001 conviction on “compassionate grounds” and he died in 2012.

His family is appealing the verdict, which was made by a special panel of judges without a jury. Some prominent Scottish jurists and family members of the victims have questioned the evidence presented and the procedure used for the trial, which was held at Camp Zeist in the Netherlands in a bid to find a neutral locale. UK prosecutors have argued that the case was properly prosecuted and the judges’ initial verdict should stand and US law-enforcement authorities have long supported the guilty verdict.

The case is also of personal significance to Attorney General William Barr, who had announced US charges against Megrahi and another Libyan official in his first major press conference in his first stint in the job in 1991. He is expected to unveil the new case at a press conference in the next few days, officials said, in what will be one of his last official public acts before he steps down from serving in the post a second time later this week.

In announcing the case as acting attorney general in the Bush administration in 1991, Mr Barr said: “we will not rest until all those responsible are brought to justice.” The efforts to prosecute the men drifted for years. Scottish prosecutors had brought a parallel case, and it wasn’t until 1999—after years of wrangling among the US, the UK and Libya—that the Gadhafi regime handed over Megrahi and Lamin Khalifah Fhimah. Mr Fhimah was acquitted, and Megrahi was given a life sentence.

Evidence in the Megrahi prosecution included the remains of clothing from a suitcase thought to have carried the bomb. Investigators traced the clothing to a shop in Malta, whose owner identified Megrahi as the man who purchased it. Investigators also found remnants of a thumb-size timer, which they traced to a Swiss company that had contacts with Libya.

Mr Masud faces charges of destruction of an aircraft resulting in death and destruction of a vehicle of interstate commerce resulting in death. US officials said he traveled to Malta just before the bombing, constructed the bomb there and filled the suitcase with clothing before it was ultimately placed on Pan Am 103.

In Libya, the charges against a former Gadhafi regime official recall an era of an era of terror and repression under the former government. (...)

Some Libyans still believe their country was falsely accused. But many regard any accusations against the former regime as the work of a deposed and discredited government.

The United Nations Security Council put sanctions on Libya over the Lockerbie attack, isolating the country internationally. The UN lifted the sanctions in 2003 after the government agreed to pay out compensation to the victims, easing Libya’s isolation. (...)

Libyan authorities have questioned jailed former regime officials in connection with the bombing, according to Mohammed Ali Abdullah, an adviser to the Tripoli government. Among those questioned was Abdullah Senussi, Gadhafi’s former intelligence chief, who is being held in a prison in Tripoli and also has been indicted by the International Criminal Court for crimes against humanity.

The Lockerbie bombing wasn’t the only international act of terror the Gadhafi regime was accused of carrying out. In 1986, Libyan agents bombed a nightclub in West Berlin, killing three people including two American soldiers and injuring more than 200 others. In 2001, a German court convicted a former Libyan diplomat and three accomplices over the attack.

[RB: A last throw of the dice over Lockerbie by William Barr before he demits office as US Attorney General. Abu Agila Masud's name has long featured in speculation about the Lockerbie case. The most balanced consideration of his position comes in (a) John Ashton's article about the Ken Dornstein film in the Scottish Review "The coverage of the film is more notable for what it omits than what it reveals" and (b) Kevin Bannon's A response to the Dornstein documentaryboth in November 2015.]

Monday 7 December 2020

Lockerbie questions that US Attorney General William Barr needs to answer

[What follows is excerpted from an article by John Schindler published today on the Top Secret Umbra website:]

With just six weeks left for the Trump administration, speculation is swirling that Attorney General William Barr may step down before the official presidential transition on January 20. Barr has fallen out of favor with the White House since his admission last week that the Department of Justice’s investigation of our November 3 election has uncovered no significant voting fraud, contrary to the loud claims of President Donald Trump and his enraged surrogates. A longtime liberal bugbear, Barr suddenly became the Oval Office’s new whipping boy instead, and the attorney general is reportedly tired of the public presidential abuse. 

That would be the second time that Barr steps down as the attorney general (...)

Before we get to his decisions as Trump’s attorney general, we should first ask Bill Barr about what happened the last time he headed the Justice Department.

Above all, why did Attorney General Barr back in mid-November 1991 decide to indict two Libyan spies for the downing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988, a terrible crime that killed 270 innocent people. Barr’s announcement stunned our Intelligence Community, which had investigated that terrorist atrocity for nearly three years in voluminous detail, yet never suspected that Libya stood behind the attack.

Three decades ago, the Lockerbie tragedy loomed large in American news. A bomb inside a suitcase stowed in the Boeing 747’s forward left luggage container tore the airliner apart as it cruised at 31,000 feet, headed for New York. All 243 passengers and 16 crew on the Pan Am jumbo jet died, as did 11 people in the town of Lockerbie, which was showered by the flaming wreckage of the shattered 747. One hundred and ninety of the dead were Americans, including 35 Syracuse University students headed home for Christmas after a European semester abroad.

It didn’t take long for diligent British investigators to find the remnants of the Samsonite suitcase which contained less than a pound of Semtex plastic explosive manufactured in Czechoslovakia and hidden in a Toshiba radio cassette recorder. That trail quickly led to the Popular Front for the Liberation of Palestine – General Command, a radical Arab terrorist group that was headed by Ahmed Jibril, a former Syrian army officer. In the eyes of Western intelligence, the PFLP-GC was little more than an extension of Syria’s security services.

Intriguingly, less than two months before the Lockerbie attack, West German police rolled up a PFLP-GC bomb-making cell around Frankfurt, seizing four bombs made of Semtex hidden in Toshiba radios. Since Pan Am 103 originated in Frankfurt and that was the exact same kind of bomb which took down the doomed airliner, none of this seemed coincidental. Western intelligence circles heard chatter in the autumn of 1988 that the PFLP-GC, whose fifth Frankfurt bomb was never found by police, was planning to blow up U.S. airliners. Plus, one of the men taken into custody was Marwan Khreesat, a veteran bomb-maker who was believed to be behind the downing of a Swissair jetliner back in 1970, a terrorist attack which killed 47 people.

Before long, American intelligence believed that Iran was really behind the downing of Flight 103, given known close connections between Syrian intelligence and Iranian spy agencies. Neither was Tehran’s motive difficult to ascertain. A few months before, on July 3, 1988, the cruiser USS Vincennes, on station in the Persian Gulf, mistakenly shot down an Iran Air Airbus, a terrible accident which killed all 290 people aboard, including 66 children. Iran’s revolutionary regime promised revenge, and the Intelligence Community assessed that they got it over Scotland. As I explained on the thirtieth anniversary of the Lockerbie horror, that Iran stood behind the attack:

Was the conclusion of US intelligence, particularly when the National Security Agency provided top-secret electronic intercepts which demonstrated that Tehran had commissioned the PFLP-GC to down Pan Am 103 (...) One veteran NSA analyst told me years later that his counterterrorism team “had no doubt” of Iranian culpability. Bob Baer, the veteran CIA officer, has stated that his agency believed just as unanimously that Tehran was behind the bombing. Within a year of the attack, our Intelligence Community assessed confidently that Lockerbie was an Iranian operation executed by Syrian cut-outs, and that take was shared by several allies with solid Middle Eastern insights, including Israeli intelligence.

The IC was therefore taken aback on November 14, 1991, when Attorney General Barr announced the indictment of two Libyan spies, Abdelbaset el-Megrahi and Lamin Khalifah Fhimah, for the downing of Pan Am 103. Libya denied the accusations, as did the two Libyan intelligence officers, and it took Britain almost a decade to bring the men to trial. In a unique arrangement, the trial was held in the Netherlands under Scottish law. In the end, the court did not convict Fhimah but did find Megrahi guilty of 270 counts of murder in early 2001. Megrahi maintained he was framed and, suffering from cancer, he was released on compassionate grounds in 2009. He returned to Libya and succumbed to cancer there in May 2012, protesting his innocence to the end.

Quite a few people who looked at the evidence believed that Megrahi really may have been innocent, including some relatives of Pan Am 103 victims. Many in intelligence circles had doubts too, particularly because the prosecution’s star witness, Abdul Majid Giaka, was another Libyan intelligence officer who became a CIA asset. Giaka claimed to have witnessed Megrahi and Fhimah’s preparations in Malta to take down Pan Am 103 with a bomb made by Libyan intelligence. The Scottish court found Giaka less than credible, yet his claims against Megrahi stood up adequately to produce a conviction.

CIA made Giaka available to the court as the star witness, while obscuring some of their clandestine relationship with the Libyan spy. Langley offered several of its own officers to the court as well, something CIA recounted with pride in its official telling of their support to the Lockerbie trial, but the agency was careful to only produce officials who endorsed the Libya-did-it hypothesis.

There was the rub. Some CIA officers who were close to Giaka did not find his claims about Pan Am 103 and his own intelligence service’s involvement to be credible; in fact, they considered their “star” to be an unreliable fabricator. However, this secret – which raises fundamental questions about the US government’s official position on Lockerbie since late 1991 – was kept confined to spy circles for decades. Until now.

John Holt, a retired CIA officer who served as Giaka’s handler three decades ago, has broken his silence, granting a detailed interview to British media about his role in this sensational case. The 68-year-old Holt spoke out for the first time about what really happened behind the scenes with Giaka, whom he dismissed as an asset who was prone to “making up stories.” Giaka was far from a reliable source and the former American spy opined that CIA kept Holt away from the trial, since agency leaders knew that his account contradicted the official US position on Lockerbie. As he explained:

I handled Abdul-Majid Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing. My cables [back to CIA headquarters] showed he was a car mechanic who was placed by Libyan Intelligence as Malta Airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs – or Lockerbie. He felt humiliated by Megrahi, who was an official with the Libyan Intelligence Service. “I was treated,” he said, “like a dog when Megrahi came to the office.” That's all reported in my cables, so CIA knew Giaka had a grudge against Megrahi.

This was a personal vendetta, in other words, one that was driven by Giaka’s needs and his changing memory, as Holt elaborated:

Every time I met Giaka, which was each month or two, I would also ask him if he had any information at all about the Pan-Am bombing. All of us CIA and FBI field officers were asked by the CIA to keep pressing our assets for any answers or clues.  His answer was always: No.

I expressed my opinion to the FBI that Giaka was nothing more than a wannabe who was not a real Intel Officer for the Libyans. He had no information [about] Lockerbie, and I told the CIA all this in comments I made in my cables. He went back to Libya at the end of 1989 and I moved on to another assignment.  

In 1991, Giaka told the CIA that he had been exposed and the Libyans would kill him. When he was told he was useless to our intelligence services, he began making up stories. It was only when he needed desperately to get some financial and logistical support from the US to flee Libya in 1991 that he started telling the CIA things relevant to the Pan Am 103 bombing.

This fix was in, however, and Holt found his first-hand view of the case sidelined by his own agency. His cables which illuminated Giaka’s unreliability as a source were not shared by CIA with the Scottish court, while Langley declined to let Holt provide evidence at the trial. “We now all need to admit we got the wrong man, and focus on the real culprits,” Holt explained, pointing a finger at Bill Barr:

I have reason to believe there was a concerted effort, for unexplained reasons, to switch the original investigations away from Iran and its bomb-making Palestinian extremist ally the PFLP—General Command. Now we should focus a new investigation on the Iranians and their links with the bomber…I would start by asking the current attorney general, William Barr, why he suddenly switched focus in 1991, when he was also attorney general, from where clear evidence was leading, toward a much less likely scenario involving Libyans.

In May of this year, the Scottish Criminal Cases Review Commission ordered a fresh look into Abdelbaset el-Megrahi’s conviction. So far, this review has revealed claims that the prosecution presented a distorted version of the late Megrahi’s alleged role based on “cherrypicked” evidence in order to obtain a conviction. Bill Barr won’t be attorney general for much longer and he ought to avail himself of the opportunity to explain why credible information from veteran intelligence officers like John Holt was ignored to make a case against Megrahi, who may not be guilty of his supposed role in the murder of 270 innocent people.

Nearly a year ago, Attorney General Barr delivered remarks about the Pan Am 103 tragedy at a memorial service held at Arlington National Cemetery. He commemorated the dead of Lockerbie: “The Americans who died that day were attacked because they were Americans. They died for their country. They deserve to be honored by our nation.” Barr added that the case remains far from over for him: “In 1991, I made a pledge to you on behalf of the American law-enforcement community: ‘We will not rest until all those responsible are brought to justice.’ That is still our pledge. For me personally, this is still very much unfinished business.” The thirty-second anniversary of the Lockerbie attack is two weeks from today. If Barr meant what he said about resolving that tragedy’s unfinished business, John Holt’s testimony is an excellent place to commence the search for the full truth about what happened to Pan Am 103.

Saturday 5 December 2020

Majid Giaka's CIA handler speaks out "after a lifetime of silence"

[What follows is excerpted from a report by Paul Martin headlined Former CIA agent reveals he was excluded from Lockerbie bombing inquiry published today on The Telegraph website:]

A former CIA agent has claimed he was excluded from the original Lockerbie bombing trial and that investigators should turn their attention to the "true culprit" – Iran.

John Holt, 68, says he was the author of secret cables showing that the Libyan double agent put forward by Scottish prosecutors as the star witness in the Lockerbie bombing trial had a history of "making up stories".

Mr Holt was never sent to the trial by his bosses, even though he had been the CIA handler for Libyan double agent and principal witness Abdul-Majid Giaka.

"I have reason to believe there was a concerted effort, for unexplained reasons, to switch the original investigations away from Iran and its bomb-making Palestinian extremist ally the PFLP General Command. Now we should focus a new investigation on the Iranians and their links with the bomber," he told The Telegraph in an exclusive interview.

"I would start by asking the current Attorney General, William Barr, why he suddenly switched focus in 1991, when he was also Attorney General, from where clear evidence was leading, toward a much less likely scenario involving Libyans."

Mr Holt spoke out for the first time as Scottish Supreme Court judges consider whether to quash the conviction of Abdelbaset al-Megrahi, who died of cancer in 2012. (...)

Giaka became a US asset after claiming he had information about Libyan involvement with terrorism while working as an assistant to the station manager of Libyan Arab Airlines (LAA) in Malta.

Explaining the key importance of his cables, Mr Holt said: "I handled Abdul-Majid Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing.

"My cables showed he was a car mechanic who was placed by Libyan Intelligence as Malta Airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs – or Lockerbie.

"He felt humiliated by Megrahi, who was an official with the Libyan Intelligence Service. 'I was treated,' he said, 'like a dog when Megrahi came to the office.'  

"That's all reported in my cables, so the CIA knew Giaka had a grudge against Megrahi.

"Every time I met Giaka, which was each month or two, I would also ask him if he had any information at all about the Pan-Am bombing. All of us CIA and FBI field officers were asked by the CIA to keep pressing our assets for any answers or clues.  His answer was always: No.

“I expressed my opinion to the FBI that Giaka was nothing more than a wannabe who was not a real Intel Officer for the Libyans. He had no information re Lockerbie, and I told the CIA all this in comments I made in my cables. He went back to Libya at the end of 1989 and I moved on to another assignment.  

"In 1991 Giaka told the CIA that he had been exposed and the Libyans would kill him. When he was told he was useless to our intelligence services [the CIA and FBI], he began making up stories.

"It was only when he needed desperately to get some financial and logistical support from the US to flee Libya in 1991 that he started telling the CIA things relevant to the PanAm-103 bombings – like hearing Megrahi and another man talking about a plan to bomb an American airliner." (...)

Mr Holt alleges he first realised there was an effort to distort the realities when called into the office of the CIA director George Tenet.  

There, his description of Giaka was not included in the initial presentation of evidence to the trial. Later, summoned a second time to the director's office, his cables were thrust in front of him by FBI agents and he claims he was told to sign that they were written by him. He says no explanation was given. These were eventually released to the trial by the CIA, with some 'redaction', in 2000.

"Operational cables that I wrote did not get sent to the original trial," he revealed. "They were withheld by the CIA and the FBI, who – even when my cables did emerge – declined to let me give evidence to the Scottish court hearing, held in Camp Zeist near Utrecht.  

"We now all need to admit we got the wrong man, and focus on the real culprits."

After 24 years of distinguished service with the CIA, Mr Holt has had deep concerns about speaking out. He has chosen his words with great caution, anxious to avoid accusations that he has leaked any secrets that could compromise his former agency.

"I'm speaking out now, after a lifetime of silence. But I feel deeply frustrated and I want justice to be done," he said.

Mr Holt believes intelligence services worldwide already have enough evidence to pinpoint the Lockerbie perpetrators.

"Whatever the Scottish Supreme Court decides, Britain should reopen the whole Lockerbie saga, have a heart-to-heart with the Americans, and go after Iran," he told The Telegraph.

"I have reason to believe that the three security agencies of the US Government were working on evidence pointing directly to Iran, before the Libyan connection was brought into play.  I believe the US Government tried to hide evidence for political reasons, and Britain also was willing to go along with this.

"I have reason to believe that a crucial decision was made in 1991 by the US Justice Department and its enforcement arm the FBI: to drop all evidence pointing toward Iran and instead manipulate the evidence to place blame on Gaddafi's Libya. Gaddafi was a long-time nemesis to numerous US presidents."

Mr Holt feels that Americans were particularly keen to pin the blame for Lockerbie on Libya because of an ongoing feud. After the coup that brought Gaddafi to power, the Libyans had expelled American oil companies from oil drilling fields, and US forces from a massive American-built airbase constructed during the Cold War.

And in the 1980s the Gaddafi regime was suspected of being a massive danger to the West by developing a secret WMD programme.

He said the first thing British and US intelligence officers should do is demand access to the former chief of Libyan intelligence, Abdallah Senoussi, son-in-law of Colonel Gaddafi, who is still languishing in a Libyan jail under sentence of death. 

Gaddafi and his henchmen were overthrown, with British military intervention, in 2011 and Senoussi, now aged 60, was convicted in 2015 for crimes against humanity that had no connection with Lockerbie.

"An interpretation is that the British and the US are not demanding to see him – because they already know Libya did not do it," says Mr Holt.

Thursday 3 December 2020

To preserve a 31-year-old lie, Britain is ready to tarnish Scottish justice

[This is the headline over an article by Dr Mustafa Fetouri published today on the website of Middle East Monitor. It reads in part:]

The third appeal hearing for the Lockerbie bombing's only conviction ended last Thursday before Scotland's highest court. The five judges have now retired to deliberate their verdict. Presiding Lord Justice General Colin Sutherland, Scotland's most senior judge, said that the panel will deliver its written opinion "as soon as it possibly can" after three days of submissions.

In 2001, Abdelbaset Al-Megrahi, a former Libyan intelligence officer, was convicted of the bombing of Pan Am flight 103 over the Scottish town of Lockerbie on 21 December, 1988. The blast killed all 270 people on board. However, the verdict has been challenged by Al-Megrahi, his family, some of the victims' families and the legal community in Scotland itself.

In March this year, a Scottish Criminal Cases Review Commission (SCCRC) permitted Al-Megrahi's family appeal, posthumously, before the country's highest court. The SCCRC cited a possible "miscarriage of justice" in the first trial. In particular, it pointed out that the guilty ruling was "unreasonable" and the British government withheld evidence from Al-Megrahi's defence team that might have proved his innocence from the start. Abdelbaset Al-Megrahi died of cancer at his home in Libya in 2012.

Claire Mitchell, QC, acting for Al-Megrahi's family, said that the way that he had been identified in the first trial was "highly prejudicial". A Maltese shopkeeper, Tony Gauci, was the prosecution's star witness in the 2001 trial. He identified Al-Megrahi from a photograph as the person who bought the clothes from his shop in which the bomb, it was alleged, was wrapped and put in a suitcase that Al-Megrahi passed onto the luggage feeder of the doomed flight. However, Gauci's testimony has been regarded as untrustworthy since it emerged that he received money in return for his testimony. The British government again withheld documents that the defence believes could help prove Al-Megrahi's innocence.

What is at stake here is not only the truth about Britain's deadliest terror attack, but also the reputation of the Scottish justice system. (...)

Importantly, families of British victims also believed that the Libyan was wrongly convicted for the atrocity. In fact, they went as far as campaigning for a retrial. Dr Jim Swire, whose daughter Flora was killed on the flight, had for years believed in Al-Megrahi's innocence. Swire even helped the Libyan's family to bring about the third appeal in the case. "I'm delighted that the case has been referred back to the Appeal Court," he said after the SCCRC decision in March.

The only party that still wants to maintain the 31-year-old narrative about the Lockerbie bombing seem to be the British government. It has, again, withheld documents from the defence and still refuses to hold a public inquiry into the tragedy despite repeated requests to do so. It looks as if the government in Westminster does not want the truth to come out, even if that means tarnishing the Scottish justice system. However, it now it looks as if the government has a new, unlikely, ally in this matter.

Libya's Government of National Accord (GNA) has defunded the case for no obvious reason. By cutting funding to the defence team, the GNA is breaking Libyan law that obliges it to help citizens facing legal issues abroad. This suggests that it either approves of what Westminster is doing, or is under pressure from the British to drop its backing for the appeal.

Moreover, the GNA knows very well that the Lockerbie bombing is not just a case of a misdemeanour by a Libyan citizen in another country. Lockerbie is, in fact, a national issue for all Libyans, because they were all, in effect, punished for it collectively by the imposition of UN resolutions and sanctions. The latter, through Resolution 883, for example, imposed a freeze on assets held abroad, a ban on sales of certain equipment and a ban on all commercial flights into and out of the country.

Between 1992 and 1999, thousands of Libyans who had to travel abroad, including diplomats, were forced to take dangerous overland journeys to Tunisia or Egypt, or go to Malta by sea in order to catch flights to their destinations further afield. Foreigners visiting Libya had to endure the same procedure in reverse.

Furthermore, Al-Megrahi's defence team are confident that their appeal this time has all the ingredients necessary for a successful outcome. The leading defence lawyer, Aamer Anwar, told me that his team mounted a "robust appeal".

In the absence of GNA funding, Anwar was forced to launch some online fundraising to meet part of his expenses which have been mounting for the past six years since he first took up the case. He suspects that the GNA was put under pressure from the British government to steer away from the case and that Boris Johnson, when he was foreign minister, discussed Lockerbie with GNA officials when he visited Libya twice in 2017. Anwar is pursuing a Freedom of Information Act request about these visits. He also told me that his legal team in Libya has been instructed to file a case against the GNA for its refusal to fund the Megrahi appeal.

If nothing else, the appeal has once again rallied many Libyans around the case as a national cause. This is evident by the hundreds of comments on social media which generally shame the GNA and accuse it of betraying the entire country, not just Abdelbaset Al-Megrahi. 

Wednesday 2 December 2020

The real perpetrators of Lockerbie bombing still to be brought to book

[This is the headline over a letter by Rev Dr John Cameron published on the website of the Belfast Telegraph on 1 December 2020. It reads as follows:]

In 1994 Nelson Mandela offered South Africa as a neutral venue for the Pan Am atrocity trial, but this was turned down by John Major.

His offer was also rejected by Tony Blair at the 1997 Commonwealth heads of government meeting in Edinburgh.

In words that still haunt our judiciary, Mandela warned “no one nation should be complainant, prosecutor and judge” in the Lockerbie case.

A life-long friend, the late Graham Cox, was Sheriff Principal of South Strathclyde, Dumfries and Galloway when Fhimah and Megrahi were arrested.

They appeared before him on April 6, 1999 at a makeshift Scottish court at Kamp Van Zeist in Holland.

In spite of his suspicion that the prosecution had arrested the wrong men, this court appearance starting off the subsequent legal proceedings.

Cox had no doubt the bombing resulted from the shooting down of Iran Air 655 by the USS Vincennes in July 1988, or that the Iranians recruited the PFLP-General Command.

Later, when Mandela asked the Kirk to intervene in a “serious miscarriage of justice”, Cox pointed me to the unsafe forensics, the unlikely use of a long-range timer and the fact that the bomb entered the system at Heathrow.

My report for the Kirk was used by Al Jazeera in a documentary which left no doubt of Megrahi’s innocence. [RB: Dr Cameron's report and the Al Jazeera documentary are referred to here, at the text accompanying footnote 46.]

Sadly, Cox warned against any hope that the verdict might be reversed.

Lord Fraser, then our senior law officer, had admitted the key witness Tony Gauci wasn’t “the full shilling”, had been paid $3m by the US and that the trial was a farce, but “nobody wants this can of worms opened”.

Sunday 29 November 2020

Last Megrahi appeal ruling means a last chance at redemption

[This is the headline over an article by Andrew Tickell in today's edition of The National. It reads in part:]

On any other day, in any other month, on any other year – this hearing would be a huge international news story. The statue of King Charles II in Parliament Square in Edinburgh would be surrounded by journalists. The Court of Session’s colonnades would be sprouting cameras and camera-men, and production staff hiding from the rain.

International correspondents would be checking their makeup and adjusting their ties before cutting live to the studio to report the latest developments from inside court number one in the Court of Session. At stake in this appeal is not simply the guilt of one man – but the integrity of our criminal justice system, the reputation of Scottish justice – and the real possibility the wrong person was convicted of the murder of 270 people and spent eight years in prison for a crime he did not commit.

But this week? This week, Parliament House’s sphinxes looked down on an empty square. There were no cameras flashing, no scrambled news crews, no American accents ricocheting off the old stones, no sober courtroom shots of the advocates entering and leaving proceedings, no family of the convicted man, none of the bereaved, no clenched fists, no defiant statements, no drama and no fuss. The Lockerbie case has returned to the Appeal Court for the third time – but Covid-19 spares none of us.

Instead, five of the country’s most experienced judges assembled online to hear one of the biggest appeals in Scottish legal history. Without the dramatic courtroom visuals, the news story didn’t quite have the impact you might expect. The journalists and the families were dialing in. The advocates too. Gone were the traditional wigs and gowns.

This was a sort of Zoom hearing over three days, where the gravity of the submissions was counterpoised with the ­informality and ordinariness of the medium (...) 

Before the court, the lawyers for Abdelbaset al-Megrahi’s family renewed their historic submission: his conviction was a miscarriage of justice. He was, they say, not guilty of steering the explosive device onto Pan Am flight 103 in December 1988. He was, they say, wrongly convicted by the Zeist court which was manned – lest we forget – not by 15 jurors, but by three High Court judges.

But innocence isn’t a ground of appeal in Scotland. Lords Sutherland, Coulsfield and Maclean heard the evidence and voted to convict in January 2001, contrary to the expectations of many court-watchers who had sat and listened to the Crown case.

As Megrahi discovered in his first appeal – overturning a conviction is no small matter in an ordinary criminal case. When that conviction is a screamingly high profile, geopolitically significant decision involving the deaths of 270 innocent people? Well, best of luck.

There’s only one ground of appeal against conviction in Scots law. It is this: that there has been a miscarriage of justice. Miscarriages of justice take many different forms. Sometimes, the judge misdirects the jury on the law. Sometimes evidence was admitted which should not have been; sometimes evidence is excluded which ought to have been allowed. Sometimes the case turns on ­corroboration – or the lack of it. Sometimes new evidence throws a whole new complexion on the case. Sometimes police and prosecutors have been found to fiddle the evidence. Sometimes the defence is such a disaster the whole trial becomes unfair.

Here, two main submissions survived Criminal Cases Review Commission scrutiny, giving Megrahi’s family a third – and almost certainly final – opportunity to clear their father’s name. First, they argue, that no reasonable tribunal could have convicted Megrahi on the evidence that was heard.

Juries leave no notes explaining their reasoning, but the Zeist tribunal was a different beast. Running over 80 pages, the judges explained – step by step – the evidence they accepted and the evidence they rejected, who they found credible, and whose evidence was not.

Megrahi’s advocates contend the court’s reasoning doesn’t hold together. The lawyers’ attack focuses on the evidence of the lynchpin witness – Anthony Gauci. The Maltese shopkeeper’s evidence was the vital link in the chain connecting Megrahi to the debris which fell over Lockerbie in the run up to Christmas in 1989. But considerable uncertainty characterised Gauci’s evidence.

His eyewitness identification of Megrahi as the purchaser of clothes – clothes the Crown say ultimately found their way into the suitcase which exploded over Dumfriesshire – was uncertain, the timing of the purchase ambiguous, his description of the purchaser, his age, height and appearance shifting as he told the tale.

The second ground of appeal focuses on failures of disclosure. Would it have made a difference to your evaluation of the evidence, my lords, if you’d known Gauci was in the market for a reward from the Americans? Would his interest in receiving monetary credit for his testimony impact on your assessment of his evidence?

Did the failure to disclose this financial interest rob Megrahi’s defence of the opportunity to test how far Gauci’s testimony was animated by an honest account of what he remembered, or to what extent he may have felt incentivised to associate Megrahi with the crime? Did the failure to disclose the evidence of this interest in a reward, as Gordon Jackson QC submitted this week, relegate the cross-examination to a “softly-softly” approach which could test the reliability of Gauci’s eyewitness evidence, but not its credibility?

Those are the key legal arguments. Whatever the outcome, whether the appeal is dismissed or allowed, questions about the disaster will continue, as will the sorrow of the many families across the world whose children never came home in 1989, and of the residents of the town of Lockerbie, for whom memories of the disaster still linger.

Someone caused a plane to fall from the sky over Lockerbie at 19.03 hours on December 22, 1988. Someone planted the explosive device in the hold which punctured the Boeing’s fuselage and precipitated its terrible descent. Was Megrahi the right man, but convicted in a flawed process? Was Megrahi an innocent man, dragged into the case and scape-goated for the crimes of others? And if so, who are the guilty men or women? What motivated them?

Concluding the oral hearing in Megrahi’s third appeal against ­conviction, Lord Justice General Carloway said the Court would give judgment “as soon as it possibly can”. The court has only one duty in law: to decide whether there has been a miscarriage of justice in this case. But the five-judge bench cannot but be alive to the international significance of their decision and the reaction which will inevitably follow if they conclude the Zeist tribunal reached an unsafe ­conclusion.

When Abdelbaset al Megrahi was released from Scottish custody on compassionate grounds in 2009, it caused a diplomatic incident, with angry United States senators from New York and New Jersey demanding to know why the Scottish Government had “freed the Lockerbie bomber” responsible for the deaths of so many US citizens.

How they might react to the Appeal Court quashing his conviction remains to be seen. As my old law professor Robert Black used to say, judges need to have the confidence – not only of their convictions – but of their acquittals too.

[RB: In the distant past when I was involved in training courses for Justices of the Peace, I used to stress that while it was important to have the courage of your convictions, it was even more important for judges to have the courage of their acquittals, particularly since acquittal would often entail the disapproval of those denizens of the courtroom, the procurator fiscal, the court clerk and (most important of all) the bar officer or court attendant.]

Thursday 26 November 2020

The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.