No one ever told us what to find or not find about Lockerbie

[This is the headline over an article by retired FBI special agent Richard Marquise published in the current issue of the Scottish Review, prompted by the recent Aljazeera documentary Lockerbie: What Really Happened?.  It reads in part:]

The third segment of this programme was the most problematic. I found at least four issues with which I take exception. First of all, the producers of the film as well as several of those in it kept talking about 'evidence' they had uncovered which would have exonerated Libya and Megrahi. Unfortunately none of them, despite their backgrounds, seem to have been able to distinguish between evidence and intelligence.

Let me address each concern separately. A former Manhattan district attorney prepared a report based on interviews she had conducted with some 'unnamed sources'. These sources are (according to the report) very sensitive and they are unable to be identified. They reported on several meetings of terrorist countries and groups which took place in Malta in 1988 prior to the Lockerbie bombing.

The only documentation, or evidence, which was introduced was an alleged document written by one of the unnamed sources which memorialised the meeting(s). She intimated that the sources were reliable and unable to be named which means they could or would never testify and thus their information falls in the realm of intelligence, not evidence. This is a distinction that an experienced prosecutor should understand.

I have no idea what was contained in the report but assume the most 'damning' parts to the prosecution case were aired by Al Jazeera. This report is very similar to one prepared for Pan Am in 1989 which, among other things, said the US government was responsible for the attack and the bomb was brought on board in Frankfurt by a young Lebanese-American man.

This former prosecutor's report, 'Operation Bird', covered a series of meetings in Malta about terrorism and seemed to lay the blame for the Lockerbie bombing on an Egyptian living in Sweden. However, other than by inference, they had no evidence linking anyone at these meetings to the Pan Am attack. In fact, there was no evidence which would be admissible in court shown in the entire segment. They provided no documentary evidence that the man they blamed was even in Malta when the first of these meetings took place. His later travel to Malta in October 1988 has been well-documented in several books about Lockerbie. There is no evidence this man was in Malta in December 1988.

The so-called Defense Intelligence Agency (DIA) documents that some have described as the 'smoking gun', were anything but. The documents which DIA released, presumably under the US Freedom of Information Act, although heavily redacted, had a lot of information about Lockerbie, Libya, Iran and other terrorist groups operating around the time of the bombing. Almost every page has a statement on it which says: 'This is an information report, not finally evaluated intelligence'. In other words, none of it was or ever could be evidence. Most of the reporting in the DIA release was rumour, newspaper articles or analysis of information written by DIA analysts. Not one bit of it was provable and able to be introduced into court. No smoking gun here.

An alleged former senior Iranian official was interviewed and he stated that Iran committed the Lockerbie bombing yet he provided no proof of his statement. In 2000, a young Iranian refugee in Turkey made similar claims. Although he alleged that Iran carried out this attack and that he had documents to prove it, he had no documents and he was unable to provide any information on the attack. Although the government of Iran's hands are not clean as it relates to terrorism around the world, there is no evidence which can be used against anyone in that country to charge with the Lockerbie attack.

The final issue in this segment was an interview with a retired CIA agent. He has often been described as having been involved in the Lockerbie investigation. Using his logic, any FBI agent who interviewed a family member one time could say that he too was involved in the investigation. This agent worked in Paris and at best saw some of the cable traffic about the case but he had no day to day knowledge of the evidence and the investigation. He said the FBI and CIA diverged and never came together on the investigation. After some initial operational issues, the FBI, CIA, British security service and Scottish police worked as a team and at the time of the indictments in 1991 were in total agreement with the results.

This man also claimed that there was an executive decision to put the blame on Libya rather than any other country. In September 2009 this former agent claimed on national television in the United States that in 1992 President Clinton ordered the FBI to find evidence against Libya and charge them for the Lockerbie bombing. Clinton was not president in 1992 and the indictment against Megrahi and Libya was returned in 1991. If he had so much information about the so called 'executive decision', one would think he would have got the date and the name of the president correct.

Others have reported to me that after Gaddafi was killed, this same former agent who now claims that Iran was responsible for the bombing and stated this was the opinion of the CIA 'to a man', commented on a national news programme that Gaddafi was responsible for the Pan Am 103 bombing. This agent too only talked about intelligence which is never to be confused with evidence, that which can be used in court.

This former CIA agent and others have said that high-level officials either in Washington or London told investigators not to link Syria or Iran to the Lockerbie bombing. This is categorically false. No one ever told any of us to find or not find something.

We followed the evidence, not speculation, rumour and the other things that often make up intelligence.

I saw nothing on any of these three programmes to cause me or any of my colleagues to doubt the evidence against Megrahi and Libya. The US indictment which was returned in 1991 indicted Megrahi, his co-accused Lamen Fhimah and 'others unknown to the grand jury'. I cannot and have never said that Iran may not have had a role in the attacks but there is absolutely no evidence to support that claim.

The forensic evidence and investigation conducted by non-political and dedicated police officers/agents as well as intelligence agents indicated that this was a Libyan operation and that Megrahi not only bought the clothes but facilitated the bomb getting into the baggage system. Megrahi, using his false passport, departed Malta on the morning of 21 December 1988, 30 minutes after the bomb bag had left for Frankfurt and then on to London. Megrahi took a LAA flight to Tripoli and was accompanied by a Libyan bomb technician who we believe armed the bomb.

Any 'investigative report', especially on a topic so sensitive and raw, should include interviews of all sides of the issue. A one-sided commentary on rumours, innuendo, previously litigated testimony and intelligence is bound to end in failure. Al Jazeera set the bar pretty low as this special did not answer the question 'Lockerbie: What really happened?'

Any prosecutor will tell you that the wild speculation and rumour contained in this report would never be acceptable in a courtroom. Intelligence is that information used by law enforcement agencies to help them gather evidence which can be used in a court of law. There is a big difference between intelligence which cannot be proven and evidence which can. The evidence convicted Megrahi – the information provided in the Al Jazeera report will convict no one.

[RB: “The evidence convicted Megrahi.” But as I have written (and as the Scottish Criminal Cases Review Commission has confirmed) it clearly ought not to have done.]