The Crown and the CIA cables

[On this date in 2000, members of the prosecution team at the Lockerbie trial at Camp Zeist were given access at the United States embassy in the Netherlands to the unredacted cables sent by Abdul Majid Giaka’s CIA handlers to headquarters in Langley, Virginia. What follows is taken from an account of the trial by David Morrison which was published in March 2001:]

On 1 June last year [2000] after the trial in Camp Zeist had started the prosecution at last saw uncensored versions of CIA cables about Giaka and became aware of the awful truth of Giaka’s history, which if revealed to the defence would mean that his credibility as a prosecution witness would be undermined.  When the defence applied to the Court for the same access to the cables, desperate to protect their key witness, the prosecution lied to the Court that the censored material would [not] be useful to the defence (see below). The person who told this enormous whopper was the Lord Advocate, the chief law officer of Scotland, who led for the prosecution at Camp Zeist.

As we have said, the key prosecution witness at the trial in Camp Zeist was Abdul Majid Giaka.  Without him, the two Libyans, Megrahi and Fhimah, would never have been indicted.  Whenever, in the intervening years, journalists and others questioned the soundness of the case against them, the prosecuting authorities in Edinburgh and Washington always responded by boasting that they had a witness who could connect the accused directly with the Lockerbie bomb.  The witness in question was Giaka.

Giaka was a member of the Libyan intelligence service, the JSO, who in August 1988 a few months before the Lockerbie bombing offered his services to the CIA.  In July 1991 he gave the CIA startling eyewitness evidence connecting Megrahi and Fhimah with the Lockerbie bomb (whereupon he was taken to the US and put on a witness protection programme, where he has remained ever since).  A few months later in November 1991, they were charged with the bombing in Scotland and the US.  Without Giaka’s evidence, they would never have been charged.

The credibility of any witness should be of concern to prosecuting authorities.  The more so when he is the key witness in the biggest murder trial in British history with profound geopolitical implications.  Even more so when he is a former member of Libyan intelligence who has defected to the CIA and who stood to receive $4 million of reward money from the US government if his evidence was instrumental in securing a conviction for the Lockerbie bombing.

Plainly, it was incumbent upon the Scottish prosecuting authorities to look upon Giaka’s evidence with a very sceptical eye and to assess his credibility as a witness thoroughly before charging the two Libyans.  This they failed to do.  Crucially, they failed to get sight of uncensored versions of the regular cables about him sent by his CIA handlers in Malta to CIA headquarters in Langley in the period from August 1988 onwards, which contained the CIA’s own assessment of his credibility.  It seems that prior to the charges being laid in November 1991 the CIA had allowed them to see censored versions of the cables with large parts blacked out.  But it wasn’t until 1 June 2000, after the trial in Camp Zeist had begun, that they saw uncensored versions of these cables.

It was, unsurprisingly, the blacked out parts which were relevant to an assessment of Giaka’s credibility.  They revealed that, as of 1 September 1989 when he had been working for the CIA for over a year (and months after the destruction of Pan Am 103), Giaka’s CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  The clear inference from this is that by 1 September 1989 Giaka had still not given his CIA masters the crucial eyewitness “evidence” incriminating Megrahi and Fhimah, otherwise these criticisms of his value and of the worth of the information supplied by him could not have been made.

Had the Scottish prosecuting authorities done their job in 1991 and made it their business to acquaint themselves with the CIA’s experience of Giaka then Megrahi and Fhimah would never have been charged – and Libya would not have had economic sanctions imposed on it for most of the 90s for refusing to extradite them.  Clearly, the CIA deliberately kept vital information about Giaka’s lack of credibility as a witness from the Scottish prosecuting authorities.  But it was their job to make sure their key witness was credible, to demand a full account of Giaka’s history with the CIA and to bring charges against the two Libyans only if that history revealed him to be credible. (...)

The prosecution saw the uncensored versions of the CIA cables about Giaka on 1 June last year at the US embassy in The Hague, having promised to keep the censored parts confidential.  How this came about is not clear.  Presumably, the prosecution made a request to the CIA.  If so, it was not obviously a sensible thing to do from their point of view.  There is a clear obligation in Scottish law that the prosecution has a duty to disclose to the defence any information which supports the defence case or casts doubt upon the prosecution case.  In principle, therefore, information from the uncensored cables which undermined Giaka’s credibility would have to be disclosed to the defence, and a confidentiality agreement with the CIA could not override that principle.  So, on the face of it, from the prosecution point of view it would have been far better if they had remained in ignorance.

(Why the CIA consented to the prosecution seeing the uncensored cables is also a puzzle, since they must have known that there was a grave danger that as a result Giaka would be discredited and the trial would collapse.  At the time there was some public controversy about the CIA failing to make information available for the trial and at one point the Director of the CIA, George Tenet, made a statement to the victims’ families saying that the CIA was committed to making every relevant piece of evidence available to the Court.  Perhaps that’s why the CIA felt obliged to give the prosecution unrestricted access of the cables for the first time.)

When the prosecution saw uncensored versions of the cables on 1 June 2000, they must have been panic stricken since their key witness had being revealed to be utterly unreliable.  They kept quiet about their sight of the uncensored cables for three months until 21 August, the day before the trial was due to resume after its summer recess.  When the defence applied to the Court next day for access to the uncensored cables, the prosecution objected strenuously and simply lied to the Court that the censored material would be useful to the defence.

The Lord Advocate of Scotland, who led for the Crown at the trial, told the Court that the members of the prosecution team who saw the uncensored CIA cables were fully aware of the obligation upon them to make available to the defence teams material relevant to the defence of the accused and, to that end, considered the contents of those cables with certain principles in mind.

He said:

“First of all, they considered whether or not there was any information behind the redactions [the censored material] which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid [Giaka]. They also considered whether there was anything which might bear upon the special defences which had been lodged and intimated in this case. On all of these matters, … [they] reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made on may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way.”

One of the trial judges, Lord Coulsfield, then intervened:

“Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?”

To which the Lord Advocate replied:

“… there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters”.

That is a barefaced lie by the chief law officer of the Crown in Scotland.  The uncensored cables revealed, amongst other things, that the CIA believed Giaka to be in the business of selling information for his own benefit.  One doesn’t have to be a lawyer, let alone the chief law officer in Scotland, to recognise that this “impinges upon the credibility” of Giaka as a witness, as did other matters from the uncensored cables.  A witness in court who is caught out lying can be charged with perjury and even gaoled, but the chief law officer of the Crown in Scotland can apparently lie with impunity.

However, the Lord Advocate’s lies were in vain.  The Court did not accept that the defence should be denied access to the uncensored cables and he was instructed by the Court “to use his best endeavours to ensure that the information in the unedited cables was disclosed to the defence”.  The CIA conceded that the defence could see the unedited cables – they had to, otherwise the case would most likely have collapsed – and for the first time in history CIA internal documents were made available to foreign court.

With the aid of the unedited cables, the defence destroyed Giaka’s credibility as a witness when he gave evidence on 26-28 September.