Threadbare ... but the judges bought it

[On this date in 2010, Rolfe posted on this blog a series of comments setting out the inherent unlikelihood of the plot that Megrahi was alleged to have been involved in and the shakiness of the evidence adduced to establish it. These comments are well worth repeating. So here they are, all together:]

In my opinion the tendency for the case to become clogged up with conspiracy theories is unhelpful to the present argument. That doesn't mean I think the conspiracy theories are entirely unfounded. However, speculations and accusations about fabricated physical evidence, high-level agreements to avoid certain lines of enquiry and so on are actually irrelevant to the evidence that was used to convict Megrahi. Even if all the physical evidence is entirely on the level and no political games higher than the classic "let's pin it on this guy because he's handy and we've got to get someone" were played, he didn't do it.

It might be helpful to consider the nature of the plot Megrahi is said to have been involved in.

First, the manufacture of the bomb and its introduction into Malta itself were so cleverly done that no trace of this exercise was ever discovered. The same is true as regards getting it on the Malta-Frankfurt flight. The Malta baggage records were complete and the security was good - even the appeal judges agreed that "there is considerable and compelling evidence that that could not have happened." This was quite fiendishly clever, however it was done. Years of concentrated effort by an international team of investigators never found any trace of the bomb or the suitcase on Malta.

And yet, when sourcing clothes to pack round the bomb, Megrahi chose to go to a small shop only three miles from the airport where the dastardly and completely secret deed would be done, and buy brand new, locally-manufactured clothes, in a most conspicuous and memorable manner, only two weeks before the operation. If the police had been quicker off the mark, they could have been talking to Tony Gauci within six weeks of this purchase, rather than nine months. Almost any source would have been better than this - a big chain store, a second-hand shop, raid a clothes-line or something!

Then, having done that and shown his face to someone who could potentially link him with the clothes, he then showed up at the airport at the time the bomb was being smuggled into the baggage system - for no readily apparent reason, as he appeared to have done nothing while in the airport that could have facilitated this. And although he was travelling undercover, the passport was traceable to him, and he wasn't even wearing a false beard. Was this plot so short of personnel that the same person had to show himself in two capacities like this?

The bomb was then routed unaccompanied across Europe, in winter, with two changes of plane. The chances of it simply becoming lost baggage weren't negligible. The chances of the flights being delayed or disrupted by bad weather weren't negligible. The bomb was routed through Frankfurt, which had a computer-controlled system, which should have allowed that unaccompanied bag to be spotted almost immediately enquiries began, and turn attention to Malta. The reasons this didn't happen are complicated and bizarre, but this development wasn't something that could have been anticipated or influenced by the plotters. In addition, all the baggage for the Frankfurt-Malta flight was x-rayed by a "careful and conscientious operator" who had been specifically alerted to the possibility of a bomb being introduced disguised as a radio-cassette player. Kurt Maier shouldhave intercepted that device.

At Heathrow, it gets even dafter. The amount of Semtex was small, and it could only have penetrated the hull if it was placed right against the skin of the plane. I don't know what percentage of cases in that baggage container were in suitable positions for that to happen, but I think no more than about 30%. An unaccompanied bag coming off the Frankfurt flight would have been placed randomly.

And worst of all, the timing of the explosion. The timer was apparently set for about 7pm, only about 45-50 minutes after the plane was due to take off (38 minutes after it actually did take off). This was Heathrow, early evening, a few days before Christmas. Bad weather, traffic congestion, a late passenger whose baggage was already loaded (that very nearly happened), anything could have delayed that plane so that it was still on the tarmac at 7pm, in which case a lot of not very much would have happened, and those scraps of Maltese clothes would have been right there to be traced. The flight wasn't due to land until 1.40am GMT - any sane conspirator would set that timer for midnight GMT or later.

It's all very well to look with hindsight and say, well it worked, didn't it, but it's a completely insane excuse for a terrorist plot. Especially the clothes purchase completely negating the otherwise total concealment of any trace of bomb or suitcase in Malta.

Conversely, if we look at the possibility the bag being introduced at Heathrow, we find very definite evidence of introduction there. Not just the potential for a rogue suitcase to be introduced, but actual concrete evidence that it was. This skips all the problems of the three-plane daisy-chain, the Frankfurt computer system and x-ray, and allows an opportunity to get the thing in the part of the container where it will do most damage. And as we all know, a barometric trigger would have exploded about 40 minutes after take-off no matter how long the plane had been delayed.

You could still say, well it might have been bizarre, but he still did it. Except, there's no evidence he did!

He wasn't the man who bought the clothes from Tony Gauci. That's what the grounds of appeal we know about were all about. Tony had a remarkable memory for the goods he sold, and remembered the purchaser in terms of vital statistics, as he sized him up for fit (and realised some of the clothes he was buying wouldn't have fitted him). The man he originally described was nothing like Megrahi in height or build, and over 10 years older. And the day he described the purchase as taking place was a day Megrahi wasn't on Malta. The rest is a shocking catalogue of leading the witness, twisting his evidence and pure bribery.

He didn't put the bomb on the plane - not just because he didn't go airside that morning or do anything at all suspicious, but because the bomb didn't go on at Malta. The baggage records proved that to any reasonable standard of proof.

And that's it, really. He knew Edwin Bollier. So did a lot of people, no doubt. He was never shown to have had one of Bollier's timers in his possession, or any bomb-making equipment, or to have any previous record of or expertise in bomb-making. He was a JSO officer. Indeed, and again that hardly proves guilt in this case - there were a lot of JSO officers in the 1980s.

So how come he was charged and convicted? Prof. Black has explained how the evidence that was eventually accepted would never have been sufficient to issue an indictment in the first place, if it had not been for the additional evidence of the witness Giaka. Giaka was going to swear he'd seen Megrahi and Fhimah smuggle the bomb into the airport and so on. Except, Giaka had invented the whole thing at the behest of the CIA and the US Department of Justice, who both bribed and blackmailed him to do that. This all came out in court, and Giaka's evidence was thrown out. Incredibly, the prosecution received no criticism for pulling this trick, or for lying to the court in an attempt to conceal the evidence that their star witness was lying.

After Giaka was discredited, it appears that the whole circus had gathered too much momentum to be stopped, and the prosecution went on to try to stitch together a case from what was left. Threadbare doesn't begin to describe it, but for some reason the judges bought it.

Tony Gauci never positively identified Megrahi - the best he ever mustered, despite all the coaching and bribery, was that Megrahi resembled the purchaser, and a pretty hesitant job it was too. The judges nevertheless decided it was Megrahi beyond reasonable doubt, because - the purchase happened on a day Megrahi was on Malta, and Megrahi was at the airport when the bomb was loaded. And he knew Edwin Bollier and he was a JSO officer, yadda, yadda.

Tony said the purchase happened midweek, early evening, when his brother was home watching a UEFA match, the Christmas lights weren't yet lit, and it was raining a bit. All these features pointed to 23rd November. Megrahi wasn't even on Malta on 23rd November. By torturing the meteorological and other data past breaking point, it was possible to make a highly unconvincing case for the date to have been 7th December. When asked by the SCCRC why he preferred 7th December, DCI Bell said that it was Megrahi's presence on the island which had persuaded him it must have been the latter date. The judges concurred, and it was 7th December beyond reasonable doubt.

The Malta baggage records said loud and clear there was no suspect suitcase on the Malta-Frankfurt flight. The Frankfurt baggage records all vanished completely within a few days of the incident, right under the noses of the German police. And I'd give a minor body part to know what that was all about. Eight months later, a very limited extract of these records was handed over to the Scottish police, having been saved as a souvenir by an IT technician. This appeared to show an item of luggage from the Malta flight being coded for the Heathrow flight. However, this was far from certain, partly due to the very incomplete nature of the records, and it was possible the record in question was due to a coding anomaly. Mistakes in coding were acknowledged to occur at Frankfurt from time to time. (And that's not even considering the bizarre provenance of the souvenir computer printout.)

Faced with this choice, the judges decided that as the defence had not proved there had been a coding anomaly at Frankfurt, they were entitled to find that an unaccompanied bag had indeed travelled on the flight from Malta beyond reasonable doubt, and that some completely dastardly and untraceable method had been used to get it on. They explained this reasoning by saying it fitted the pattern, with Megrahi who had bought the clothes being present at the airport whan that flight left.

I don't think there's a more blatant example of circular reasoning in the criminal justice system.

Looked at from the point of view of the investigators, it's possible to see how this happened. When the disaster happened, there was indecent haste to declare that the device was "almost certainly" not introduced at Heathrow. Most of the baggage in the relevant container came off the Frankfurt feeder flight, so attention was directed back there. The Frankfurt authorities hotly denied the possibility that it had gone on there - and all the baggage records were missing. There was no love at all lost between the Scottish and the German police over all this.

Then, a full eight months after the disaster, evidence appeared pointing to Malta - both the Maltese origin of the clothes in the suitcase and the computer record suggesting the presence of an unexplained item of luggage on the Malta-Frankfurt flight showed up. The investigators became convinced the bomb had actually been introduced there. This conveniently left Heathrow entirely in the clear (as the luggage had been shunted from one plane to the other across the tarmac in about 20 minutes, and had never been unattended), and Frankfurt relatively in the clear as responsibility for security of the flight as regards luggage coming in from another airline (as opposed to the check-in desks) lay with Pan Am.

All the effort shifted to Malta. Eventually, it was discovered that one of the passengers passing through the airport that morning, checking in for a flight to Tripoli which left about the same time as the Frankfurt flight, was a JSO officer travelling undercover. I can sort of see why the cops would have got excited about that. The clothes purchase, the apparent rogue suitcase showing on the Frankfurt computer record, and a suspicious Libyan, all right there.

The trouble was, they wouldn't take no for an answer. Megrahi didn't actually buy the clothes - but Gauci was badgered, coached and bribed, and the meteorological evidence tortured, to say he did. He didn't go airside that morning or do anything suspicious - but it was decided he was up to something, anyway. There was no suspect suitcase on the flight - but the possibility of a coding anomaly at Frankfurt was handwaved away, and an impenetrable and undetectable plot conjured into being to declare there was. And then, in case that wasn't enough (which is wasn't), Giaka's CIA handlers told him to produce evidence to implicate both Megrahi and Fhimah, or else.

Did they know they were framing an innocent man? Some of them probably did. Some may have believed he was genuinely guilty and they were merely ensuring justice was done. Maybe it was OK regardless because a JSO officer was just a terrorist anyway. And other leads has petered out in the sand and it was going to be pretty embarrassing if nobody was ever convicted for this atrocity. And it just so happened that it was extremely politically convenient to lay this on Libya as well. And there you have it, the perfect storm.

However, if you look at it another way, it makes better sense. If you intend to introduce a bomb at Heathrow, say, maybe it's not so daft to make a conspicuous purchase of brand new, locally manufactured, traceable clothes in Malta - a thousand miles away. If they should happen to be traced, it might provide a nice little diversionary red herring. So long as the purchaser is someone Tony Gauci has never seen before and will never see again, why not?

I think it worked beyond someone's wildest dreams.

The coincidence of the Frankfurt computer record seeming to point to Malta and Megrahi having been there under cover at the crucial moment seems to have been too much for the investigators - and the judges. They wrote several times about a "pattern", really referring to this coincidence. However, striking coincidences happen all the time. When examined in detail, they're often not as unlikely as they first appear.

The prosecution referred often to how it was possible to trace baggage through the Frankfurt system using the reasoning they employed to identify the anomalous record as referring to the Malta flight. They showed a number of records relating to known PA103 passengers exactly where they ought to have been. However, nobody ever demonstrated how frequent miscodings and anomalies were. It's possible there were three relating to the Heathrow flight alone. If it was quite usual for there to be two, three or four anomalous records in the loading data for a flight that size, then the chances of one of them seeming to relate to the Malta flight might not be especially low.

Megrahi travelled through Malta quite often, but that's not the data we want for that end. What we don't know is how often a JSO officer, any JSO officer, travelled on LN147 from Malta to Tripoli. If this was a rare occurrence, then it's quite a coincidence. But it might not have been. JSO officers might have been in the habit of catching that flight on a regular basis. In which case it was just Megrahi's rotten luck it happened to be him on 21st December 1988.

So you see, without even mentioning the fact that the provenance of the MST-13 timer fragment in the evidence simply screams "plant", and the identifying page of the radio-cassette manual simply couldn't have survived the explosion it was supposed to have been next to, and ignoring whatever cover-up was going on at Frankfurt, and completely forgetting about all the allegations that the investigation was deliberately headed off from cornering the PFLP-GC with their radio-cassette bombs with barometric timers set to go off about 40 minutes after take-off, and all the rest of the circumstantial evidence against them - it's quite obvious that Megrahi was framed. By the CIA and the US Department of Justice, with the enthusiastic co-operation of the Lord Advocate and the Scottish criminal justice system.

In essence it need be no different from the framing of Barry George for the murder of Jill Dando - all the other leads had gone cold, and here was someone the crime might be plausibly pinned on, so let's do it.

Sorry to have gone on so long, and most people here know all this anyway, but maybe Blogiston didn't, or other lurkers may come by and find some of it helpful.