Lockerbie bomber’s conviction may well collapse

[This is the headline over an article by Kenny MacAskill in today's edition of The Scotsman. It reads in part:]

The Lockerbie saga continues and, as with the assassination of John F Kennedy, conspiracy theories will run for ever. It’s unsurprising that the Scottish Criminal Case Review Commission (SCCRC) has passed it through the first stage of their process, as Abdelbaset al-Megrahi’s conviction is questionable to say the least.

As the SCCRC found on the last occasion when they considered this a decade ago, there are issues to investigate. Not least the evidence of Tony Gauci, a man who it’s since been disclosed received substantial sums of money for his testimony. Of course, it doesn’t mean he was a liar, I’ve heard many say he was just a simple man who tried to help and only later discovered there was a reward available. 

However, given that it’s unprecedented in Scots Law and that the court in the same trial castigated the evidence of a paid CIA informer, it’s hard to see how it can be accepted. If it falls, then the case against Megrahi almost certainly collapses.

That doesn’t mean that those who prosecuted him or convicted him were at fault. In my view, all involved sought to act appropriately in what was an extremely difficult case. Nor does it necessarily follow that the court will exculpate Megrahi as I’ve always he had a peripheral role but wasn’t the bomber. It’s one thing to argue the conviction was unsafe but quite another to say that he had no involvement. 

It’ll also be interesting if it does return to court to see if new evidence is rolled out by the Crown. Since the fall of Gaddafi, the CIA and MI6 have obtained documentation from Libya, as well as locating key witnesses and removing them from the failed state. They’re now available but will they be produced? In particular will Moussa Koussa, Libya’s former Foreign Minister, appear? He defected with the help of MI6 and now lives in Qatar.

Conspiracy theories abound about who perpetrated the Lockerbie bombing, most are absurd though a few have more legitimacy. However, it’s surprising that people still question Libya’s involvement in the atrocity and the reasons are threefold. Firstly, all the evidence points to it. Secondly, Colonel Gaddafi admitted it, stating that they hadn’t planned it but accepting that they’d taken over its delivery. [RB: The only evidence that tenuously supports this claim is an account by Arnaud de Borchgrave of a private conversation with Gaddafi. On no other occasion is he ever reported as having accepted Libyan involvement in Lockerbie.]  He explained that if had they conceived it they wouldn’t have used Malta as the airport to place the fatal case on board, given its known use by Libyans. Thirdly, those who have succeeded Gaddafi in whatever semblance of government that has followed in that country have also accepted culpability, though they blamed it on the former despot’s regime.

Of course, what gives some credence to conspiracy theories is that Libya neither acted alone nor initiated it. As a former senior police officer once told me, using that euphemism from the Iraq war, it was a “coalition of the willing”. And that included Iran who put up a bounty for an American airliner to be bombed, following the downing of their own civilian airliner by the USS Vincennes just months before. It also included the Popular Front for the Liberation of Palestine – General Command, which accepted the contract and had been planning an atrocity before being intercepted by German police just weeks prior in possession of Pan Am air tags, timetables and similar bomb-making equipment. Others including Syria would have known or been involved. 

This coalition mirrors the investigation into the atrocity which included not just US and UK law enforcement and security services but many others including the Germans and Israelis. 

Now there are some who persist that Megrahi was just some innocent abroad who happened to find himself in the wrong place at the wrong time. Really? Flying in on a false passport never to be used again, initially denying ever being there and apparently travelling without any luggage. 

The specific evidence against him may be limited but the circumstantial evidence is compelling. He was a senior Libyan intelligence agent – head of security at Libyan Arab airlines. Not only did he carry out covert work for the regime but he was both a member of the Gaddafi clan and married into the family of another senior regime leader. (...)

Some have argued that the bomb was placed aboard at Heathrow but that’s rejected by the evidence though it’s been unhelpful that the Crown have yet to publish the police report into. [RB: The sentence breaks off here, leaving us no wiser about just what police report Mr MacAskill is referring to. Could it possibly be the report on Operation Sandwood?] More compellingly Pan Am went bust as a result of their security failings at Malta and it’s inconceivable that if there were any doubt that wouldn’t have been challenged. Money talks as they say! [RB: The security failings that led to Pan Am going bust were not at Malta Airport. IF the bomb suitcase started from Malta, it went from Luqa to Frankfurt on an Air Malta Flight, NOT a Pan Am flight. Pan Am's security failings were at Frankfurt and/or Heathrow.]

The initial prosecution was also against many more than just Megrahi and his co-accused Fhimah. They included far more senior figures and included the man believed to be the bomb-maker. All requests even by the defence in due course to speak to him were rejected by the Libyans, just as all demands for more senior accused to be handed over were rejected. [RB: This is false. No charges were ever levelled at any time against any Libyans other than Megrahi and Fhimah. No request was ever made by the United Kingdom or the United States at any time for other Libyans to be handed over.]

For a deal had been brokered by the United Nations between the US/UK and Libya that not only would the trial be under Scots Law, though at a neutral venue, but that there would be no regime change. In a nutshell the two accused offered up by Libya were the highest-ranking accused that the Libyan regime was prepared to release and the lowest level that the UK/US were prepared to accept. 

But, there’s more evidence available now and others that can be prosecuted. So rather than looking back at Megrahi’s conviction, maybe it’s time to look at new evidence and at other accused.

[RB: Kenny MacAskill has made most of these points before. They have been comprehensively refuted by James Robertson here and John Ashton here.]

Reflecting on Lockerbie

[This is the headline over an article by Kenny MacAskill published yesterday on the website of Cable magazine. It takes much the same line as his recent book and merits a similar response, such as those accorded to the book in reviews by James Robertson and John Ashton. Mr MacAskill's article reads in part:]

... this month brings the sixteenth anniversary of the conviction of Abel Basset Al Megrahi at a Scottish court convened at Camp Zeist in the Netherlands. He remains the only man convicted of the crime. Megrahi was released by me in 2009, on compassionate grounds, when I was Justice Secretary. In many ways, the trial has overshadowed both the events leading up to it, and actions subsequent to it. For some, it has become a cause célèbre and for others, simply the culmination of the tragedy.

Yet, the Lockerbie bombing is not just the story of one man and his journey through the courts. It is also one of international intrigue and diplomatic duplicity.  The atrocity didn’t happen in isolation – in many ways, it was the culmination of years of terror and counter-terror. The trial and subsequent appeals only formed part of a far wider picture, one in which vested state interests were being pursued, and in which economic goals mattered more than justice. (...)

For many, especially in Scotland, the Megrahi trial itself has come to overshadow the events that led up to both the atrocity and its consequences. Perceived or real failings amongst police, prosecutors, judges, or even myself, have often distorted scrutiny of the wider issues at play. The focus, even in the media, has been on the court case rather than on the economic and security deals being traded for prisoners, or on the nature of strategic alliances, of which there were many.

Reporting of the fact that evidence was denied to the Scottish court, and threats to close down Scottish press coverage of this issue, has been muted to say the least. I know this from discussions with an Editor threatened, and with the UK Minister doing the threatening. Even false news (a popular term at this point in time) has been allowed to become received wisdom, such as the so called ‘hero’s reception’ for Megrahi after his release and return to Tripoli (despite being exposed as fake by both WikiLeaks and former State Department officials).

Perhaps there should have been more wariness all those years ago, when an Italian air force plane in UN markings collected Megrahi and his co-accused – Al Amin Khalifah Fhimah – from Tripoli, to take them to the Netherlands for trial. For though this was to be a trial held under Scots law (albeit convened in a former Dutch air force base), the major ground rules had already been set. However, the Scottish judges presiding over the trials has not yet been notified of those rules.

Vested financial interests should perhaps also have been discerned. The first Scots lawyers to visit Gadhafi travelled on a plane provided by Babcock and Wilcox. Others later returned on the private jet of Tiny Rowland.

For the trial had been brokered by Britain and the United States, in negotiation with Libya, with the intervention of many other actors (the United Nations in particular) at the very highest levels. Sanctions were hurting Libya; it needed to negotiate. The West, for its part, wanted a strategic partner in the campaign against Islamic terror, as well as access to Libya’s natural resources. The trial came about just as major companies were lobbying for access to Libya. American companies in particular were concerned at European businesses – such as BP – gaining a foothold in the North African country while they were still excluded. Marathon Oil, among others, lobbied the White House relentlessly.

The negotiations eventually resulted in the Libyans choosing Scots law for the process, albeit in a neutral venue. Scots law would always be preferable to a trial in America where little justice could be expected, and where anyone convicted was unlikely ever to see the light of day again. Handing citizens over to the United States was as unacceptable to the Gadhafi regime as it remains to every Libyan grouping to this day.

The discussions also covered the question of who would appear for trial. Megrahi and Fhimah were offered up. Others, far more culpable and senior, were also sought by the police and prosecutors. But the deal brokered by the UN exculpated Gadhafi and his leading henchmen – like Abdullah Senussi, Gadhafi’s head of military intelligence – from facing justice. The Libyan leadership was thus given a get-out-of-jail card. Others were not so lucky.

Megrahi and his co-accused were the highest-ranking officials that the Libyans were prepared to sacrifice – and the lowest-ranking that the West would accept. Western interests dictated that it was acceptable to live with the Libyan leadership being absolved; but someone had to stand trial. The legal process provided cover for the political and economic deals the West wanted and so Megrahi and Fhimah were offered up in the Libyan national interest.

Advice from Scottish lawyers to the accused not to present themselves for trial was ignored: new Libyan lawyers provided by the Gadhafi regime made it clear that these men would be going to the Netherlands, no matter what. Libya, crippled by Western sanctions, required these two to take the fall for the country – and they were lightning conductors, drawing attention away from anyone higher up.

And so it was that one man – Megrahi – was convicted and the other acquitted, sixteen years ago this month. The trial process was highly unusual, not just in its setting but in its format, with three judges sitting without a jury.

There are certainly questions over the reliability of Megrahi’s conviction in light of evidence that has since come to light. That’s quite understandable given the circumstances of the attack, and the scale of the crime scene. Indeed, it was a quite remarkable police investigation and great credit should be given to those involved. That said, the post-trial evidence which has emerged doesn’t mean that Megrahi was uninvolved in the crime. A mere innocent abroad, he certainly was not. He was a senior Libyan agent, from Gadhafi’s tribe, married into senior families who had faithfully carried out the regime’s instructions, both before and after Lockerbie.

This will doubtless be the focus of yet more debate. That is understandable. (...)

People will continue to form their own judgements on my decision to release Megrahi on compassionate grounds. That’s their right and entitlement. But I stand by my position. Further information received since has only reinforced my view. (...)

Before that happened, however – and this is an issue which receives far less attention – I had the opportunity to transfer Megrahi. I chose to reject this opportunity. Prisoner transfer applications are routine and were invariably granted by me, as by both my predecessor and successor. The process applies to bringing Scots who have committed crimes abroad home, as well repatriating foreign offenders from our land.

What was unusual about this particular Prisoner Transfer Agreement (PTA) was how it came about – and why I refused it. Indeed, it was the only one I ever rejected. As Jack Straw (then UK Home Secretary) told me, the UK-Libya PTA came about as the UK government sought to support BP’s interest in obtaining a lucrative contract in Libya. The imperative was simple – no transfer deal, no contract – and the UK was anxious that its own company benefit from the substantial profits to be made, and not an American competitor.

I rejected the transfer application for Megrahi. I did so not because it was the only one in existence that allowed for the state and not just the prisoner to apply; nor because there was only one Libyan prisoner in a Scottish jail – the man convicted of the Lockerbie bombing. I did so instead because it became clear that undertakings had been given at the time of the trial that any sentence given to Megrahi should be served in a Scottish prison.

This information came to me not from the UK government – which was focused only on driving through the Prisoner Transfer Agreement – but from Eric Holder, the United States Attorney General. At the time the trial was being agreed, he had been the Deputy Attorney General. He was therefore a man well-placed to know what had been agreed. Holder was adamant that any sentence meted out to Megrahi should be served in a Scottish jail, even if David Miliband, the UK Foreign Secretary at the time of my decision, was unforthcoming on the issue. That is why I ruled out a prisoner transfer application which I would normally have authorised. (...)

I’m used to people taking opposing positions on my decisions; that goes with the job. I do, however, object strenuously to the disparagement of those who served the Scottish justice system at this time. No system is foolproof and that’s why safeguards are built in. All systems can make errors and need to be able to accept and atone for them. But the constant focus on just one aspect of the Lockerbie tragedy ignores the much wider picture, and lets the British and American governments off the hook for their hypocrisy and duplicitous actions.

I believe those who were involved in the Scottish justice system, at all levels in this case, deserve praise and respect. Most especially, this should go to those who attended the horrific crash scene and dealt with it as best they could. They shouldn’t be defamed for alleged planting of evidence. The work was hard and horrifying – and all at a time before PTSD was properly acknowledged, never mind treated. A dogged and determined investigation should be appreciated for the fine skills the investigators deployed – not denigrated for alleged falsities. Then, at the trial stage, both prosecutors and judges acted professionally in dealing with the facts then before them.

There are good people who have genuine doubts about the integrity of the trial, such as Dr Jim Swire, who lost his daughter in the tragedy. Though I respect them, I profoundly disagree with them. Meanwhile, there are others who are part of a ‘Megrahi industry’ that has been in business since the corporate jets were first utilised. Conspiracy theories abound and most, as is usually the case, are simply nonsensical.

Meanwhile, it shouldn’t be forgotten that not just the American victims’ families but most others stand by the conviction, even if almost all recognise that there’s more still to come out. Much has, of course, been leaking out in dribs and drabs as further information about British and American links with Libya emerge, and as the CIA extract more people in the know from the failed Libyan state they’ve created. I’ve always supported the Scottish government’s position on the benefits of having an international enquiry to consider all aspects of the Lockerbie affair. A Scottish court alone has no powers to compel the necessary witnesses, or obtain the required information.

Yet while there are legitimate questions over the strength of the conviction, which I share, this bombing was carried out by Libya. The evidence shows it, Gadhafi admitted it, and the National Transitional Council which replaced him also accepted that his regime was culpable.

The Lockerbie bombing was the horrific culmination of years of terror and counter-terror. From atrocities at Rome and Vienna airports and bombings in Berlin bars, to sanctions on Libya and even air strikes on Gadhafi’s family compound in 1986. It culminated in the downing of an Iranian airliner by the USS Vincennes in July 1988, killing all aboard. President Bush refused to apologise for this act and it caused outrage across the Arab world. A bounty was put up to avenge the act and that was accepted by the Popular Front for the Liberation of Palestine General Command (PFLP-GC).

This group was planning the downing of a Pan Am airliner, resulting in the Helsinki warning in the form of a memorandum issued by the US State Department to American embassies. This has fuelled conspiracy theories ever since. In fact, all it showed is what we’ve come to experience in recent years: that security services know something is planned, but don’t necessarily know when or where, and security is tightened accordingly.

However, the detention of a PFLP-GC cell in Germany some two months before the Lockerbie bombing spiked the initial bombing plan. Those arrested had Pan Am timetables and bag tags, and were planning an operation in a similar style to what ultimately befell Flight 103. Thwarted this time, what was to be done to fulfil the contract?

The PFLP-GC operated closely with the Libyans – also with Syria, Iran, and other Middle East states. In the PFLP-GC’s time of need, the Libyans stepped into the breach to help them in their next, decisive, plan. Tripoli had been aware of what had been going on, as Gadhafi himself would later admit. Though, as he added, had they planned it, they wouldn’t have used Malta as it was too geographically close to Libya and would have raised suspicion. But, presumably needs must and so Libya finished off the terror strike initially planned by the Palestinians. There are serious questions as to just how the fateful bomb was placed aboard the Pan Am aircraft in Malta: it remains a mystery to this day. But Gadhafi confirmed that it was planted there.

Megrahi and Fhimah weren’t the principal parties involved, although – as noted earlier – suggestions of their complete innocence are fanciful. Those who would sanctify Megrahi forget he was a senior security service agent in a despicable regime. The idea that he just found himself in Malta on a false passport, with no apparent luggage as some innocent abroad, is absurd. I certainly doubt that he was the bomber, but given who he was and the roles he held, I have no doubt that he was involved in the wider operation. (...)

So as the anniversary comes round, people will form their own views and make their own judgements – on me, and on Scottish justice. But let them also examine the economic and strategic backdrop which saw sanctions dropped and prisoners rendered in return for access to natural resources and a strategic ally against Islamic terrorism. The process of justice around the Lockerbie bombing offered up two minnows but protected the major players – a situation which continues to this day. It was a process which also saw Britain and America condemn the release of Megrahi while openly consorting with Gadhafi.

The court case, like Scotland more broadly, was just one small cog in a far larger wheel.

Frank Duggan "not familiar with certain aspects of Lockerbie"

[What follows is excerpted from an obituary of Frank Duggan published in today’s edition of The Herald:]

Frank Duggan, who has died of cancer aged 79, was a combative and often controversial lawyer and campaigner for American victims of the 1998 PanAm/Lockerbie disaster four days before Christmas 1988. He headed the organisation Victims of Pan Am 103 Inc, representing families in the US who lost relatives in the terrorist bombing in which 270 people died.

Whether he represented all the families of the 190 American victims was never quite clear - he once told George Galloway MP he had "never really counted them" - but he was instrumental in the legal action that won $2.7 billion from the Libyan government for the bereaved families, minus a stunning 30 percent in American lawyers' fees. He reportedly worked for the families initially for no pay but is thought to have shared in those fees.

Mr Duggan was incensed when Kenny MacAskill, Scotland's justice minister at the time, decided to release the convicted bomber, Abdelbaset al-Megrahi, on humanitarian grounds in 2009. Describing the decision as obscene, Mr Duggan was vociferous in insisting the then Libyan leader Muammar al-Gaddafi had ordered the PanAm bombing. This brought him into often bitter conflict with many of the Scottish and other UK victims' families, notably the most-outspoken UK relative, the GP Dr Jim Swire, whose 23-year-old daughter Flora perished in the tragedy.

Dr Swire and many other families always believed al-Megrahi's conviction was a miscarriage of justice and that Iran may have been behind the terrorist bombing in retaliation for a less-publicized tragedy. That was when an American Navy guided-missile cruiser, the USS Vincennes, shot down an Iran Air Airbus passenger aircraft over the Persian Gulf on July 3, 1988, killing all 290 passengers and crew - more than the later total of the Lockerbie tragedy. The Americans said they thought the airliner was a fighter plane and the deaths received a fraction of the publicity worldwide that the Lockerbie deaths would receive nearly six months later.

By all accounts, Frank Duggan was a good man, a man who recovered from years of alcoholism and who sincerely fought for the American victims of PanAm 103. But he was perhaps rather naive when it came to the media, as demonstrated in a telling telephone interview with George Galloway MP for talkRADIO in 2009.

In the call, Mr Duggan admits he was not familiar with certain aspects of Lockerbie, notably the evidence of the Maltese witness Tony Gauci, who said he had sold the clothes later found to have been wrapped around the bomb which brought PanAm 103 down. Mr Galloway asked Mr Duggan why the US government had given Mr Gauci a $2million "reward,"to which Mr Duggan replied that there was no proof of such a payment and that he was "not that familiar" with Mr Gauci's evidence.

Mr Duggan then proceeded to call Jim Swire and others of being "all of these cranks." Again, Mr Galloway pulled him up for calling Dr Swire a crank. It was too much for Mr Duggan and in the end he told Mr Galloway: "I don't have time to waste with people like you. I've got to go. Bye bye." And he hung up. (...)

It was George H W Bush who in early 1989, prompted by the Lockerbie tragedy, appointed Mr Duggan to the Presidential Commission on Aviation Security and Terrorism (PCAST) where he became a liaison between the US administration and the American Lockerbie victims.

According to a colleague at PCAST, former FBI agent J Brian Hyland, whose desk was next to Mr Duggan's, the latter had a tendency to sing or hum the patriotic Battle Hymn of the Republic (Mine Eyes have seen the Glory) to keep his colleagues in a positive frame of mind.

Despite the fact that he did not have a relative on the PanAm 103, the families - or at least a majority of them - trusted him and appointed him president of the group they called Victims of PanAm 103 Inc, and he represented them until the day of his death. In return, the families supported Mr Duggan, notably after his daughter was hit by a drunk driver and went into a coma. She eventually awoke but with brain damage.

As family liaison, Mr Duggan lobbied for their interests and listened to them with patience and understanding. After being appointed to Presidcent Bush's PCAST, he continued lobbying for the families as the trail turned to Libya. During this time, he went to work for one of the legal teams representing the families, headed by Allan Gerson, whose 2001 book noted that “for six years Duggan had worked for the families and had earned nothing for it except their trust and gratitude.”

Megrahi may have been denied justice, the relatives of the dead certainly have been

[What follows is the text of an article by Paul Vallely that was published in The Independent on this date in 2009:]

There has been some very muddled thinking in the debate over whether the man convicted for the Lockerbie bombing should now be freed. Abdelbaset Ali al-Megrahi – the former Libyan intelligence officer who is serving life for murdering 270 people when a bomb exploded on Pan Am flight 103 in 1988 – has terminal prostate cancer. Some say he should be released early on compassionate grounds; others because he may well not be guilty of the crime anyway. Others insist he must die behind bars.

It is worth trying to disentangle the arguments here. A society imprisons criminals for a variety of reasons but the main four are: to exact retribution, to restrain villains from committing more crimes, to deter others, and to offer individuals the chance of reform and rehabilitation. Where a prisoner is dying, clearly the notions of restraint and reform can be discounted. That leaves retribution and deterrence.

The word retribution has pretty pejorative connotations in common parlance. It sounds primitive and vindictive. Yet it performs an important function even in a sophisticated community. Offences do not just harm individuals; they do some violence to the social fabric. Retribution is part of how a society restores the equilibrium which the offence disturbed. But in doing that it is important, as the philosopher Jeremy Bentham argued, that punishment must be proportionate.

The Lockerbie bomb was the worst terrorist atrocity ever committed in Britain. It is appropriate that the punishment for that reflects the abhorrence people felt at the outrage, and not just in the UK. It is interesting, therefore, that the most vehement reaction to the news that al-Megrahi might be freed has come not from the relatives of the Brits who died, but from the families of the American victims. Most of those who were blasted out of the sky at 31,000 feet were US citizens, which is perhaps why the blow to the American national psyche appears to have been greatest.

There is a political dimension, too, to the idea of deterrence in this case. "Freeing Megrahi," one relative said, "would send a message that terrorism is not being taken seriously." Demonstrating compassion would entrench in the minds of al-Qa'ida and other violent jihadists the idea that the West is soft and decadent and lacks the stomach for mortal combat. Releasing Megrahi could be misconstrued as a kind of weakness.

But there is a danger in confusing mercy with weakness. Justice and mercy are not always in tension. Compassion does not indicate indulgence toward evil or tolerance of injury. Rather it can be a demonstration of the civilised confidence of a society which does not respond to violence with violence of its own. Showing compassion to those who refused to extend compassion to their victims does not necessarily undermine justice. It may sometimes strengthen it.

If it is key to the concept of retribution that it should be proportionate – that the punishment should fit the crime – then there is a powerful argument for suggesting that the compassionate release of a dying man is part of that sense of proportion. Prisons are not hospitals and lack the medical and social facilities routinely available to those who are dying. To withdraw those from a dying prisoner is not to exact the punishment decreed by a court but in some way to extend it. A core element in retribution is the idea that the criminal gets what he deserves. Very few people deserve to die in a cage.

So the argument for releasing Megrahi early obtains even if he is indubitably guilty. He should be allowed home to die. Proportion is important here too. Permission for early release was denied when his lawyers first applied in 2008 after doctors told judges that, with adequate palliative care, Megrahi could live for several years. Early release requests are normally only granted where a prisoner has fewer than three months to live, and that seems proportionate too. If Megrahi is that close to death he should be released.

All this is quite separate from the question of Megrahi's protested innocence, and yet that is not entirely irrelevant either. There are potent arguments both ways on his guilt or otherwise, and differing views are held among individuals who have paid far closer attention to the case than have most of those now offering ready opinions.

It may sound more plausible, as some US intelligence reports have suggested, that it was not Libya behind the bombing but Iran; the Lockerbie bomb happened just five months after a US warship, the USS Vincennes, shot down an Iranian civilian airliner killing all 290 on board, many of them pilgrims bound for Mecca – prompting the Ayatollah Khomeini to announce that the skies would "rain with blood" in revenge. But those who have most closely scrutinised the detail of the case have formed polarised opinions.

On the one hand, a panel of three Scottish judges considered the evidence against Megrahi for 78 days and unanimously found him guilty. On the other hand, many of the British relatives of those who died, who have studied the evidence in most detail, believe Megrahi to be innocent. Jim Swire, whose daughter Flora was killed in the attack, has described the Libyan's conviction as "one of the greatest miscarriages of justice in history".

It now looks as though we may never know the truth. Megrahi has dropped his appeal against conviction, possibly to expedite his return to Libya, possibly because he is now too ill to fight on. Justice delayed is justice denied, the old legal aphorism has it. Abdelbaset Ali al-Megrahi may – or perhaps may not – have been denied justice. But the relatives of the dead certainly have been - for they have now lost the only remaining vehicle which might have brought them, 21 years after the event, somewhere nearer finding out who really killed their loved ones.

US blames Iran for downing of IR 655

[What follows is excerpted from a report published on this date in 1988 in the The Washington Post. It provides evidence of the official disinformation that was being disseminated by the United States Government in the immediate aftermath of the shooting down of Iran Air flight 655 by the USS Vincennes:]

A US warship fighting gunboats in the Persian Gulf yesterday mistook an Iranian civilian jetliner for an attacking Iranian F14 fighter plane and blew it out of the hazy sky with a heat-seeking missile, the Pentagon announced. Iran said 290 persons were aboard the European-made A300 Airbus and that all had perished.

"The US government deeply regrets this incident," Adm William J Crowe Jr, chairman of the Joint Chiefs of Staff, told a Pentagon news conference.

The disaster occurred at mid-morning over the Strait of Hormuz, when the airliner, Iran Air Flight 655, on what Iran described as a routine 140-mile flight from its coastal city of Bandar Abbas southwest to Dubai in the United Arab Emirates, apparently strayed too close to two US Navy warships that were engaged in a battle with Iranian gunboats.

The USS Vincennes, a cruiser equipped with the most sophisticated radar and electronic battle gear in the Navy's surface arsenal, tracked the oncoming plane electronically, warned it to keep away, and when it did not fired two Standard surface-to-air missiles.

Navy officials said the Vincennes' combat teams believed the airliner to be an Iranian F14 jet fighter. No visual contact was made with the aircraft until it was struck and blew up about six miles from the Vincennes; the plane's wreckage fell in Iranian territorial waters, Navy officials said. (...)

Iran accused the United States of a "barbaric massacre" and vowed to "avenge the blood of our martyrs."

President Reagan in a statement said he was "saddened to report" that the Vincennes "in a proper defensive action" had shot down the jetliner. "This is a terrible human tragedy. Our sympathy and condolences go out to the passengers, crew, and their families . . . . We deeply regret any loss of life."

Reagan, who was spending the Fourth of July holiday at Camp David, said the Iranian aircraft "was headed directly for the Vincennes" and had "failed to heed repeated warnings." The cruiser, he said, fired "to protect itself against possible attack."

News of the downing of the plane began with sharply conflicting accounts from Iran and from the Defense Department of what had transpired in the Persian Gulf. Early yesterday, Tehran broadcast accusations that the United States had downed an unarmed airliner.

The Pentagon at first denied the Iranian claims, declaring that information from the fleet indicated that the Vincennes, equipped with the Aegis electronic battle management system, had shot down an attacking Iranian F14 jet fighter. But after sifting through more detailed reports and electronic intelligence, Reagan directed the Pentagon to confirm there had been a tragic case of mistaken identity in the war-torn gulf.

Crowe, in his hastily called news conference at the Pentagon, also backed up the skipper of the Vincennes and faulted the Iranian airline pilot.

Crowe said the Airbus had flown four miles west of the usual commercial airline route from Bandar Abbas to Dubai and that the pilot ignored repeated radioed warnings from the Vincennes to change course.

Why and how the Vincennes mistook the bulky, wide-bodied Airbus A300 for a sleek, supersonic F14 fighter plane barely a third the transport's size will be the subject of "a full investigation," Reagan promised. A military team under the command of Rear Adm William N Fogarty of the US Central Command will leave this week to begin that investigation, Defense Department officials said.

When truth is inconvenient

[On this date ten years ago a long article by Hugh Miles headlined Inconvenient Truths was published in the London Review of Books.  The following are excerpts:]

From the outset the Lockerbie disaster has been marked by superlatives. The bombing was the deadliest terror attack on American civilians until 11 September 2001. It sparked Britain’s biggest ever criminal inquiry, led by its smallest police force, Dumfries and Galloway Constabulary. It spelled the end of Pan Am, which never recovered from the damage to its reputation. The trial at Camp Zeist was the longest and – at a cost of £75 million – the most expensive in Scottish legal history. The appeal hearing was the first Scottish trial to be broadcast live on both television and the internet.

Lawyers, politicians, diplomats and relatives of Lockerbie victims now believe that the former Libyan intelligence officer is innocent. (...)

Al-Megrahi applied to the SCCRC for a review of his case in 2003 and the commission has been reinspecting evidence from the trial for the last four years. It will submit its findings at the end of June. It looks likely that the SCCRC will find that there is enough evidence to refer al-Megrahi’s case back to the appeal court. The Crown Office has already begun reinforcing its Lockerbie legal team in anticipation of a referral.

If al-Megrahi is granted a second appeal, it will, like the original trial, be held before a panel of Scottish judges, without a jury. This time the trial will take place in Scotland, and if the glacial pace of proceedings in the past is anything to go by, it will probably not be heard before the summer of 2008. Al-Megrahi’s defence team would be ready to launch an appeal in a matter of weeks, but the prosecution would be likely to delay the hearing for as long as possible. If an appeal takes place, al-Megrahi’s defence team will produce important evidence that was not available at the time of the first appeal, evidence that seems likely not only to exonerate al-Megrahi but to do so by pointing the finger of blame at the real perpetrators of the Lockerbie bombing and revealing some inconvenient truths.

Even the [official] who presided over the Lockerbie investigation and issued the 1991 arrest warrants for the two Libyans has cast doubt on the prosecution’s case. In an interview with the Sunday Times in October 2005, Lord Fraser of Carmyllie, Scotland’s larger-than-life lord advocate from 1989 to 1992, questioned the reliability of the shopkeeper Tony Gauci, the prosecution’s star witness. ‘Gauci was not quite the full shilling. I think even his family would say [that he] was an apple short of a picnic. He was quite a tricky guy, I don’t think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer.’ Lord Fraser made it clear that this did not mean he thought al-Megrahi was innocent. But he had presented Gauci as a reliable witness; he went on to become the heart of the prosecution’s case. Now he was casting doubt on the man who identified al-Megrahi. (...)

Hans Köchler, the UN observer at Camp Zeist, reported at the time that the trial was politically charged and the verdict ‘totally incomprehensible’.

In his report Köchler wrote that he found the presence of US Justice Department representatives in the court ‘highly problematic’, because it gave the impression that they were ‘“supervisors” handling vital matters of the prosecution strategy and deciding … which documents … were to be released in open court and what parts of information contained in a certain document were to be withheld.’ ‘The alternative theory of the defence,’ he went on, ‘was never seriously investigated. Amid shrouds of secrecy and national security considerations, that avenue was never seriously pursued – although it was officially declared as being of major importance for the defence case. This is totally incomprehensible to any rational observer.’ The prosecution, Köchler noted, dismissed evidence on the grounds that it was not relevant; but now that that evidence has finally – partially – been released, it turns out to be very relevant indeed: to the defence.

Whatever happens, al-Megrahi may not have to wait long. As soon as a further appeal is scheduled, he can make an application to be released from custody: the convicted Lockerbie bomber, who was supposed to serve no fewer than 27 years in a Scottish jail, might well be free this summer. Whether al-Megrahi is freed pending his appeal – and what conditions would be applied if he were – depends largely on whether his defence team can convince the judge that he is not a flight risk. This may be hard to do. The judge might decide that if he left the country, he might choose to stay in Libya rather than come back next year for another round in court. If al-Megrahi is exonerated, many tricky questions will resurface, not least what to do about the $2.7 billion compensation paid by Libya to the relatives of the victims of the bombing. And then, of course, there is the question of who really bombed Flight 103.

In the first three years following the bombing, before a shred of evidence had been produced to incriminate Libya, the Dumfries and Galloway police, the FBI and several other intelligence services around the world all shared the belief that the Lockerbie bombers belonged to the Popular Front for the Liberation of Palestine General Command (PFLP-GC), a Palestinian rejectionist organisation backed by Iran. The PFLP-GC is headed by Ahmed Jibril, a former Syrian army captain; its headquarters are in Damascus and it is closely allied with the Syrian president and other senior Syrian officials. In the 1970s and 1980s the PFLP-GC carried out a number of raids against Israel, including a novel hang-glider assault launched from inside Lebanon. Lawyers, intelligence services and diplomats around the world continue to suspect that Jibril – who has even boasted that he is responsible – was behind Lockerbie.

The case against Jibril and his gang is well established. It runs like this: in July 1988, five months before the Lockerbie bombing, a US naval commander aboard USSVincennes in the Persian Gulf shot down an Iranian airbus, apparently mistaking it for an attacker. On board Iran Air Flight 655 were 270 pilgrims en route to Mecca. Ayatollah Khomeini vowed the skies would ‘rain blood’ in revenge and offered a $10 million reward to anyone who ‘obtained justice’ for Iran. The suggestion is that the PFLP-GC was commissioned to undertake a retaliatory bombing.

We know at least that two months before Lockerbie, a PFLP-GC cell was active in the Frankfurt and Neuss areas of West Germany. On 26 October 1998, German police arrested 17 terrorist suspects who, surveillance showed, had cased Frankfurt airport and browsed Pan Am flight timetables. Four Semtex-based explosive devices were confiscated; a fifth is known to have gone missing. They were concealed inside Toshiba radios very similar to the one found at Lockerbie a few weeks later. One of the gang, a Palestinian known as Abu Talb, was later found to have a calendar in his flat in Sweden with the date of 21 December circled. New evidence, now in the hands of al-Megrahi’s defence, proves for the first time that Abu Talb was in Malta when the Lockerbie bombing took place. The Maltese man whose testimony convicted al-Megrahi has also identified Abu Talb. During al-Megrahi’s trial Abu Talb had a strange role. As part of a defence available in Scottish law, known as ‘incrimination’, Abu Talb was named as someone who – rather than the accused – might have carried out the bombing. At the time he was serving a life sentence in Sweden for the bombing of a synagogue, but he was summoned to Camp Zeist to give evidence. He ended up testifying as a prosecution witness, denying that he had anything to do with Lockerbie. (...)

Other evidence has emerged showing that the bomb could have been placed on the plane at Frankfurt airport, a possibility that the prosecution in al-Megrahi’s trial consistently ruled out (their case depended on the suitcase containing the bomb having been transferred from a connecting flight from Malta). Most significantly, German federal police have provided financial records showing that on 23 December 1988, two days after the bombing, the Iranian government deposited £5.9 million into a Swiss bank account that belonged to the arrested members of the PFLP-GC.

The decision to steer the investigation away from the PFLP-GC and in the direction of Libya came in the run-up to the first Gulf War, as America was looking to rally a coalition to liberate Kuwait and was calling for support from Iran and Syria. Syria subsequently joined the UN forces. Quietly, the evidence incriminating Jibril, so painstakingly sifted from the debris, was binned.

Those who continued to press the case against the PFLP-GC seemed to fall foul of American law. When a New York corporate investigative company asked to look into the bombing on behalf of Pan Am found the PFLP-GC responsible, the federal government promptly indicted the company’s president, Juval Aviv, for mail fraud. Lester Coleman, a former Defense Intelligence Agency operative who was researching a book about the PFLP-GC and Lockerbie, was charged by the FBI with ‘falsely procuring a passport’. William [Chasey], a lobbyist who made similar allegations in 1995, found his bank accounts frozen and federal agents searching through his trash. Even so, documents leaked from the US Defense Intelligence Agency in 1995, two years after the Libyans were first identified as the prime suspects, still blamed the PFLP-GC.

Suspicions and conspiracy theories have swirled around Lockerbie from the beginning. Some of them are fairly outlandish. In Diplomatic Baggage: The Adventures of a Trailing Spouse (2005), Brigid Keenan, the wife of the British diplomat Alan Waddams, reported that over dinner in Gambia, a former Interpol agent told her and her husband that the bombing had been a revenge attack by Iran, in retaliation for the downed airliner (though she didn’t say how he knew this). The Interpol agent claimed the cargo had not been checked because the plane was carrying drugs as part of a deal over American hostages held by Hizbullah in Beirut. Militant groups were being allowed to smuggle heroin into the US in exchange for information; the bomb had gone on board when the PFLP-GC found a loophole in this drug-running operation.

At least four US intelligence officers, including the CIA’s deputy station chief in Beirut, were on the Flight 103 passenger list. In the days following the bombing, CIA agents scoured the Scottish countryside, some reportedly dressed in Pan Am overalls. Mary Boylan, then a constable with Lothian and Borders police, has said that senior police officers told her not to make an official record of the CIA badge she recovered from the wreckage, asking her instead to hand it over to a senior colleague. Her testimony, too, is now in the hands of the SCCRC. Jim Wilson, a farmer from the village of Tundergarth, reported shortly after the bombing that he had found in his field a suitcase packed with a powdery substance that looked ‘like drugs’. He last saw the suitcase when he handed it over to the police, he said; he was never asked about it again.

When al-Megrahi was handed over for trial, Libya declared that it would accept responsibility for his actions. But it never accepted guilt. This distinction was spelled out clearly in Libyan letters to the UN Security Council. In a BBC radio interview in 2004, the Libyan prime minister, Shukri Ghanem, underlined once again that compensation had been paid because this was the ‘price for peace’ and to secure the lifting of sanctions. When asked if Libya did not accept guilt, he said: ‘I agree with that.’

If the court that convicted al-Megrahi now reverses its decision, then Libya would clearly have a case for demanding its money back. Since recovering the compensation from the relatives would be unthinkable, it is more likely Libya would pursue those responsible for the miscarriage of justice. ‘What they might try to do,’ Black suggests, ‘is to recoup the money from the British and American governments, who after all are responsible for the initial farce and the wrongful conviction in the first place. They paid that money on the basis of a miscarriage of justice perpetrated by the British courts.’ Al-Megrahi’s acquittal on appeal would not ipso facto make a compelling case for Libya to have its money back: even if guilt can’t be proved beyond reasonable doubt – the test of the criminal burden of proof – it could still be shown that it was more likely than not (which is the burden applied to civil cases such as compensation cases). If Libya paid the money for purely political reasons then, one could argue, it might have to live with that decision. When I asked the Foreign Office whether Britain would consider reimbursing Libya in the event of al-Megrahi’s exoneration, a spokesman declined to comment.

If al-Megrahi is acquitted, he will also have the right to sue for wrongful conviction. He could claim compensation to the tune of several tens of thousands of pounds. The Crown Office, which is headed by the Scottish lord advocate, is responsible for what happened, which means that al-Megrahi would sue the Scottish Executive. The lord advocate is now one of the ‘Scottish ministers’, whereas previously he – now she – was one of the law officers of the UK Government. The Scottish Executive might refuse to pay, blaming Westminster. Westminster, meanwhile, would argue that Lockerbie is and always has been a Crown Office matter and that the UK government has no say. A political storm is on its way, especially now that the SNP is in charge in Scotland.

Since the case against al-Megrahi was so weak, it is hard to understand how the judges who presided over the trial could have got it so wrong. Black has a view:

It has been suggested to me, very often by Libyans, that political pressure was placed upon the judges. I don’t think for a minute that political pressure of that nature was placed on the judges. What happened, I think, was that it was internal politics in Scotland. Prosecutions in Scotland are brought by the lord advocate. Until just a few years ago, one of the other functions of the lord advocate in Scotland was that he appointed all Scottish judges. I think what influenced these judges was that they thought that if both of the Libyans accused are found not guilty, this will be the most fiendish embarrassment to the lord advocate.

The appointment system for judges has changed since the trial, but another controversial aspect of the al-Megrahi case may also be re-examined: the policies on disclosure. Compared to almost any other similar criminal justice system, Scotland does not have a proper system of disclosure of information. In England and Wales, the Crown has to disclose all material to the defence, according to rules set out in statute. In Scotland the Crown is allowed to modify or withhold evidence if it considers that withholding is in the ‘public interest’. At least the Scottish criminal justice system doesn’t have the death penalty.