The genesis of the neutral venue Lockerbie proposal

[It was on this date in 1993 that it was announced, following a “legal summit” held in Tripoli involving the international team of lawyers assembled by Dr Ibrahim Legwell to assist him in advising Abdelbaset Megrahi and Lamin Fhimah, that the suspects were not prepared to surrender themselves for trial in Scotland. Those taking part from Scotland were Donald Macaulay QC and Alistair Duff.  I have previously described my own involvement was as follows:]

The Libyan government asked me to be present in Tripoli while the team was meeting so that the government itself would have access to independent Scottish legal advice should the need arise. 

It was apparent that the Libyan government expectation was that the outcome of the meeting of the defence team would be a decision by the two accused voluntarily to agree to stand trial in Scotland.  I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland.  My meeting after the defence decision was revealed with the then Deputy Foreign Minister, Mousa Kousa (later head of external security and Foreign Minister) made this only too clear. 

In the course of a private meeting that I had a day later with Dr Legwell, he explained to me that the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence in this case the degree of impartiality and open-mindedness that accused persons are entitled to expect and that a fair trial demands.  A secondary consideration was the issue of the physical security of the accused if the trial were to be held in Scotland.  Not that it was being contended that ravening mobs of enraged Scottish citizens would storm Barlinnie prison, seize the accused and string them up from the nearest lamp posts.  Rather, the fear was that they might be snatched by special forces of the United States, removed to America and put on trial there (or, like Lee Harvey Oswald, suffer an unfortunate accident before being put on trial).

The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it. (...)

Having mulled over the concerns expressed to me by Dr Legwell in October 1993, I returned to Tripoli and on 10 January 1994 presented a letter to him suggesting a means of resolving the impasse created by the insistence of the governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves for trial by jury in either of these countries.  This was a detailed proposal, but in essence its principal elements were the following.

1. That a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with this major alteration, namely that the jury of fifteen persons (not twelve, as in England) which is a feature of that procedure be replaced by a panel of judges -- ideally from states other than those principally affected by the disaster, but presided over by a Scottish judge -- who would have the responsibility of deciding not only questions of law but also the ultimate question of whether the guilt of the accused had been established on the evidence beyond reasonable doubt.

2.  That the prosecution be conducted by the Scottish public prosecutor, Lord Advocate, or his authorised representative.

3. That the defence of the accused persons be conducted by independent Scottish solicitors and counsel appointed by the accused.

4. That any appeals against conviction or sentence be heard and determined in Scotland by the High Court of Justiciary in its capacity as the Scottish Court of Criminal Appeal.

Although not expressly stated in the proposal, it was the clear implication (and this was understood by Dr Legwell) that in the event of the accused being convicted by the court, they would serve any sentence of imprisonment imposed upon them in a prison in Scotland.

In a letter to me dated 12 January 1994, Dr Legwell stated that he had consulted his clients, that this scheme was wholly acceptable to them and that if it were implemented by the government of the United Kingdom the suspects would voluntarily surrender themselves for trial before a tribunal so constituted.  By a letter of the same date, Deputy Foreign Minister Mousa Kousa stated that the Libyan government approved of the proposal and would place no obstacles in the path of its two citizens should they elect to submit to trial under this scheme.

Still far too many questions surrounding the Lockerbie bombing

[What follows is excerpted from an article published today on the Stratfor website by Fred Burton, the company’s vice president of intelligence:]

Gadhafi never admitted to giving the order to take down Pan Am 103, although the Libyan government did take official responsibility and in 2003 paid out a total of $1.8 billion to the victims' families. What those families did not get was a sense of resolution. There are still far too many questions surrounding the Lockerbie bombing, still far too keen a sense that those at fault have gone unpunished.

PBS Frontline recently released the first segment of a new documentary called My Brother's Bomber, by Ken Dornstein, whose brother was killed in the Lockerbie bombing. Like all of us who lost friends or family in the attack, Dornstein is frustrated by the lack of resolution to the investigation, even 20 years later. In the film he documents his effort to track down the perpetrators on his own.

Megrahi and the coded passport

[What follows is excerpted from a report on the BBC News website on this date in 2000:]

The Lockerbie trial has heard that one of the accused was issued with a false passport after security service chiefs sent an urgent request to the relevant authorities.

Abdelbaset Ali Mohmed Al Megrahi, 48, was given a "coded" passport in the name of Ahmed Khalifa Abdusamed, the Scottish Court in the Netherlands was told.

Maloud Mohamed Omar El Gharour, of the general passport and nationality department in Libya, said that in June 1987 his department received a letter from the external security services asking for a new "coded" passport for Al Megrahi.

Prosecuting counsel Alan Turnbull QC asked the witness: "What would you understand by a coded passport?"

Mr El Gharour said: "It means simply that the passport does not carry the original name of its holder."

He told the court that the letter requesting the passport asked for the matter to be dealt with "very urgently".

It said the name of the holder of the coded passport was Al Megrahi who was described as having the job of "collaborator civil".

However the profession listed for his false passport was to be "employee".

The false passport was issued on the same day as the urgent letter was received, Mr El Gharour said.

The Lockerbie indictment accuses Al Megrahi of travelling to Malta, where the bomb which blew up Pan Am Flight 103 is alleged to have originated, on various occasions in 1987 and 1988 using the false identity of Ahmed Khalifa Abdusamed.

Carol Butler, of the British Immigration Services, told the court that stamps in the Abdusamad passport showed the user arriving in Malta on 20 December 1988 and flying back to Libya the following day.

The passport was not used again after 20 December.

[I have commented on this evidence as follows:]

Megrahi (inexplicably, in the view of many) was not called by his lawyers to give evidence on his own behalf at the trial; so no explanation of his use of this passport was ever supplied to the court. There is an innocent (ie non-Lockerbie related) explanation (involving his role in seeking to circumvent US trade sanctions against Libya and obtain Boeing aircraft spare parts on behalf of his employers, Libyan Arab Airlines) which could have been provided.

[Megrahi’s own explanation of the use of this coded passport on this occasion can be found in John Ashton’s Megrahi: You are my Jury at pages 108 to 115.]

Promotions for prosecutors involved in CIA Giaka cables scandal

[What follows is the text of an item posted on TheLockerbieTrial.com on this date in 2000:]

The Lord Advocate [Colin Boyd QC] announced on Monday [9 October 2000] that Alan Turnbull QC, one of the senior Crown counsel at the Lockerbie trial, was being promoted to Home Advocate Depute. [RB: The Home AD was the most senior prosecutor in the Crown Office after the Lord Advocate and the Solicitor General for Scotland.]

The announcement has come as a surprise to many including Turnbull himself, who has of late been keeping a very low profile at the Camp Zeist trial.

Turnbull's low profile in the courtroom has had a good deal to do with the results of his trips to the CIA "reading room" at the US Embassy in The Hague.

Accompanied by Senior Procurator Fiscal Norman McFadyen, Turnbull read through the secret text of numerous CIA documents.

Presumably both he and McFadyen decided that what was hidden behind the redacted versions of the CIA cables and shown to them was not relevant to the defence case or that it did not undermine the Crown case.

Subsequent events in court have shown that the text that lay behind the redacted cables was highly relevant to the defence. What compounded the problems for the prosecution was that Turnbull and McFadyen, knowing now what lay behind the some of the redactions, must also have known that the notations written along side the redacted areas which were supposed to describe in general terms what was hidden, turned out to be utterly misleading and bogus.

These notations were obviously designed to throw any interested party off the track of what really lay behind the blacked out sections of the cables.

Turnbull clearly was clearly involved in this exercise in preparation for the Crown's examination of the Libyan informer Giaka but that task fell to Advocate Depute Campbell and Turnbull took a back seat.

Turnbull and McFadyen, both highly experienced prosecutors, must have been aware that allowing this deception to go forward could be damaging to the Crown's relationship to the court, leaving aside the legalities and ethical consideration of their actions.

Sources close to the trial have told us that Alastair Campbell QC, was very concerned about this and was not prepared to allow this situation to go unresolved and his actions ensured that the defence was informed.

That Turnbull and McFadyen stayed silent on these matters for so long is a real cause for concern. We do know that they had to sign confidentiality documents before the CIA would allow them to see material and one could fairly ask if they had any authority to do so, bearing in mind the Crown's responsibility to the Court. What form of undertaking Turnbull and McFadyen gave the CIA should be made public. 

Given the background to these events, the timing of the announcement of Turnbull's promotion caused surprise in many quarters.

Informed sources have told us that that there are several members of the legal profession considering lodging formal complaints with the Faculty of Advocates and the Law Society of Scotland regarding the conduct of Alan Turnbull and Norman McFadyen in relation to the CIA cables. 

[RB: In March 2003 there was also promotion for Norman McFadyen. He became Crown Agent, the civil service head of the Crown Office and Procurator Fiscal Service. These two promotions tellingly illustrate just how seriously Lord Advocate Boyd took the Crown’s shameful behaviour over the CIA Giaka cables.

All four of the prosecution lawyers mentioned above are now judges in Scotland.]

Another birthday

Today is the 21st birthday of National Poetry Day. To mark the occasion, here is an item first posted on this blog on 6 June 2012:

Justice: Chicago and Lockerbie

[The greatest poem written in English about justice is, in my view, Carl Hamblin, from Edgar Lee Masters’s Spoon River Anthology.  It reads as follows:]

The press of the Spoon River Clarion was wrecked,

And I was tarred and feathered,

For publishing this on the day the Anarchists were hanged in Chicago:

“I saw a beautiful woman with bandaged eyes

Standing on the steps of a marble temple.

Great multitudes passed in front of her,

Lifting their faces to her imploringly.

In her left hand she held a sword.

She was brandishing the sword,

Sometimes striking a child, again a laborer,

Again a slinking woman, again a lunatic.

In her right hand she held a scale;

Into the scale pieces of gold were tossed

By those who dodged the strokes of the sword.

A man in a black gown read from a manuscript:

'She is no respecter of persons.'

Then a youth wearing a red cap

Leaped to her side and snatched away the bandage.

And lo, the lashes had been eaten away

From the oozy eye-lids;

The eye-balls were seared with a milky mucus;

The madness of a dying soul

Was written on her face—

But the multitude saw why she wore the bandage.”

[Perhaps, one day, the multitude (and the Scottish Government) will recognise the affront to justice that the conviction of Abdelbaset Megrahi constitutes. The three convicted anarchists that were not hanged in 1887 (four were) were pardoned, and the trial was criticised, by Illinois Governor John P Altgeld, who assumed office in 1893. Altgeld is the subject of Vachel Lindsay's powerful poem The eagle that is forgotten.]

Justice for Megrahi petition celebrates fifth birthday

On this date five years ago, Justice for Megrahi submitted its petition (PE1370) calling on the Scottish Parliament "to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988". The petition remains open and is currently on the agenda of the Justice Committee.

Contemporaneous items on the website of Scottish lawyers' magazine The Firm can be read here and here and here. The progress of the petition through committees of the Scottish Parliament can be followed here.

Lockerbie: the alternate theories

[This is the headline over a long article by Katie Worth that was published yesterday evening on the PBS website to accompany Ken Dornstein's films. It reads as follows:]

The only person ever convicted for the bombing of Pan Am Flight 103 over Lockerbie, Scotland was Libyan. And although the former Libyan dictator, Muammar Qaddafi, never accepted personal blame for the attack, in 2003 his government took responsibility “for the actions of its officials” and agreed to pay $2.7 billion in compensation to families of the bombing’s 270 victims.

But the case against Libya has never been universally accepted. Nearly 30 years since the attack, some victims’ family members, journalists, and investigators dispute the prosecution’s version of events. Among those who have found fault with the case include a United Nations observer to the Lockerbie trial, the trial’s legal architect and an independent review commission established by the Scottish government.

Over the years, alternative theories have proliferated, as have books and documentaries that purport to present the “real story” of what was one of the worst terrorist attacks against Americans before 9/11.

QUESTIONS ABOUT LIBYA

Two men were originally indicted for the Lockerbie attack: Abdel Basset al Megrahi, who was convicted in 2001, and a second Libyan, Lhamen Fhimah, who was acquitted. Over the course of their months-long trial, prosecutors alleged that Megrahi, a man U.S. investigators identified as a member of Libyan intelligence, and Fhimah, a station manager for Libyan Arab Airlines, were responsible for getting the suitcase believed to have carried the bomb onto Flight 103. The bomb was built into a Toshiba cassette recorder, and tucked inside a brown Samsonite suitcase with clothes that Megrahi was said to have purchased.

The court accepted the prosecution’s arguments against Megrahi and sentenced him to life in prison, but it acquitted Fhimah, stating that there was “insufficient corroboration” of the evidence against him.

This outcome was emphatically criticized by the United Nations observer to Megrahi’s trial, Hans Kochler, who in 2001 stated in his official report that the court’s decision was “exclusively based on circumstantial evidence and on a series of highly problematic inferences,” and that the guilty verdict “appears to be arbitrary, even irrational.”

The outcome was similarly decried by the man credited with creating the unique legal framework of the trial — a non-jury trial under Scots Law held in the neutral country of Netherlands — Edinburgh University emeritus law professor Robert Black. He has spent years blogging about his disagreement with Megrahi’s conviction, which he says was unwarranted considering the evidence, and would not have been replicated in a jury trial.

In 2007, the Scottish Criminal Cases Review Commission, after more than three years of investigating, validated several of these misgivings, concluding that “some of what we have discovered may imply innocence” and referred Megrahi’s case to an appeal court in the interests of avoiding “a miscarriage of justice.”

The commission rejected several points of contention raised by critics, saying they found no signs that evidence had been tampered with, that the Libyans had been framed, or that there had been “unofficial CIA involvement” in the investigation. But other points were worrying enough that the case merited an appeal.

One point of concern for the commission involved a key witness for the prosecution — a shopkeeper from Malta named Tony Gauci, who testified that Megrahi had purchased the clothes that accompanied the bomb from his shop.

However, the commission found Gauci’s testimony problematic. He said it was raining the day Megrahi went shopping, but weather reports show it was likely not raining when Megrahi was in Malta. And Gauci said that Christmas lights on his streets were not yet on, when there is evidence that they were.

Gauci also identified Megrahi from a lineup as the man who came into his shop — but only after being shown a picture of him in a magazine. The commission said this detail “undermines the reliability of his identification” of Megrahi.

Megrahi’s defenders say there is still more to consider. In an interview with FRONTLINE filmmaker Ken Dornstein, John Ashton, who worked as a defense investigator during Megrahi’s first appeal and has written three books arguing that Megrahi was innocent, said the origin of the timer used in the bomb is questionable. According to metallurgists hired by the defense in 2009, the timer’s circuit board was a different color and coated in a different substance than those designed by MEBO, the Swiss company that the timer was linked back to and that had a relationship with the Libyans. This discrepancy “breaks the link with those timers, breaks the link with Libya, breaks the link with Megrahi,” said Ashton.

Ashton has also dismissed the prosecution’s allegation that the suitcase originated from Malta and travelled through Frankfurt, writing in a recent opinion piece that a researcher “has effectively proved that the bomb originated from Heathrow.” This theory hangs on evidence of a security breach at Heathrow Airport in London — where Pan Am Flight 103 originated — 18 hours prior to the attack. However, an appeals panel rejected this argument as grounds for a retrial. [RB: Dr Morag Kerr’s evidence establishing that the bomb suitcase was in luggage container AVE4041 before the baggage ever arrived on the feeder flight from Frankfurt is in no way linked to, or dependent upon, the break-in at Terminal 3.]

Many of these points have never seen their day in court, because Megrahi abandoned his second appeal right before he was released from Scottish prison in 2009 on compassionate grounds due to ill health.

“The appeal, had it gone forward, would have dragged the Scottish criminal justice through the mud,” Ashton said. “I believe they wanted this buried.”

EARLY THEORIES

The Libyans weren’t initially on investigators’ radar, according to a 1991 fact sheetreleased by the U.S. State Department: “The dominant hypothesis of the early stages of the Pan Am 103 investigation focused on indications that the bombing was the outcome of joint planning by the Iranian Revolutionary Guard Corps (IRGC) and the Popular Front for the Liberation of Palestine – General Command (PFLC-GC).”

This theory stemmed from what the fact sheet described as “reliable intelligence” that indicated those groups were planning to attack a U.S. target in retaliation for an incident in which American warship USS Vincennes accidentally shot down an Iranian Airbus in July 1988, five months before Lockerbie.

Further, the bomb that exploded on Pan Am 103 was strikingly similar to one found in the car of a PFLC-GC militant during a raid in Frankfurt, Germany less than two months earlier. Both were concealed in a Toshiba radio and consisted of similar explosives. The PFLC-GC was also reportedly in possession of flight schedules. And the Frankfurt connection — the Pan Am 103 flight came from Frankfurt before landing in Heathrow and then departing for New York — seemed unlikely to be coincidental, some have said.

But investigators eventually turned away from this theory. Per the State Department, the Toshiba radios were different in appearance and used different bomb technology.  The PFLC-GC’s bomb used an altimeter for activation, while the bomb on Pan Am 103 used a sophisticated timer. And even though the origin of the suitcase that is believed to have carried the bomb onto Flight 103 would later raise questions, investigators said that it was most likely transferred from Malta to Frankfurt. This, the State Department memo said, pointed investigators’ attention to the Libyans, who had been traveling in and out of Malta.

Though investigators say they never found hard evidence of an Iranian-Palestinian conspiracy, last year, an Iranian defector to Germany gave the theory new life when he claimed the attack was ordered by Iran’s Supreme Leader Ayatollah Khomheini “to copy exactly what happened to the Iranian Airbus” that had been shot down by the U.S. warship.

This theory has proved durable and, for many, convincing. In its 800-page review of the Lockerbie evidence, the Scottish Criminal Cases Review Commission said the evidence found in the Frankfurt raid shortly before the Lockerbie bombing — including the Toshiba bomb and the flight timetable — led it to determine that “there was some evidence that could support an inference of involvement by” Palestinian terrorists.

Dr. Jim Swire, whose daughter was one of the 270 victims of Flight 103, is among those who believe Megrahi was innocent. Swire has repeatedly told reporters that he believes Iran was primarily responsible for the attack, and that the U.S. did not pursue this angle because officials wanted  “to blame somebody, anybody, rather than Iran.”

Investigating the Iran link, says Swire, would have caused diplomatic problems at a time when Americans were negotiating over hostages in Lebanon.

“It seems to me that by far the most likely explanation for the blaming of Libya was to secure the release of Terry Waite and other hostages from Beirut,” Swire told The Telegraph in 2013.

A MULTINATIONAL CONSPIRACY?

The main competing theories of who was behind the attack — Libyans or a cohort of Iranian and/or Palestinian extremists — are not mutually exclusive for some of those who’ve looked into the case. After all, Libya, Iran and Palestinian terrorist groups had close ties, and had worked together in previous attacks.

Two years before Lockerbie, the State Department reported that Qaddafi had provided “safe haven, money and arms” to the PFLP-GC and had also announced a “strategic alliance” with Iran, which he hoped to “use as a foundation for joint operational planning for terrorist attacks against various regional foes.”

Nor did he express qualms about using these links to attack American targets. During a speech in 1985, Qaddafi remarked that “we have the right to fight America, and we have the right to export terrorism to them.”

Syria may have also been involved, according to some theories. Libya, Iran and Palestinian extremists all had links in Syria, and according to the State Department’s fact sheet, Syria was the primary political sponsor of PFLP-GC, and “was at least broadly aware” of the group’s alliances and operations.

So did the leaders Libya, Iran, Syria and a Palestinian extremist group collaborate to bring down Pan Am 103? The State Department did not dismiss the possibility in its 1991 memo.

“We cannot rule out a broader conspiracy between Libya and other governments or terrorist organizations,” the fact sheet stated. “Despite these links, we lack information indicating direct collaboration.”

Today, nearly 30 years after the attack, many such questions around Lockerbie have yet to be definitively answered. For some at least, that means the bombing will remain a mystery.

Failure to rectify Lockerbie case undermines independence aspirations

[On this date in 2007 the following article was published in The Sunday Times:]

The United Nations observer at the Lockerbie trial, Hans Köchler, said that Scotland has the reputation of a "banana republic" because of its handling of the case.

The academic, who advises the European Commission on democracy and human rights, said Scotland does not deserve to be granted independence until it addresses the failings within its judicial system.

He was responding to reports that evidence that would have undermined the crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan convicted of the atrocity, was withheld from his defence lawyers. It has been alleged that evidence relating to a timer device was planted by investigators to implicate the Libyan as responsible for the bombing that claimed the lives of 259 people when Pan Am flight 103 was brought down in 1988.

Köchler said he believed the Crown Office regarded Megrahi as a "headache" and wanted him out of Scotland to avoid further embarrassment.

"They would prefer to have him out of the country and have the entire legal case collapse without asking any further questions." he said.

"But I think it won't be so easy because there are still some people in Scotland who are committed to the rule of law and who do not want the country to appear like a banana republic because that is what it is, for me, after I have followed [the case] over so many years.

"If they aspire to independence then they should show they can do things in the right way in the judicial domain, in devolved areas, and if they cannot do things in the right way and if they handle judicial proceedings like intelligence operations then in my view the aspirations towards independence are not very well founded."

Köchler's comments follow speculation that a US intelligence document, which disputes claims that Megrahi used a digital timer bought from a Swiss company and then planted the bomb on a flight from Malta to Germany — was shown to senior crown officials but never disclosed to Megrahi's defence team.

It is understood to be one reason why the Scottish Criminal Cases Review Commission, which spent three years considering the safety of Megrahi's conviction, decided last June to refer the case to Court of Appeal.

"My most serious concern is about the timer, because if something was indeed inserted, that would have devastating consequences for the entire judicial and political system of Scotland and of the United Kingdom " Köchler added.

Sources close to the case have claimed that evidence was fabricated to implicate Mohammed Abu Talb, a Palestinian terrorist, before the focus of the investigation switched to al-Megrahi and Libya in 1989.

Doubts have also been raised over evidence given at the trial by Tony Gauci, the Maltese shopkeeper who claimed he sold Megrahi clothing that was wrapped around the bomb. Last week, well-placed sources claimed that Gauci and his brother Paul were paid about £2.5m by the US intelligence services soon after Megrahi's appeal collapsed in 2002. Details of the alleged payment emerged in 2005 when one of Gauci's relatives sought legal advice in an attempt to claim a share of the money.

Köchler's intervention will be a blow to the Crown Office, which is still reeling from the collapse of the World's End murder trial. In August, the trial judge Lord Clarke threw out the case against Angus Sinclair ruling there was not enough evidence for the jury to reach a verdict.

An unseemly public row ensued between Lord Hamilton, the lord justice general, and Elish Angiolini, the lord advocate, after she insisted there had been a strong enough case to put to the jury.

"The whole Lockerbie affair has not been a good advertisement for Scottish justice but there is now the opportunity to rectify what went wrong," said Professor Robert Black from Edinburgh University, who brokered Megrahi's trial at Zeist in the Netherlands.

"Provided the lessons are learned then the experience could yet prove to be a beneficial one. Köchler cast doubts over the quality of the evidence after the trial. He wasn't taken seriously at the time but all credit to him, they are now coming to the surface," said Black.

Alex Salmond, the first minister, dismissed Köchler's remarks.

"The strength of the legal system is in the processes it adopts to ensure justice is done and seen to be done. The fact that the Lockerbie conviction is going before the Court of Appeal is not a sign of weakness, it's a sign of strength in our legal system.

A spokeswoman from the Crown Office, said: "It would be inappropriate to comment while the case is yet to come before the appeal court."