Sheriffs involved in the Lockerbie case

[What follows is excerpted from an article that was published in The Herald on this date in 1993:]

One of Scotland's most distinguished legal figures is retiring.

Sheriff Principal John Mowat, QC, of South Strathclyde, Dumfries and Galloway, will be succeeded by Sheriff Graham Cox, at present a Sheriff at Dundee.

The appointment of Sheriff Cox, 59, by the Queen on the recommendation of the Secretary of State for Scotland, will take effect from October 1, the Scottish Courts Administration said yesterday.

Among Mr Mowat's duties in recent years was the task of conducting the fatal accident inquiry into the Lockerbie disaster in which 270 people died.

During the £3m hearing he heard millions of words of evidence over a 61-day period.

He was born in Manchester 70 years ago and educated at Glasgow High School and Merchiston Castle School in Edinburgh before graduating at Glasgow University.

[RB: The Fatal Accident Inquiry into the 270 deaths resulting from the destruction of Pan Am 103 over Lockerbie opened in Easterbrook Hall, Crichton Royal Hospital, Dumfries on 1 October 1990. The Sheriff Principal’s 47-page findings were issued on 18 March 1991 and can be read here. Perhaps the most noteworthy feature of the evidence related to the positioning of the bomb suitcase in luggage container AVE4041. By the time of the trial at Camp Zeist the Crown’s stance (and its evidence) had altered significantly. For further details, see Dr Morag Kerr’s Adequately Explained by Stupidity? Lockerbie, Luggage and Lies.

John Mowat’s successor as Sheriff Principal, Graham Cox QC, presided at Camp Zeist on 6 April 1999 at the first appearance of Megrahi and Fhimah before a Scottish court.

Abdelbaset Megrahi’s Scottish solicitor up to and including the first appeal, Alistair Duff, is now a sheriff and is currently Director of the Judicial Institute for Scotland. Norman McFadyen who was the procurator fiscal in charge of the Lockerbie case (and was one of the two members of the prosecution team who viewed the infamous CIA Giaka cables) is now a sheriff in Edinburgh.]

FBI and CIA rôles in Lockerbie investigation

[On this date in 2014 the Russian news agency RIA Novosti (now Sputnik International) published an article by Mark Hirst headlined FBI Chief Investigator Dismisses CIA Officer’s Claims Over 1988 Plane Bombing Intel. It reads as follows:]

An agent with the Federal Bureau of Investigation (FBI) who led the US probe into the bombing of Pan Am flight 103 over the Scottish town of Lockerbie in 1988 has denied claims made by a Central Intelligence Agency (CIA)’s former officer who told RIA Novosti that FBI investigators did not read vital US intelligence material related to the attack.

Earlier Robert Baer, a retired CIA officer who was based in the Middle East, told RIA Novosti, “I’ve been having exchanges with the FBI investigators and they came right out and said they didn't read the intelligence."

“I just find that extraordinary and then later for them to comment on the intelligence and say it's no good; it’s amazing,” Baer said.

But Richard Marquise, who led the US investigation into the attack, dismissed Baer’s claim.

“Mr. Baer had no role in the investigation and anything he knows or claims to know is either hearsay or speculation,” Marquise told RIA Novosti.

“I find [Baer’s claims] interesting because he has previously said that the CIA did not pass us all the information, something I doubt he would be in a position to know,” Marquise argued.

“I agree that there were a handful of FBI personnel (agents and analysts) who had access to all the intelligence that was passed and it may have been possible that some FBI agents who played a minor role in the case may not have seen it,” he added.

For years controversy has surrounded the case following the 2001 conviction of Abdelbaset Megrahi, a former Libyan intelligence officer. Campaigners, including some relatives of victims of Pan Am 103, believe Megrahi was wrongly convicted and are continuing to call for a public inquiry into the events leading to the bombing.

Baer has previously claimed US intelligence pointed to Iran – not Libya – as the source of the attack that allegedly retaliated for the shooting down of Iran Air Flight 655 by the American warship, USS Vincennes, five months before the attack on Pan Am 103. Baer told RIA Novosti that a convincing case implicating Libya was still to be made.

“Richard Marquise has taken a moral position on the case,” Baer told RIA Novosti. “I can still be convinced the Libyans did it, but I still need to be convinced of that.”

Robert Black, Professor Emeritus of Scots Law at the University of Edinburgh, has spent more than two decades studying the case.

“I'd be absolutely amazed if the FBI didn't consider the intelligence material, if only to reject it as unreliable or unusable as evidence in judicial proceedings,” Black told RIA Novosti.

“Indeed, there's clear evidence that they did make use of it. A key prosecution witness, Majid Giaka, was a CIA asset and was in a Department of Justice witness protection program,” Black added.

“The FBI falls under the Department of Justice. And Giaka was a crucial witness in the Washington DC grand jury hearing that led to the US indictment against Megrahi and Fhimah,” Black said.

Pan Am Flight 103 was flying from Frankfurt to Detroit via London and New York City when it was blown out of the sky over Scotland by a terrorist bomb that killed 270 people, including 11 on the ground. A three-year-long investigation yielded two Libyan suspects who were handed over to the United [Kingdom] (...) in 1999. In 2003, Gaddafi (...) paid compensation, but said he had never given the order for the attack.

Concerns gleefully swept under the carpet

[What follows is an item that was originally posted on this blog on this date in 2009:]

The waiting game

This is the headline over my column in the July issue of the Scottish lawyers' magazine The Firm. It reads as follows:

It took three years for the SCCRC to conclude that Abdelbaset Ali Mohmad al- Megrahi may be the victim of a miscarriage of justice, and a further two years will have passed before his appeal is heard, by which time he may have died. Professor Robert Black QC calls on the Scottish authorities to show some courage before it is too late.

Abdelbaset al-Megrahi should never have been convicted for the Lockerbie atrocity. His conviction, on the evidence led at the trial, was nothing short of astonishing. It constitutes the worst miscarriage of justice perpetrated by a Scottish criminal court since the conviction of Oscar Slater in 1909.

It should never be forgotten that one crucial ground on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice in Megrahi’s case, was its view that no reasonable court could have reached the conclusion that the trial court did, on a matter absolutely central to its reasons for convicting.

The delay in bringing Megrahi’s current appeal to the hearing stage has been scandalous. Had a modicum of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. But the issue of the trial court’s unreasonable findings is a very simple and straightforward one and required virtually no investigation other than a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007, attributable in large part to the Fabian tactics of the Crown and the spurious public interest immunity claims of the UK Foreign Office. Two whole years have passed since the SCCRC reference. Eighteen months have passed since the appellant’s full written grounds of appeal were lodged with the court. And it was only at the end of April 2009 that the first tranche of the appeal was heard. On the leisurely timetable that the appeal court has set, it would require a minor miracle for the proceedings to be concluded by the twenty-first anniversary of the disaster in December 2009.

What makes all of this worse is that the appellant was diagnosed in October 2008 with terminal, late-stage prostate cancer. His condition has recently deteriorated to such an extent that he was unable to attend court for the first tranche of the appeal or, indeed, comfortably to follow the proceedings over the TV link that had been set up.

The recently lodged prisoner transfer application would enable him to return to Libya to spend his remaining weeks with his wife, children, aged mother and siblings, which is – understandably – now his overriding priority. But, for prisoner transfer to be granted by the Scottish Government, Megrahi would have to abandon his appeal. This, clearly, would bring joy to the hearts of the Crown Office and the Scottish Government Justice Department. The manifold concerns over the Lockerbie conviction could be gleefully swept under the carpet and the pretence maintained that the system had worked perfectly and a guilty man had been justly convicted.

However, there is another course of action open to the Scottish Government, if Ministers have the strength of will and character to withstand the pressure of civil servants assiduously punting the prisoner transfer option. That course of action is compassionate release. This would enable Megrahi to be freed on licence and return to Libya. His appeal would run to its natural conclusion. If he died before the appeal court reached its decision, the appeal could be transferred to his executor or any person having a legitimate interest.

The Scottish public interest demands nothing less than that the concerns over Megrahi’s conviction be ventilated fully in court. Compassionate release provides the only mechanism whereby this can be achieved alongside the humanitarian goal of allowing him to die at home. Have Scottish Ministers the wisdom and the courage to embrace it?

[Compassionate release was indeed applied for and was ultimately granted by Kenny MacAskill. But he insisted -- quite wrongly -- on dealing with prisoner transfer and compassionate release concurrently, the consequence of which was that Megrahi had to abandon his appeal in order to satisfy the legal requirements for prisoner transfer: see Doomed from the outset.]  

Doomed from the outset

[On this date in 2010 a letter from Sir Brian Barder was published in The Guardian under the heading Vital point missed in Megrahi controversy. It reads as follows:]

In all the renewed controversy over the release of Abdelbaset al-Megrahi, the man convicted of the Lockerbie bombing ... a vital point seems to have been missed. Under the terms of the US-UK "initiative" under which Megrahi was convicted, he was required to serve his sentence in the UK. The initiative was accepted by Libya and approved by UN security council resolution 1192. For that reason Megrahi could never have been transferred to serve the rest of his sentence in Libya under the prisoner transfer agreement (PTA) negotiated by the Blair government with Libya, regardless of whether Megrahi was included in or excluded from its scope.

It's difficult to understand how the PTA came to be signed when it could never have been used to transfer Megrahi, the only Libyan then in UK custody. If BP was pressing for Megrahi to be transferred under the PTA, why was it not told that this was ruled out by the terms of the original agreement? Why didn't Alex Salmond and Kenny MacAskill point this out to Tony Blair and Jack Straw when they were arguing about the pros and cons of the PTA? Above all, when Blair and Straw made their "concession" to the Libyans under which Megrahi was not after all to be excluded from the PTA, did they remind the Libyans that Megrahi couldn't be transferred to Libya? If not, why not?

In an article published on Comment is Free on 1 September 2009, Oliver Miles pointed out that Megrahi's transfer to Libya under the PTA would have been contrary to the original agreement. It's strange that even then no one seems to have seen the implications of this.

[RB: The implications had, of course, already been seen on this blog: Britain accused of breaking promise to US over Abdel Baset Ali al-Megrahi and Foreign Office told Scotland it made no promises to US over how long Megrahi would stay in prison.

The reason why the "promise" was not taken seriously by the UK Foreign Office was that the only country that might have an interest in complaining if it was broken was the United States of America. And both the United Kingdom government and the Libyan government knew (because -- as Libyan officials informed me -- they had checked) that Washington was relaxed about Abdelbaset Megrahi's repatriation, though it would have to huff and puff for US public consumption when it happened.

When Kenny MacAskill rejected the application for prisoner transfer his principal reason for doing so was the undertaking contained in the “initiative” that led to the Zeist trial that, if convicted, the suspects would serve their sentence in the UK. Of course, if it had been accepted by the Libyan Government that transfer of Megrahi to a prison in Libya was simply not possible under the terms of the “initiative” (and I did my very best to convince them) no prisoner transfer application would have been made and, in consequence, abandonment of Megrahi’s appeal would not have been necessary when, later, his application for compassionate release was lodged. The prisoner transfer application may have been -- indeed, was -- doomed from the outset, but it served the interests of the United Kingdom and the United States very well by ensuring the abandonment of Megrahi’s appeal.]

Megrahi applies for compassionate release

[What follows is an item originally posted on this blog on this date in 2009:]

Megrahi requests release from jail on compassionate grounds

[This is the headline over Lucy Adams's coverage in The Herald of the story that was broken yesterday on this blog. Her article can be read here. The following are extracts:]

The man convicted of the Lockerbie bombing has applied to Scottish ministers for release on compassionate grounds, a move which if granted would allow him to return to Libya without dropping his appeal.

Ministers received the application yesterday from Abdelbaset Ali Mohmed al Megrahi, who was diagnosed with terminal prostate cancer last year.

As with the case of prisoner transfer, the decision rests with Kenny MacAskill, the Justice Secretary. Unlike prisoner transfer, compassionate release does not require the prisoner to abandon any ongoing legal proceedings.

The Justice Secretary is thought to have released three terminally ill patients on compassionate grounds last year. Traditionally, only applications from those with three months to live are granted.

In May the Libyan government applied for prisoner transfer of Megrahi, the 57-year-old serving 27 years in Greenock prison for the bombing which killed 270 people in December 1988. (...)

Mr MacAskill is expected to make a decision on the transfer in the first week in August, but there has been some confusion about how the prisoner transfer agreement works. One legal expert said that ministers must give Megrahi a decision "in principle" before he drops proceedings, but officials say that is not the case.

It is thought that some of the US relatives of the victims of the tragedy would push for a judicial review if Mr MacAskill agrees to Megrahi's transfer back to Libya. Many of them are angry that the transfer is even being considered.

The families have taken legal advice in both London and Scotland. Judicial review could significantly delay Megrahi's return to Libya, but compassionate release is not subject to judicial review.

Professor Robert Black, one of the architects of Megrahi's trial in the Netherlands, said: "Compassionate release seems to achieve the humanitarian objective of allowing Megrahi to die in his homeland among his extended family, along with the public interest and criminal justice objectives of allowing a court to rule upon the validity of an appeal in the case of a conviction that has been increasingly called into question."

[The Scotsman also covers the story. Its article reads in part:]

An e-mail sent yesterday from the Crown Office to relatives of those who died said: "It has been confirmed that the Scottish Government has today received an application for compassionate release on behalf of Megrahi.

"We understand that this application will now be considered by the Scottish Government in tandem with the previous application for Prisoner Transfer."

A spokeswoman for the Scottish Government said: "We can confirm an application for compassionate release has been made by Mr al-Megrahi, and forwarded by the Libyan government to the Scottish ministers.

"Scottish ministers will not comment on the content of the application and will now seek advice on the application."

[The BBC News website has now picked up the story, which can be read here.]

Someone, somewhere, has been and still is hiding something

[The following are excerpts from a long article by retired ambassador Sir Brian Barder that was published on his website on this date in 2010:]

Several well informed people believe there are skeletons in this cupboard which powerful people in the UK and the US want to keep securely and permanently locked away right where they are.  For example, an impressive body of respectable opinion, by no means all professional conspiracy theorists, is not convinced that al-Megrahi was properly convicted. It’s impossible to know whether this doubt was a factor in Kenny MacAskill’s mind when he made his decision: fortunately for him, there were ample other grounds for compassionate release.  It does look however as if some of those concerned were anxious that al-Megrahi’s appeal should not be heard, either because it would risk bringing Scottish justice into disrepute by discrediting the original trial as unfair and defective, or for more sinister reasons.  Or were the likely consequences of al-Megrahi’s appeal possibly succeeding simply too awful to contemplate — for example, the reactions to be expected in the US, and the appalling questions then to be answered: if the two Libyan suspects didn’t do it, who did? And what compensation would be due to al-Megrahi or, if he had died in the meantime, his family?

So why did al-Megrahi agree to abandon his appeal before it could be heard? Was it because he feared that he would not live long enough to see it determined, or because abandoning the appeal was a condition, implied or explicit, of his release on compassionate grounds? Perhaps someone should put this question to al-Megrahi while he is still alive.

A recent article in the Independent newspaper alleged that the Libyan government had paid the doctors whose prognosis that al-Megrahi would die within three months had provided the justification for his release on compassionate grounds:

There are several facts that batter these claims with question marks. The most obvious is that, 11 months later, Megrahi isn’t dead. It’s the most amazing medical recovery since Lazarus. Or is it? It turns out the doctors who declared him sick were paid for by the Libyan government, and one of them says he was put under pressure by Libya to offer the most pessimistic estimate of life expectancy. Susan Cohen, whose only daughter died in Lockerbie, asks: “Why didn’t the Scottish Government pay for the doctors?”     [Johann Hari, The Independent, 23 July 2010]

But as a crisp comment on this canard pointed out, —

This is utterly untrue. The medical report was by Scottish doctors, NHS cancer experts. The ones paid for by Libya were not part of the evidence used by the Justice Secretary. Fact checking mate, you call yourself a journalist?

Indeed, the main medical advice on which MacAskill relied was provided by the Director of Health and Care of the Scottish Prison Service, Dr Andrew Fraser,  who has been described by MacAskill as a doctor of “unimpeachable integrity”.  Yet the slanderous claim that the prognosis had been provided by doctors paid by the Libyan government spreads like toadstools all over the blogosphere and into the MSM.  Moreover, it has repeatedly been made clear that the three-month prognosis was accompanied by a warning that he might die earlier, or he might live longer: no forecast in such circumstances could be certain.  And who knows whether al-Megrahi would still be alive if he had been left in his Scottish prison cell to die, in a foreign country miles from his family?  As to the repugnance commonly expressed at the ‘hero’s welcome’ he received on his arrival back in Libya, it needs to be pointed out that he was being welcomed back as a victim of a monstrous injustice, the Libyans believing almost to a man and woman that he had been wrongly convicted;  this was the opposite of a welcome accorded to a mass murderer and terrorist.

I’m generally suspicious of conspiracy theories but in this case I seem to smell a number of rats — not least because of the decision of the Scottish Criminal Cases Review Commission (SCCRC) in June 2007 after lengthy study of the case to refer it to the High Court for a second appeal against conviction.  There were also a number of reports by Hans Köchler, who had been an international observer of the original trial, appointed by the Secretary-General of the United Nations, and who described the decisions of the trial and appeal courts as a “spectacular miscarriage of justice”. Some of the relatives of the victims, who have naturally followed all the proceedings closely, are doubtful whether al-Megrahi was properly convicted. There is a strong suspicion that Iran may have been involved, including a specific Iranian said to have been in the pay of the CIA (I am not of course suggesting that the CIA could have been involved in planning or carrying out the bombing). Al-Megrahi’s fellow-Libyan co-defendant was unanimously acquitted by the judges. There’s a good deal of doubt about (...) the principal prosecution witness, on whose testimony al-Megrahi’s conviction effectively stands or falls, and about his alleged identification of al-Megrahi at the trial, which was both shaky and possibly compromised. Even the vehemence of American protests at al-Megrahi’s release tends to arouse suspicion: what beans did they fear he might spill once out of prison? Why all the effort to prevent the second appeal from coming to court? And so on. It really does look as if someone, somewhere, has been and still is hiding something.

Questions remain over Lockerbie

[This is the headline over four letters that were published in The Guardian on this date in 2010. They read as follows:]

I support President Obama's call for "all the facts to be laid out" regarding the Lockerbie affair (Cameron tells Obama he will release Lockerbie files, 21 July). He should be reminded that the Montreal convention of 1971, enacted under the UN-linked International Civil Aviation Organisation, was the proper legal instrument to address the terrorist bombing of flight PA 103 over Lockerbie.

The US, resenting the convention provision that the two suspects could be tried in Libya, orchestrated UN sanctions in an attempt to force their surrender to an American or British court. The sanctions caused the deaths of most of 15,750 Libyans suffering from serious medical conditions because they could not be evacuated by air for treatment abroad. In addition, more than 780 Libyans died in ambulances en route to neighbouring countries. It was judged that there had been 1,135 stillbirths and 514 maternal deaths caused by the shortage of medicines, serums and vaccines blocked by the sanctions. A UN report in 1998 confirmed the impact of sanctions on Libya.

The conviction of Abdelbaset al-Megrahi was a farce. Even Lord Sutherland, presiding over the arbitrarily contrived Scottish court in Holland, emphasised the "uncertainties and qualifications" in the case, referred to parts of the "conflicting" evidence "which might not fit" and to a conclusion "which is not really justified". The US ignored international law, imposed sanctions on Libya which resulted in 16,000 deaths, and orchestrated a blatant miscarriage of justice.

Geoff Simons

Author of Libya and the West: From Independence to Lockerbie

As politicians in both Britain and the US queue up to comment on the release of Megrahi, they remain silent about the need for an inquiry into the atrocity itself. To deny the families of the 270 victims of Lockerbie an investigation into this gross act of terrorism is an international disgrace, and the failure to seek to identify those responsible encourages more acts of terrorism.

I have a personal concern about the failure to hold an inquiry as I was with Bernt Carlsson, the UN assistant secretary general, shortly before he checked in on Pan Am Flight 103. As president of the development committee of the European parliament I had invited him to Brussels, where he spoke about his hopes for an independent Namibia and the end of apartheid to a packed meeting of MEPs.

David Cameron should call for an independent inquiry led by the UN to find out the truth about Pan Am Flight 103.

Michael McGowan

Former MEP for Leeds (1984-99)

However appalling the bombing of Pan Am flight 103 was, and if Libya were responsible, at worst Megrahi was following orders. That doesn't excuse his putative actions, but it is then hard to identify a moral distinction between his behaviour and eg that of the USAF aircrews attempting Gaddafi's assassination in the US bombing raid on Tripoli that killed 59 people, including Gaddafi's adopted daughter, or the behaviour of the (subsequently decorated) captain of the USS Vincennes when he shot down Iran Air flight 655 in 1988, killing all 290 passengers and crew.

David Cameron has no business trying to curry favour with the US administration by criticising the lawful and probably just decision of the Scottish justice secretary Kenny MacAskill to release Megrahi on compassionate grounds. He should instead have lectured Obama on the subject of motes and beams; there was plenty of material for him to draw on – he could have started with the comfortable retirement in Miami of Luis Posada Carriles, an ex-CIA stringer responsible for the bombing of Cubana Flight 455 in 1976, despite his conviction in absentia in Venezuela and their related extradition requests.

Andy Smith

Kingston upon Thames, Surrey

In all the hype about releasing Megrahi, one crucial fact seems to have got submerged. He was about to appeal with new evidence, and very likely win, when "persuaded" to abandon the appeal and be sent home "on compassionate grounds". Cynics might think this was to avoid the embarrassment of the court deciding that all along they had the wrong man. A case where two wrongs make a right?

Anthony Cheke

Oxford

The Lockerbie secret doc: Khreesat and the Swiss

[This is the headline over an article published today on Dr Ludwig de Braeckeleer’s PT35B website. It reads in part:]

“Marwan Khreesat is still wanted in connection with the bomb on the El Al flight. There can be little doubt that Khreesat is the bomb-maker for the PFLP-GC, that he was brought to West Germany for that purpose and there is a possibility that he prepared the IED which destroyed PA 103. As such he should not be at liberty but should be closely questioned regarding his activities with a view to tracking his associates in the attack.”                                                Supt Connor Report — June 1989

Swiss investigative journalist Otto Hostettler has uncovered a very interesting piece of information.

According to his research:

Khreesat Marwan Abdel-Razzaq Mufdi applied on 6.9.1988 at the Swiss Embassy in Amman for a visa to travel to Switzerland.

Despite being a “person of interest” in Switzerland [unexplained Swissair-Crash from 1970 (Würenlingen)] and being wanted in Italy (El Al Flight August 1972), he was indeed granted a 15 days visa from Switzerland on 12.9.1988. (...)

We know that the secret doc alleges that MST-13 timers had been provided to the PFLP-GC organization.

Nothing more is known at this point. But this trip – if it indeed occurred — could very well be the source of the story covered in the secret doc sent from the King of Jordan to John Major in 1996.

A particularly interesting aspect of this visa is the fact that the paperwork at the Federal Police was handled by Inspector Fluckiger.

Does that name ring a bell?

Inspector Fluckiger met with a MEBO employee (Lumpert) on June 22 1989.

On June 6, 2008, Lumpert told me that he gave a MST-13 timer prototype to Swiss Commissioner Peter Fluckiger

According to Lumpert, Fluckiger requested this device and other material at the demand of a “friendly Intelligence Agency.”

Last night, George Thomson wrote the following comment on this blog:

“During a recent investigation in Switzerland our team managed to get our hands on an official government document which confirms that in June 1989 Swiss Police did receive from a MEBO–source documents and materials in relation to MST timers. THE DOCUMENT GOES ON TO CONFIRM THAT THIS MATERIAL WAS THEN HANDED OVER TO THE AMERICANS.”

REMEMBER: This is one full year BEFORE super FBI genius Tom Thurman identified the link between PT/35(b) and MEBO (June 15 1990). Things are looking up!