Lockerbie QC to be Scottish Tory Party chairman

[A report published today on the BBC News website reads as follows:]

QC Richard Keen appointed Scottish Tory Party chairman

The Scottish Conservative Party has chosen leading QC Richard Keen to be its new chairman.

The 59-year-old will stand down as dean of the Faculty of Advocates in order to take on the role, which is being vacated by Tory MP David Mundell.

Mr Keen has worked on high-profile cases, including the Lockerbie trial, and is known in the legal profession as "the Rottweiler". [RB: Richard Keen was lead defence counsel for Lamin Fhimah.]

Scottish Tory leader Ruth Davidson said she was delighted with the appointment.

She added: "As one of the UK's leading legal brains, he brings a wealth of external experience to the party, and I am looking forward to working closely with him as we lead the team at a critical time in the politics of our country.

"Richard's appointment shows the Scottish Conservatives are committed to bringing in the brightest and best people from across Scotland as we make the changes our party needs for future success."

Mr Keen said he welcomed the opportunity to take on the chairmanship at such a significant period in Scotland's political and constitutional history.

The father of two added: "As we face the potential break-up of Britain, there are many in Scotland who will be reminded of the values of our party and its role in maintaining what is so much more than just the political union of the UK."

Mr Keen will step down from his Faculty of Advocates post in January, before his political appointment.

[My former student Richard Keen is not the first Scottish Tory chairman to have a connection to the Lockerbie case. But his rôle was certainly a more distinguished one than that of his predecessor Andrew Fulton.]

Giaka's evidence ends

[On this date in 2000 the evidence of Libyan defector Abdul Majid Giaka mercifully came to a conclusion. What follows is taken from TheLockerbieTrial.com’s contemporary report:]

Today saw the Libyan informer Abdul Giaka, endure his third day of questioning at the trial.

Much of the questioning today centred on money, starting with the $30,000 Giaka claimed he had saved. Richard Keen suggested that this money was made in illegal black market currency deals.

When questioned about how he supported himself when his salary from the JSO (Libyan Intelligence service) was stopped, Giaka answered that it was cheap to live in Libya. He denied the suggestion put again by Keen that the Black market money deals were the source of his income.

When Keen asked him if he had been promised a $4 million dollar reward, Giaka denied this although he admitted that he was aware of it.

Keen moved on to ask Giaka if he read much American literature and specifically had he read The secret life of Walter Mitty. The witness said he could not recall.

The Crown's attempt to rehabilitate Giaka and salvage even a modicum of his credibility failed miserably and Giaka finally left the witness box.

Later the court heard from witness number 689, Harold Hendershot a Special Agent with the Federal Bureau of Investigation.

Hendershot agreed that he had interviewed Giaka on board a US warship on July 14 1991 and on a number of other dates in Tyson's Corner, near Washington DC and on other dates in July and August.

Hendershot confirmed that on board the warship on July 14 Giaka had given him information regarding a suitcase.

Much of the detail of this information relating to the suitcase was vague and Giaka had not been able to specify the month he had seen the suitcase. Over the next few months further details emerged, he said.

During cross-examination by William Taylor, Hendershot was asked about Mohammed Abu Talb.

Taylor asked if the witness had attempted to interview Abu Talb in connection with Pan Am 103. Hendershot said the interview had been conducted in a prison as Talb was incarcerated. He could not recall Talb refusing to be seen by any American and only agreeing to speak to Swedish Police. Taylor asked where his notes were and the witness said that his notes were in Washington. Taylor said that his evidence was valueless without the notes and confirmed to the Judge that he may require to recall the witness after taking instructions.

Richard Keen referred to a number of trips made by Hendershot to Sweden in 1989 in connection with the Lockerbie bombing. These investigations involved obtaining search warrants from the Swedish police and Talb was named on the warrant. The Swedish Police executed the search warrants with Hendershot in attendance and he was asked if he remembered the recovery of a quantity of clothing manufactured in Malta from the home of Abu Talb. Hendershot did not recall this and said he did not believe he had made notes in respect of the search. Keen suggested it was unusual to have attended such a search without taking notes. The FBI special agent said that in foreign countries there were procedures that could uncover this information. Hendershot was asked if he recalled the recovery of watches and other electrical items, which were in stages of being, dismantled but he could not recall.

Hendershot could not recall whether Talb was in police custody or had already been convicted when he met with him. He said he did know he was at some point convicted of bombing incidents but said he did not know these had occurred outside Sweden. He was asked if he recalled the seizure of a calendar from Talb's house, which was relevant to Pan Am 103. This calendar, Keen said, had December 21 ringed or marked. The witness said that he did not remember but would presumably have noted this if it had been brought to his attention.

Keen suggested another reason Hendershot was in Sweden was because he had been informed of links between Talb and PFLP in Germany and the witness said he recalled travel between Sweden and Germany, which was believed to have something to do with the movement of explosives and the PFLP. Hendershot said he would be able to answer more fully if he had his notes with him.

Taylor asked him if he recalled that a reward was available in connection with the bombing of Pan Am 103. He said yes but could not confirm the exact amount but knew it was more than $1 million. Bill Taylor then confirmed that he would not require to recall the witness.

The next witness from the FBI spoke to money recorded spent on Giaka. In total payments of $110,800 had been made up to the present. (...)

Comment

Now you see him now you don’t. By the time the trial resumes Friday, Giaka is likely to be well on his way back to his US hideaway.

We may never know his thoughts on his camp Zeist experience, but his name will live on in the annals of Pan Am 103 as the most expensive witness ever to testify at any trial. This might have been acceptable if the evidence he gave was even remotely persuasive, but only the most blinkered of observers could say anything positive about Giaka's testimony.

The Department of Justice, who have touted Giaka as the greatest thing since sliced bread, will undoubtedly have some explaining to do when the dust settles.

Whatever the outcome of the trial, Giaka's contribution has been described as "totally useless" by one family member and a "complete waste of time" by another.

But should we be blaming Giaka or those who promoted him. It was clear from the moment that the CIA wrote the cables suggesting that he was providing no useful information that the FBI should have taken that assessment into consideration before making a lifetime commitment to protecting Giaka and his family.

So desperate was the FBI for anything that resembled evidence in the Pan Am investigation they jumped at the chance of getting Giaka, warts and all. They denounced any journalist or commentator who dared suggest that Giaka would prove to be a witness whose testimony was shot full of holes. They sang his praises and talked in glowing terms of having "dinner with Majid."

Today they dismiss his testimony to family members as "never having been really important in the scale of things."

We understand that the recriminations are already underway and if "buck passing" was an Olympic event there are certain DOJ personnel at Zeist who would be stepping up to collect gold.

"Poorest excuse of the day" prize has to go to FBI Special Agent Harold Hendershot, a senior agent who came all the way to the trial of the century and was overcome with a case of "I cannot recall". (He was unsure of many issues relating to Talb, which is surprising, considering Talb was at one time, THE number-one suspect for this bombing.) On top of this our intrepid FBI agent claimed that he had left his notes in Washington. Obviously Special Agent Hendershot missed the class at Quantico which dealt with "preparation for a trial."

[A verbatim transcript of Giaka’s evidence can be found here.]

Resignation of Richard Keen QC as Advocate General for Scotland

Richard Keen QC (Lord Keen of Elie) has resigned from the post of Advocate General for Scotland in Boris Johnson's government. For any law officer with a modicum of integrity this was inevitable on the promotion of a Bill which deliberately seeks to empower UK ministers to breach the United Kingdom's obligations under an international treaty. The only surprises are (1) that it took Lord Keen so long to take this step and (2) that the law officers for England, and the Lord Chancellor, have not followed suit. 

Richard Keen has long been involved in the Lockerbie case. He represented Lamin Fhimah who was acquitted at the Zeist trial and, as Advocate General since May 2015, his office has represented the UK Government's interest in the Lockerbie case, in particular in asserting public interest immunity in respect of documents claimed by the Megrahi legal team to be necessary for the proper conduct of the current (and the previous) appeal against conviction. References to him on this blog can be found here.

Scientific shenanigans

[What follows is an extract from The people who moved the world, a forthcoming book by Jim Swire. It appears here by kind permission of Dr Swire and Peter Biddulph.]

Dr Thomas Hayes was formerly head of the forensics explosives laboratory at the British Royal Armaments Research and Defence Establishment (RARDE), and was a key witness in the prosecution case. I would find his evidence at times breathtaking and worrying.

He was aged fifty three, having retired from his RARDE post ten years earlier. As a bachelor of science honours in chemistry, a master of science in the faculty of forensic science, a doctor of philosophy in the faculty of forensic science, a chartered chemist, and a member of the Royal Society of Chemistry, we might expect an outstanding memory. And yet he seemed reluctant to tell the court why or when he'd retired to start a new career as a chiropodist. When did he start work at Fort Halstead? In July 1974. And when did he leave? " The exact date of my leaving is a little circumspect, but I believe it was in 1990."

He actually retired in 1989, a year that for him may have been circumspect, but was, in relation to our trial, most significant. Hayes, I would discover from our own research, had an uncomfortable history in relation to one other major terrorist event, namely the IRA bombing said to involve seven members of the Maguire family - The Maguire Seven. In that trial Hayes and two close colleagues - including his immediate supervisor Dr Higgs - had performed a central and discredited role, and were found out by a Parliamentary investigation. To add to that Dr Higgs was also discovered to have conspired to mislead the court - with a further two RARDE colleagues of Hayes - in the case of Judith Ward, accused of a bombing in Guildford.

Was Hayes carefully avoiding using the numbers, "1989", so as to deter the court from forming its own conclusion? When asked by friendly advocate Campbell, Hayes could not recall when he became a chiropodist. Nor did his memory improve as he faced defence QC Richard Keen.

"KEEN. Dr Hayes, you told us in your earlier evidence that you were head of the Forensics explosives laboratory at RARDE until 1989? And your change of career from forensic scientist to chiropodist would appear to coincide in point of time with the decision of the Home Secretary to appoint Sir John May to inquire into the trial of those known as the Maguire Seven. Is that true?
HAYES. I believe so. I don't recall clearly."

I am convinced to this day that Hayes really did recall the date and reason. He simply did not dare say it in front of the judges. For in May 1989, even as he examined the fragment which appeared in the evidence bag with a label signed by Detective Constable Gilchrist and altered by unknown persons, a campaign was running in Parliament to have him and his colleagues investigated for their roles in both IRA trials. The Parliamentary findings were published in 1992 and 1996, long after the November 1991 indictments of the Libyan suspects Al-Megrahi and Fhimah.

In his study of the 1976 trial of the Maguire Seven, Sir John May found that the notebooks of three RARDE scientists, including Hayes, had been consciously withheld from the court. The first of the three was Douglas Higgs, Principal Scientific Officer and head of department; second was Walter Elliott, a Senior Scientific Officer; and the third was Hayes, at that time a Higher Scientific Officer.

During the trial, results of tests for traces of nitro-glycerine on skin and fingernails of the Maguire family were firmly maintained by the three scientists to be positive and decisive. Unknown to the court, however, the three had performed a second set of tests plus a series of experiments. Both tests and experiments indicated a negative result and an innocent means of contamination. They therefore knew of evidence pointing to the innocence of the accused yet failed to inform the court. Furthermore, during the inquiry their notebooks were disclosed to Sir John May only at the final "hearing" stage of that Inquiry. Thus he was forced to view the case files only on the last day of his public hearings.

Sir John recorded his unease at the delay, and concluded: "In all the elements of the prosecution case the Crown relied on the evidence of three RARDE scientists. Their accuracy, reliability, fairness and credibility were fundamental to the convictions. In my opinion the whole scientific basis upon which the prosecution was founded was so vitiated that on this basis alone the Court of Appeal should set aside the convictions."

Then the Judith Ward case: in February 1974 twelve people were killed in an IRA bombing attack on a military bus in Guildford. Ward was arrested, and in an almost exact parallel to the Maguire case, the evidence central to her conviction was an analysis of samples taken from the skin and fingernails. These, maintained three lying scientists, were evidence of her guilt. In November of 1974 she was sentenced to life imprisonment. She would spend fifteen years in jail before her innocence could be established.

Hers was one of a spate of miscarriages of justice including the Maguire case and the Birmingham Six. In every appeal, the manipulation of evidence by RARDE forensic scientists was a major feature of the convictions, and its exposure the cause of successful appeals.

Of the dishonesty revealed in the Ward case Lord Justice Glidewell observed that the catalogue of the lamentable omissions included "failure to reveal actual test results, the failure to reveal discrepant Rf values, the suppression of the boot polishing experimental data, the misrepresentation the first firing cell test results, economical witness statements calculated to obstruct inquiry by the defence, and most important of all, oral evidence at the trial in the course of which three senior RARDE scientists knowingly placed a false and distorted picture before the jury. It is, in our judgement, also a necessary inference that the three senior RARDE forensic scientists acted in concert in withholding material evidence."

Of Higgs Lord Justice Glidewell commented "We reject Mr Higgs' account as a deliberate falsehood" Higgs was, in the words of the appeal panel "An experienced chemist… the head of a closely knit team." The words "deliberate falsehood" are clear. The man and two senior members of his organisation were nothing less than liars.

Dealing with another item of evidence, an apparently bomb damaged suitcase, prosecution advocate Campbell QC led Hayes through what seemed an endless list of items in his detailed schedule. The catalogue droned onward for seventy six pages of transcript. Suddenly Hayes reached a thirteen word sentence, almost hidden from, and mostly missed by, the court and the relatives. It was quietly read: "… The suitcase was fitted with a rigid plastics handle, bright metal trim and locks, which were devoid of any proprietary or owner's identification. A rectangular hole had been cut in the hard shell above the handle. The left-hand edge of the suitcase showed evidence of having been damaged by an explosion, with disruption and blackening of the outer skin and bright metal body frame, [etc]

The suitcase belonged to Major Charles McKee, leader of a four-man CIA team returning from Beirut. He, with colleagues Gannon, Lariviere, and O'Connor, were on a mission to explore ways of freeing a group of American hostages held in Lebanon by Iranian-based terrorists. McKee's suitcase contained something that the US government were desperate to keep from the sight of the media or the public. That something remains so important to America's security that for twenty years the White House has never even hinted at what it might be.

McKee's case had been removed by unknown persons, a rectangular hole expertly sawn just below the handle, the contents taken away and new contents put in. Security suitcases of this type were fitted with an incendiary explosive device on the interior of the case, just by the handle. Should the suitcase be opened without the use of a security code, the suitcase would explode and incinerate the contents. Hence the hole sawn into the case to enable disablement of the explosive trigger. A clean set of clothes were inserted and the case was returned to the crime scene and placed on a Lockerbie hillside so that it could be "found". The removal of evidence from a crime scene is of itself a criminal offence. Yet nothing would be said of it in the trial by the prosecution or the judges.

It was and is - for me - a disturbing tale. How had Hayes, publicly demonstrated as untrustworthy, and working in a close-knit organisation discredited by two major criminal cases, become so central to the Lockerbie tragedy? His repeated plays on words, his professions of innocence, his claims of forgetfulness, all were greatly worrying. As a skilled forensic scientist he should have been immediately alerted by the tampering that took place between the finding of McKee's suitcase and its arrival in his laboratory. Label, name tag and contents had been removed, and a set of clothes put into the case. These were recorded as to '...show no evidence of explosive damage, as opposed to the suitcase which was damaged.' It was as if a new set of clothes had been put into the case. And when writing notes about the identification tags and name tag of the suitcase, instead of using the word 'removed', Hayes chose the words 'devoid of'; technically correct, but in the true sense meaning simply not there. What most worried me, and auguring badly for whatever verdict might follow, was the nature of Lord Sutherland's interjection. His Lordship saw intelligence service interference with the trial process and illegal tampering with evidence as no cause for concern. It seemed to me that he was not the first senior trial judge to be fooled by RARDE's economical witness statements calculated to obstruct inquiry by the defence.

"KEEN. A rectangular hole has been cut in the top of the case, and that cannot be attributed in any form to blast damage or impact damage in the disaster, can it?
HAYES. No, it cannot.
KEEN. You are presented with the alleged contents in a bag marked with the name of the owner of the case? That wasn't usual, so far as the presentation of evidence to you at RARDE was concerned, was it?
HAYES. I don't think I can helpfully answer your question. I don't know.
KEEN. You have no recollection of other cases being presented to you in this fashion, for the purposes of your forensic examination?
HAYES. A case outside this Lockerbie investigation?
KEEN. Outside this particular case on page 22.
HAYES. The suitcase?
KEEN. The suitcase.
HAYES. No particular recollection, no.
KEEN. What appears to have happened, Dr. Hayes, in respect of this case, is that it has been the subject of interference or intromission by some third party.
HAYES. The cut hole would seem to suggest that. The rest of the observations may have some quite innocent explanation.
KEEN. Well, was any innocent explanation proffered to you for the state of this evidence when it was given to you for forensic examination at RARDE?
HAYES. I never asked for an explanation.
KEEN. Was any explanation ever volunteered to you?
HAYES. I'm sorry, I don't recall."

Under further cross-examination Hayes was unable to explain his notes concerning a fragment of circuit board from the MEBO MST-13 timer which was said to be part of the bomb. He found and identified it on 12th May 1989, labelling it "PT35-B" on page fifty one of his one hundred and seventy two page loose-leaf notebook. He would maintain that he was the first person to observe this, finding it in the evidence bag signed and dated by DC Gilchrist, mentioned above.

Hayes said he always kept detailed notes, yet his sheets were strangely renumbered for all pages subsequent to that containing information on the circuit board fragment. Was that particular page later written up and inserted so as to create the illusion of a contemporaneous sequence of entries? Richard Keen tried to extract the truth:

"KEEN. Well, whether it be the date or the page number, Dr. Hayes, would you like to explain how the present page fifty one came to be in your examination notes?
HAYES. How it came to be there?
KEEN. Yes.
HAYES. I'm rather lost for words. It came to be there in exactly the same way as every other page came to be there.
KEEN. If that was the case, Dr. Hayes, the pagination of your notes would run quite simply from pages fifty to fifty six, without the need for the alterations that have been made in the pagination of the notes themselves, and the index; is that not the case?
HAYES. Well, I can understand you expressing some concern on page fifty two onwards. But to my mind, fifty two follows from page fifty one, page fifty one follows from page fifty in a perfectly normal way.
KEEN. But page fifty one can only be there because what preceded it as page fifty one has been changed to page fifty two; is that not equally obvious, Dr. Hayes?
HAYES. Well, otherwise there would be two pages fifty one, of course.
KEEN. And what would have appeared at the end of pages fifty two to fifty six now appears at the bottom half of page forty nine? That is the entry for PI/991.
HAYES. Well, the mystery -- apparent mystery of the entry on the bottom of page forty nine, PI/991, to my mind is no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it. The pagination, to me, is of no great consequence. The date and day of the examination, to me, is of much greater consequence.
KEEN. Well, I understood you to tell us that these were contemporaneous notes that you prepared as you were carrying out your examinations; is that right?
HAYES. Yes. But presumably our definitions of "contemporaneous" are different. My -- I only mean that these notes were written on the date on the page, and that the notes were written at the time precisely of the examination, and not any time afterwards.
KEEN. Well, if that had been the case, there would have been no need for the insertion of what is now page fifty one, would there?
HAYES. Well, it is your suggestion that it was inserted. I have no recollection of an insertion of that form at all. If it was, then it was done for a particularly good and perfectly innocent reason.
KEEN. Which you can't now recollect?
HAYES. I wish I could help you. It would save a lot of awkwardness. But I cannot, no."

He was then re-examined by friendly prosecution advocate Campbell, who steered him methodically through his notes on those same pages. Suddenly, lo and behold, Hayes remembered it all.

"CAMPBELL. Does that explanation of the way in which the items detailed in examination notes are listed help to jog your memory?
HAYES. It has helped me, sir, in attempting to explain what appears to be an unfathomable mystery. And I think the solution is very straightforward. And it is this: That when I wrote these notes, I initially did not number the pages… And in numbering the pages, I mistakenly used the number 51 twice, realised my error, after numbering a few pages, and corrected it… So whereas the page numbers may be in sequential order, the dates would not be."

This sudden flash of recall under Campbell's friendly re-examination for me remains unconvincing, and differed totally from his previous explanation, namely that "… the mystery was no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it." As I watched him playing games with the defence, I became more and more convinced that he was misleading the court so as to achieve a prosecution, and not for the first time. He may have made notes, but unlike all similar items which he found, the sole piece of material evidence, PT/35B, claimed to link Bollier and MEBO to the Libyans, was absent from his drawings. And he gave it a higher identification number in his index than a similar sized piece of material he was to examine four weeks later.

Then as Richard Keen probed further concerning the fragment of shirt collar found by Detective Constable Gilchrist, Hayes could not quite remember the moment of finding the fragment.

"KEEN. Do you actually recall finding this fragment?
HAYES. I think so. If I was -- it's tempting to be too helpful in answering your question and saying clearly a very important piece, you must have a memory of it. You have flashbacks of certain important items that you've looked at. I question whether those are flashbacks to the correct case examination or another case examination. So although in my mind there is no question whatever that I did find it within this neck-band, whether I have a clear recollection in my memory of teasing it out, I would prefer not to be too definite about it."

Finally Hayes' notes dated 12th May 1989 recorded the following: "Trapped in the grey material within the blackened area were A. several fragments of black plastics, B. a fragment of a green-coloured circuit board". Thus he exposed, in an unguarded moment, a serious discrepancy from the evidence previously given by DC Thomas Gilchrist.

"KEEN. Dr Hayes, you record in those notes on page fifty one that PT/35B was trapped in the collar of a shirt or in a piece of material. So that fragment could not, presumably, have come to light as far as the police were concerned, prior to it being extracted from the cloth by yourself?
HAYES. That's correct. Yes.
KEEN. It would follow that it could not have been seen by the police prior to the cloth being passed to you at RARDE and the article being extracted by you from the trapped area of material?
HAYES. I'm sure that is the case."

Thus he twice maintained that neither Gilchrist - nor anyone else - could have seen the fragment prior to his probing the collar on his workbench. So we may ask when was the label altered to "DEBRIS", and by whom? More importantly, for what purpose was the label altered, other than to draw attention to a piece of "debris" inserted into the bag by persons unknown? That discrepancy was never challenged either during the trial nor at the subsequent appeal.

In yet another puzzling exchange with Richard Keen, Hayes admitted that even though his initial conclusion was that the green fragment - PT35/B - was a fragment from a bomb timer, he failed to undertake a routine chemical trace analysis to determine whether it had been in contact with an explosion. This was quite contrary to standard forensic process, and can only be described as negligence. It contrasted with the chemical trace analyses he undertook of each of the twenty four pieces of luggage surrounding the immediate explosion of which the fragment was a component. In spite of prolonged cross-examination, Hayes could provide no logical explanation for it. Or, perhaps, did Hayes know what he would find, namely that the fragment possessed no trace of explosive? Only a controlled analysis by an independent forensic scientist might test the fragment's provenance. And that could not occur without a special form of appeal. Such would not prove possible until the year 2009, and I will return to this subject later in this book.

Meanwhile in Kamp Zeist the judges had only Hayes’ word. They knew of his record as a conspirator in with-holding evidence in a major IRA trial, and that of his immediate colleagues in a second IRA trial. They watched his contrasting explanations regarding the pagination of his notebook and the sudden return of his memory when gently steered under re-examination by the prosecution. They witnessed his word games regarding McKee's suitcase - illegal evidence tampering by the intelligence services of either the United Kingdom or America. They listened to him twice claim that he was the first to find debris - the fragment of the bomb - in the evidence bag, and that therefore neither Gilchrist nor anyone else could have seen it before he did. Yet instead of basing their judgement on what Hayes actually said, they would substitute their own explanations and believe the man implicitly.

Hundreds of fragments from the luggage container and its contents were discovered. From the remains of the Toshiba cassette recorder that contained the bomb; from twenty four items of luggage in the immediate vicinity of the explosion; from clothing and personal effects; even from a black umbrella. For me it was not unreasonable to expect many fragments from the bomb and timer, the wires, the circuits, the frame, the timer itself, to be embedded in surrounding clothing and luggage, the luggage container, the aircraft spars and structure. Yet apart from a charred shirt collar, none contained a single fragment of the bomb. The fragment too, when displayed before the court, and apart from fraying around the edges (said to have been done by laboratory processing), was almost pristine. Its bright green anti-solder covering was still bright green. Its printed circuits remained just as pristine. Both in spite of its position at the centre of a three thousand degree high explosive fireball.

In time I would watch witness Allan Feraday, who prepared the final forensic report for the trial, confirm under oath that only one fragment - the Hayes four millimetre square piece of "debris" - was ever found. That of itself seemed an unusual occurrence. I found myself asking how much other material might have been removed, or re-inserted, or even planted. One of Cannistraro's colleagues in the White House had discussed the use of manufactured evidence to destabilise a middle eastern government. If such was good for Yemen, then why not for Libya? Yet in spite of my suspicions - also shared by many of those following the progress of the trial - the miraculous fragment would pass without challenge.

CIA had duplicate timers.

"There has been some speculation about timers from that same series being provided to STASI [The East German Secret Police, prior to the fall of the Berlin Wall in 1989], and it's true that they were. But they were on brown circuit boards. The circuit board that was used in the explosion at Lockerbie was a green production model of the timer, and that came from Libyan intelligence." So spoke Vincent Cannistraro into the camera in 1993. His words were of interest, not for what he said, but for what he did not say. During that time, unknown to the public and the media, within the storeroom of the CIA laboratories in Langley Virginia lay at least one exact duplicate of an MST-13 timer. It was set on a green lacquered baseboard identical to the type from which the Hayes fragment was said to have originated.

8th June 2000.

A column of vans with blacked-out windows glided to a halt at the entrance to the court building. Shielded from public and journalist gaze several men were ushered into the rear entrance.

One of the men was witness Richard Louis Sherrow, a retired US Army veteran of twenty years' service, and an expert in firearms and explosives, who'd worked for the U.S. Alcohol, Tobacco and Firearms Service (ATF). Prosecution advocate Turnbull led Sherrow through his evidence-in-chief. In 1986 Sherrow had been instructed by the ATF to travel to Lome, Togo, with an Edward Owen of the ATF, and James Casey of the State Department. During the visit, Sherrow observed a number of items, including explosives and several timers. One timer was of special interest to him.

"TURNBULL: Had you ever seen electronic timers similar to the ones you saw in Lome?
SHERROW: Not exactly similar, no, sir. Subsequently, I was allowed to take one timer and a sample of, I believe, three different types of explosives. They were placed in the United States diplomatic pouch and returned. I examined [the timer] at the headquarters of Alcohol, Tobacco, and Firearms, performed bench tests, functioning tests.
TURNBULL: Did you photograph it at the headquarters?
SHERROW: Yes, I did.
TURNBULL: And having performed these tests and photographed it, what did you then do with it?
SHERROW: I was requested to take it to CIA headquarters in Langley, Virginia, and give a briefing on what I found.
TURNBULL: And did you take the timer back with you?
SHERROW: No, I didn't. That was released to their custody."

Giaka's second day in witness box

[On this date in 2000, Libyan defector Abdul Majid Giaka spent his second day in the witness box at the Lockerbie trial. What follows is the contemporaneous report published on TheLockerbieTrial.com:]

The Crown's star witness returned to the witness box today for a continuation of the defence counsel's attacks started yesterday by William Taylor QC for Megrahi. Today he was branded a "liar" and as a desperate man who made "incredible" claims to his CIA paymasters.

Giaka was accused by both Richard Keen QC for Fhimah and Taylor of fabricating crucial evidence to stay on with the CIA when it became clear that they were about to ditch him.

William Taylor said that two years after the Lockerbie bombing, CIA telegrams revealed Giaka was a "shattered" man who desperately needed to come up with new information for his CIA handlers.

He suggested Giaka offered new information within hours of a make-or-break meeting with the CIA and US Department of Justice officials.

The Americans, he suggested were saying "come up with something and the future is rosy, come up with nothing and you're cut off without a penny."

The court heard, that only then did Giaka say he saw one of the defendants with a suitcase like the one which contained the bomb, a "fact" that he had failed to mention in his previous two years as a CIA informer.

The defence team also highlighted the bizarre claims Giaka made to the CIA about Libyan leader Colonel Qadafi being a freemason. In one episode, more reminiscent of a farce than a Scottish murder trial, Richard Keen QC asked Giaka about some of the "incredible" claims he had made to the CIA.

Keen said Giaka had told his CIA handlers and the US Grand Jury that he was a relative of King Idris of Libya and that Colonel Qadafi was involved in an international Masonic conspiracy.

The question: "How did you discover that Colonel Gadaffi is a mason?" was put to Giaka six times.

Giaka repeatedly asked Keen for the source of his question before Lord Sutherland intervened and ordered Giaka to answer the question.

"The person is in Libya and for security considerations I can't mention the name of that person" replied Giaka.

Mr Keen asked how Giaka knew the president of Malta and the Libyan foreign minister were also masons, and Giaka said he did not remember.

"Do you remember suggesting that they were somehow conspiring together as masons over a political matter," said Mr Keen.

"I don't recall," replied Giaka.

"It's such a strange accusation to make that it would surely stick in your memory," responded Keen.

Later in his testimony responding to more awkward cross-examination, Giaka said, "I was not given any offer to act as a witness or any other offer. They did not try to buy me off."

"You also told the Americans that you were a relative of King Idris, the last king of Libya."

Giaka said he had never made this claim, suggesting the comment might have arisen from a translation error during an interview with CIA agents.

Keen pressed on, "Mr Giaka, you are a liar, aren't you? You tell big lies and you tell small lies, but you lie, do you not?"

Giaka said, "I do not lie about anything."

Secret cables revealed the CIA were disappointed with the information Giaka had given them into the Libyan intelligence service, said Taylor.

American agents reported Giaka was pressing them to boost his $1,000 per month CIA pay by $500 and was becoming "desperate" as he struggled to find himself a new role in life after leaving the Libyan secret service.

He even asked the CIA to give him $2,000 so he could import bananas from Malta to Libya and make a large profit, said one CIA telegram.

William Taylor said none of the scores of CIA documents about Giaka in the two years after the bombing mentioned his account of seeing defendant Fhimah collect a brown Samsonite suitcase from the luggage carousel at Malta airport and walking out without it being checked by Customs.

Taylor went on: "There's no mention of any incident like the one you described involving a brown Samsonite suitcase in the CIA cables at all. There is a deafening silence on this."

Taylor said Giaka requested an emergency meeting with the Americans on July 13, 1991, and met them on a US warship off Malta, when the CIA was going to decide whether to retain his services.

"Lo and behold, the deafening silence ends the very next day when you come up with a brown Samsonite suitcase and this rubbish about Customs," said Taylor.

"The very next day is the first mention by you, Giaka, of these matters."

Giaka replied that the American officials were very good investigators who could distinguish between truth and lies.

Comment

After day two of the testimony of the Libyan informer, Abdul Giaka, the Crown must be breathing a sigh of relief that tomorrow will be his last day in the witness box.

The court was once again treated to the "evidence" of the crown star witness and it plumbed new depths in terms of Giaka's bizarre statements of high level Masonic conspiracy.

The very mention of Freemasonry in court today must have set several hearts fluttering as it is a well known fact that Freemasonry can count many lawyers amongst its brethren.

It was clear from Giaka's demeanour that he was ill prepared for the cross-examination he is undergoing. Although it is common practice to coach witnesses with mock cross-examination, a number of questions put to Giaka seemed to throw him. This suggests either that his coaching by the Department of Justice was not as thorough it might have been or that they were completely outmanoeuvred by Taylor and Keen.

It now appears that the US Department of Justice is downplaying the importance of Giaka as a witness, as they told one American relative today that the Crown had "done enough to secure convictions, without Giaka." This of course is a complete reversal of the mantra coming from Washington and Edinburgh for years.

Many relatives have been putting very awkward questions to the DOJ today regarding what they see as evidence from Giaka which has been very unhelpful to the Crown's case.

[A verbatim transcript of Giaka’s evidence can be found here.]

The disgraceful CIA Giaka cables saga recalled

[Fourteen years ago on this date the Scottish Court in the Netherlands was considering the implications of the CIA cables relating to Libyan defector Abdul Majid Giaka, which had just been made available to the defence, over the Crown’s vigorous objections. Here is how the proceedings were recorded at the time on TheLockerbieTrial.com website:]

Richard Keen QC for Fhimah described the CIA cables, which were made available to the defence today, as "highly relevant" to the defence case.

Keen told the court that the idea that they were not relevant is inconceivable.

[The] Lord Advocate told the court on Tuesday that the redacted passages in the CIA cables were irrelevant to the defence case. He [Richard Keen] said some of the disclosed material goes beyond issue of reliability and credibility to the heart of this case and the defence may now have to consider their position with respect to the trial.

William Taylor QC for Megrahi said that if Giaka is to give evidence on Monday the defence would require more time to review the information contained in the cables. Mr Keen said that a preliminary glance at the cables indicate that at least one additional witness required to be precognosced and this witness is outside Holland and Scotland. He sought confirmation from the Lord Advocate that what has been produced is what the Crown have seen.

The Lord Advocate indicated that there were deletions, which he understood were names but that he would require to speak to Mr Turnbull [Advocate Depute Alan Turnbull QC] and address the court on Monday in respect of whether the deletions are the same.

Analysis

The Crown appears to be on the defensive again regarding the issue of the CIA cables.

It seems clear that Giaka will not now testify on Monday and if the defence are granted a week long adjournment to examine the issue further then the earliest that Giaka will testify is Tuesday, 5 September.

The case does appear now to be totally disjointed with different chapters of evidence interweaving with the Giaka cables.

Several relatives of those who died on Pan Am 103 are also concerned at what might be contained in the CIA cables.

One made the point to me [Ian Ferguson, website co-editor] that they are concerned that Giaka was a paid informer for the CIA before the bombing. "Some family members," he said "shudder at the possibility, that if Giaka did tell the CIA about the planning of the bombing, then why was nothing done about it."

[My account of the CIA cables saga, as published in The Scotsman on 23 July 2007, reads as follows:]

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction.

To illustrate this in the context of the Lockerbie trial, it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been more difficult, and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables. At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 [Advocate Depute Alan Turnbull QC and Procurator Fiscal Norman McFadyen] were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Second, they considered whether there was anything which would appear to reflect on the credibility of Majid... On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One judge, Lord Coulsfield, then intervened: "Does that include, Lord Advocate... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Fhimah "no case to answer" submission

[What follows is the text of a report that appeared on The Guardian website on this date in 2000 (and in the printed edition of the newspaper on 29 November):]

The case against one of the Libyans accused of the Lockerbie bombing teetered on a knife edge last night as judges retired to consider whether they would throw it out.

Counsel for Al Amin Khalifa Fhimah told the Scottish court in the Netherlands there was "not a jot of evidence" against his client on some charges. Even prosecution lawyers agreed they could not directly prove that Fhimah was at the airport where the bomb was alleged to have been planted.

Prosecution lawyers claim the bomb, which blew up Pan Am flight 103, was placed on a plane which left Malta's Luqa airport, and then transferred to the New York-bound jumbo at Frankfurt airport on December 21, 1988.

But the advocate depute, Alastair Campbell, conceded yesterday there was no direct evidence to prove Fhimah was at Luqa airport on that date. He asked the judges to infer Fhimah's involvement in the bombing from circumstantial evidence - a request that was ridiculed by Richard Keen QC, counsel for Fhimah.

"Your lordships are being asked to infer that a man who wasn't there did, by a means we do not know, smuggle a bomb into Luqa airport," Mr Keen said.

In the biggest mass murder trial in British history, Fhimah - along with his co-accused Abdelbaset Al Megrahi - faces charges of murder, conspiracy to murder and a breach of the Aviation Security Act.

Before the defence had even begun its case, the trial judges were yesterday asked by Mr Keen to throw out the charges faced by Fhimah, on the basis of insufficient evidence to sustain any of them.

Last night the judges retired to consider the application. It is likely they will return with their decision this morning. If they uphold the submission, Fhimah will be free to go home to Libya immediately - and one half of the £2m-a-month trial will have collapsed.

The judges' decision, however, will not affect Megrahi; his lawyers have indicated that their defence will blame Palestinian terrorist organisations for the atrocity.

In the late 1980s, Fhimah worked as station manager for Libyan Arab Airlines at Luqa airport, though he had given up the position months before the Lockerbie bombing. The prosecution claimed he used the post as a front for his activities with the Libyan intelligence service, the JSO. But Mr Keen said yesterday there was no evidence to suggest Fhimah had been associated with JSO.

Mr Keen told the court that the only evidence of Fhimah being involved with the JSO came from Abdul Majid Giaka, the Libyan "supergrass" who defected to the US; even he conceded that he had only assumed Fhimah was in the JSO.

Mr Giaka had also told the court that Fhimah had shown him 10kg of TNT in his desk at Luqa airport. But Mr Keen said that was at least three months before the Lockerbie bombing, and Semtex, not TNT, was used in the attack.

Mr Keen said that none of the evidence presented incriminated Fhimah in a conspiracy to destroy a civil aircraft with the consequent murder of its occupants.

In response, Mr Campbell said Fhimah filled three key criteria needed to enable him to be a conspirator in the murder of the 270 who died in the Lockerbie bombing. He said Fhimah had access to luggage tags, he could get a suitcase holding a bomb through Luqa airport security, and he could get an unaccompanied bag on to an aircraft. Mr Campbell said Fhimah had carried out all three actions with full knowledge of their consequence.

[RB: The report on the day’s proceedings by Glasgow University’s Lockerbie Trial Briefing Unit can be accessed here.]