Scotbom: Evidence and the Lockerbie Investigation with author Richard Marquise

[This is the title of a podcast uploaded yesterday to the Stratfor Worldview website. It takes the form of an interview with Richard Marquise conducted by Stratfor's Chief Security Officer Fred Burton. The podcast can be listened to, and a transcript can be read, here. The introduction reads as follows:]

On December 21, 1988, a plane full of travelers bound from London to New York exploded over Lockerbie, Scotland. All on board were killed, as were 11 people on the ground. The subsequent investigation into the bombing spread over hundreds of square miles in a hunt for evidence that had been blown to smithereens.

The FBI's lead investigator in the case, Richard Marquise, was assigned to the monumental task of helping determine what had happened, who was responsible and, eventually, how to prosecute the case. He talked about his book detailing those efforts, Scotbom: Evidence and the Lockerbie Investigation with Stratfor Chief Security Officer Fred Burton.

[RB: The podcast does not cover the criticisms of the investigation, prosecution and trial that have subsequently been made by the United Nations appointed observer at the trial, Professor Hans Köchler; by the Scottish Criminal Cases Review Commission; by John Ashton; by Dr Morag Kerr and by many other persons and organisations. However it does contain interesting material, particularly on relations between the FBI and the Scottish police, and between the Scottish (and UK) authorities and the United States government.]

What is at stake is the reputation of the Scottish justice system

[Today's edition of The Scotsman carries an article by James Robertson under the headline Lockerbie anniversary: ‘One terrible injustice cannot be cancelled out’. It reads as follows:]

Like many other people, I remember exactly where I was on the night of 21st December 1988. I was a bookseller in what was then the only Edinburgh branch of Waterstones, on George Street, and that evening the shop was crowded with customers choosing Christmas presents. Popular titles included Stephen Hawking’s A Brief History of Time and the paperback of Scott Turow’s Presumed Innocent. The phones were ringing constantly as people called to ask what time we closed or whether we had a copy of this or that book.

At about eight o’clock I answered the telephone and recognised the voice of a friend, another bookseller, on the line. He had just heard a radio report that a plane had crashed onto the town of Lockerbie. It sounded like a major incident and since, mistakenly, he thought I was from that part of the country he wanted to let me know. I thanked him and went back to work.

By the time I got home and switched on the television it was the only news story. Pan Am flight 103, a Boeing 747 passenger jet en route from London to New York, had fallen out of the sky and, as would be quite quickly established, all 259 passengers and crew, and a further eleven people on the ground, had been killed. A few days later, everybody’s worst fears were confirmed: this was not the result of bad weather or mechanical failure, but of a bomb having been placed on the plane.

That night is now half my lifetime away, and belongs to a world in which there was no internet, and in which news in the UK was accessed entirely via newspapers, radio and four TV channels. Through all the subsequent years of political, social and cultural change, the story of the Lockerbie bombing has never faded. In part this is because of the sheer scale of it: an event like no other in recent Scottish history − except perhaps the Piper Alpha disaster of the same year, which claimed the lives of 167 oil platform workers. But Piper Alpha was an accident, whereas the destruction of Pan Am 103 was an act of mass murder. It led to the biggest ever Scottish criminal investigation and, after more than twelve years, to the conviction of one Libyan man, Abdelbaset Ali al-Megrahi.

The response to the bombing brought out some of the very best in human behaviour − kindness, care, courage and dignity. It also left deep emotional wounds that for some will never fully heal. It is completely understandable that many relatives of the victims, people of Lockerbie, police and other emergency workers involved in the traumatic aftermath have long wanted the story to be over, or as ‘over’ as it ever can be. But after the long investigation, then the trial of Megrahi and his co-accused Lamin Khalifah Fhimah at a specially convened Scottish court in the Netherlands, and finally the conviction of Megrahi alone in 2001, too many questions were left unanswered for this to be possible.

Well-founded doubts about aspects of the investigation have existed almost since the night the plane came down. It is, for example, highly questionable whether the bomb was ingested into the air traffic system at Malta, as the prosecution case against Megrahi and Fhimah contended, rather than at Heathrow. There were serious shortcomings in the identification by Tony Gauci, a key witness, of Megrahi as the purchaser of clothes packed into the bomb suitcase. Likewise, there were clear failings in the metallurgical analysis of the timer used to trigger the bomb. The prosecution failed to disclose vital evidence to the defence. And the indictments against Megrahi and Fhimah, without which no case against them could have been brought, were based on information supplied by a witness found to have been completely unreliable and untrustworthy. Nevertheless, the juryless court acquitted Fhimah and, almost entirely on the basis of circumstantial evidence, found Megrahi guilty. The United Nations-nominated observer Professor Hans Köchler immediately condemned aspects of the judgement as ‘arbitrary’, ‘inconsistent’ and ‘irrational’ and said that the trial as a whole was ‘not fair and was not conducted in an objective manner.’

Concerns that the conviction might be a gross miscarriage of justice were reinforced over the years as new information emerged that had not been considered during either the trial or at Megrahi’s first appeal. The report of the Scottish Criminal Cases Review Commission (SCCRC) on his conviction, made public by the Herald newspaper in March 2012, found six grounds which might have warranted referring the case to the Court of Appeal.

But by that time Megrahi was back home in Libya with terminal cancer, having dropped his second appeal at the time of his controversial release from prison, on compassionate grounds, in 2009. Even his death in May 2012 did not draw a line under the whole affair.

The campaign group Justice for Megrahi (JfM), to which I belong, was founded in 2008. Its signatories include some of those who lost loved ones in the disaster, such as Jim Swire and John Mosey, the ‘architect’ of the Kamp Zeist court arrangements Professor Robert Black, and various journalists, writers, lawyers, politicians, former police officers and other citizens who independently reached the conclusion that something had gone very wrong in the Lockerbie investigation and the subsequent prosecution of Mr Megrahi. In September 2012 the committee of JfM drew up six − later increased to nine − allegations of criminality in connection with the Lockerbie investigation and trial, relating to possible malpractice by Crown Office personnel, police and other prosecution witnesses. The allegations were submitted to the then Justice Secretary Kenny MacAskill in strict confidence. They were passed nonetheless to the Crown Office, which at once publicly denounced them as ‘without exception, defamatory and entirely unfounded’ even before the dossier of detailed evidence had been examined by the police.

This intervention, we felt, represented both prejudice and an intolerable conflict of interest since the Crown Office would ultimately decide whether or not the allegations had any validity. Furthermore, JfM’s allegations would be dealt with by Dumfries and Galloway Police, the force which had carried out the original investigation. None of this gave us confidence that these matters would be treated systematically, objectively and fairly. Indeed, one of the most important outcomes of the Lockerbie saga has been to expose serious faults in the mechanism and procedures of Scottish justice.

However, in 2013 Police Scotland came into being, and the treatment of our allegations changed substantially. ‘Operation Sandwood’ was established, which at its conclusion was described by the police as ‘a methodical and rigorous inquiry using our major investigation framework under the direction of an experienced senior investigating officer.’ We have no argument with that description. Regular liaison meetings took place between JfM and Police Scotland, who engaged a QC completely independent of Crown Office to review the findings of Operation Sandwood. These were unprecedented arrangements. The current Chief Constable, Iain Livingstone, had oversight of the entire investigation, which was completed on 21st November this year.

The Sandwood report has now been submitted to Crown Office. The police concluded that there was ‘no evidence of criminality and therefore no basis to submit a standard prosecution report’. Crucially, however, Police Scotland’s statement goes on to say, ‘The material collated during the inquiry and the findings and conclusions reached have relevance to … the potential appeal against conviction lodged on behalf of the late Mr Megrahi.’

JfM does not, of course, have any knowledge of the details of what the Sandwood report contains, but we are confident that the police have indeed been ‘methodical and rigorous’. We know from the amount of time and resources spent on Operation Sandwood that the police did not deem our allegations either vexatious or without substance. And when the report is received, as it must be, by the SCCRC -- the body currently considering whether to recommend that Mr Megrahi’s family be allowed to make a fresh appeal against his conviction -- we firmly believe that its contents will contain enough information to make that recommendation inevitable.

Such a development, long overdue, would enable all material relevant to the case to be reviewed in the Court of Appeal. JfM believes that in the absence of a public inquiry, which the Scottish Government has consistently refused to establish, this is the only way to have all the evidence examined and to bring some kind of finality to this aspect, at least, of the Lockerbie story.

What is at stake is not just whether there was a miscarriage of justice in Megrahi’s conviction but the reputation of the Scottish justice system. None of this will lessen the pain and grief felt by the families of the dead. But the terrible injustice perpetrated on that December night thirty years ago is not cancelled by another injustice: it is compounded.

The full truth about the Lockerbie bombing is not yet known, but gradually we are moving towards it.

We must hope that some of those, now elderly, who have sought that truth for so long, are still here when it is brought into the light.

Further claims by Lockerbie figures of monitoring of communications

[A report in today's edition of The Times carries the headline Lockerbie professor says secret service agents snooped on him. It reads in part:]

A senior legal figure who masterminded the Lockerbie trial believes that he was put under surveillance by the security services.

Robert Black, professor emeritus of Scots law at the University of Edinburgh, is convinced that his emails and telephone calls were intercepted at home and his campus office.

Professor Black spoke out after The Times published extracts from Foreign Office documents, circulated to Margaret Thatcher in 1989 when she was prime minister, which warned that relatives of the bomb victims were becoming increasingly vocal and required “careful watching”. (...)

Professor Black was the key architect of the arrangement that allowed Abdul Baset al-Megrahi, a Libyan intelligence agent, to stand trial under Scots law at Camp Zeist in the Netherlands in 2000.

After the trial, which ended with Megrahi being found guilty and sentenced to life imprisonment, the academic became convinced that a miscarriage of justice had taken place.

Professor Black believes that he and Jim Swire, a former GP who became the public face of the campaign to secure an independent inquiry into the atrocity, attracted the attention of the intelligence services. Mr Swire’s daughter Flora was killed in the bombing.

“I had suspicions about interception of email communications and monitoring of telephone conversations both at my home and at my university office,” Professor Black said.

“In telephone conversations Dr Swire and I would sometimes deliberately include misleading information. On other occasions, if clicks and hissing made the apparent monitoring more than usually obvious, Dr Swire would say: ‘Hi guys’.”

Professor Black, who was born and brought up in Lockerbie, added: “This was at a time when I had put forward my proposal for a non-jury Lockerbie trial in the Netherlands after getting Libyan agreement to it. Opposition to it was virulent and those pressing the scheme, including Dr Swire and myself, were very unpopular in government circles.”

Dr Swire and the Rev John Mosey, who lost his daughter Helga in the tragedy, also claimed that their phone calls were often disrupted and their computer equipment interfered with after they spoke publicly about the case.

Peter Biddulph, a researcher and author who has spent years investigating the bombing, is also convinced that he was put under surveillance,

He said: “Around two weeks after I had interviewed Jim [Swire] I sat down and found every one of the files in my computer folder had been accessed that morning.

“It was a bit of a shock and I was in a flat panic. I ended up in my solicitor’s office swearing an affidavit, which is still in his safe. After that I got a second computer and made sure it wasn’t connected to the internet.”

The claims were corroborated by Hans Köchler, an Austrian academic, who was appointed by the UN to be an independent observer at the Camp Zeist trial.

He told The Times: “I had similar experiences in the time after the publication of my first report on the Lockerbie trial in 2001 and the following years, in terms of intrusion into the computer systems in my office in two different locations, leading to data loss and destruction of the operating system.”

A spokesman for the Crown Office said that Lockerbie remained a live criminal investigation.

The Foreign Office declined to comment.

Lockerbie bombing: story of a fake conviction

[This is the headline over an article published today on the Top Conspiracies website. It reads in part:]

Pan Am Flight 103 was a scheduled flight from Frankfurt to Detroit. In December 1988 the plane was destroyed by a bomb, killing all 243 passengers.The explosion took place over Scotland after taking off from London, and thus Europe had jurisdiction over the explosion. In 1999 Two Lybian nationals were handed over by General Gadaffi (the then leader/dictator of Lybia) for trial in a Scottish court in the Netherlands. The bomb was said to have been made out of Semtex plastic. Abdelbaset Ali Mohmed Al Megrahi was jailed for life in connection with the bombing, released by the Scottish government in 2009 on compassionate grounds due to a diagnosis of prostate cancer. There was a significant lack of protest in the wake of his release, suggesting that many of the family of the victims do not believe him to be behind the bombing. Abdelbaset Ali Mohmed Al-Megrahi died in 2012.

Al Amin Khalifa Fhimah, the other Libyan handed over for the case, was found not guilty. Gadaffi accepted responsibility for the bombings in 2003. The CIA and the FBI worked with intelligence officers in Europe when processing the case. Over 15,000 people were questioned in over 30 countries. The explosion of Pan Am Flight 103 is also known as the Lockerbie bombing.

It is almost certain that the Libyan convicted had little to do with the Lockerbie bombing and that the real players are unknown. Just about only thing that remains uncontested is that a bomb went off in a suitcase and killed 243 passengers and 16 crew members. In a Report on and evaluation of the Lockerbie trial conducted by the Special Scottish Court in the Netherlandat Kamp Van Zeist, Dr Hans Köchler, University Professor, International Observer of the International Progress Organization stated that:

“ It was a consistent pattern during the whole trial that – as an apparent result of political interests and considerations – efforts were undertaken to withhold substantial information from the Court. “

The Opinion of the Court is exclusively based on circumstantial evidence and on a series of highly problematic inferences. As to the undersigned knowledge, there is not one single piece of material evidence linking the two accused to the crime.

On the basis of the above observations and evaluation, the undersigned has – to his great dismay – reached the conclusion that the trial, seen in its entirety, was not fair and was not conducted in an objective manner. Indeed, there are many more questions and doubts at the end of the trial than there were at its beginning”

Conspiracy Theory #1 – Revenge

One theory contends that it was an act of revenge stemming from Iran. Over 290 passengers were killed when US forces shot down an Iran Airbus over the Strait of Hormuz, including over 66 children. This was less than 6 months before Pan Am Flight 103. Investigative reporter Paul Foot believes that this is the most likely scenario and that Libya was actually framed by the British and Americans, with political factors coming into play: Libya openly backed Saddam Hussein and Iran were needed during the first Gulf War. A number of journalists have drawn attention to the fact that Margaret Thatcher dismissed the idea in her memoirs that the Lockerbie bombing an act of Iranian revenge.

Conspiracy Theory #2 – CIA drug smuggling cover up

Not the first and most definitely not the last link between the U.S Central Intelligence Agency and illegal substances. This theory is backed up through Lester Coleman, a former member of the US Drug Enforcement Agency. Allegedly there was a route of drug smuggling between the US and Europe through Syrian drug dealers, who were allowed keep the ring going in return for CIA intelligence. The agency managed to ensure that the suitcases were not checked so the regime could continue; however, the scheme backfired when a bomb was put into the suitcase instead of the narcotics. In the 1994 film The Maltese Double Cross, it was suggested that the CIA agents were to blame for turning a blind eye to the drug smuggling ring between Europe and the US in return for information.

Conspiracy Theory #3 – Abu Nidal on behalf of Gadaffi

Abu Nidal was an internationally renowned terrorist around the time of the Lockerbie bombing. US bombings in 1986 killed large numbers of Libyan civilians and Gadaffi’s response was to engage the services of Abu Nidal. Nidal moved his organization to Libya in 1987. It is also contended that Abu Nidal warned US intelligence that a flight on route to Detroit would be blown up. Abu Nidal allegedly confessed to the bombing on his deathbed. The former head of Iranian intelligence was reported to have told German intelligence that Iran asked Libya/Gaddafi and Abu Nidal for help in bombing the American airline. Part of that report states:

The mission was to blow up a Pan Am flight 103 that was to be almost entirely booked by US military personnel on Christmas leave. The flight was supposed to be a direct flight from Frankfurt, GE, to New York, not Pan Am Flight 103 which was routed through London, UK. The suitcase containing the bomb was labeled with the name of one of the US passengers on the plane and was inadvertently placed on the wrong plane possibly by airport ground crew members in Frankfurt. The terrorist who last handled the bomb was not a passenger on the flight.

Conspiracy Theory #4 – PFLP-GC & Pan Am Flight 103

In the aftermath of the bombing, the prime suspects in the Lockerbie bombing were the Popular Front for the Liberation of Palestine—General Command. These were a warlike revolutionary group led by a former Syrian military officer. Mohammed Abu Talb was the head of the Swedish cell of the PFLP-GC and was one of a number of suspects before the focus shifted to Al Megrahi. PFLP-GC had a bomb maker at their disposal who was meant to be investigated by Scottish police until the FBI persuaded them to call off the warrant for the purposes of intelligence information. Khreesat was a Jordanian intelligence officer unknown to the PFLP-GC and relayed intelligence back to HQ, which relayed it to Western Intelligence. Allegedly, Khreesat relayed information that there would be a bomb planted on a Pan Am flight in October 1988, around 6 months before the actual crash. German intelligence raided the PFLP-GC acting on this information but did not progress further with regard to the bombing. (...)

Conclusion to the Pan Am Flight 103 Explosion

It is certain at this stage that the official story of a lone Libyan civilian conducting the bombing is false. He did not bring down Pan Am Flight 103 alone. However, no-one is any the wiser to what actually happened. There are simply too many conflicting theories, too many intelligence agencies, too many countries involved and too many variables to construct a credible theory as to what went on. Even the theories listed above tend to blend and mix together with different variants. It is possible that the PFLP-GC, Gadaffi and Abu Nidal all had a role in some fashion, but separating what happened exactly and who is responsible is just impossible. One theory is that Iran asked Libya/Gadaffi and Abu Nidal to bomb Pan Am 103 in revenge, a mixing of two theories. It gets more complex the more that it is investigated with all the difference information from the intelligence agencies and reports from investigative journalists.

Scots complicit in Lockerbie lie

[This is the headline over a hard-hitting article by Professor Hans Köchler that appeared in the Sunday Express on this date in 2009. The last three paragraphs read as follows:]

If Scotland prides itself in its unique judicial system, then the authorities should exercise all efforts to repair the damage that has been done to the country’s reputation by the flawed judicial proceedings in the case of Mr Megrahi.

If Mr MacAskill is indeed serious about dealing with the matter [repatriation of Megrahi] strictly within legal parameters, as he repeatedly said, the competent Scottish authorities should finally make those steps that are necessary to identify the actual Lockerbie bombers (plural) wherever they may be.

They have succeeded for too long in using the Scottish judicial system to make Mr Megrahi a scapegoat in the strange and ugly world of international power politics.

Irreparable damage to the rule of law in Scotland

[On this date in 2007 Professor Hans Köchler issued a statement on the decision by the Scottish Criminal Cases Review Commission to refer the conviction of Abdelbaset Megrahi back to the High Court of Justiciary for a further appeal. It reads as follows:]

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Koechler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the Trial and Appeal Courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (Paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr. Koechler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)

****

The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.

It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.

The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.

Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (para 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.

In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.

In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.

The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.

Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.

(signed) Dr Hans Köchler

• Dr Hans Köchler's Trial Report of 2001
• Dr Hans Köchler's Appeal Report of 2002
• Hans Köchler and Jason Subler (eds), The Lockerbie Trial. Documents Related to the IPO Observer Mission

When truth is inconvenient

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A victim of injustice whose trial had been riddled with flawed evidence

What follows is an item originally posted on this blog on this date five years ago:

NYT admits Lockerbie case flaws

[This is the headline over an article published today on the website of Consortiumnews.com.  It reads in part:]

Even in death, Libyan Ali al-Megrahi is dubbed “the Lockerbie bomber,” a depiction that proved useful last year in rallying public support for “regime change” in Libya. But The New York Times now concedes, belatedly, that the case against him was riddled with errors and false testimony, as Robert Parry reports.

From the Now-They-Tell-Us department comes The New York Times obit of Libyan agent Ali al-Megrahi, who was convicted by a special Scottish court for the 1988 Lockerbie bombing. After Megrahi’s death from cancer was announced on Sunday, the Times finally acknowledged that his guilt was in serious doubt.

Last year, when the Times and other major US news outlets were manufacturing public consent for a new war against another Middle East “bad guy,” ie Muammar Gaddafi, Megrahi’s guilt was treated as flat fact. Indeed, citation of the Lockerbie bombing became the debate closer, effectively silencing anyone who raised questions about US involvement in another war for “regime change.”

After all, who would “defend” the monsters involved in blowing Pan Am Flight 103 out of the sky over the Scottish town of Lockerbie, killing 270 people, including 189 Americans? Again and again, the US-backed military intervention to oust Gaddafi in 2011 was justified by Gaddafi’s presumed authorship of the Lockerbie terrorist attack.

Only a few non-mainstream news outlets, like Consortiumnews.com, bothered to actually review the dubious evidence against Megrahi and raise questions about the judgment of the Scottish court that convicted Megrahi in 2001.

By contrast to those few skeptical articles, The New York Times stoked last year’s war fever by suppressing or ignoring those doubts. For instance, one March 2011 article out of Washington began by stating: “There once was no American institution more hostile to Col. Muammar el-Qaddafi’s’s pariah government than the Central Intelligence Agency, which had lost its deputy Beirut station chief when Libyan intelligence operatives blew up Pan Am Flight 103 above Scotland in 1988.”

Note the lack of doubt or even attribution. A similar certainty prevailed in virtually all other mainstream news reports and commentaries, ranging from the right-wing media to the liberal MSNBC, whose foreign policy correspondent Andrea Mitchell would seal the deal by recalling that Libya had accepted “responsibility” for the bombing.

Gaddafi’s eventual defeat, capture and grisly murder brought no fresh doubts about the certainty of the guilt of Megrahi, who was simply called the “Lockerbie bomber.” Few eyebrows were raised even when British authorities released Libya’s former intelligence chief Moussa Koussa after asking him some Lockerbie questions.

Scotland Yard also apparently failed to notice the dog not barking when the new pro-Western Libyan government took power and released no confirmation that Gaddafi’s government indeed had sponsored the 1988 attack. After Gaddafi’s overthrow and death, the Lockerbie issue just disappeared from the news.

A Surprising Obit

So, readers of The New York Times’ obituary page might have been surprised Monday if they read deep into Megrahi’s obit and discovered this summary of the case:

“The enigmatic Mr Megrahi had been the central figure of the case for decades, reviled as a terrorist but defended by many Libyans, and even some world leaders, as a victim of injustice whose trial, 12 years after the bombing, had been riddled with political overtones, memory gaps and flawed evidence.”

If you read even further, you would find this more detailed examination of the evidence:

“Investigators, while they had no direct proof, believed that the suitcase with the bomb had been fitted with routing tags for baggage handlers, put on a plane at Malta and flown to Frankfurt, where it was loaded onto a Boeing 727 feeder flight that connected to Flight 103 at London, then transferred to the doomed jetliner.

“After a three-year investigation, Mr Megrahi and Al-Amin Khalifa Fhimah, the Libyan airline station manager in Malta, were indicted on mass murder charges in 1991. Libya refused to extradite them, and the United Nations imposed eight years of sanctions that cost Libya $30 billion.  …

“Negotiations led by former President Nelson Mandela of South Africa produced a compromise in 1999: the suspects’ surrender, and a trial by Scottish judges in the Netherlands.

“The trial lasted 85 days. None of the witnesses connected the suspects directly to the bomb. But one, Tony Gauci, the Maltese shopkeeper who sold the clothing that forensic experts had linked to the bomb, identified Mr Megrahi as the buyer, although Mr Gauci seemed doubtful and had picked others in photo displays.

“The bomb’s timer was traced to a Zurich manufacturer, Mebo, whose owner, Edwin Bollier, testified that such devices had been sold to Libya. A fragment from the crash site was identified by a Mebo employee, Ulrich Lumpert.

“Neither defendant testified. But a turncoat Libyan agent testified that plastic explosives had been stored in Mr Fhimah’s desk in Malta, that Mr Megrahi had brought a brown suitcase, and that both men were at the Malta airport on the day the bomb was sent on its way.

“On Jan 31, 2001, the three-judge court found Mr Megrahi guilty but acquitted Mr Fhimah. The court called the case circumstantial, the evidence incomplete and some witnesses unreliable, but concluded that ‘there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt’ of Mr Megrahi.

“Much of the evidence was later challenged. It emerged that Mr Gauci had repeatedly failed to identify Mr Megrahi before the trial and had selected him only after seeing his photograph in a magazine and being shown the same photo in court. The date of the clothing sale was also in doubt.

“Investigators said Mr Bollier, whom even the court called ‘untruthful and unreliable,’ had changed his story repeatedly after taking money from Libya, and might have gone to Tripoli just before the attack to fit a timer and bomb into the cassette recorder. The implication that he was a conspirator was never pursued.

“In 2007, Mr Lumpert admitted that he had lied at the trial, stolen a timer and given it to a Lockerbie investigator. Moreover, the fragment he identified was never tested for residue of explosives, although it was the only evidence of possible Libyan involvement.

“The court’s inference that the bomb had been transferred from the Frankfurt feeder flight was also cast into doubt when a Heathrow security guard revealed that Pan Am’s baggage area had been broken into 17 hours before the bombing, a circumstance never explored.

“Hans Köchler, a United Nations observer, called the trial ‘a spectacular miscarriage of justice,’ words echoed by Mr Mandela. Many legal experts and investigative journalists challenged the evidence, calling Mr Megrahi a scapegoat for a Libyan government long identified with terrorism. While denying involvement, Libya paid $2.7 billion to the victims’ families in 2003 in a bid to end years of diplomatic isolation.”

Prosecutorial Misconduct

In other words, the case against Megrahi looks to have been an example of gross prosecutorial misconduct, relying on testimony from perjurers and failing to pursue promising leads (like the possibility that the bomb was introduced at Heathrow, not transferred from plane to plane to plane, an unlikely route for a terrorist attack and made even more dubious by the absence of any evidence of an unaccompanied bag being put on those flights).

Also, objective journalists should have noted that Libya’s much-touted acceptance of “responsibility” was simply an effort to get punishing sanctions lifted and that Libya always continued to assert its innocence.

All of the above facts were known in 2011 when the Times and the rest of the mainstream US press corps presented a dramatically different version to the American people. Last year, all these questions and doubts were suppressed in the name of rallying support for “regime change” in Libya.