Lockerbie questions that US Attorney General William Barr needs to answer

[What follows is excerpted from an article by John Schindler published today on the Top Secret Umbra website:]

With just six weeks left for the Trump administration, speculation is swirling that Attorney General William Barr may step down before the official presidential transition on January 20. Barr has fallen out of favor with the White House since his admission last week that the Department of Justice’s investigation of our November 3 election has uncovered no significant voting fraud, contrary to the loud claims of President Donald Trump and his enraged surrogates. A longtime liberal bugbear, Barr suddenly became the Oval Office’s new whipping boy instead, and the attorney general is reportedly tired of the public presidential abuse. 

That would be the second time that Barr steps down as the attorney general (...)

Before we get to his decisions as Trump’s attorney general, we should first ask Bill Barr about what happened the last time he headed the Justice Department.

Above all, why did Attorney General Barr back in mid-November 1991 decide to indict two Libyan spies for the downing of Pan Am Flight 103 over Lockerbie, Scotland on December 21, 1988, a terrible crime that killed 270 innocent people. Barr’s announcement stunned our Intelligence Community, which had investigated that terrorist atrocity for nearly three years in voluminous detail, yet never suspected that Libya stood behind the attack.

Three decades ago, the Lockerbie tragedy loomed large in American news. A bomb inside a suitcase stowed in the Boeing 747’s forward left luggage container tore the airliner apart as it cruised at 31,000 feet, headed for New York. All 243 passengers and 16 crew on the Pan Am jumbo jet died, as did 11 people in the town of Lockerbie, which was showered by the flaming wreckage of the shattered 747. One hundred and ninety of the dead were Americans, including 35 Syracuse University students headed home for Christmas after a European semester abroad.

It didn’t take long for diligent British investigators to find the remnants of the Samsonite suitcase which contained less than a pound of Semtex plastic explosive manufactured in Czechoslovakia and hidden in a Toshiba radio cassette recorder. That trail quickly led to the Popular Front for the Liberation of Palestine – General Command, a radical Arab terrorist group that was headed by Ahmed Jibril, a former Syrian army officer. In the eyes of Western intelligence, the PFLP-GC was little more than an extension of Syria’s security services.

Intriguingly, less than two months before the Lockerbie attack, West German police rolled up a PFLP-GC bomb-making cell around Frankfurt, seizing four bombs made of Semtex hidden in Toshiba radios. Since Pan Am 103 originated in Frankfurt and that was the exact same kind of bomb which took down the doomed airliner, none of this seemed coincidental. Western intelligence circles heard chatter in the autumn of 1988 that the PFLP-GC, whose fifth Frankfurt bomb was never found by police, was planning to blow up U.S. airliners. Plus, one of the men taken into custody was Marwan Khreesat, a veteran bomb-maker who was believed to be behind the downing of a Swissair jetliner back in 1970, a terrorist attack which killed 47 people.

Before long, American intelligence believed that Iran was really behind the downing of Flight 103, given known close connections between Syrian intelligence and Iranian spy agencies. Neither was Tehran’s motive difficult to ascertain. A few months before, on July 3, 1988, the cruiser USS Vincennes, on station in the Persian Gulf, mistakenly shot down an Iran Air Airbus, a terrible accident which killed all 290 people aboard, including 66 children. Iran’s revolutionary regime promised revenge, and the Intelligence Community assessed that they got it over Scotland. As I explained on the thirtieth anniversary of the Lockerbie horror, that Iran stood behind the attack:

Was the conclusion of US intelligence, particularly when the National Security Agency provided top-secret electronic intercepts which demonstrated that Tehran had commissioned the PFLP-GC to down Pan Am 103 (...) One veteran NSA analyst told me years later that his counterterrorism team “had no doubt” of Iranian culpability. Bob Baer, the veteran CIA officer, has stated that his agency believed just as unanimously that Tehran was behind the bombing. Within a year of the attack, our Intelligence Community assessed confidently that Lockerbie was an Iranian operation executed by Syrian cut-outs, and that take was shared by several allies with solid Middle Eastern insights, including Israeli intelligence.

The IC was therefore taken aback on November 14, 1991, when Attorney General Barr announced the indictment of two Libyan spies, Abdelbaset el-Megrahi and Lamin Khalifah Fhimah, for the downing of Pan Am 103. Libya denied the accusations, as did the two Libyan intelligence officers, and it took Britain almost a decade to bring the men to trial. In a unique arrangement, the trial was held in the Netherlands under Scottish law. In the end, the court did not convict Fhimah but did find Megrahi guilty of 270 counts of murder in early 2001. Megrahi maintained he was framed and, suffering from cancer, he was released on compassionate grounds in 2009. He returned to Libya and succumbed to cancer there in May 2012, protesting his innocence to the end.

Quite a few people who looked at the evidence believed that Megrahi really may have been innocent, including some relatives of Pan Am 103 victims. Many in intelligence circles had doubts too, particularly because the prosecution’s star witness, Abdul Majid Giaka, was another Libyan intelligence officer who became a CIA asset. Giaka claimed to have witnessed Megrahi and Fhimah’s preparations in Malta to take down Pan Am 103 with a bomb made by Libyan intelligence. The Scottish court found Giaka less than credible, yet his claims against Megrahi stood up adequately to produce a conviction.

CIA made Giaka available to the court as the star witness, while obscuring some of their clandestine relationship with the Libyan spy. Langley offered several of its own officers to the court as well, something CIA recounted with pride in its official telling of their support to the Lockerbie trial, but the agency was careful to only produce officials who endorsed the Libya-did-it hypothesis.

There was the rub. Some CIA officers who were close to Giaka did not find his claims about Pan Am 103 and his own intelligence service’s involvement to be credible; in fact, they considered their “star” to be an unreliable fabricator. However, this secret – which raises fundamental questions about the US government’s official position on Lockerbie since late 1991 – was kept confined to spy circles for decades. Until now.

John Holt, a retired CIA officer who served as Giaka’s handler three decades ago, has broken his silence, granting a detailed interview to British media about his role in this sensational case. The 68-year-old Holt spoke out for the first time about what really happened behind the scenes with Giaka, whom he dismissed as an asset who was prone to “making up stories.” Giaka was far from a reliable source and the former American spy opined that CIA kept Holt away from the trial, since agency leaders knew that his account contradicted the official US position on Lockerbie. As he explained:

I handled Abdul-Majid Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing. My cables [back to CIA headquarters] showed he was a car mechanic who was placed by Libyan Intelligence as Malta Airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs – or Lockerbie. He felt humiliated by Megrahi, who was an official with the Libyan Intelligence Service. “I was treated,” he said, “like a dog when Megrahi came to the office.” That's all reported in my cables, so CIA knew Giaka had a grudge against Megrahi.

This was a personal vendetta, in other words, one that was driven by Giaka’s needs and his changing memory, as Holt elaborated:

Every time I met Giaka, which was each month or two, I would also ask him if he had any information at all about the Pan-Am bombing. All of us CIA and FBI field officers were asked by the CIA to keep pressing our assets for any answers or clues.  His answer was always: No.

I expressed my opinion to the FBI that Giaka was nothing more than a wannabe who was not a real Intel Officer for the Libyans. He had no information [about] Lockerbie, and I told the CIA all this in comments I made in my cables. He went back to Libya at the end of 1989 and I moved on to another assignment.  

In 1991, Giaka told the CIA that he had been exposed and the Libyans would kill him. When he was told he was useless to our intelligence services, he began making up stories. It was only when he needed desperately to get some financial and logistical support from the US to flee Libya in 1991 that he started telling the CIA things relevant to the Pan Am 103 bombing.

This fix was in, however, and Holt found his first-hand view of the case sidelined by his own agency. His cables which illuminated Giaka’s unreliability as a source were not shared by CIA with the Scottish court, while Langley declined to let Holt provide evidence at the trial. “We now all need to admit we got the wrong man, and focus on the real culprits,” Holt explained, pointing a finger at Bill Barr:

I have reason to believe there was a concerted effort, for unexplained reasons, to switch the original investigations away from Iran and its bomb-making Palestinian extremist ally the PFLP—General Command. Now we should focus a new investigation on the Iranians and their links with the bomber…I would start by asking the current attorney general, William Barr, why he suddenly switched focus in 1991, when he was also attorney general, from where clear evidence was leading, toward a much less likely scenario involving Libyans.

In May of this year, the Scottish Criminal Cases Review Commission ordered a fresh look into Abdelbaset el-Megrahi’s conviction. So far, this review has revealed claims that the prosecution presented a distorted version of the late Megrahi’s alleged role based on “cherrypicked” evidence in order to obtain a conviction. Bill Barr won’t be attorney general for much longer and he ought to avail himself of the opportunity to explain why credible information from veteran intelligence officers like John Holt was ignored to make a case against Megrahi, who may not be guilty of his supposed role in the murder of 270 innocent people.

Nearly a year ago, Attorney General Barr delivered remarks about the Pan Am 103 tragedy at a memorial service held at Arlington National Cemetery. He commemorated the dead of Lockerbie: “The Americans who died that day were attacked because they were Americans. They died for their country. They deserve to be honored by our nation.” Barr added that the case remains far from over for him: “In 1991, I made a pledge to you on behalf of the American law-enforcement community: ‘We will not rest until all those responsible are brought to justice.’ That is still our pledge. For me personally, this is still very much unfinished business.” The thirty-second anniversary of the Lockerbie attack is two weeks from today. If Barr meant what he said about resolving that tragedy’s unfinished business, John Holt’s testimony is an excellent place to commence the search for the full truth about what happened to Pan Am 103.

Majid Giaka's CIA handler speaks out "after a lifetime of silence"

[What follows is excerpted from a report by Paul Martin headlined Former CIA agent reveals he was excluded from Lockerbie bombing inquiry published today on The Telegraph website:]

A former CIA agent has claimed he was excluded from the original Lockerbie bombing trial and that investigators should turn their attention to the "true culprit" – Iran.

John Holt, 68, says he was the author of secret cables showing that the Libyan double agent put forward by Scottish prosecutors as the star witness in the Lockerbie bombing trial had a history of "making up stories".

Mr Holt was never sent to the trial by his bosses, even though he had been the CIA handler for Libyan double agent and principal witness Abdul-Majid Giaka.

"I have reason to believe there was a concerted effort, for unexplained reasons, to switch the original investigations away from Iran and its bomb-making Palestinian extremist ally the PFLP General Command. Now we should focus a new investigation on the Iranians and their links with the bomber," he told The Telegraph in an exclusive interview.

"I would start by asking the current Attorney General, William Barr, why he suddenly switched focus in 1991, when he was also Attorney General, from where clear evidence was leading, toward a much less likely scenario involving Libyans."

Mr Holt spoke out for the first time as Scottish Supreme Court judges consider whether to quash the conviction of Abdelbaset al-Megrahi, who died of cancer in 2012. (...)

Giaka became a US asset after claiming he had information about Libyan involvement with terrorism while working as an assistant to the station manager of Libyan Arab Airlines (LAA) in Malta.

Explaining the key importance of his cables, Mr Holt said: "I handled Abdul-Majid Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing.

"My cables showed he was a car mechanic who was placed by Libyan Intelligence as Malta Airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs – or Lockerbie.

"He felt humiliated by Megrahi, who was an official with the Libyan Intelligence Service. 'I was treated,' he said, 'like a dog when Megrahi came to the office.'  

"That's all reported in my cables, so the CIA knew Giaka had a grudge against Megrahi.

"Every time I met Giaka, which was each month or two, I would also ask him if he had any information at all about the Pan-Am bombing. All of us CIA and FBI field officers were asked by the CIA to keep pressing our assets for any answers or clues.  His answer was always: No.

“I expressed my opinion to the FBI that Giaka was nothing more than a wannabe who was not a real Intel Officer for the Libyans. He had no information re Lockerbie, and I told the CIA all this in comments I made in my cables. He went back to Libya at the end of 1989 and I moved on to another assignment.  

"In 1991 Giaka told the CIA that he had been exposed and the Libyans would kill him. When he was told he was useless to our intelligence services [the CIA and FBI], he began making up stories.

"It was only when he needed desperately to get some financial and logistical support from the US to flee Libya in 1991 that he started telling the CIA things relevant to the PanAm-103 bombings – like hearing Megrahi and another man talking about a plan to bomb an American airliner." (...)

Mr Holt alleges he first realised there was an effort to distort the realities when called into the office of the CIA director George Tenet.  

There, his description of Giaka was not included in the initial presentation of evidence to the trial. Later, summoned a second time to the director's office, his cables were thrust in front of him by FBI agents and he claims he was told to sign that they were written by him. He says no explanation was given. These were eventually released to the trial by the CIA, with some 'redaction', in 2000.

"Operational cables that I wrote did not get sent to the original trial," he revealed. "They were withheld by the CIA and the FBI, who – even when my cables did emerge – declined to let me give evidence to the Scottish court hearing, held in Camp Zeist near Utrecht.  

"We now all need to admit we got the wrong man, and focus on the real culprits."

After 24 years of distinguished service with the CIA, Mr Holt has had deep concerns about speaking out. He has chosen his words with great caution, anxious to avoid accusations that he has leaked any secrets that could compromise his former agency.

"I'm speaking out now, after a lifetime of silence. But I feel deeply frustrated and I want justice to be done," he said.

Mr Holt believes intelligence services worldwide already have enough evidence to pinpoint the Lockerbie perpetrators.

"Whatever the Scottish Supreme Court decides, Britain should reopen the whole Lockerbie saga, have a heart-to-heart with the Americans, and go after Iran," he told The Telegraph.

"I have reason to believe that the three security agencies of the US Government were working on evidence pointing directly to Iran, before the Libyan connection was brought into play.  I believe the US Government tried to hide evidence for political reasons, and Britain also was willing to go along with this.

"I have reason to believe that a crucial decision was made in 1991 by the US Justice Department and its enforcement arm the FBI: to drop all evidence pointing toward Iran and instead manipulate the evidence to place blame on Gaddafi's Libya. Gaddafi was a long-time nemesis to numerous US presidents."

Mr Holt feels that Americans were particularly keen to pin the blame for Lockerbie on Libya because of an ongoing feud. After the coup that brought Gaddafi to power, the Libyans had expelled American oil companies from oil drilling fields, and US forces from a massive American-built airbase constructed during the Cold War.

And in the 1980s the Gaddafi regime was suspected of being a massive danger to the West by developing a secret WMD programme.

He said the first thing British and US intelligence officers should do is demand access to the former chief of Libyan intelligence, Abdallah Senoussi, son-in-law of Colonel Gaddafi, who is still languishing in a Libyan jail under sentence of death. 

Gaddafi and his henchmen were overthrown, with British military intervention, in 2011 and Senoussi, now aged 60, was convicted in 2015 for crimes against humanity that had no connection with Lockerbie.

"An interpretation is that the British and the US are not demanding to see him – because they already know Libya did not do it," says Mr Holt.

To preserve a 31-year-old lie, Britain is ready to tarnish Scottish justice

[This is the headline over an article by Dr Mustafa Fetouri published today on the website of Middle East Monitor. It reads in part:]

The third appeal hearing for the Lockerbie bombing's only conviction ended last Thursday before Scotland's highest court. The five judges have now retired to deliberate their verdict. Presiding Lord Justice General Colin Sutherland, Scotland's most senior judge, said that the panel will deliver its written opinion "as soon as it possibly can" after three days of submissions.

In 2001, Abdelbaset Al-Megrahi, a former Libyan intelligence officer, was convicted of the bombing of Pan Am flight 103 over the Scottish town of Lockerbie on 21 December, 1988. The blast killed all 270 people on board. However, the verdict has been challenged by Al-Megrahi, his family, some of the victims' families and the legal community in Scotland itself.

In March this year, a Scottish Criminal Cases Review Commission (SCCRC) permitted Al-Megrahi's family appeal, posthumously, before the country's highest court. The SCCRC cited a possible "miscarriage of justice" in the first trial. In particular, it pointed out that the guilty ruling was "unreasonable" and the British government withheld evidence from Al-Megrahi's defence team that might have proved his innocence from the start. Abdelbaset Al-Megrahi died of cancer at his home in Libya in 2012.

Claire Mitchell, QC, acting for Al-Megrahi's family, said that the way that he had been identified in the first trial was "highly prejudicial". A Maltese shopkeeper, Tony Gauci, was the prosecution's star witness in the 2001 trial. He identified Al-Megrahi from a photograph as the person who bought the clothes from his shop in which the bomb, it was alleged, was wrapped and put in a suitcase that Al-Megrahi passed onto the luggage feeder of the doomed flight. However, Gauci's testimony has been regarded as untrustworthy since it emerged that he received money in return for his testimony. The British government again withheld documents that the defence believes could help prove Al-Megrahi's innocence.

What is at stake here is not only the truth about Britain's deadliest terror attack, but also the reputation of the Scottish justice system. (...)

Importantly, families of British victims also believed that the Libyan was wrongly convicted for the atrocity. In fact, they went as far as campaigning for a retrial. Dr Jim Swire, whose daughter Flora was killed on the flight, had for years believed in Al-Megrahi's innocence. Swire even helped the Libyan's family to bring about the third appeal in the case. "I'm delighted that the case has been referred back to the Appeal Court," he said after the SCCRC decision in March.

The only party that still wants to maintain the 31-year-old narrative about the Lockerbie bombing seem to be the British government. It has, again, withheld documents from the defence and still refuses to hold a public inquiry into the tragedy despite repeated requests to do so. It looks as if the government in Westminster does not want the truth to come out, even if that means tarnishing the Scottish justice system. However, it now it looks as if the government has a new, unlikely, ally in this matter.

Libya's Government of National Accord (GNA) has defunded the case for no obvious reason. By cutting funding to the defence team, the GNA is breaking Libyan law that obliges it to help citizens facing legal issues abroad. This suggests that it either approves of what Westminster is doing, or is under pressure from the British to drop its backing for the appeal.

Moreover, the GNA knows very well that the Lockerbie bombing is not just a case of a misdemeanour by a Libyan citizen in another country. Lockerbie is, in fact, a national issue for all Libyans, because they were all, in effect, punished for it collectively by the imposition of UN resolutions and sanctions. The latter, through Resolution 883, for example, imposed a freeze on assets held abroad, a ban on sales of certain equipment and a ban on all commercial flights into and out of the country.

Between 1992 and 1999, thousands of Libyans who had to travel abroad, including diplomats, were forced to take dangerous overland journeys to Tunisia or Egypt, or go to Malta by sea in order to catch flights to their destinations further afield. Foreigners visiting Libya had to endure the same procedure in reverse.

Furthermore, Al-Megrahi's defence team are confident that their appeal this time has all the ingredients necessary for a successful outcome. The leading defence lawyer, Aamer Anwar, told me that his team mounted a "robust appeal".

In the absence of GNA funding, Anwar was forced to launch some online fundraising to meet part of his expenses which have been mounting for the past six years since he first took up the case. He suspects that the GNA was put under pressure from the British government to steer away from the case and that Boris Johnson, when he was foreign minister, discussed Lockerbie with GNA officials when he visited Libya twice in 2017. Anwar is pursuing a Freedom of Information Act request about these visits. He also told me that his legal team in Libya has been instructed to file a case against the GNA for its refusal to fund the Megrahi appeal.

If nothing else, the appeal has once again rallied many Libyans around the case as a national cause. This is evident by the hundreds of comments on social media which generally shame the GNA and accuse it of betraying the entire country, not just Abdelbaset Al-Megrahi. 

The real perpetrators of Lockerbie bombing still to be brought to book

[This is the headline over a letter by Rev Dr John Cameron published on the website of the Belfast Telegraph on 1 December 2020. It reads as follows:]

In 1994 Nelson Mandela offered South Africa as a neutral venue for the Pan Am atrocity trial, but this was turned down by John Major.

His offer was also rejected by Tony Blair at the 1997 Commonwealth heads of government meeting in Edinburgh.

In words that still haunt our judiciary, Mandela warned “no one nation should be complainant, prosecutor and judge” in the Lockerbie case.

A life-long friend, the late Graham Cox, was Sheriff Principal of South Strathclyde, Dumfries and Galloway when Fhimah and Megrahi were arrested.

They appeared before him on April 6, 1999 at a makeshift Scottish court at Kamp Van Zeist in Holland.

In spite of his suspicion that the prosecution had arrested the wrong men, this court appearance starting off the subsequent legal proceedings.

Cox had no doubt the bombing resulted from the shooting down of Iran Air 655 by the USS Vincennes in July 1988, or that the Iranians recruited the PFLP-General Command.

Later, when Mandela asked the Kirk to intervene in a “serious miscarriage of justice”, Cox pointed me to the unsafe forensics, the unlikely use of a long-range timer and the fact that the bomb entered the system at Heathrow.

My report for the Kirk was used by Al Jazeera in a documentary which left no doubt of Megrahi’s innocence. [RB: Dr Cameron's report and the Al Jazeera documentary are referred to here, at the text accompanying footnote 46.]

Sadly, Cox warned against any hope that the verdict might be reversed.

Lord Fraser, then our senior law officer, had admitted the key witness Tony Gauci wasn’t “the full shilling”, had been paid $3m by the US and that the trial was a farce, but “nobody wants this can of worms opened”.

Last Megrahi appeal ruling means a last chance at redemption

[This is the headline over an article by Andrew Tickell in today's edition of The National. It reads in part:]

On any other day, in any other month, on any other year – this hearing would be a huge international news story. The statue of King Charles II in Parliament Square in Edinburgh would be surrounded by journalists. The Court of Session’s colonnades would be sprouting cameras and camera-men, and production staff hiding from the rain.

International correspondents would be checking their makeup and adjusting their ties before cutting live to the studio to report the latest developments from inside court number one in the Court of Session. At stake in this appeal is not simply the guilt of one man – but the integrity of our criminal justice system, the reputation of Scottish justice – and the real possibility the wrong person was convicted of the murder of 270 people and spent eight years in prison for a crime he did not commit.

But this week? This week, Parliament House’s sphinxes looked down on an empty square. There were no cameras flashing, no scrambled news crews, no American accents ricocheting off the old stones, no sober courtroom shots of the advocates entering and leaving proceedings, no family of the convicted man, none of the bereaved, no clenched fists, no defiant statements, no drama and no fuss. The Lockerbie case has returned to the Appeal Court for the third time – but Covid-19 spares none of us.

Instead, five of the country’s most experienced judges assembled online to hear one of the biggest appeals in Scottish legal history. Without the dramatic courtroom visuals, the news story didn’t quite have the impact you might expect. The journalists and the families were dialing in. The advocates too. Gone were the traditional wigs and gowns.

This was a sort of Zoom hearing over three days, where the gravity of the submissions was counterpoised with the ­informality and ordinariness of the medium (...) 

Before the court, the lawyers for Abdelbaset al-Megrahi’s family renewed their historic submission: his conviction was a miscarriage of justice. He was, they say, not guilty of steering the explosive device onto Pan Am flight 103 in December 1988. He was, they say, wrongly convicted by the Zeist court which was manned – lest we forget – not by 15 jurors, but by three High Court judges.

But innocence isn’t a ground of appeal in Scotland. Lords Sutherland, Coulsfield and Maclean heard the evidence and voted to convict in January 2001, contrary to the expectations of many court-watchers who had sat and listened to the Crown case.

As Megrahi discovered in his first appeal – overturning a conviction is no small matter in an ordinary criminal case. When that conviction is a screamingly high profile, geopolitically significant decision involving the deaths of 270 innocent people? Well, best of luck.

There’s only one ground of appeal against conviction in Scots law. It is this: that there has been a miscarriage of justice. Miscarriages of justice take many different forms. Sometimes, the judge misdirects the jury on the law. Sometimes evidence was admitted which should not have been; sometimes evidence is excluded which ought to have been allowed. Sometimes the case turns on ­corroboration – or the lack of it. Sometimes new evidence throws a whole new complexion on the case. Sometimes police and prosecutors have been found to fiddle the evidence. Sometimes the defence is such a disaster the whole trial becomes unfair.

Here, two main submissions survived Criminal Cases Review Commission scrutiny, giving Megrahi’s family a third – and almost certainly final – opportunity to clear their father’s name. First, they argue, that no reasonable tribunal could have convicted Megrahi on the evidence that was heard.

Juries leave no notes explaining their reasoning, but the Zeist tribunal was a different beast. Running over 80 pages, the judges explained – step by step – the evidence they accepted and the evidence they rejected, who they found credible, and whose evidence was not.

Megrahi’s advocates contend the court’s reasoning doesn’t hold together. The lawyers’ attack focuses on the evidence of the lynchpin witness – Anthony Gauci. The Maltese shopkeeper’s evidence was the vital link in the chain connecting Megrahi to the debris which fell over Lockerbie in the run up to Christmas in 1989. But considerable uncertainty characterised Gauci’s evidence.

His eyewitness identification of Megrahi as the purchaser of clothes – clothes the Crown say ultimately found their way into the suitcase which exploded over Dumfriesshire – was uncertain, the timing of the purchase ambiguous, his description of the purchaser, his age, height and appearance shifting as he told the tale.

The second ground of appeal focuses on failures of disclosure. Would it have made a difference to your evaluation of the evidence, my lords, if you’d known Gauci was in the market for a reward from the Americans? Would his interest in receiving monetary credit for his testimony impact on your assessment of his evidence?

Did the failure to disclose this financial interest rob Megrahi’s defence of the opportunity to test how far Gauci’s testimony was animated by an honest account of what he remembered, or to what extent he may have felt incentivised to associate Megrahi with the crime? Did the failure to disclose the evidence of this interest in a reward, as Gordon Jackson QC submitted this week, relegate the cross-examination to a “softly-softly” approach which could test the reliability of Gauci’s eyewitness evidence, but not its credibility?

Those are the key legal arguments. Whatever the outcome, whether the appeal is dismissed or allowed, questions about the disaster will continue, as will the sorrow of the many families across the world whose children never came home in 1989, and of the residents of the town of Lockerbie, for whom memories of the disaster still linger.

Someone caused a plane to fall from the sky over Lockerbie at 19.03 hours on December 22, 1988. Someone planted the explosive device in the hold which punctured the Boeing’s fuselage and precipitated its terrible descent. Was Megrahi the right man, but convicted in a flawed process? Was Megrahi an innocent man, dragged into the case and scape-goated for the crimes of others? And if so, who are the guilty men or women? What motivated them?

Concluding the oral hearing in Megrahi’s third appeal against ­conviction, Lord Justice General Carloway said the Court would give judgment “as soon as it possibly can”. The court has only one duty in law: to decide whether there has been a miscarriage of justice in this case. But the five-judge bench cannot but be alive to the international significance of their decision and the reaction which will inevitably follow if they conclude the Zeist tribunal reached an unsafe ­conclusion.

When Abdelbaset al Megrahi was released from Scottish custody on compassionate grounds in 2009, it caused a diplomatic incident, with angry United States senators from New York and New Jersey demanding to know why the Scottish Government had “freed the Lockerbie bomber” responsible for the deaths of so many US citizens.

How they might react to the Appeal Court quashing his conviction remains to be seen. As my old law professor Robert Black used to say, judges need to have the confidence – not only of their convictions – but of their acquittals too.

[RB: In the distant past when I was involved in training courses for Justices of the Peace, I used to stress that while it was important to have the courage of your convictions, it was even more important for judges to have the courage of their acquittals, particularly since acquittal would often entail the disapproval of those denizens of the courtroom, the procurator fiscal, the court clerk and (most important of all) the bar officer or court attendant.]

The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.

Who made the bomb? The full truth about Lockerbie is still not being told

[This is the headline over a long report by David Horovitz published today on the website of The Times of Israel. It reads in part:]

Megrahi went to his grave protesting his innocence, and his family continues to fight to clear his name. This week, Scotland’s highest criminal court is hearing his relatives’ latest appeal against his conviction, after an independent review determined that he might have been the victim of a miscarriage of justice. Among other flaws, the defense is highlighting that the Maltese shopkeeper who identified Megrahi as the man who purchased the incriminating clothing in the suitcase, and whose evidence has always been controversial, was paid for his testimony, a fact that was not disclosed to the defense in the original trial.

I have followed the Lockerbie case since the time of the bombing, when I was working for The Jerusalem Post as its London correspondent, and when I happened to see material in the early stages of the investigation that pointed not to Col. Gaddafi’s Libya, but rather to Iran and the Palestinian terrorist organization PFLP-GC — the Popular Front for the Liberation of Palestine-General Command. Earlier in 1988, the US Navy’s guided-missile cruiser USS Vincennes had shot down an Iran Air Airbus in the Persian Gulf, killing all 290 passengers and crew, in a tragic case of mistaken identity. The US said it had misidentified the civilian airliner as a fighter jet. Iran had promised to avenge the deaths. Ayatollah Khomeini had vowed that the skies would “rain blood.” (...)

Just weeks before the Lockerbie blast, four devices strikingly similar to the one that would soon be utilized to such devastating effect on Flight 103 had been found in the possession of PFLP-GC members arrested in a Frankfurt suburb. That PFLP-GC cell was reported at the time to have been planning to blow up planes heading to the US and Israel. Its bombs, like those the PFLP-GC had used in the past, and like the Lockerbie device, were detonated by a barometric pressure device and timer, activated when a plane reaches a certain altitude. A fifth bomb in the Frankfurt cell’s possession was said to have disappeared; this was presumed to be the device that blew up Flight 103.

The Lockerbie investigators were initially following these leads; then they shifted their focus to Libya. In 2003, Gaddafi accepted responsibility for the bombing — though he denied ordering it — and paid compensation to the victims’ families, in accordance with UN demands for the lifting of sanctions on his country.

Almost seven years ago, a colleague of mine at The Times of Israel noticed that a man named Marwan Khreesat, a Jordanian national, maintained an Arabic-language Facebook page in which he had taken to posting pictures of the Lockerbie bombing. Khreesat was the PFLP-GC’s bombmaker-in-chief, the alleged maker of those barometric-pressure devices. He was one of those who was arrested by the German authorities in Frankfurt, only to be inexplicably released soon afterward. Now he was promising to reveal the truth about Lockerbie — to “write about Pan Am 103,” including “who was on the flight and the circumstances of the incident.”

In his posts, Khreesat also connected himself to the bombing of an El Al plane from Rome to Tel Aviv in 1972, describing that attack as “a challenge to the Israeli intelligence agents who are responsible for searching luggage and everything that goes on a plane.” The 1972 El Al bomb — another barometric-pressure device — had been hidden in a record player that two British women were duped into carrying by two Arab men who were later arrested. Although the bomb exploded, the pilot was able to make an emergency landing. “It was a successful blow against the Israeli enemy,” Khreesat wrote in a March 14, 2014, Facebook post, in which he also described spending time with PFLP-GC chief Ahmed Jibril in Rome as they waited for the attack to unfold.

In several 2013-4 Facebook posts relating to Lockerbie, Khreesat recalled his arrest two months before the bombing. He posted pictures of the destroyed cockpit of the 747 after the explosion, the painstakingly reconstructed parts of the plane wreckage, and a radio-cassette recorder like the one that held the bomb. He also asked a series of unanswered questions about the attack. “Who did the operation?” he mused in a post on the 25th anniversary of the blast. “Israel? Iran? Libya? Who carried the Toshiba explosive device [in which the bomb was hidden]?… Did the explosive device come from Malta airport like the American intelligence agencies say?… When will these riddles be solved.”

This week’s appeal by the Megrahi family was green-lighted by the Scottish Criminal Cases Review Commission in part because of “nondisclosure” of evidence to the defense team in the original trial. Some of that documentary evidence is widely reported to have been provided by Jordan’s late King Hussein and to not only to implicate the PFLP-GC in the Lockerbie atrocity, but to specify that Marwan Khreesat built the bomb.

On Friday, however, the head of the Scottish judiciary, Lord Carloway, ruled that the documents must still be withheld on the grounds of national security. Accepting a secrecy order signed by British Foreign Secretary Dominic Rabb [sic], Carloway explained, “[Rabb’s] clear view is [that the release of the documentation] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states… The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

All manner of conspiracy theories surround the Lockerbie bombing, some of which do not rule out the involvement of Libya and Megrahi, most of which revolve around the fact that nobody has been prosecuted for making the bomb, and many of which focus on the PFLP-GC and Marwan Khreesat.

Over the years, I’ve had the opportunity to raise the question of the Lockerbie bombing with several former Israeli intelligence figures, who were in office at the time of the bombing and well aware of the activities of the PFLP-GC at the time. Two of them insisted without elaboration that “Libya did it” and brushed away further questions. A third, by contrast, told me it was “clear that Jibril prepared the operation.”

Israel was “listening in” on the PFLP-GC during the months prior to Lockerbie, he said, and hearing about preparations for what “we thought was a plan to target an Israeli plane.” There was a “huge alert” in the Israeli security establishment because of indications that the PFLP-GC was about to strike, this source went on. “We told the British and the Americans what we knew, which was that there was an intention to hit an Israeli plane… We didn’t warn about a British or an American plane because we didn’t know that,” he said.

The new appeal hearing is expected to continue until Friday, with a ruling at a later date. “It is submitted in this case that no reasonable jury, properly directed, could have returned the verdict that it did, namely the conviction of Mr Megrahi,” the defense lawyer Claire Mitchell told the judges on Tuesday. But that argument will be harder to make without those “Jordanian” documents, which the defense has said are central to the appeal. If his relatives fail to have Megrahi’s conviction overturned, their allegation of a miscarriage of justice will linger.

Marwan Khreesat died in 2016.

His Facebook page is still online.

But he never did tell the truth about Lockerbie.

Lockerbie: court 'should have been told witness wanted payment'

[This is the headline over a report on the website of The Guardian on the second day of the Megrahi appeal. It reads in part:]

The court that convicted a Libyan intelligence officer for the Lockerbie bombing should have been told a key witness wanted payment for his testimony, appeal judges have been told.

Gordon Jackson QC, part of the legal team acting for the family of Abdelbaset al-Megrahi, said there was clear evidence that the witness Tony Gauci was interested in compensation for giving evidence, and frustrated none had emerged.

Jackson said the prosecution had an obligation to reveal that to the trial court, which convicted Megrahi of killing 270 people when Pan Am flight 103 blew up over Lockerbie in south-west Scotland in December 1988.

Instead, the relevant Scottish police interviews with Gauci, a Maltese shopkeeper whose testimony convicted Megrahi, were not given to the court or the Libyan’s defence team. The undisclosed papers “showed a very clear pattern” where Gauci “had a strong motivation of a financial nature,” Jackson said.

Jackson, (...) said the defence could have aggressively pursued this with Gauci when he gave evidence, challenging his credibility.

“The information in those documents would’ve given them the basis to attack that credibility,” he told a panel of five Scottish appeal judges, headed by Scotland’s most senior judge, Lord Carloway, the lord justice general.

It later emerged Gauci and his brother were paid $3m by the US government after he gave evidence – a deal not disclosed until after the trial. (...)

The case was returned to court earlier this year after the Scottish Criminal Cases Review Commission, an independent body, decided there were grounds for believing Megrahi’s conviction was unsafe.

It said there were significant issues with the trial court’s judgment about Gauci’s testimony, and the failure to disclose evidence.

On Friday, Carloway ruled that some of that undisclosed evidence, involving allegations from the Jordanians linking a Palestinian terrorist group to the attack, must remain secret.

Speaking earlier, Claire Mitchell QC, another lawyer for Megrahi’s family, represented by the Glasgow-based human rights lawyer Aamer Anwar, said the trial court had also been wrong to allow Gauci to identify Megrahi from the witness stand because Gauci had previously seen prejudicial press articles claiming Megrahi was guilty.

Ronnie Clancy QC, acting for the Scottish and UK governments, said the trial judges had acted properly and fairly in convicting Megrahi. “The crown’s position is that the appellant can’t meet the statutory test of showing no reasonable jury, properly instructed, could have convicted Mr Megrahi,” he told the court.

“On the contrary, the trial court were fully entitled to make the findings which they set out in their opinion and were fully entitled to conclude Mr Megrahi was guilty beyond reasonable doubt.” In fact, Clancy said, at times they erred in Megrahi’s favour when they weighed up the evidence.

Appeal in Lockerbie bombing reaches Scotland’s highest court

[What follows is excerpted from a report published yesterday evening on the website of The New York Times:]

Scotland’s highest court began hearing a posthumous appeal on Tuesday for a Libyan man convicted in the 1988 bombing of a Pan Am jetliner that killed 270 people over the town of Lockerbie, the deadliest terrorist attack in Britain.

The appeal, lodged by the family of Abdel Basset Ali al-Megrahi, the only person found guilty in the midair blast, is the latest turn in a decades-long case that left many details unresolved. Mr. al-Megrahi insisted on his innocence until his death in 2012.

“We are in possession of much evidence that we have not revealed publicly,” said Aamer Anwar, a lawyer for Mr al-Megrahi’s family, adding that in his dying breath Mr al-Megrahi had wanted to clear his name. “The Megrahis regard their father as the 271st victim of Lockerbie.”

A spokesman for Crown prosecutors declined to comment, citing the continuing appeal. The prosecutors have said that they would “rigorously defend” the conviction. (...)

Mr al-Megrahi, a former Libyan intelligence officer who was working undercover at Libya’s state airline, was convicted of organizing the bombing in an unusual 2001 trial in the Netherlands under Scottish law and sentenced to life in prison, with a 27-year minimum term. [RB: The only evidence that Megrahi was an intelligence officer came from the CIA informer Majid Giaka. For no explicable reason the Zeist judges accepted Giaka's evidence that Megrahi was an intelligence agent while otherwise rejecting his evidence as utterly unworthy of credit.]

He twice appealed the decision, insisting on his innocence, but abandoned the second effort after developing terminal cancer to maximize his chance of being released on compassionate grounds. He returned to Libya in 2009.

His return, escorted by Saif al-Islam, the son of the Libyan leader Col. Muammar el-Qaddafi, and greeted with cheers in Libya, angered many families of the victims, particularly Americans. The bombing came at a time of increasing tensions between the United States and Libya, and prosecutors said Mr al-Megrahi was acting as a terrorist for the government. Libya has denied involvement but paid $2.7 billion to the victims’ families in 2003 to end the country’s diplomatic isolation.

Other families have lobbied for the case to be re-examined, saying they do not believe Mr Megrahi was guilty, and some legal experts have thrown doubts on the evidence presented at the trial.

The conviction was a “miscarriage of justice,” said Robert Black, professor emeritus of Scots Law at the University of Edinburgh, who helped conceive the idea of holding the nonjury trial in the Netherlands and has urged a reopening of the case. Reviews of the case by an independent government-financed body have referred it to Scotland’s High Court for another examination.

If the family lost this third appeal, “that is the end of the line,” Mr Black said. But if successful, he added, it would make the Lockerbie bombing an unsolved crime without a culprit.

The appeal will look at whether evidence at the trial justified a guilty verdict. That will focus on evidence including that of a crucial witness, Tony Gauci, a Maltese shopkeeper who identified Mr al-Megrahi as the buyer of clothing linked to the bomb.

But it emerged later that Mr Gauci was at times inconsistent in recognizing Mr al-Megrahi and that he had already seen a photograph of him connected to the bombing before speaking with the police.

Some of Mr al-Megrahi’s supporters and his family have pointed to a Syrian-based militant group, the Popular Front for the Liberation of Palestine-General Command, alleging that Iran ordered the attack as retaliation against the United States. Iran has denied involvement.

On Thursday, a judge also declined a request by Mr al-Megrahi’s family for access to protected government documents, saying it could harm the national security of the United Kingdom. Crown prosecutors in 2015 also said they were looking at two other Libyan suspects involved in the bombing.

The case has had an enduring international legacy, experts said. Before the investigation into the bombing, “there had never been anything comparable with so many governments involved,” Mr Black said, adding that it “set the standard for international cooperation.”

If the conviction is overturned, he said that he believed there should be an independent inquiry supported by the British and American governments. But he said that their enthusiasm for pursuing the case might be wavering, given that 32 years had passed since the bombing.

Lockerbie bombing: facts 'cherrypicked' to convict Megrahi, court told

[This is the headline over a report published this evening on the website of The Guardian. It reads in part:]

The judges who convicted a Libyan for the Lockerbie bombing reached an unjustified verdict by cherrypicking facts from a mass of conflicting evidence, an appeal court has been told.

Claire Mitchell QC, an advocate acting for the family of Abdelbaset al-Megrahi, accused the Scottish judges who jailed him nearly 20 years ago of taking a “broad-brush approach” to contradictory claims from unreliable witnesses.

“The court has read into a mass of conflicting evidence a pattern or conclusion which is not really justified,” Mitchell told five Scottish appeal judges on Tuesday. None of the most significant evidence against Megrahi met the “baseline of quality” needed for a conviction, she said.

She was addressing the court on the opening day of a posthumous appeal against Megrahi’s conviction for planting the bomb which brought down Pan Am Flight 103 over the Scottish town of Lockerbie on 21 December 1988. (...)

Megrahi was the only person convicted for the bombing, by a specially-convened Scottish court sitting without a jury in the Netherlands from May 2000 until January 2001. He immediately lodged an appeal, insisting he was innocent.

Five years after losing that appeal, the Scottish Criminal Cases Review Commission (SCCRC) ruled in 2007 his conviction could be unsafe, returning it to court. In 2009, Megrahi was diagnosed with terminal cancer, and abandoned his case after winning compassionate early release. He died at home in Tripoli in 2012.

In May 2020 the SCCRC ordered a fresh appeal on behalf of Megrahi’s family, which is being held this week in a virtual hearing chaired by Lord Carloway, the lord justice general and Scotland’s most senior judge.

Mitchell said his conviction hinged on the original court’s decision to rely on the uncorroborated claims of Tony Gauci, a Maltese shopkeeper who alleged several years after the attack that Megrahi had bought 12 items of clothing found in the Samsonite suitcase holding the bomb.

She listed a series of inconsistencies in Gauci’s testimonies and in the trial court’s decision to fix the date of that purchase as 7 December rather than 23 November, an alternative date which the evidence also pointed to.

That date was central to Megrahi’s conviction. The senior Libyan intelligence officer was only in Malta on 7 December but was not in Malta on 23 November.

Gauci had initially repeatedly identified an Egyptian terrorist called Abu Talb as the man who bought the clothes, only to identify Megrahi later. He also first recalled the purchaser being four inches taller and nearly 30 years older than Megrahi.

Gauci claimed it rained when the purchaser left his shop; the nearby airport’s meteorologist said he did not believe it rained on 7 December. It did, however, rain on 23 November. Gauci also gave contradictory evidence about whether the town’s Christmas lights were lit on 7 December or not.

“As things stand, we have someone who cannot remember dates and is hopelessly muddled,” Mitchell said. She told the judges “the evidence was so inconsistent, so riddled with inaccuracies, that no jury could have held that the date of purchase was 7 December. [It] simply didn’t bear the weight put upon it.”

Further, there was no evidence the suitcase bomb began its unaccompanied journey on a KLM flight from Malta to Frankfurt, as the prosecution claimed, before being inserted on a Pan Am feeder flight to Heathrow.

The UK and Scottish governments are contesting the appeal, and the hearing will hear later evidence that the US government secretly paid Gauci and his brother a total of $3m for their testimony – a fact withheld from the original trial.

Thirty-two years of struggle for truth and justice

[What follows is the text of a press release issued today by Aamer Anwar & Co:]

It has been a long journey in the pursuit for truth and justice. When Pan Am Flight 103 exploded over Lockerbie nearly 32 years ago, killing 270 people from 21 countries, it remains the worst terrorist atrocity ever committed in the UK.

Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history.

The finger of blame has long been pointed in the direction of Iran for having ordered a Syrian-Palestinian group to carry out a revenge attack for the downing of an Iranian Airbus by the U.S. six months earlier which killed all 290 on board.

The reputation of the Scottish criminal justice system has suffered internationally because of widespread doubts about the conviction of Mr Al-Megrahi.

It is in the interests of justice that these doubts can be addressed, however he was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

An overturning of  the verdict for the Megrahi family and many of the families of British victims also supporting the appeal, would vindicate their belief that the Governments of the United States and the United Kingdom stand accused of having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

We are now in possession of much evidence that we have not revealed publicly as it is not appropriate to do so at this stage.

However, at the conclusion of this appeal we intend to disclose significant material about the role of individuals, nations and their politicians, because there can never be a time limit on justice or the truth emerging.

This process began for my legal team in 2014 when I first met with Dr Jim Swire and the Rev. John Mosey who lost their daughters Flora and Helga that night in Lockerbie. I pay tribute to their perseverance, compassion and courage.

Flora Swire one day before her 24th birthday, was brutally murdered along with 269 others in the Lockerbie attack. I spoke to Jim last night, he said he still aches for his daughter Flora, what might have been, the grandchildren she would have had, the love she always gave her family and the glowing medical career.

It has always been and remains his intent to see those responsible for her death brought to justice.

I also spoke yesterday to Ali the son of Al-Megrahi and he told me he was 8 years old when his father went to the Netherlands to stand trial. When his father returned to Libya to die, Ali spent most of his time next to his father and he says that until his dying breath he maintained his innocence. The Megrahi’s regard their father as the 271st victim of Lockerbie.

For my team it has been six long years but for the families we represent, finally there is hope that we are coming to the end of a very long journey, in nearly 32 years of their struggle for truth and justice.”

Scottish judges rule Lockerbie documents will remain secret

[This is the headline over a report in today's edition of The Observer. It reads in part:]

Scotland’s most senior judges have upheld a secrecy order signed by the foreign secretary, Dominic Raab, to withhold intelligence documents believed to implicate a Palestinian terror group in the Lockerbie bombing.

Lawyers acting for the family of Abdelbaset al-Megrahi, the Libyan convicted of the bombing, believe the documents are central to a fresh appeal against his conviction which starts on Tuesday and had urged the court to release them.

The appeal has been lodged by Megrahi’s son, Ali Abdulbaset al-Megrahi, in what is believed to be the first posthumous miscarriage of justice case in Scottish legal history. Megrahi died of cancer in Tripoli in 2012 after being released from prison on compassionate grounds.

The documents are thought to have been sent by King Hussein of Jordan to the UK government after Pan Am Flight 103 was blown up over the town of Lockerbie on December 1988, killing all 259 passengers and crew, and 11 townspeople.

The documents are believed to allege that a Jordanian intelligence agent within the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), called Marwan Khreesat, made the bomb. Critics of Megrahi’s 2001 conviction believe the PFLP-GC carried out the attack on behalf of the Tehran regime in revenge for the destruction of an Iranian airliner by the US warship the USS Vincennesa in July 1988, but this was covered up in order to implicate Libya.

In August, Raab signed a public interest immunity certificate to keep the documents secret. In 2008 the then foreign secretary, David Miliband, also refused to release the papers ahead of Megrahi’s second appeal, later abandoned in the belief he would be released early from prison.

In a ruling issued late on Friday, Scotland’s most senior judge, Lord Carloway, the lord justice general, said the court had upheld Raab’s order signed in August, after studying the papers in a secret hearing earlier this month, even though the foreign secretary agreed the documents are relevant to the appeal.

“His clear view is [it] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states,” Carloway said, referring to Raab’s submission. “The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

To the disappointment of the Megrahis’ lawyers, Carloway sided with the UK government by arguing much of the material in the secret documents was known to Megrahi’s defence team at his trial in the Netherlands in 2000-01, as were claims about Khreesat’s role, even though the Jordanian cables were withheld from his lawyers.

The Megrahi family lawyers insist the documents could have opened up significant new lines of inquiry and helped prove Megrahi’s innocence if they had been released before his trial. Megrahi tried to incriminate the PFLP-GC in the bombing.

The Scottish government’s lawyers, who are on the UK government side in opposing the appeal, told Carloway they believed the documents should be disclosed.

The new appeal hearing was ordered after the Scottish Criminal Cases Review Commission decided Megrahi’s conviction was arguably a miscarriage of justice, because of significant discrepancies in the evidence of the Crown’s key witness, a Maltese shopkeeper called Tony Gauci, who alleged Megrahi had bought clothes put in the suitcase bomb.

The SCCRC also said the Crown had failed to disclose Gauci and his brother were offered reward payments totalling $3m for testifying. Given that evidence, no reasonable jury would have convicted Megrahi, and his rights to a fair trial under article 6 of the European Convention on Human Rights had been breached. [RB: Non-disclosure of the payment offer to the Gaucis is not the principal basis of the contention that no reasonable jury would have convicted.]

The commission found the Jordanian documents were hearsay and had not come from a primary source. That contradicts a previous ruling by the SCCRC. In 2007, with different commissioners involved in the case, it had decided the Jordanian documents did raise questions about the safety of Megrahi’s conviction when it recommended an appeal.

With that hearing under way in August 2009, Megrahi abandoned his case after it emerged he had cancer. “He did so at least partly because he thought that by doing so his prospects of compassionate release would be increased,” the court said.

Funding plea for appeal aiming to exonerate man convicted for Lockerbie bombing

[This is the headline over a report published today on the website of The National. It reads in part:]

The UK’s worst terrorist atrocity – the Lockerbie bombing – is returning to court as a crowdfunder is launched to pay for lawyers bidding to posthumously clear the only man to be convicted of the crime. (...)

Megrahi died in 2012, but his son Ali al-Megrahi is appealing against the conviction on his behalf.

The appeal was lodged after the Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court in March following a ruling there may have been a miscarriage of justice.

Judges allowed the appeal in relation to the argument that “no reasonable jury” could have returned the verdict the court had and on the grounds of non-disclosure of documents by the Crown.

Aamer Anwar, the lawyer representing the family, claimed the Libyan government had “failed to honour its promise of funding the appeal” and has launched a crowdfunder. [RB: The crowdfunding page and details of how to contribute can be found here.]

He said the legal team had worked “pro-bono” for more than six years and had they charged the costs would run into millions.

The appeal hearing will start at the High Court in Edinburgh on Tuesday and is expected to last until the end of the week. [RB: Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Anwar said: “There has been a widespread assumption that our legal team have been paid fees to date, that is simply not true as they have worked pro-bono for what can only be described as the biggest criminal appeal in UK legal history.

“Despite promises over the course of several years, the Libyan government has so far failed to fund the case and so we are now forced to look to the public to support us however much they can.”

The lawyer said: “In conclusion, for the Megrahi family and many of the British families of the victims supporting the appeal, there is finally hope this is the end of a very long journey. For my team it has been six long years but for the families we represent it has been nearly 32 years of struggle for truth and justice.”

Central to the appeal are items said to have been bought by Megrahi in a shop in Malta owned by Tony Gauci, which were found in the case housing the bomb that destroyed Flight 103.

The SCCRC agreed a miscarriage of justice may have arisen as the court could not reasonably find Megrahi had bought them on the evidence before it. Gauci also received a $2 million (£1.5m) reward from the US for giving evidence against Megrahi.

Anwar added: “The judges, following the hearing in August, authorised the founding of the appeal on the additional ground of non-disclosure of the CIA cables. They also ordered that protected documents held by the UK Government should be released to the court.

“Thereafter a private court hearing … considered whether the documents over which Public Interest Immunity is claimed should be released to the appellant. A decision is still pending on whether the protectively marked documents will be released to us.” [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;

and

Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner. 

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]