Megrahi: Oh, what a tangled web

Media attention to the release of Abdel Basset Ali al-Megrahi by Scottish Justice Secretary Kenny MacAskill has mainly focused on the limits of compassion and whether this constitutes a terrible snub to the families of the victims of the Lockerbie bombing and excessive leniency toward a convicted terrorist.

But all the noise, including grave public objections from President Obama and Secretary of State Clinton, along with a political furore that means a special debate will be held in the UK Scottish Parliament next week, has largely ignored the fact that there are severe doubts over Megrahi’s conviction, the most significant of which were due to be tested in the Scottish Appeal Court. One of the conditions for Megrahi’s release was that he abandon his appeal, so at present it’s uncertain whether these matters will ever be resolved.

Ms. YAFB and I were visiting my mum for the Christmas holiday in Wales when Pan Am Flight 103 blew up and crashed on the Scottish border town of Lockerbie on December 21, 1988, scattering debris for miles. In all, 270 people from 20 or so countries died that day, including 189 Americans, and 11 Lockerbie residents. Ms. YAFB knew an American friend was booked in on the flight, so she spent long hours hanging on the phone until she finally found her at home. She’d been ill, so had to postpone her travel plans at the last minute. The first she knew about the crash was when Ms. YAFB explained why she was so agitated.

On our way back to Scotland a week or so later, we passed by Lockerbie in grim silence, as evidence of the disaster and ongoing investigations was still apparent, even from the motorway.

Three years later, after official suspicion had shifted between a number of Middle Eastern countries known to have sponsored terrorism in the past, Megrahi and al-Amin Khalifah Fhimah were indicted and ultimately tried in a special court relying on a modified form of Scots Law convened at Kamp Zeist in the Netherlands. One major departure from usual Scots Law practice was the absence of a 15-member jury, which is the norm in such cases, the proceedings relying on a panel of three judges instead. 

When the trial eventually concluded in 2001, only Megrahi was found guilty and sentenced to life imprisonment in Scotland (in Greenock, just across the Clyde from where I live).

Dr. Hans Koechler, a UN-nominated international observer for the International Progress Organization at the trial, has this to say:

Dr Koechler said the Kamp Zeist trial was not independent or impartial, and that the presence of FBI agents in the court added to the “appearance of outside influence”. He also said there is evidence “rewards” involving millions of dollars were paid to prosecution witnesses.

Furthermore:

No material evidence was presented linking him to the bombing, let alone any evidence that he put the bomb on the plane or that he handled any explosives. Even the prosecution subsequently questioned the credibility of its star witness.

Nevertheless, keen to move on, Libya accepted responsibility for the bombing although it never accepted guilt. Gaddafi paid $2.7bn (£1.8bn) in compensation to the victims’ families – $10m for every victim. The final payment was made this year. US lawyers took approximately a third of the final amount. But the economic and humanitarian price for Libya was far higher: UN sanctions over an 11-year period inflicted billions of dollars’ worth of economic damage on Libya and prevented thousands of Libyan citizens from travelling abroad.

The central pillar of the prosecution’s case was that Megrahi wrapped the bomb in clothes before checking it on to a plane in Malta without boarding it himself. The bomb, the prosecution alleged, was subsequently transferred at Frankfurt on to the flight to London, and then loaded on to the flight to New York.

As with any incident on this scale, a vast body of conspiracy theories has sprung up.

But many of these have not just been espoused by the usual cranks. A number of public figures and politicians from across the spectrum have objected to the verdict. One voice that has been consistently level-headed and intent on uncovering the real guilty parties has been Dr. Jim Swire’s, whose daughter Flora died in the attack. He’s served as a spokesman for UK Families Flight 103 (UKFF103), which was set up to press for a public inquiry into the crash and to seek truth and justice for all of the victims of Pan Am Flight 103 - an organization which has sometimes been at odds, to say the least, with the US group Victims of Pan Am Flight 103 (VPAF103), which represents the interests of the families of the 189 American victims. He’s always had my utmost admiration, and despite unwarranted ad hominem attacks from some within VPAF103, and even the UK’s own judiciary, he’s widely respected. As he reports, Megrahi appealed, but again there were severe doubts about the conduct of that case:

Unfortunately there is a mass of evidence, not led in court, to the effect that the police, for whatever reason, allowed American “agents” free access to the debris fields at Lockerbie right from the start of the inquiry. The trial court heard unequivocal evidence of how a suitcase belonging to an American intelligence officer killed on the flight, was opened, emptied and then returned as “evidential material” for forensic examination. It did not hear how a suitcase containing “sachets of white powder” was found by a local farmer, then whisked away by Americans, nor how a relative seeking to have this same mystery raised at the subsequent Fatal Accident Inquiry was refused permission to have the subject introduced, and how the very existence of this case was flatly denied. ...

It seems that some members of the local police force were very disturbed by the authority given to Americans to interfere with the evidence, sometimes even before they could collect it, and to be told by senior officers that they were not to enter material relevant to American activity in the area, in their notebooks. ...

The appeal court, but not the main trial, did hear how person(s) unknown broke into the airside area of Heathrow terminal 3 the night before Lockerbie. Just how rare such an event was was not quantified. The appeal court also heard how the Heathrow authorities made no effort to search the area till after the disaster the following evening.

Koechler outlines just some of the objections to the evidence on which the court relied:

1. The credibility of a key forensic expert in the trial, Mr. Allen Feraday (UK), has been shattered. It was revealed that “in three separate cases men against whom Mr. Feraday gave evidence have now had their convictions overturned” (BBC, 19 August 2005). Mr. Feraday had told the Lockerbie court that a circuit board fragment found after the disaster was part of the detonator used in the bomb on board Pan Am flight 103. In the first case where Mr. Feraday’s credibility had been questioned the Lord Chief Justice had stated that Mr. Feraday should not be allowed to present himself an expert in electronics.

2. A retired Scottish police officer has signed a statement confirming that the evidence that found Al-Megrahi guilty was fabricated. The police chief, whose identity has not yet been revealed, testified “that the CIA planted the tiny fragment of circuit board crucial in convicting a Libyan” for the bombing of the Pan Am jet (Scotland on Sunday, 28 August 2005). The fragment was supposedly part of the timing device that triggered the bomb. The circumstances of its discovery – in a wooded area many miles from Lockerbie months after the atrocity – have been mysterious from the very beginning.

3. Much earlier, a forensic specialist of the American FBI, Tom Thurman, who was publicly credited with figuring out the fragment’s evidentiary importance, was later discredited as a forensic expert. A 1997 report by the US Justice Department’s Office of the Inspector General found “that in a number of cases other than Lockerbie, Thurman rewrote lab reports, making them more favorable to the prosecution. The report also recommended Thurman be reassigned to a non-scientific job because he lacked a background in science.” (American RadioWorks / Public Radio, March 2000)

4. The most recent revelation relates to a mix-up of forensic evidence recovered on the ground in Lockerbie with material used during a series of test explosions in the course of the investigation. In one case, a garment which was damaged in a test explosion was presented as if it was the original garment found on the ground (which was completely undamaged). This garment was supposedly placed in the suitcase containing the bomb. “It casts serious doubts over the prosecution case because certain items that should have been destroyed if they were in the case containing the bomb are now known to have survived the blast.” (The Observer, London, 9 October 2005)

And the doubts have continued to mount:

The witness Testimony given by Tony Gauci, a Maltese shopkeeper, who identified the Libyan as the man who bought clothing that was packed in the same suitcase as the bomb, was crucial to securing al-Megrahi’s conviction. Al-Megrahi’s defence team claimed Mr Gauci was not a credible witness. They maintained he was coached by police before giving his damning evidence, and believe that he was paid a $2 million (£1.2 million) reward by the US Government.

This long and tortuous saga was due to culminate in a second appeal after the Scottish Criminal Cases Review Commission (SCCRC) eventually decided that there was sufficient evidence of a miscarriage of justice:

For 11 years, while legal proceedings were pending and throughout the trial, the British Government argued that a public inquiry into Lockerbie was not appropriate as it would prejudice legal proceedings. After the conviction, it switched tack, arguing instead that no public inquiry was necessary. But if the conviction were overturned, there would no longer be a reason to hold back. ...

The British Government is preparing for Megrahi to be transferred to Libya for the rest of his sentence. This would eliminate the risk of an acquittal and lessen the chance of a subsequent inquiry. Applications for a transfer cannot be submitted while an appeal is pending, which for the Government raises the convenient prospect that Megrahi will abandon his appeal so he can die at home. But letting Megrahi die a condemned man reduces the chance of Scottish prosecutors, the police, various UK intelligence services plus many American and other foreign bodies being asked a lot of difficult questions. ...

“The Crown and the prosecution are using every delaying tactic in the book to close off every route available to Megrahi except prisoner transfer, as this means he has to abandon his appeal,” commented Professor Robert Black QC, the Scottish lawyer who was the architect of the original trial who feels partly responsible for the miscarriage that occurred. “It is an absolute disgrace. It was 27 June 2007 when the SCCRC released its report and sent its case back to the criminal appeal court, and here we are 18 months later and the Crown has still not handed over all of the material that the law requires it to hand over and it is still making every objection conceivable.”

Megrahi’s advanced terminal illness means that he wouldn’t have lived long enough to see that process through. But there may yet be a chance that the new evidence - and exposure of the false evidence that’s been submitted in the past - will find a legal forum:

... whether Megrahi dies in jail in Scotland or Libya, under Scottish law his appeal can still go ahead without him. “Any interested person can continue the case. In this case one of Megrahi’s children could continue with the appeal to clear their father’s name” ...

Another possibility is that Jim Swire of UK Families Flight 103 may continue the appeal himself.

All this information is in the public domain. This legal Odyssey spans both Republican and Democrat administrations. There is every possibility that Megrahi is entirely innocent of these charges - and worse, that those who did commit the atrocity have been at large and possibly committing more in the mean time. The FBI and CIA know this, as does anyone in the UK and Scottish parliaments who’s been paying attention, as do any officials who’ve been in the intelligence loop. So I’m finding the proclamations from Clinton and Obama and UK politicians about the Megrahi release more than a little grating at the moment. As Jim Swire said:

“The Obama administration has inherited a situation where an innocent man has been imprisoned for a crime he did not commit and is on the verge of dying in a Scottish jail. That they should take this attitude reflects an ongoing determination by the US to ensure that this travesty of justice continues and I think it is very sad.”

The double bind the politicians are in is pretty obvious. Which is harder - to defend releasing a convicted murderer, or to admit that his conviction was entirely unsound all along, and that numerous government agencies over the years have tried their utmost to obstruct justice, from the moments after Flight 103 hit the ground?

Then there are the international implications. One popular new conspiracy theory is that Megrahi’s release is part of an oil-related deal, but that misses a few other considerations that were current at the time of the initial investigation, and in some cases still are. Suspicion that initially fell on Iran was shifted to Libya at a time when Iranian cooperation in the Middle East was vital. After 9/11, Libya capitulated to seek peace with the West. And now, with the Iranian situation so volatile and a charm offensive under way in the Middle East, why would Obama and Clinton want to reopen old wounds that previous administrations worked so hard to plaster over?

And how do you tell still-grieving families that the justice or vengeance they sought has been thwarted - not by the release of a convicted killer who’ll soon die anyway, but by the imprisonment of the wrong man, and over two decades of official cover-ups, and that their family members’ killers may still be walking free?

Looking around, I guess you don’t. You try to keep the lid on it, brand the Scottish decision indefensible, and let people fulminate about justice and vengeance, and Megrahi’s supposed lack of remorse.

Without taking the above evidence into account, it may be hard to stomach the Scottish administration’s decision, let alone the celebrations that met Megrahi when he landed safely in Libya. I find it harder to stomach the adamant insistence that this man was guilty as charged. Jim Swire would like the truth to come out. So would I.


UPDATE: Robert Black, Professor of Scots Law at Edinburgh University, who was responsible for framing the original trial arrangements, expresses his reaction to the developments in today’s Glasgow Herald. He doesn’t mince words.
CORRECTION: The special debate on this issue referred to above will be held in the Scottish Parliament, not the UK one. It will take place on Monday August 24.

UPDATE 2: Here are some reactions in the British press after that Monday debate, from the Guardian (be sure to check out the comments), the Scotsman, and Jim Swire in the Glasgow Herald.

(Note: Apologies to anyone who was confused by a fragment of an earlier draft of this post that I accidentally published last night! My sentiments still stand, I’ve just chosen to moderate how I express them.)

Posted by YAFB on 08/21/09 at 05:55 AM • Permalink

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