Of all the missing pieces in the jigsaw of information on the Lockerbie bombing and its aftermath one of the most confusing is Abdelbaset Ali Mohmed al Megrahi’s decision to drop his appeal against his conviction for the greatest terrorist atrocity ever perpetrated over Scottish soil.
The Scottish Criminal Cases Review Commission had looked at Megrahi’s conviction in 2001 on 270 counts of murder and after an effective four-year review had granted Megrahi leave to appeal against his conviction for the second time. The appeal was expected to be heard fairly soon after Scottish Justice Minister Kenny MacAskill visited Megrahi at Greenock prison in August 2009.
The Scottish Government had repeatedly branded the 2007 Prisoner Transfer Agreement between the UK and Libya -- brokered in Tripoli in May 2007 by the then-Prime Minister, Tony Blair, and his foreign affairs adviser, Sir Nigel Sheinwald -- as unconstitutional because it took no account of Scotland’s separate legal identity from the UK Government,
For the prisoner transfer agreement to go ahead Megrahi would have had to drop his appeal. But MacAskill rejected the PTA and opted instead to release Megrahi on compassionate grounds, under the terms of which the appeal could have gone ahead as planned. Yet Megrahi opted to drop it. Why?
And if the PTA was regarded as a legal non-starter and a snub to authority because its first minister was not consulted by London, why did MacAskill raise it with Megrahi during his prison visit and point out its implications for the appeal?
MacAskill will have known the full facts that lay behind the SCCRC’s decision to grant the appeal. The commission produced an 800-page report of the decision taken at Camp Zeist in the Netherlands in 2001. It was a Scottish court sitting in an independent country, and heard by three high court judges. A further 14 pages offered evaluation of new evidence and new circumstances surrounding the case against Megrahi, and identified six key areas where a potential miscarriage of justice may have taken place.
For the United States the loss of the 189 US citizens on board the Pan Am 747 was the single deadliest attack until 9/11 happened. Lockerbie was the first terrorist attack that saw the combined investigative forces of the US and the UK pulling together to deliver a result. Despite the formal authority of the Scottish police, the Megrahi case is regarded in Washington as FBI-led. If Megrahi went free it wasn’t just MacAskill’s departmental problem, it would have been regarded in DC as an FBI screw-up and would have raised questions about the ability of the US to work with other sovereign authorities in such terrorist hunts.
Although they had accepted, through the United Nations, responsibility for the attack, Libyan leaders continued to channel publicity that they had nothing to do with the bombing and had merely paid a high political price to ensure they were taken back into the international commercial community.
Commercial deals between the US and the UK, such as the $900 million deal struck in 2007 between BP and the Libyan National Oil Company, may have helped temper Libya’s anger. The son of the Libyan leader, Colonel Gaddafi, Seif Gaddafi, stated that there were no plans to recover the $2.7 billion that Libya paid out in compensation to the victims’ families. But there were costs to Libya beyond this. Between the 1991 identification of Libya as the state responsible for the bombing and the imposition of sanctions that lasted until 1999, Libya lost ten of billions of dollars in international revenue. There is also the question of compensation for Megrahi’s years in jail.
International lawyers say the complexity of such a combined compensation case would not have merited it being given serious attention. But it would have been the UK Government potentially facing an angry adversary, because Scotland has a devolved parliament, not a sovereign government.
Libya, according to Foreign Office sources, would have expected something, but there is little diplomatic agreement on what that would have meant and the shape of the potential fall-out, financial or otherwise.
Taking Libya out of the frame would, of necessity, have put the case back to square one, meaning the original assumptions about who was responsible for the mass murder being revived. Given the current state of the Middle East, that would have been no easy matter because Syria and Iran would have been pointed at.
The first suspects mentioned in connection with the bombing were the PFLP. The Popular Front for the Liberation of Palestine was looked at in detail by intelligence operators working on CIA advice. The basic notion was that it was a proxy attack, carried out for Iran in revenge for an 1988 attack which saw an airliner brought down by the US. CIA documents are believed to show that $11m was transferred into an PFLP account a few days after flight 103 was blown out of the skies above Lockerbie.
Other suggestions point to the fact that Libya was accused in 1991, close to the start of the first Gulf War against Iraq. Coalition forces led by the US are reported to have needed the diplomatic help of Syria. Libya and Gaddafi weren’t needed as much, and therefore took the hit.
Perhaps the most damning fall-out from the imminent appeal process, however, is the potential shredding of the evidence used to convict Megrahi and the unanswered questions about why they were admitted to court in the first place. Other uncomfortable questions centre on why wider investigations into the background of key witnesses did not take place on any scale that would have routinely been tested in a different legal arena.
Crucial to Megrahi’s conviction was the prosecution’s ability to place him in Malta on December 7, 1988. That was the day the court identified as the date a purchase was made at Mary’s House, a shop run by Tony Gauchi. Clothes bought in the Sliema shop on this specific date were said to have been in the Samsonite case containing the explosive device.
Gauchi was the witness who identified Megrahi as buying the clothes from his shop, on December 7. Everything Gauchi said as a witness -- the weather at the time, background details, the purchase of an umbrella -- put Megrahi at the location at that time. This is crucial because the Libyan’s passport states that he was in Malta at that time. But if the clothes purchase was made earlier then Megrahi couldn’t have been in Malta at the time. That is the new picture painted in the evidence reviewed by the SCCRC. Gauchi’s identification of Megrahi in his shop is also questioned.
Documents also allege that at an early stage of the US-UK investigation Gauchi asked for, and was given, $2m by the US Department of Justice for his contributions to the case.
Other new areas of evidence which cast doubt on the conviction included documents said to have come from the CIA which relate to the ‘Mebo’ timer that is said to have been the key device which detonated the bomb on the aircraft. Details of these documents were not given to Megrahi’s defence counsel.
The owner of the Mebo firm, Edwin Bollier, is also listed in review of the evidence as claiming that in 1991 the FBI offered him $4m to testify that the fragments of a timer found near the scene of the crash were part of a Mebo MST-13 timer which the company said had been supplied to Libya.
The truth, the whole truth and nothing but the truth is supposed to be the outcome of any legal process seeking justice. The appeal of Megrahi, had it gone ahead, suggests that Scottish justice fell short in the way it dealt with Lockerbie.
Megrahi sent back to Tripoli on “compassionate grounds” and still alive almost a year later, means that although the legal process for the Libyan remains complete, this does not automatically mean that justice has been delivered for those who lost their lives.
"Megrahi believed he had to drop his appeal"
The meeting in jail
By Tom Gordon
To many observers, it was the day Kenny MacAskill crossed a line. Before BP’s oil spill made it the focus for conspiracy theories, it was also the moment some felt ministers pressured a dying man to spare the blushes of the Scots legal system.
Just before 9am on Wednesday, August 5 last year, the Justice Secretary entered Greenock Prison for a meeting with inmate 55725.
The hour-long sit-down with Abdelbaset Ali Mohmed al Megrahi had been expected for weeks.
On May 5, the Libyan government had applied for Megrahi’s release under the Prisoner Transfer Agreement (PTA) initiated by Tony Blair.
The following month, on the advice of George Burgess, head of the government’s criminal law and licensing division, MacAskill agreed to meetings with key players in the Lockerbie case, including Megrahi.
On July 24, Megrahi made a separate application for release on compassionate grounds.
His prostate cancer had spread and was unresponsive to hormone treatment. A consultant urologist predicted his “demise before the end of the year”, he said.
Five days later, the government told Megrahi the PTA meeting would happen on August 5.
Initially, Libyan government officials were expected to attend, but in the end, Megrahi fielded only his lawyer, Tony Kelly.
MacAskill came with Robert Gordon, director of the Justice Department, and Linda Miller, from the Criminal Law and Licensing Division.
According to official notes of the meeting, MacAskill said he would be considering both applications for release “in parallel”.
After asserting his innocence, Megrahi gave a history of his case, from his surrender in 1999, to trial at Camp Zeist in 2001, up to the present day, his illness, separation from his family, and feeling of “desolation”.
MacAskill stressed he could only grant a PTA transfer if there were no court proceedings ongoing -- in other words, if Megrahi dropped his appeals against conviction and sentence.
“Mr Megrahi confirmed he understood this point,” the note recorded.
However, according to one of those close to events, Megrahi wrongly took this to mean that dropping his appeals was also a pre-condition of compassionate release. It wasn’t.
“MacAskill said something stupid. He shouldn’t have mentioned the appeal at all. “[The two processes] were conflated. That’s ultimately what Megrahi took from it,” said the source.
A week later, Megrahi signalled he was dropping his appeals.
His QC, Maggie Scott, told the High Court her client thought this would “assist in the early determination of these applications”.
Note the “applications” plural.
The move prompted claims Megrahi was pressured into giving up his appeals -- and with it any hope of airing possible flaws in his trial.
SNP MSP Christine Grahame has said she received an email from a whistleblower in MacAskill’s department saying Libya was told “in no uncertain terms that he [Megrahi] must drop his appeal or there would be no compassionate release”.
A senior legal source told the Sunday Herald Megrahi was definitely under the false impression that abandoning his appeals would help secure compassionate release.
However the Libyan may simply have calculated that with MacAskill considering the PTA and compassionate applications at the same time, ending his appeals would leave both options open rather than just one.
On September 2, by a majority vote, the Scottish Parliament declared MacAskill had “mishandled” the release decision, and that meeting Megrahi while considering his application for compassionate release was “wrong”, and an “inappropriate precedent”.
The Senators
Calls for another inquiry into the release of Abdelbasset Ali Mohmed al-Megrahi have been led by four US senators, who earlier this week met Prime Minister David Cameron.
The four have repeatedly voiced concerns about BP’s alleged involvement in the release -- a charge vehemently denied by Scottish ministers -- and have requested Scottish representation at a hearing in the US. But who are the quartet putting pressure Salmond and MacAskill?
Charles ‘Chuck’ Schumer is Jewish, from Brooklyn, and was top of his class at school. He studied law at Harvard and became the youngest New York state senator since Teddy Roosevelt. He is the third-ranking Democrat in the Senate and a powerful deal-maker, particularly when it comes to healthcare reform, financial regulation and immigration.
He is a leading member of the Israel lobby, has pushed for tougher sanctions on Iran, voted for the Iraq war and recently told an Orthodox Jewish group that the Israeli blockade of Gaza is justified because Palestinians voted for Hamas, suggesting that Israel should “strangle them economically until they see that’s not the way to go”.
Kirsten Gillibrand is a conservative Democrat from a Republican district. Her main political patrons, former senator Al D’Amato and ex-governor George Pataki, are both Republicans.
She backs the gun lobby, and entered the Senate with a 100% favourability rating from the National Rifle Association. She has since softened her stance on that, and she is co-sponsoring the DREAM Act, which would let the children of many illegal migrants stay in the USA.
Gillibrand used to be a lawyer for tobacco firm Philip Morris, working to repress information about the harmful effects of cigarettes.
Robert Menendez, the junior senator from New Jersey, is the son of Cuban immigrants and an outspoken critic of Fidel Castro.
He took over chairmanship of the Democratic Senatorial Campaign Committee from Chuck Schumer last year. He has been less successful than his predecessor, and is vulnerable in the mid-term elections in November.
Tea Party Republicans in New Jersey are making a legal effort to recall him. Rose Ann Salantrini, the group’s leader, described his criticism of the Scottish government and BP’s role in the Megrahi affair as “the height of hypocrisy” as he opposed the Bush administration’s attempts to extend federal surveillance.
She says he has opposed “sensible national-security measures all the time he’s been in the Senate”.
Frank Lautenberg is the oldest member of the Senate at 86 and has served five terms as a senator for New Jersey, coming out of retirement in 2003. The son of poor Eastern European immigrants, he fought in the Second World War and got a degree from Columbia Business School when he returned.
He led the congressional response to the Lockerbie bombing, as a founder member of the President’s Commission on Aviation Security and Terrorism.
Several of his constituents perished on the flight.
Since the Deepwater Horizon rig exploded, Lautenberg has been a persistent thorn in BP’s side. He describes oil drilling as “a 19th-century answer to a 21st-century problem” and has attempted to introduce an annual fee of $10 for every offshore acre leased to oil companies.
