Scottish Panel Challenges Lockerbie Conviction

Inconvenient Truths
LRB | Vol. 29 No. 12 dated 21 June 2007
http://www.lrb.co.uk/v29/n12/mile01_.html

On 21 December 1988, Pan Am Flight 103 was 38 minutes into its journey when it was blown up at 31,000 feet. The explosion was so powerful that the nose of the aircraft was torn clean off. Within three seconds of the bomb detonating, the cockpit, fuselage and No. 3 engine were falling separately out of the sky. It happened so quickly that no distress call was sent out and no oxygen masks deployed. With the cockpit gone, the fuselage depressurised instantly and the passengers in the rear section of the aircraft found themselves staring out into the Scottish night air. Anyone or anything not strapped down was whipped out of the plane; the change in air pressure made the passengers’ lungs expand to four times their normal volume and everyone lost consciousness. As the fuselage plummeted and the air pressure began to return to normal, some passengers came round, including the captain. A few survived all the way down, until they hit the ground. Rescuers found them clutching crucifixes, or holding hands, still strapped into their seats.

The fuselage of the plane landed on a row of family houses in the small Scottish town of Lockerbie. The impact was so powerful that the British Geological Survey registered a seismic event measuring 1.6 on the Richter scale. The wing section of the Boeing 747, loaded with enough fuel for a transatlantic flight, hit the ground at more than 500 miles an hour and exploded in a fireball that lit the sky. The cockpit, with the first-class section still attached, landed beside a church in the village of Tundergarth.

Over the next few days rescuers made a fingertip search of the crash site: 243 passengers, 16 crew members and 11 people on the ground had been killed. Bodies and debris were strewn along an 81-mile corridor of Scottish countryside. Ten thousand pieces of debris were retrieved; each was meticulously logged. Among the items recovered were the remains of a Samsonite suitcase, which investigators later established had been used to transport the bomb. The suitcase had contained clothes, clothes that were subsequently traced to the shop of a Maltese man called Tony Gauci. Gauci later became a key prosecution witness. Fragments of a circuit board and a Toshiba radio were also recovered and identified as parts of the bomb.

Twelve years later, on 31 January 2001, a panel of three Scottish judges convicted a former Libyan intelligence officer for mass murder at Lockerbie. Abdelbaset Ali al-Megrahi was tried at a specially convened court on a former US air force base near the Dutch town of Zeist. Under a special international arrangement, the court, which sat without a jury, was temporarily declared sovereign territory of the United Kingdom, under the jurisdiction of Scottish law.

Al-Megrahi is still the only person to have been found guilty in connection with the attack. He was sentenced to 27 years in jail. His co-accused, Al Amin Khalifa Fhimah, a fellow Libyan intelli
gence officer, was acquitted.

Al-Megrahi was initially told that he would spend at least twenty years in prison, but the Crown, which was prosecuting, protested that this sentence was unduly lenient and petitioned the judges for a longer one. In 2003 the judges reconvened to rule that he must serve no less than 27 years before the parole board would consider his eligibility for release.

Al-Megrahi’s defence team had already lodged an appeal against the conviction, but in March 2002 the guilty verdict was upheld.

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

Lawyers, politicians, diplomats and relatives of Lockerbie victims now believe that the former Libyan intelligence officer is innocent. Robert Black QC, an emeritus professor of Scottish law at Edinburgh University, was one of the architects of the original trial in Holland. He has closely followed developments since the disaster happened and in 2000 devised the non-jury trial system for the al-Megrahi case.

Even before the trial he was so sure the evidence against al-Megrahi would not stand up in court that he is on record as saying that a conviction would be impossible. When I asked how he feels about this remark now, Black replied: ‘I am still absolutely convinced that I am right. No reasonable tribunal, on the evidence heard at the original trial, should or could have convicted him and it is an absolute disgrace and outrage what the Scottish court did.’

Al-Megrahi lost his appeal in 2002, but under Scottish law
he is entitled to a further legal review, to be conducted by the Scottish Criminal Cases Review Commission (SCCRC), an independent public body made up of senior police officers and lawyers. Its job is to re-examine cases where a miscarriage of justice may have occurred: it handles cases after the appeal process has been exhausted, and if it finds evidence that a miscarriage of justice may have taken place it refers the case to the High Court to be heard again. Al-Megrahi applied to the SCCRC for a review of his case in 2003 and the commission has been reinspecting evidence from the trial for the last four years. It will submit its findings at the end of June. It looks likely that the SCCRC will find that there is enough evidence to refer al-Megrahi’s case back to the appeal court. The Crown Office has already begun reinforcing its Lockerbie legal team in anticipation of a referral.

If al-Megrahi is granted a second appeal, it will, like the original trial, be held before a panel of Scottish judges, without a jury.

This time the trial will take place in Scotland, and if the glacial pace of proceedings in the past is anything to go by, it will probably not be heard before the summer of 2008.

Al-Megrahi’s defence team would be ready to launch an appeal in a matter of weeks, but the prosecution would be likely to delay the hearing for as long as possible. If an appeal takes place, al-Megrahi’s defence team will produce important evidence that was not available at the time of the first appeal, evidence that seems likely not only to exonerate al-Megrahi but to do so by pointing the finger of blame at the real perpetrators of the Lockerbie bombing and revealing some inconvenient truths.

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

Since al-Megrahi’s last appeal, many thousands of pages of reports, detailing freight and baggage movements in and out of Frankfurt airport, have been handed over to the defence. Largely in German and many handwritten, the papers were translated by the Crown at the taxpayer’s expense, but the Crown refused to share the translations with the defence and left it no time to commission its own. The Privy Council’s judicial committee, made up of law lords and senior judges, has declared that the Crown’s refusal to disclose this evidence is a breach of the European Convention on Human Rights. More damaging still, an unnamed senior British police officer – known to be a member of the Association of Chief Police Officers in Scotland (ACPOS), which implies that his rank is assistant chief constable or higher – has testfied to al-Megrahi’s defence team that crucial evidence at the trial was fabricated. If the SCCRC finds that the prosecution played foul, the Crown may decide it would be better not to continue with its case, allowing al-Megrahi to be freed immediately.
This anonymous senior officer’s testimony chimes with the well-trodden theory that the American government had a hand in fixing the trial. Hans Köchler, the UN observer at Camp Zeist, reported at the time that the trial was politically charged and the verdict ‘totally incomprehensible’.
In his report Köchler wrote that he found the presence of US Justice Department represen
tatives in the court ‘highly problematic’, because it gave the impression that they were ‘“supervisors” handling vital matters of the prosecution strategy and deciding . . . which documents . . . were to be released in open court and what parts of information contained in a certain document were to be withheld.’ ‘The alternative theory of the defence,’ he went on, ‘was never seriously investigated. Amid shrouds of secrecy and national security considerations, that avenue was never seriously pursued – although it was officially declared as being of major importance for the defence case. This is totally incomprehensible to any rational observer.’ The prosecution, Köchler noted, dismissed evidence on the grounds that it was not relevant; but now that that evidence has finally – partially – been released, it turns out to be very relevant indeed: to the defence.
Whatever happens, al-Megrahi may not have to wait long. As soon as a further appeal is scheduled, he can make an application to be released from custody: the convicted Lockerbie bomber, who was supposed to serve no fewer than 27 years in a Scottish jail, might well be free this summer. Whether al-Megrahi is freed pending his appeal – and what conditions would be applied if he were – depends largely on whether his defence team can convince the judge that he is not a flight risk. This may be hard to do. The judge might decide that if he left the country, he might choose to stay in Libya rather than come back next year for another round in court. If al-Megrahi is exonerated, many tricky questions will resurface, not least what to do about the $2.7 billion compensation paid by Libya to the relatives of the victims of the bombing. And then, of course, there is the question of who really bombed Flight 103.
In the first three years following the bombing, before a shred of evidence had been produced to incriminate Libya, the Dumfries and Galloway police, the FBI and several other intelligence services around the world all shared the belief that the Lockerbie bombers belonged to the Popular Front for the Liberation of Palestine General Command (PFLP-GC), a Palestinian rejectionist organisation backed by Iran. The PFLP-GC is headed by Ahmed Jibril, a former Syrian army captain; its headquarters are in Damascus and it is closely allied with the Syrian president and other senior Syrian officials.

In the 1970s and 1980s the PFLP-GC carried out a number of raids against Israel, including a novel hang-glider assault launched from inside Lebanon. Lawyers, intelligence services and diplomats around the world continue to suspect that Jibril – who has even boasted that he is responsible – was behind Lockerbie.
The case against Jibril and his gang is well established. It runs like this: in July 1988, five months before the Lockerbie bombing, a US naval commander aboard USS Vincennes in the Persian Gulf shot down an Iranian airbus, apparently mistaking it for an attacker. On board Iran Air Flight 655 were 270 pilgrims en route to Mecca. Ayatollah Khomeini vowed the skies would ‘rai
n blood’ in revenge and offered a $10 million reward to anyone who ‘obtained justice’ for Iran. The suggestion is that the PFLP-GC was commissioned to undertake a retaliatory bombing.
We know at least that two months before Lockerbie, a PFLP-GC cell was active in the Frankfurt and Neuss areas of West Germany. On 26 October 1998, German police arrested 17 terrorist suspects who, surveillance showed, had cased Frankfurt airport and browsed Pan Am flight timetables. Four Semtex-based explosive devices were confiscated; a fifth is known to have gone missing. They were concealed inside Toshiba radios very similar to the one found at Lockerbie a few weeks later. One of the gang, a Palestinian known as Abu Talb, was later found to have a calendar in his flat in Sweden with the date of 21 December circled. New evidence, now in the hands of al-Megrahi’s defence, proves for the first time that Abu Talb was in Malta when the Lockerbie bombing took place. The Maltese man whose testimony convicted al-Megrahi has also ide
ntified Abu Talb. During al-Megrahi’s trial Abu Talb had a strange role. As part of a defence available in Scottish law, known as ‘incrimination’, Abu Talb was named as someone who – rather than the accused – might have carried out the bombing. At the time he was serving a life sentence in Sweden for the bombing of a synagogue, but he was summoned to Camp Zeist to give evidence. He ended up testifying as a prosecution witness, denying that he had anything to do with Lockerbie. In exchange for his testimony, he received lifelong immunity from prosecution.

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