Wednesday, 21 July 2010

Was it wrong to release Megrahi?

The pursuit, trial, conviction and release on compassionate grounds of the alleged Lockerbie bomber Abdelbasset al Megrahi is a murky business. David Cameron yesterday described his release a year ago - as, indeed, he did at the time - as a "bad decision" and "heart breaking". Given that, to Hillary Clinton's manifest annoyance, despite being given less than three months to live Megrahi remains stubbornly alive, it is hard to dissent from that view. Not, though, because the murderer of 270 innocent people got to die a free man. Many people who have looked at the evidence doubt that Megrahi had anything to do with the bombing of Pan Am Flight 103. Rather, Megrahi's release forced the abandonment of an appeal process that might well have led to his freedom, not on compassionate grounds, but because the conviction was fundamentally unsound. The main hearing was due to take place last November. It would probably be over by now.

It isn't generally realised just how weak and circumstantial was the case against Megrahi. He was only identified as a prime suspect after being fingered by one Majid Giaka, a CIA source whose evidence during the trial was described by the judges as "at best grossly exaggerated, at worst simply untrue" and "motivated by financial considerations." In other words, at the time he pointed out Megrahi and his co-accused Khalifah Fimah as the men responsible, he was wholly dependent for his livelihood on providing his CIA handlers with the sort of information they wanted to hear.

When the case against Fimah collapsed (for there was no evidence against him beyond Giaka's say-so), the evidence against Megrahi was left hanging by the flimsiest of threads. In effect, he was convicted for purchasing, at a shop in Malta, articles of clothing that found their way into a suitcase which probably contained the bomb (although even that is open to some doubt). He was identified as the purchaser, two years after the event, by a shopkeeper who had previously identified other, earlier suspects, and who had in his original statements described a man approximately twenty years older than Megrahi was at the time of the bombing.

Moreover, it now seems almost certain that Megrahi could not have been the purchaser. After exhaustive enquiries (its unpublished findings run to 800 pages) the Scottish Criminal Cases Review Commission rejected some of the consipiracy theories that have grown up around the case, yet still


...formed the view that there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court’s conclusion that the applicant was the purchaser....

New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in the area of Sliema in which Mary’s House is situated. In the Commission’s view, taken together with [the shopkeeper] Mr Gauci’s evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.


(The SCCRC's full statement can be read in pdf format here, while additional documentation can be downloaded from this website.)

None of these facts are being discussed, however, in the general reporting of the affair this week. Rather, the story is dominated by a synthetic row involving BP, the medical evidence and the role of Scottish ministers, almost the only people in political authority who played it straight. Just as the surrender and conviction of an acknowledged Libyan agent - either a scapegoat or a fall-guy - helped smooth Colonel Gaddafi's path to international respectability, so Megrahi's terminal cancer was most convenient for everyone concerned - apart from Megrahi himself, who besides being genuinely ill (if still breathing) was robbed of his only real chance of clearing his name. Similarly, the families of Lockerbie victims get to see the supposed murderer of their loved ones accorded a hero's reception in his native Libya - a further cruelty to add to their existing suffering, and one that could be assuaged by politicians on both sides of the Atlantic being open about the likelihood of a miscarriage of justice.

And so Abdelbasset al Megrahi will go to his death as "the Lockerbie bomber" - "the worst murderer in our history" was how Cameron put it - even though even the court only convicted him as an accessory to the bombing, leaving the identity of the real bomber legally (as well as factually) an open question - something else that has been entirely overlooked in the coverage of the case.

I largely agree with this assessment by The Firm's Steven Raeburn:

No one in Edinburgh, Washington, London or Libya wants to talk about the embarrassment to Scots law and affront to international justice that was the Lockerbie trial. No one wants to talk about the fabricated material that was introduced as evidence, or the flaws in the Crown case or the bribery of key witnesses. No one wants to talk about the daily briefings imposed upon the bereaved families to try and persuade them all was well when the show trial had collapsed under the weight of its own inadequacy. Or how the UK relatives wouldn’t listen to them any more. No one wants to talk about the touted defence case that was quietly and almost totally dropped without comment on the imbalance. No one wants to talk about the witnesses whose testimony wasn’t heard, and those witnesses who were heard, but whose testimony was a tissue of lies and inconsistency paid for by US intelligence. No one wants to talk about the prevarications of the Scottish Criminal Cases Review Commission, whose report into the Megrahi conviction -at least, those parts of it released- went to great lengths to dismiss the work of investigative journalists over the 19 preceding years, before reluctantly, grudgingly, yet narrowly choking on its acceptance that a miscarriage of justice had in all probability taken place. No one wants to talk about the closed courts, the security vetted, court appointed defenders, the intelligence documentation that is protected by PII, the pressure applied to ensure Megrahi dropped his appeal, the refusal to hold a public inquiry despite the obvious need, the destroyed police notebooks, the inconsistent testimony, the limitations and narrowness of the appeal process, the clear and evident lack of guilt of the man convicted of doing something even the court agreed could not be established with any logic that fit the evidence, far less proven.

No. Instead, our Prime Minister, our First Minister, our Foreign Secretary, a gaggle of US Senators and their Foreign Secretary want to talk about why a bomber was released. The circumstances of how a bomber was released. Who made the decision to release a bomber. Whether BP had anything to do with a bomber’s release. Why a bomber hasn’t died yet. Whether a bomber should be returned to a Scottish jail. Bomber, bomber, bomber. Are you getting it?


(The whole thing is well worth reading.)

Nevertheless, the anger in the USA at Megrahi's release may have one positive benefit. The timely unpopularity of BP in the United States has thrown into relief the larger background to the apparently simple decision of the Scottish government to exercise the prerogative of mercy on behalf of a terminal cancer patient. In particular, questions have been raised about the oil company's lobbying of the British government to secure the 2007 prisoner transfer agreement with the Libyans and so promote their own business interests. It so happens that, for whatever reasons of grand strategy or personal self-image, the British prime minister at the time, one Tony Blair, was extremely keen on forging a good personal relationship with Colonel Gaddafi - the very man who, if as is officially the case Megrahi was involved in the bombing of Flight 103, presumably gave him his orders.

As the Mail reported on Saturday, Blair has recently been back in the scene of his past triumph, being "entertained as a brother" by the Libyan leader. Last month "they discussed a wide range of international and domestic issues, including lucrative investment opportunities" - despite a recent denial by Blair's spokesman that any such relationship existed. Now this may all be quintessential Blair behaviour - few people who know his track-record will have been very surprised by the revelations - but the Mail report predicted that the news "will anger those who lost family members in the Lockerbie bombing." It quotes the mother of one Flight 103 victim, who describes Blair's action as "incredibly hurtful and immoral", and another, who announced that she "detested" Blair and had "total contempt for the man."

Whether or not Blair's visit is in any way connected with BP - according to the report the Libyan government is "poised to invest millions of pounds" in the company - he does now run the risk of being linked in the minds of the American public both with a terrorist mastermind and with the corporation responsible for the largest oil spill in history. Will this ruin his image in the States, where he has up till now been widely popular, and thus threaten his enormous earning capacity over there? I do hope so.