Adam Larson (Caustic Logic)
April 20 2010
last edit May 18 1 am
*Note: There are some aspects of this issue I'm not 100% clear on, like the continuity of PTA deals. Some of this is hashed out in the comments section below.
See also Professor Black's response at The Lockerbie Case and comments there.
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There was much talk last year about a suspected deal over the release by Scottish authorities of convicted but innocent “Lockerbie bomber” Abdelbaset al Megrahi. The vast majority of the discussion skips over the subject of this article and obsesses over images of Brits caving to a Libyan trade of oil access for its terrorist back. It’s rather a crude construct, and technically untrue, but oil was a factor in earlier negotiations headed by the UK government back to 2007 - a prisoner transfer agreement (PTA) scheme pursued following Libya’s rapprochement with the West. [1] As talks with London dragged on towards 2009, it became clear that neither a newly-Nationalist Scotland nor the United States would agree to a PTA, and that option eventually faded away, as Professor Robert Black put it, “to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.” [2]
Scottish Justice Secretary Kenny MacAskill eventually made the decision for release on other grounds entirely, following Megrahi’s diagnosis in July 2008 with advanced prostate cancer. A controversial (and somewhat mysterious) July 2009 prognosis gave the prisoner perhaps three months to live, the key point at which release is mandated. There was no need for oil interests, or any other trades – the only requirement for compassionate release is that the applicant contracts a terminal, incurable disease and be expected to die quite soon.
There is an application process, where the Justice Secretary decides to approve or deny the request, but so long as the prognosis is good, such appeals had always been approved. There was American pressure to make an exception and deny the request, but to judge by MacAskill's later statements, he would have made the decision to release no matter what, as it was the right thing to do. Importantly, when a prisoner is released on compassion grounds, appeals can be left open for a successor to clear one’s name posthumously.
The Cost of Compassion?
Yet just as the prognosis and decision to release were made official and announced, Megrahi also, suddenly, dropped his appeal. Following the prognosis and Megrahi's appeal for the compassion out in late July 2009, Justice Secretary MacAskill made an unprecedented visit to the prisoner’s cell for an unknown discussion [5] (alternately reported as August 4, 5, or 6). This was followed a week later by Megrahi’s mysterious request to surrender the fight on August 12. That same day, the BBC broke the story of his imminent release [6], and indeed the High Court of Justiciary accepted Megrahi’s plea on the 18th and graciously closed the appeal, dooming him to permanent legal guilt. [7] Megrahi was released and flew away two days later, or eight months ago today, in what officially is a separate development.
While it’s been denied strenuously by the Scots, many sources at the time, seeing this rapid chain of events, simply stated things like “Libyan Lockerbie bomber Al-Megrahi drops appeal, paves the way for compassionate release.” [8] And Megrahi’s own words seem to show that he himself felt, deeply and tragically, that the two were linked. In an open letter to the people and system of Scotland of August 20, the day of his release, he again proclaimed his innocence and said in part:
"Many people, including the relatives of those who died in, and over, Lockerbie, are, I know, upset that my appeal has come to an end; that nothing more can be done about the circumstances surrounding the Lockerbie bombing.Clearly, he’d somehow gotten the idea that abandoning the appeal was connected to returning home. It was an “appalling choice” he was somehow “faced with,” and took the home route. Nine days later Herald Scotland confirmed that Megrahi had “dropped his appeal against the conviction because he would not live to see its outcome and was desperate to return to his family.” "It is all about my family," they quoted him saying. "People have said there was pressure from the Libyan authorities or Scottish authorities, but it wasn't anything like this." [10] Perhaps there really was no squeeze, but something went quite wrong here, and others can see it too:
I share their frustration. I had most to gain and nothing to lose about the whole truth coming out - until my diagnosis of cancer.
[…]
I have been faced with an appalling choice: to risk dying in prison in the hope that my name is cleared posthumously or to return home still carrying the weight of the guilty verdict, which will never now be lifted.
The choice which I made is a matter of sorrow, disappointment and anger, which I fear I will never overcome."[9]
"I saw Megrahi not so long ago and apart from his number one priority of seeing his family he was absolutely determined to clear his family’s name and prove his innocence […] If he had found a way to do both I know he would have chosen that route. That’s why I’m highly surprised by his decision to drop the appeal and why I believe he has been leaned on.” - Member of Scottish Parliament Christine Grahame, August 14 [11]
“I cannot know what exactly happened but I believe that the UK and Scottish government wanted the appeal to be dropped and somehow it was dropped […] I think there may have been some kind of deal. One part of the deal was to have the appeal dropped and the other part was the release on compassionate grounds.” - Former UK ambassador to Libya, Oliver Miles [12]
Confusing Compassion
For the curious decision to finally surrender the fight for his name, the reason Megrahi gives is to be at home one last time. And that simply does not compute with the normal rules of Compassionate Release. It would be a very confused man who’d do that, and one can only wonder how he got that befuddled. Scottish law magazine/website The Firm stepped in during this process on August 12 to address a scandal reported to them by “sources within the Scottish Government Justice Department.” In a meeting the day before, the Libyan attendees were told “if Megrahi is to be granted compassionate release he must first drop his appeal […] This was the rammed home to the Libyans at their meeting with the Minister yesterday,” the Firm’s source said. [13]
The site publicly asked the Scottish government for “reassurance … that Megrahi’s return home is not being made conditional upon his dropping his appeal. Justice must be done, though the heavens may fall. That time, surely, is now.” The following day, a governmant spokesman responded “In answer to the simple question posed by The Firm, the answer is “No."" [14]
Megrahi was reportedly set to drop his appeal anyway, and the UN's knoweldgeable observer at the Zeist trial, Dr. Hans Köchler, implied deliberate confusion of the prisoner. Köchler told the Firm that “certain quarters confronted [Megrahi] with the alternative of either giving up his appeal in order to be sent back to Libya on the basis of a recently ratified “prisoner exchange agreement” between the UK and Libya – or die in a Scottish jail.” He further urged MacAskill to “act without further delay” to simply grant compassionate release and so “allow the appeal to continue and avoid the circumstances of “emotional blackmail"" inherent in the existing arrangement. [15]
The answer MacAskill et al. had given was “no,” they were not placing such a deal before Megrahi, yet even with this assurance presumably communicated to the applicant, he continued to link the two in his words and his "personal decision" we're to believe arose only from the terrorist's own mysterious whims. Perhaps the dying man decided to just cash in all his chips in a desperate flailing bid to secure his release in as many ways as possible, but that contradicts the shrewdness he's shown before and after. I simply cannot buy it. (I could entertain moves that account for that shrewdness, but needn't go into them here.)
A Bad Turn and a New Beginning
Quashing the appeal wasn’t in the interests of the “convicted Lockerbie bomber,” nor in the interests of the families of the victims he’s convicted of killing. At least some of those acknowledge the loss; Pamela Dix, whose brother died in the bombing and who now heads the UK survivors’ group, said:
"My immediate feeling is of great disappointment if the appeal does not go ahead. Further useful information may or may not have appeared through Megrahi's appeal process. At the moment there is no other process or procedure ongoing to tell us how the bombing was carried out, why it was done, the motivation for it and who ordered it. As the British Government are aware, we will continue pressing for the independent inquiry that has been denied to us to date primarily because of the ongoing criminal case.” [16]No convincing official explanation for Megrahi’s motive has ever been offered. While it has little traction with anyone knowledgeable. there is a theory that Megrahi knew he was guilty and was simply ending the charade. This was stated explicitly by the Telegraph's foreign affairs editor Con Coughlin - after calling August 20 "a black day" for Scotland and before suggesting US sanctions on the sitting government at Holyrood, Coughlin used the dropped appeal as proof of guilt:
"[Megrahi] remains the only person to have been convicted of the worst terrorist atrocity committed on British soil [...] he planted the bomb that killed 270 people [...] we have no reason to believe it was anyone other than Megrahi who placed the fatal device because he dropped his appeal against conviction shortly before Mr McAskill made his shameful decision." [17]Likewise, no legal justification was ever given for tacking PTA requirements onto a compassionate release, but it worked out exactly as if that’s what happened. Mr. Megrahi talks as if he’d been forced into such a deal, and many others report such arrangements actually being forced.
I’d guess that while deciding to surrender, Mr. Al Megrahi also – shrewdly - plotted to release his case to the world and appeal to the court of public opinion after his return. Of course he did so, and controversially, and the retrial is by default in session. Legal courts have more direct power, of course, but get forced into blind alleys by being unable to question planted evidence and the like. In the court now running, scattered and confused as it is, all avenues are open, and the truth is finally coming out in force.
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Sources:
[1] United Press International. "Straw: Oil a factor in Libya prisoner pact." September 6 2009. http://www.upi.com/Top_News/2009/09/06/Straw-Oil-a-factor-in-Libya-prisoner-pact/UPI-19581252216109/
[2] Black, Robert. Commentary attached to post "Straw Denies Megrahi Release was Connected to Trade Deals" The Lockerbie Case (blog). 30 August 2009. http://lockerbiecase.blogspot.com/2009/08/straw-denies-megrahi-release-was.html
[3] Scottish Parliament. Justice Committee Report SP Paper 383 J/S3/10/R3 3rd Report, 2010 (Session 3) "The decision on Abdelbaset al-Megrahi." 5 February 2010. para 36. http://scotparliament.com/s3/committees/justice/reports-10/jur10-03.htm
[4] See [3]. paragraph 42.
[5] Abdelbaset Ali Mohmed al-Megrahi (Decision). Scottish Parliament debates, 2 September 2009, 9:34 am http://www.theyworkforyou.com/sp/?id=2009-09-02.19021.0
[6, 12] MacLeaod, Angus. "I suspect deal over al-Megrahi appeal, says former ambassador" The Times. August 31 2009. http://www.timesonline.co.uk/tol/news/uk/scotland/article6816334.ece
[7] "Lockerbie bomber allowed to drop appeal." Canadian Broadcasting corporation. August 18 2009. http://www.cbc.ca/world/story/2009/08/18/lockerbie-megrahi-bomber-appeal-scotland712.html
[8] "Libyan Lockerbie bomber Al-Megrahi drops appeal, paves the way for compassionate release." Associated Press. August 18 2009. http://www.nydailynews.com/news/national/2009/08/18/2009-08-18_libyan_.html#ixzz0lWbmXuJM
[9] BBC News "In Full: Statement From Megrahi." August 20 2009. http://news.bbc.co.uk/2/hi/uk_news/scotland/8212910.stm
[10] "Lockerbie : Al Megrahi says public inquiry must take place into bombing of Pan Am Flight 103." Scottish Law Reporter (blog). August 29 2009. http://scottishlaw.blogspot.com/2009_08_01_archive.html
[11] Taylor, Jerome. "Al-Megrahi 'pressured into abandoning appeal'" Independent. August 14 2009. http://www.independent.co.uk/news/uk/home-news/almegrahi-pressured-into-abandoning-appeal-1772156.html
[13, 14, 15] "Path cleared for Megrahi’s compassionate release as government confirms “No” to pressure claims." The Firm. August 13 2009. http://www.firmmagazine.com/news/1636/Path_cleared_for_Megrahi’s_compassionate_release_as_government_confirms_“No”_to_pressure_claims.html
[16] "New cover-up claims as Lockerbie bomber drops his appeal." Daily Mail. August 15 2009.
http://www.dailymail.co.uk/news/article-1206716/New-cover-claims-Lockerbie-bomber-drops-appeal.html#ixzz0lRBi8Uc3
[17] Coughlin, Con. "The release of the Lockerbie bomber is a black day for the Scottish government." 20 August 2009. http://blogs.telegraph.co.uk/news/concoughlin/100007064/the-release-of-the-lockerbie-bomber-is-a-black-day-for-the-scottish-government/
5 comments:
once an appeal is dropped by the applicant, it cannot legally be revived by anyone.
In fact, this rather bald statement might be incorrect. Please see what Lockerbie relative, Matt Berkley, has to say here about reviving the appeal:
I am one of the Pan Am 103 relatives. A possibility has occurred to me on the al-Megrahi case. In law, the Scottish Criminal Cases Review Commission has wide powers. I see nothing in the legislation barring the SCCRC from referring a case to the High Court for a second time. It could be that with or without any significant work, they might decide, after considering the circumstances in which the appeal was abandoned and the nature of their previous grounds for referral, that the case currently meets their criteria. The criteria are that:
a) there is the possibility of a miscarriage of justice, and
b) it would be in the interests of justice for the Court to hear the case.
If the Commission does not refer the case in the short term, it could do so at a later date. The Commission may refer a case after the death of the convict. It may refer whether or not an application has been made by or on behalf of the convict. No prisoner before Mr al-Megrahi has abandoned an appeal after referral by the Commission. That fact may be related to this:
Most people who appeal against their conviction via the Commission, as he did, are found by the Court to have suffered a miscarriage of justice.
Matt Berkley goes on to provide extracts from legislation to support his contention.
I may be being naive, but I think that there was no behind-the-scenes deal. After his cancer diagnosis (and the decision by the Scottish Prison Medical Service that there was no treatment that could extend his life expectancy) Megrahi was desperate to go home. He knew that Prisoner Transfer required abandonment of his appeal, whereas Compassionate Release did not. But he did not know which of the two routes (if any) the Justice Secretary would go down (and Mr MacAskill had intimated that he would give no advance nods or winks). So, in order to keep the Prisoner Transfer option open, Megrahi had to abandon the appeal.
It transpired that this was not the option ultimately favoured by Mr MacAskill. But Megrahi had no way of knowing this before the decision was actually announced and, understandably, chose to hedge his bets.
Patrick Haseldine and Professor Black even... Mr. H. first. I'd seen that missive by Mr. Berkley but it didn't sink in before. The url is:
http://www.mattberkley.com/secondreferral.htm
That's a great thought, and it also faintly occurred to me as I was writing - this could only be the death of Megrahi's second appeal. Only if that were the final one would it all be over. From the little I know, the SCCRC might just be able to order a third try, SHOULD be able to, and beyond that there's a possibility of a whole new law allowing it.
But, within what seems reasonable to expect, rather than hope for, it seems pretty well over. I'm no expert of course, but that's about the tone of everyone quoted above.
Robert Black said...
I may be being naive, but I think that there was no behind-the-scenes deal. After his cancer diagnosis (and the decision by the Scottish Prison Medical Service that there was no treatment that could extend his life expectancy) Megrahi was desperate to go home. He knew that Prisoner Transfer required abandonment of his appeal, whereas Compassionate Release did not. But he did not know which of the two routes (if any) the Justice Secretary would go down (and Mr MacAskill had intimated that he would give no advance nods or winks). So, in order to keep the Prisoner Transfer option open, Megrahi had to abandon the appeal.
It transpired that this was not the option ultimately favoured by Mr MacAskill. But Megrahi had no way of knowing this before the decision was actually announced and, understandably, chose to hedge his bets.
Perhaps "deal" is too concrete a term for what happened, but Megrahi cited an "appaling choice," perhaps of his own construction... I think if he was just confused about whether the PTA or compassion would be the route, that in itself is a huge problem. The rest of us have been given the impression that it was only compassion and Megrahi needn't drop a thing.
"Mr MacAskill had intimated that he would give no advance nods or winks"
I hope that doesn't mean that he refused to clarify to Megrahi (the public reason) why he was being released. The diagnosis should have guaranteed that MacAskill had do that, as he's always said, and he should not reserve the right to release Mr. Megrahi in some other way instead.
If Mr. MacAskill was doing so, keeping both options at hand and letting Megrahi stay confused to the end, doesn't that look like a fraudulent scam to trick the appeal into oblivion?
In short, there should have been no bet for Megrahi to hedge, I should think.
I decided Professor Black and I don't really disagree (or if we do, I yield to him). An explicit trade-off or full linking/meshing of the two release routes isn't necessary to illustrate scandal here. And in fact, it was more those I quoted than me speaking of a deal. I'm like Miles - I can't say what happened, but it's fishy.
Here's a different tack:
If the 'powers that be' had felt no threat from the appeal and considered it as neutral, they'd have been wise to be clear with Megrahi and allow it to remain open, at least to avoid the appearance of trying to kill it.
Instead, they allow some indecision and bad communication (??) to kill the appeal, and then blame it all on Megrahi who chose to drop it for who knows why. It sure wasn't required, they say...
Whatever the disagreement here, the Prof trumps me on both normal and abnormal legal procedures , and I'm better at the paranoid insights that lead me to suggest some possible abnormal procedures. Sometimes they pan out, other times not...
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