12/13 August 2009

Megrahi Files to Drop his Appeal
12 August 2010
last edits 13 August

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On this day one year ago, al-Megrahi and his legal team filed to drop the hard-won second appeal of conviction. The convicted terrorist had been pursuing this as swiftly as the court would allow (which was slowly) since mid-2007. Its scope had been expanded beyond the initial six grounds of possible miscarriage of justice, and was thus ripe with potential.

But Megrahi had just learned, on 3 August, that he was likely to die well before the appeal's end - in fact maybe before the second of three phases even began in November. But whatever his own life span, surrendering this fight was anathema to al-Megrahi's known wishes. Compassionate release, which was now all-but ensured (or so it seems in retrospect), would allow the appeal to live on under a successor to clear his family's name. And here he was surrendering it for no clear reason, unless...

Scottish law magazine / website The Firm stepped in during this process on 12 August with an editorial publicly asking Kenny MacAskill's Justice Department the following:

“Before this decision is made, reassurance must be provided to the Scottish people and the world 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."" [source]

But a meeting of 12 August between Libyan delegates and "the Minister" offered a clue, according to “sources within the Scottish Government Justice Department” that spoke with The Firm. 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 source said in a follow-up article of 13 August (see above link).

For that they also spoke with Dr. Hans Köchler, one of the UN's international observers at the Zeist trial. He said “certain quarters confronted [Megrahi] with the alternative of either giving up his appeal in order to be sent back to Libya" under the PTA's terms, "or die in a Scottish jail.” Köchler 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, and confusing, arrangement.

The overall tone of the 13 August article suggests the PTA's provisions would have to be met before the compassion appeal would be considered on its own merits; the final decision would be medically based, but only after a clearly non-medical decision was made. This would probably be illegal, and was of course denied by the Justice Department. But something clearly happened here, and one year ago today Megrahi applied to surrender his appeal. That is just a mysterious move that still cries out for an explanation.

The appeal was not yet dead, and neither was it alone in blocking the exit via PTA. He had only applied, or requested, to have appeal nullified. Officials would have to review and grant this request for permanent legal guilt before it would be effective. It's not certain whether Megrahi any longer had the power to cancel the application once filed, but the fact is he never did. And even after  this decision, an additional legal proceeding - the Scottish Crown's appeal of sentence, seeking to lengthen Megrahi's stay - remained in force. 12 August and after was, therefore, a period of great vulnerability for for the dying Libyan.

And finally, the same day, 12 August, U.S. ambassador LeBaron handed over the letter relating his government's position on the release issue (see 9 August). They urged no release if possible, but if he left jail, it should be no more than three months and nowhere but Scotland. This missive arrived on the same day as Megrahi's filing, but offered no guidance about Washington's view on either appeal. If pressed, they'd probably have advised the following:
- accept the application to surrender the appeal of conviction
- deny the request for compassionate release
- deny the prisoner transfer arrangement
- hear out the appeal of sentence, and let the guilty bastard die wherever in that process he does.

We Americans, after all, are always about the justice. And it comes down hard.