19 August 2009

MacAskill’s Two-Track Railroad: part 9/10
Repentance and Decision
19 August 2010

small edits 2 Sept.

Note: The posts in this series are not conclusive, but rather what I was able to learn before the anniversary arrived, sporadically updated later. Any suggestions from knowledgeable readers to improve the content will be gladly appreciated.

<< Previous: 18 August
Next: 20 August >>

Both Tracks Come to an End
After months of confusing pursuit of two separate repatriation routes for the “Lockerbie bomber,” one year ago today, Scotland’s Justice Secretary Kenny MacAskill made his final decision on al Megrahi’s fate. It was a private process for the minister, though he did alert family members that he'd decided on something, and would tell them - along with the world - what it was the following day. [BBC, 19 August]

Again, the twin options, which MacAskill had opted to consider and decide on at the same time, were a prisoner transfer (PTA) worked out between the UK and Libya, and release on compassion grounds due to advanced prostate cancer. His judgment, as announced the following day (see 20 August), was to reject the former and grant the latter.

The only reason he would give for denying the PTA option was the ”understanding,” held by the U.S. government and American family members, that al Megrahi would serve his sentence in Scotland. On the latter, effectively ending the sentence and sending him back to Libya on medical grounds, he cited the 10 August report of Dr. Andrew Fraser that included an arrant three-month prognosis anchoring the low end of the life expectancy range.

One can only wonder just why the decision could only happen on the 19th and not before. The American families’ understanding was communicated clearly to him back on July 9 (see representations PDF), and the US government’s similar view, calling on this understanding, came a month later, on file now for a week.

Further, the appeal situation was still unsatisfactory, as Mr. Burgess’ advice had pointed out. The Crown’s appeal for longer sentence still stood, even as Megrahi’s was closing down. This had been the main legal reason given to reject the PTA, but MacAskill neglected to mention it on the 20th as a factor in his thinking.

The 18 August ruling that the appeal of conviction was no more might just explain why MacAskill finally decided the following day. The strange fact is that only once this key term of the PTA was fulfilled was it finally ruled out. And this segues perfectly with the notion that the PTA’s continued pursuit served but one purpose for Scottish Justice – to kill the appeal. If so, it was appropriately tossed aside once its job was complete.

Signaling Repentance
From the little we can know, the crudest construct, a direct and spoken trade of appeal for release, seems to be unfounded. The secret meeting where this was thought to be laid out did mention dropping the appeal. But this was recorded as only for the improbable PTA, not as a condition on medical release (see 5 August). But things line up so one might still expect some more subtle or circuitous set-up. For an unusual insight, consider the following:

The 6 August release of famous criminal Ronnie Biggs on compassion grounds has been suggested as a possible signal regarding Megrahi. To start with, this release date was set well ahead of time, back in early 2009, and one could well question the reliability of any such signal; Labor’s government at Westminster could not usually count on the devolved Scottish one at Hollyrood to follow its cues. But there is much we cannot clearly see, and the possibility can’t be ruled out. Let us consider it as a hypothetical.

The obvious overall message that some have seen is approval of compassionate release for high-profile criminals, like the ailing Megrahi. And keeping the shackles on Biggs - a debilitated and fading folk-hero who was never supposed to die in jail - while a “mass-murdering terrorist” walked would be, well, a bit awkward. The Englishman’s release thus made it (somewhat) more plausible to do the same with the Libyan two weeks later.

In addition to smoothing the way, there might be additional information “encoded” in this possible signal. Biggs had a period where he seemed to qualify for compassionate release, even if he wasn’t quite at death’s door. After a series of strokes in January 2009, he had his walk date scheduled for 6 August –two days prior to his 80th birthday. Yet U.K. Justice Secretary Jack Straw, given a chance to let him out just a month early as the parole board was recommending, refused on 1 July, as the prisoner had evaded justice for decades and still remained “wholly unrepentant.”

This was a startling and unusual move in itself; many could see a cheap ”tough on crime” stance and chasing headlines. But the headlines were mostly negative and he was seen as just mean. Was this a badly planned PR maneuver? Or did he have another motive altogether?

A month later his scheduled release date called and Biggs was wheeled out to hospital, perhaps having established his contrition, perhaps not. Straw only cited that he was quite sick, specifying pneumonia. Biggs’ son called his father a “political prisoner” during this last month, and the phrase could be more apt than he realized. Whether intended or not, the notion was inserted, and starkly, that a lack of remorse or of respect for the judgment imposed was suitable grounds for rejecting compassionate release.

Mr. Al-Megrahi too was unrepentant in his way, in fact as  of 6 August brazenly insisting his innocence and trying to establish that as legal truth with his second appeal. It’s not much further from there to wonder if Mr. MacAskill managed to construe it this way, equating the appeal with Biggs' globe-trotting defiance. He might call on Straw’s message for a temporary philosophy: Megrahi had to be broken and made subservient by surrendering that appeal, as some equivalent to showing repentance for his sins.

This is a rather nebulous thought, and it's hard to imagine MacAskill spelling it out openly. But it might have worked its way into his own internal dialogs and those considered rationalizations that politicians have to become so adept with. Or were these signals directed at Megrahi? It’s an interesting parallel to consider, at any rate, since we’re already on the lookout for some unseen but palpable link by which Megrahi’s release consumed his appeal’s rightful place in the courts.
Blether with Brian, Brian Taylor, BBC NEws Scotland Correspondent, 19 August 2009:
"It would seem that, in one respect at least, the interests of the United Kingdom government and security services have already been served by the ending of the Megrahi appeal. London does not want the disclosure of further documents relating to the case, as demanded by Megrahi's legal team.

How about the United States? Just as with London, it is conceivable that there are interests in Washington who welcome the final closure of the case, the ending of the appeal.


Remember that Scottish ministers are adamant that there has been no deal, there will be no deal. They insist that the issues of Megrahi's fate and the abandonment of his appeals against conviction and sentence are entirely separate.

Plus they argue that the Scottish Government - by contrast with others - has no interest in securing the abandonment of the appeals.

If we accept that at face value, then that means that the Scottish Government does not seek to claim any gain from the ending of the Megrahi appeal. No governmental interest is served."

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