Libya's "Admissions of Guilt"

By Caustic Logic
completed February 15 2010
last update March 23 2011

But They Admitted It!"
For those who believe in Libya's guilt for the Flight 103 bombing, among the hardest points to get around is how Libya is perceived to have admitted their guilt. When whole governments act on it as fact, and the villain government finally confesses, well that would seem to confirm one's beliefs and show they had been on the right track all along.

It's a reasonably reasonable conclusion to arrive at, but a lazy one based on reading the headlines and not the main text or the footnotes and sources. Those who would like to maintain such assurances should read and be sure they can account for the following points, referring to the 2003 official admission of "responsibility" to the United Nations, an alleged 1993 confession from Colonel Gaddafi himself, and two other lesser examples sometimes cited.

Under Prolonged Duress
Following he indictment of Libyan agents al Megrahi and Fhimah in late 1991, the UN Security Council under Anglo-American leadership moved to enforce the official truth with sanctions. Resolution 748 of 31 March 1992 imposed an arms and air embargo on Libya, supported with diplomatic restrictions, and establishment of a sanctions committee. The committee’s work then led to Resolution 883 of 11 November 1993, toughening sanctions. This measure “approved the freezing of Libyan funds and financial resources in other countries,” reports globalpolicy.org, “and banned the provision to Libya of equipment for oil refining and transportation.” [1] Eventually all air traffic to and from the nation was barred, all U.S. and French trade with Libya was forbidden, and although a total oil exports embargo was considered too hard on others, their sales shrank as the industry suffered a lack of supplies.

An award of up to $4 million was offered by the US Justice Department in 1993 for help in bringing the suspects to justice (poster at left). It seems this reward stemmed from Bruce Smith, a Pan Am pilot and husband of a 103 victim, who first assembled a prize from airline pilot groups and other sources, including his own retirement account, eventually totaling $4 million. [2] The reward was renewed in 1995, and according to the Washington Post:

"[The FBI] also placed the pair, believed to be in Libya, on its 10 Most Wanted List. Seeking to rekindle international interest in the bombing, the FBI and State Department said they will work with the U.S. Information Agency to communicate with persons in Libya who might assist in bringing the suspects to court." [3]

Col. Gaddafi in fact showed great eagerness to help in that process, seeing a trial as their way out of sanctions, just as the (publicly announced) goal was suppossed to be. But as a 2001 book by Allan Gerson and Jerry Adler summed up the real thinking in Washington, "it was desirable to leave things just as they were," with Libya seeming intransigent and thus deserving of more squueezing. Rather than try thhe perpetrators with their amazing evidence, many felt "Libya would be their prison, and the United States would do its best to keep Kaddafi in there with them." Not to mention the Libyan people who also lived under these long-running punishments. And never mind the families of Flight 103's victims, who wanted to get what they percieved as justice. But this was never an open policy - the sanctions were an unfortunate effect of Tripoli's refusal to comply with terms the book says "appear to have been chosen to make it as difficult as possible for Kaddafi to comply." [4]

In October 1995, Libyan officials cited a "tragic toll" from sanctions, a $19 billion dollar wound damaging their agricultural sector significantly, and causing as many as 21,000 preventable deaths since their inception. [4.5] Such reports might be prone to exaggeration, but others started wondering if there were any deaths what the sanctions were about when the Libyans were ready to deal. Pope John Paul II, Nelson Mandela, even Tony Blair started suggesting a little flexibility. Perhaps a trial of the suspects really would be doable outside the United States.

By late August 1998 the framework of a trial was established, and used as the measure of Resolution 1192, agreeing to suspend sanctions once the suspects were handed over to the special Scottish court in the Nehterlands at Camp Zeist. Tripoli made it happen, with help from luminaries like Prince Sultan of Saudi Arabia and Nelson Mandela of Africa and the venue ideas of Robert Black QC, of Lockerbie. Megrahi and Fhimah were finally flown on a special flight to the Netherlands in early April, and on the 6th were official arrested at Camp Zeist and set to await their trial. Sanctions on Libya were immediately suspended, under threat of re-enforcement (that never did materialize). [5]

1993: Involved and Framed?
During this time of intense pressure to get the Libyans to publicly admit their guilt or at least help a court to “prove” it, a remarkable admission was reportedly taken in 1993, taken down by a prominent American journalist with suspected CIA links, Arnaud de Borchgrave. But it was not mentioned in public for over a decade, it would seem. In an article for NewsMax, from January 2004, de Borchgrave first revealed “Gadhafi’s Secret Message”:

"On July 6, after a lengthy interview, he went off the record and asked me to deliver a message to the director of Central Intelligence in Washington. He admitted Libya's guilt for the downing of Pan Am 103, but made clear that it was originally an Iranian retaliatory terrorist attack for the downing by the U.S. Navy of a peaceful Iran Air Airbus
[...]
“So the Iranians subcontracted part of the job to a Syrian intelligence service, which, in turn, asked the Libyan Mukhabarat to handle part of the assignment," Col. Gadhafi explained.“ [6]

Mr. De Borchgrave says he did report this behind the scenes to the CIA immediately on returning home from the interview. Vincent Cannistraro, who had headed the CIA's Lockerbie probe in its earliest (shiftiest) phase, continued throughout the 1990s as a voice for Libyan guilt. He has alluded to Libya taking the Iran contract from the Syrians, following the Autumn Leaves operation, but did not give de Borchgrave as a source nor give col. Gaddafi any credit. [7]

Again on Megrahi’s release, in late August 2009, de Borchgrave wrote about the interview, explaining how he asked Gaddafi “to explain, off the record, his precise involvement in the bombing of Pan Am Flight 103.” The Colonel “dismissed all the aides in his tent” and went candid, “in halting English without benefit of an interpreter.” Mostly he decried terrorism and offered to assist the West fight bin Laden-type terror networks. Again, he explained the bombing as payback for the shoot-down of Iran Air 655, an act the Arab world could not accept as an accident:

"[R]etaliation, he said, was clearly called for. Iranian intelligence subcontracted retaliation to one of the Syrian intelligence services (there are 14 of them), which, in turn, subcontracted part of the retaliatory action to Libyan intelligence (at that time run by Abdullah Senoussi, Gaddafi's brother-in-law). "Did we know specifically what we were asked to do?" said Gaddafi. "We knew it would be comparable retaliation for the Iranian Airbus, but we were not told what the specific objective was," Gaddafi added." [8]

So why, when Libya is usually reported as "always insisting on their innocence," did de Borchgrave’s story and its propaganda power sit in the dark for the crucial years of pressure? Is it the prominent Iranian and Syrian elements? Were the Americans holding out for a Libya-only storyline? That is roughly how it turned out. Interestingly, the colonel reportedly used this “admission” to reiterate Libya did not lead the operation.

“If we had initiated the plot, we would have made sure the accusing finger was pointed in the other direction and we would have picked Cyprus, not Malta, where some of the organization was done. The others picked Malta presumably to frame us.""

This isn't really a big help when your official storyline is that two Libyan JSO operatives, commanded by their JSO higher-ups, had specifically targetted PA103 via Malta airport, picked because Malta was their own "back door to the West." The JSO got the timers and the radio and the semtex, made the bomb, did up their own feasibility studies we were told, and had their two real movers buy the clothes, secure the suitcase, steal the luggage "taggs" to write that death sentence on, and personally shove it off from Malta on D-day. There is no "framed by the Syrians" in that scenario.

And all this when the real evidence Gaddafi may or may not have known about highly suggests the bomb went on PA103 way up in London, with nothing physically to do with Malta at all. Is this just another Libyan non-admission admission? Or worse - an attempt to hijack the West's fantasy narrative and steer it back away from himself?

99/01: Two Other Admission-ish things
Allan Gerson and Jerry Adler’s 2001 book The Price of Terror failed to mention this account of de Borchgrave while citing the available hints that Gaddafi “might have been suffering from a guilty conscience.” In a private 1999 interview with another journalist, Milton Viorst, Gaddafi “edged towards a kind of confession,” the book notes. As Viorst reported it, the leader said"

“Whether we were responsible for bringing down the French plane [UTA 772] will be decided by a French court. We don’t say anything about it. The same is true of Lockerbie. I can’t answer as to wether Libya was responsible. Let’s let the court decide.” 
[9]

That's not a full denial, but nowhere near an admission. But it was ambiguous enough that an aide later told Viorst Gaddafi “was not talking officially” and referred him to the Foreign Minister for the government's official story (few realize that Gaddafi is not really the government of Libya). Not being published in the book, we can presume this was the same claim of innocence Libya has always maintained.

In spring 2001, the book continues, Gaddafi reportedly slipped again, and confessed to diplomat Michael Steiner that Libya had been behind the Lockerbie bombing as well as the LaBelle disco bombing in Germany, but had since stopped terrorism and wanted to make up. The source for this was a cable of a top-level meeting with German and American leaders, including President Bush and Chancellor Schroder. A New York Times article from May 23 cites the leaked cable thus:

"Steiner reported on his talks with Qaddafi in Libya. Qaddafi admitted that Libya took part in terrorist actions (La Belle, Lockerbie). He clarified that he had abandoned terrorism and seeks the opportunity to make Libya's new position known. Qaddafi, too, is worried about fundamentalist trends."

Americans were upset this was leaked to the public, and it caused quite a row between Steiner, a flamboyant attention-seeker, and others in the German government, but they confirmed “that "La Belle" and "Lockerbie" were specifically mentioned by Mr. Steiner in this context.” Whatever exactly that proves. [10]

Owning Up in '03?
Many suspect the Zeist trial was never supposed to happen, as the evidence behind the indictment was too weak to stand up at Trial. The Crown's prosecutors managed to swing it somehow, but it took nearly two years from the handover, and a display of mental gymnastics worthy of the Realpolitik Olympics in the scale and skill of it. On January 31 2001, the three-judge panel made it official – Megrahi was legally guilty for the plot, and Fhimah was not guilty.

From there, many insisted sanctions should be lifted to reflect Libya’s good faith through this process. But Bush and Blair balked, demanding an admission of guilt and contrition, plus compensation to victims’ families, before they went past suspension. It was a letter, dated 15 August 2003, from Libya’s Permanent Representative to the President of the Council Ahmed A. Own, that paved the way. Own's letter explains “the Libyan Arab Jamahiriya,” as Libya calls itself, “has sought to cooperate in good faith throughout the past years” on solving the problems made theirs “resulting from the Lockerbie incident.” It was in this spirit that they “facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103 and accepts responsibility for the actions of its officials.” [11] Presumably they mean real actions, making this another dodge in some minds.

But the letter also pledged Libya to cooperate with any further investigations, and to settle all compensation claims with haste, and to join the international “War on Terrorism.” It was widely (and reservedly) hailed as a bold… statement. But still evasive. It doesn’t clearly state anywhere the suspects or any Libyans were in any way actually guilty of the “incident.” Nonetheless, after a month of discussion in the Security Council, sanctions were lifted on Sept. 12 2003. France and the US insisted on abstaining, but it was otherwise a unanimous vote of 13. The United States’ own sanctions would remain in full force due to the general evilness of col. Gaddafy, US officials made clear. (Additional normalizations did happen in 2007).

There’s been much oxymoronic harping on this 2003 letter in the West as both an admission of guilt and an arrogant refusal to admit their guilt. The BBC’s 2008 Conspiracy Files episode on Lockerbie is a brilliant example. “For those that believe al Megrahi was framed,” snarls the narrator, Carolyn Katz, “one fact remains hard to explain away. Libya agreed to award substantial compensation for Lockerbie. Sanctions were then lifted.” [12] Well, ignoring that they just answered their own stumper of a question, it’s a good question. Why would they agree on their responsibility and get sanctions lifted unless they knew they were guilty? Just to get sanctions lifted? The movie continues: “Tripoli accepted responsibility for what it called “the Lockerbie incident.” But does it admit guilt?” Of course not, and by pretending there’s some disconnect, they’ve primed the audience to see the darkest of cynicism at work.

No Other Solution

Despite his portrayals as a crazed prophet of death, Moammar Gadaffi proved a shrewd and patient pragmatist in all this. He can't have ever believed his nation actually did the crime, but against "guilty" as a legal truth, he accepted they had no choice but to do “the time.” It’s a type of bind known to breed passive-aggressive tendencies. The Colonel’s son and likely successor Saif al Islam al Gaddafi (left) seems to understand the dilemma. When he was interviewed at home for the same Conspiracy Files program (latter minutes), he was respectably candid, but came across strangely anyway.

Q - Does Libya accept responsibility for the attack on Lockerbie?
A - Yes. We wrote a letter to the Security Council, saying that we are responsible for the acts of our employees, or people. But it doesn’t mean that we did it, in fact.
Q - So to be very clear on this, what you’re saying is that you accept responsibility, but you’re not admitting that you did it.
A - Of course.
(edit)
Q - That’s… to many people will sound like a very cynical way to conduct your relationship with the outside world.
A - What can you do? Without writing that letter, you will not be able to get out of the sanction.
Q - So this statement was just word play. It wasn’t an admission of guilt.
A - No. I admit that we play with the words. And we had to. We had to. There was no other… solution. [13]

The BBC are masters, among others, of careful editing, and it helped bolster their whole “you don’t admit you’re guilty” thing where people have to explain there’s nothing to “admit” (or fail to explain that, as happened here). Thus he could, with a little imagination, appear to be saying “we don’t admit it, buuuuut of course we did it, you already know that.” Note the cut that removed some of his words from the middle of the exchange, unlikely to have been irrelevant. Thus is clearly established a cynical payout ($2.7 billion) and bit of semantics to buy up and slough off their non-admitted guilt so they could resume trade. They got away with Lockerbie using money and words and are laughing at us and making more money!

Immediately after “there was no other solution,” the video cuts right to the interviewer asking “so it was like blood money if you like,” which seems to be referring to what was just shown. But really it refers to the American victims' families, whose “money, money, money, money” attitude (well-known and spearheaded by Victims of PA103 Inc.) was “materialistic,” “greedy,” and amounted to “trading with the blood of their sons and daughters.” It's tactless statement, but with the magic of editing, it can seem to mean so much more!
---
Sources:
[1] History of UN Sanctions on Libya. href="http://www.globalpolicy.org/component/content/article/195-libya/42383.html
[2] Gerson, Allan and Jerry Adler. "The Price of Terror: Lessons of Lockerbie for a World on the Brink. Harper Collins, 2001.
[3] Thomas, Pierre and Thomas W. Lippman. $4 Million Reward Offered in Pan Am Case. Washington Post. March 24 1995. http://www.washingtonpost.com/wp-srv/inatl/longterm/panam103/stories/reward032495.htm
[4] Gerson and Adler pp 101-102
[4.5] "Case Studies in Sanctions and Terrorism: Libya" The Peterson Institute. Date given as October 14 1996, Source given as International Herald Tribune, 14 October 1995, 13. http://www.petersoninstitute.org/research/topics/sanctions/libya.cfm
[5] http://archive.newsmax.com/archives/articles/2004/1/8/23958.shtml
[6] http://archive.newsmax.com/archives/articles/2004/1/8/23958.shtml
[7] Biewen, John and Ian Ferguson. "Mass Murder Over Scotland." Shadow over Lockerie series. American Radio Works, 2000. http://americanradioworks.publicradio.org/features/lockerbie/story/printable_story.html
[8] http://www.acus.org/new_atlanticist/honor-among-terrorists
[9] Gerson and Adler, pp 290-291
[10] Cohen, Roger. "German cable on Qaddafi sets off dispute." The New York Times. May 23 2001. http://www.nytimes.com/2001/05/23/world/german-cable-on-qaddafi-sets-off-dispute.html?pagewanted=all
[11] UN Security Council. Letter dated 15 August 2003... http://www.undemocracy.com/S-2003-818.pdf
[12] UN Security Council. 12 September 2003/ Press Release SC/7868: Security Council Lifts Sanctions Imposed on Libya. http://www.un.org/News/Press/docs/2003/sc7868.doc.htm
[13] The Conspiracy Files: Lockerbie." Prod/Dir Guy Smith, Ex Prod Sam Anstiss, Narr Caroline Catz. BBC Two. First Aired 31 August 2008. 52:49 mark. http://video.google.com/videoplay?docid=-327765978162851498&hl=en#
[14] see 13, 53:40 mark

Debate Call: Suliman

February 7 2011

This challenge is inspired by a recent string of comments at The Lockerbie Case by “Frank” (Duggan, it seems) and others. The first smears were against the blog’s administrator, Lockerbie trial “architect” Professor Robert Black. Few specifics weregiven, but it seems they were suggesting he was paid by Libya to tell lies. No proof or evidence, no lies identified.

And then smearing Dr. Jim Swire, Justice for Megrahi, and Robert Forrester, veteran anti-Gaddafi propagandist “Suliman” made a notable appearance. “Swire, Forrester and Co. should be treated as undeclared agents of a foreign terrorist syndicate, until proven otherwise.” I’ve left that issue, his "evidence", and my response, for the buried comments there. I look forward to Suliman’s speculation as to what further sinister designs this decision proves.

I'll start with the comment he started out responding to, edited slightly:

Caustic Logic said...
By omission, Suliman and the other Dugganista-types out there acknowledge these points raised by Swire, Black, et al. are darn good ones.
- Gauci's buyer was clearly not Megrahi, but he was paid at least $2 million just to let it be fudged to seem that way.
- The crucial witness Giaka was thoroughly discredited.
- The third important witness was Edwin Bollier.
- There's no normal evidence for an unaccompanied bag from Malta, strong contradictory evidence, and no known accomplice to smuggle it aboard.
- An even more rational alternative theory, apparently hushed-up and obscured by the case that did emerge.

All they can complain about is that the people raising these extremely valid points might have been paid by Libya to tell the truth. Or are perhaps compelled by some moral failings (of the type evidenced by taking Libya's settlement, which is only to reward those who toe the line, not to subsidize free thought) to probe for more accurate answers and deeper truth.

Unless there's some important unstated middle part there where the actions so inspired are themselves somehow erred or unethical.

Select responses from Suliman (in block-quotes) and my responses:

You are attempting to paint me in a certain corner, and your rationale is not anything I said but things I did not say!

Yes indeed. Any of the above. And I predict that he will continue working on the legal technicality side of this, avoiding like a plague facts of the 3-D world in which Flight 103 was physically blown up and people physically died. Of course his and others' refusal to address the facts doesn’t actually prove they know they go against established beliefs. However, the endless dodging is consistent with that, and I suspect such a fear motivates Suliman's avoidance.

What Mr. Larson and others will not touch of course is my explicit challenge to them to justify--by any means--their claims about the personal dignity of those rejecting a court ruling while accepting--voluntarily and enjoying--the financial loot that flowed from it. Go ahead, Mr. Larson, call me whatever makes you feel safe and comfortable in your escape from defending your partner Swire's dignity.

I’ll show him wrong and touch it. In itself, on a sliding scale of human "dignity," as he seems to mean it here, accepting the settlement money from people you don't believe guilty is not at the very top. Marina De Larrocochea refused it. Martin Cadman refused it. But I don't know enough of the circumstances surrounding this to judge him over it. Didn't he try to give it back but wasn't allowed?

What I see coming from Dr. Swire is generally correct, honest, and insightful. By his actions he seems sincere is his desire, despite setbacks and persistent criticism and smears, to find the truth of who killed his daughter Flora all those years ago. So I see no reason to suspect the kind of dishonesty or whatever exactly it is Suliman is suggesting lies at the heart of Swire's unpopular work. Rather, I'm half-suspecting about the opposite.

Another little-noted problem with accepting this money, if it's joined to the dichotomy Suliman proposes, is that it might bias one's public and even private view on Libya's guilt. Of the hundreds of American relatives who took the settlement, none raises a public voice about the valid questions that proliferate. Coincidence? Or has the money somehow hushed them up?

To Suliman, it seems, the epic $2.7 billion settlement is only a reward for those who toe the line, and not meant to subsidize free-thinking.

Tell me: How dignified is it to reject the court ruling and pocket the money?

How dignified is it to convince yourself (or have someone else do it?) that you’d better keep quiet about the huge lie you can faintly sense around your loved one's death? Because, after all, you profited from this version being true in the court sense. If you come to rely on that money, and accept the kind of moral dictate Suliman personifies, you'll be locked into silence. And if you break the unwritten gag order, as we can see, you’ll be smeared as a morally corrupt, money-grubbing, terrorist supporter. Mass complicity is thus purchased and enforced, intentionally or not, and the alternate reality first planned by the CIA in early 1989 remains in place.

So, Suliman, to conclude:

But at the end of your contrivances, you need to address the things I do say, not the things I don't say.

Says you, trying still to avoid being forced into the actual evidence that your villains didn’t really have anything to do with that bombing. It's a lie of admirable size, but the world is waking up to it. You just keep hitting the snooze button. Time to stop.

Count the specific facts of Megrahi's guilt you cited in that three-post screed: Gauci, Giaka, Bollier, timer fragment, 1986 bombing study, … zero. All that was a formality to get to the finish line of a guilty verdict, forever after to be the only point of reference to ever be cited. And you surely know this consciously as you do just that.

I have no gripe with your overall gripe with Libya. I don't mean to apologize for them in general on things I don't know. But on what I do know, the Lockerbie case, you've got nothing real behind the legal technicalities.

The challenge: Of the many facts that must be true for al-Megrahi to be guilty, one crucial point is the date of the clothing purchase, which can only be established from the account of the witness to the sale, Tony Gauci, compared to other reliable and accepted records. You know this, Suliman. What relevant evidence was ever adduced to support December 7 as the date?

I believe I've now addressed all of your points the best I can. What will be your excuse this time to fail in returning the favor?

Prof. Black: "Ten Years of Injustice"

February 1 2011

I can't believe I missed marking it here after meaning to for months, but yesterday was the ten-year anniversary of the Camp Zeist (Kamp van Zeist) verdict: Guilty for Abdelbaset al-Megrahi, not guilty for Lamin Fhimah, in the bombing of Pan Am 103. The man with no known accomplice was verified in the guilt first bestowed on him with the indictments of November 1991. These we now know were issued on top of evidence and methods that were dubious, mystery-laden, deep-tissue-massaged, and outright purchased. Just how three wizened Scottish lords could bring themselves to confirm - unanimously - that tissue of lies with the stamp of Scottish Justice is a great mystery of the 21st Century.

Professor Robert Black, for the few who don't know, is a chief legal mover in establishing that trial. At his blog The Lockerbie Case, he's just posted a great little commentary to mark
Ten years of injustice. In it, he quotes Justice For Megrahi campaign secretary Robert Forrester, addressing the Scottish government's continued refusal to launch in investigation into the Camp Zeist affair. I find myself heartened in a solemn way that's almost "chilled" by his cryptic words to the Sunday Post.

"If we have to, we will go to the next resort which will be very public and not Scottish. [...] If it's successful, the Scottish authorities won't be able to say no -- they'll have to do what they're told."

Read more there. Great comments.

The Justification of Abuse

January 11 2011

Note: The following is an editorial written by Robert Forrester, Secretary of the Justicee for Megrahi campaign, first published Jan. 2 on the website of the Firm, re-published at the author's permission. Original link: http://www.firmmagazine.com/features/854/The_justification_of_abuse.html


Following the recent article ‘Cart before Horse’ published by The Firm on the 29th of December 2010, concerning some of the developments surrounding application by the Justice for Megrahi campaign group (JFM) for an independent inquiry into the 2001 Zeist conviction of Abdelbaset al-Megrahi for the bombing of Pan Am 103 in 1988, a question has been posed by a reader relating to the possible constitutional propriety of asking the Scottish Government to seem to be expressing doubt in a judicial decision by acceding to the demand for such an investigation. This self same suggestion has been put to the committee of JFM from both within and without the organisation on no fewer than three occasions in the last six months.

In actual fact, the practical issues with respect to this were comprehensively dealt with on the 9th of November 2010 during the meeting between JFM and the Scottish Parliament Public Petitions Committee (SPPPC), when one of the MSPs raised exactly the same point. At the time, Professor Black (JFM) established that there was precedent for the executive’s establishing inquiries into court judgements in Scotland, and whilst he as unable at the time of the meeting to provide references to precise cases, he did, as promised, submit such to the SPPPC by the end of business on the same day (see mail from Professor Black QC to the SPPPC appended below). This, therefore, deals with the immediate history and practicalities of the issue, however, it does not address the more general political and philosophical aspects of the relationship between the three powers of state in situations of this type.

In state constructs where absolute, usually monarchic, power reigns, legislative and judicial powers are, and always have been subservient to executive power. Nevertheless, even going as far back as classical Greece and Rome there has always been a consciousness that a balance of power needs to be struck between the legislature, the judiciary and the executive in order to ensure that no one of them can come to predominate. The importance of the separation of powers was further enshrined by Baron de Montesquieu in the early 18th century, and is frequently regarded as a kind of sacred touchstone of irreproachable and squeaky clean political conduct, which must never be transgressed. However, both the practice and appropriateness of regarding the separation of powers in such a sanctified manner is questionable and fraught with pitfalls.

To take a brief, simple and cursory glance at Westminster for instance. No one seems to have batted an eyelid at the fact that for centuries it has been perfectly acceptable for a member of the judiciary to be a member of the House of Lords (the legislature). So much for the practice relating to the separation of powers there then. The key question though is, as mentioned above, the one of appropriateness.

The principle of maintaining clear cut divisions between the three powers is, of course, vitally important in offering some, limited though it may be on occasion, guarantee that no one of the powers predominates and, equally importantly, in preventing interference of one of the powers in the affairs of another: typically political influencing of the judicial process by the executive. The latter point here is one which critics of the Zeist verdict, principally Professor Hans Köchler (UN appointed International Observer at Zeist), have suggested might have been at play in the trial. It ought to be mentioned at this juncture though that JFM’s position on the deliberations of their Lordships MacLean, Sutherland and Coulsfield when arriving at their verdict does not, nor has it ever, supported the view that the judges gave consideration to the political implications of their judgement. No such evidence exists for their having been involved in any sinister political conspiracy, indeed, far more understandable and less grave explanations could quite easily have been at play. That is not to suggest that there may not have been political machinations outwith their specific personal deliberations, and, in that respect, Professor Köchler could well be justified.

What lies at the heart of this is whom does the state exist to serve and whom does the separation of powers exist to serve? The answer, of course, is the citizens of the state concerned. This leads us to how best can the separation of powers serve the people. It may not be the most perfect analogy, but no computer, it hardware and software, is any better than the minds which create it or those who operate it. On the ground that none of us would claim to be immaculate, our political systems, however hard we strive for perfection, are inevitably going to, at some stage or other, reflect shortcomings in our creations. As such, we set up institutions that we can fall back upon to attempt to redress failings in our systems and their practice. In the context of the judiciary, one most obvious example of this is courts of appeal. Thus, we can take steps to remedy potential miscarriages of justice.

As we all know, Mr al-Megrahi’s appeals process has not been fully put to the test in law, this then leaves us with a highly unsatisfactory situation, where a man might well have fallen victim to a wrongful conviction and so long as the executive arm of state maintains its satisfaction with the verdict from the court of fact (Zeist) there is no ultimate recourse to justice; it is neither done, nor is it seen to be done. Therein lies the failure inherent in maintaining the separation of powers as an immutable Holy Grail.

Whilst JFM has on a multitude of occasions outlined in considerable detail why it believes Mr al-Megrahi’s case is deserving of an inquiry - not because the organisation is saying that the judges were wrong, but simply that the verdict appears incomprehensible in terms of the standards of proof required to reach it beyond reasonable doubt – the Scottish Government clearly seems to be presenting its case on the back of the fact that for the executive to doubt the conduct of the judiciary is to contravene the sanctity of the separation of powers. Indeed, in doing so, the government can even evade the possible embarrassment of acceding to JFM’s wish for it to outline the reasons for its satisfaction with the verdict.

Quite apart from the fact that JFM has supplied the Scottish Parliament with examples where inquiries have been set up to investigate judicial decisions in the past, such an attitude, as is being demonstrated in the Scottish Government’s confidence in the Zeist judgement, is nothing short of an abuse of the separation of powers. This political creed (the separation of powers) exists to avoid problems such as perceived interference between the executive and judicial powers of state, not to create or enhance them.

With respect to the type of case under discussion, insofar as the separation of powers is vital in preventing political expediency influencing the conduct of the judicial process, it also critically important that the separation of powers must not be used as a tool to impede justice. It is for that reason that the power to establish inquiries into the activities of the judiciary rightfully exists, and rightfully exists in the hands of the executive. To prevent inquiries of this nature from taking place on the ground that the separation of powers is sacrosanct is to say we are comfortable in maintaining a system which has ossification inherent within it and is willing to countenance the perils of convicting the potentially innocent.

One feels bound to say that this might not have been exactly what de Montesquieu had in mind. Whereas the essence of the separations of the powers of state is to avoid the corruption of power, to advocate its use in such cases as this is to justify it as a means of instituting that very thing itself: corruption.

It is well within the scope of the Scottish Government to open an inquiry into Lockerbie/Zeist without manipulating irrelevant constitutional implications. Furthermore, it is a deeply sad comment on an executive, if it chooses to sacrifice justice on the altar of a conveniently selective interpretation of constitutional law.

Robert Forrester (Secretary, Justice For Megrahi).

Robert Black's e-Mail
Here is the text of my e-mail to the Scottish Parliament's Public Petitions Committee (referred to by Robert Forrester):
I write in response to the issue raised in this afternoon's hearing regarding the constitutional propriety of a judicial decision's being referred to the Scottish Law Commission for consideration.

I know that my former student [X] has e-mailed you drawing attention to the SLC's Report on Sharp v Thomson (Scot Law Com No 208, 2007). In this instance the reference was made to the Commission by the Scottish Ministers. Another example that springs to mind is the Commission's report on Dorchester Studios v Stone, published as Irritancies in Leases (Scot Law Com No 75, 1983). Here the reference was made by the Secretary of State for Scotland, but if it were to occur today, it would be the Scottish Ministers who would do it.

There are other examples -- both before and after devolution -- of decided cases being referred to the Commission, but I hope these two will suffice to reassure the Committee of the constitutional propriety.

May I also say that the powers which now repose in the Scottish Ministers to recommend the exercise of the royal prerogative of mercy in the case of a convicted person would involve the institution by those Ministers of an inquiry into the safety of the conviction in question. Once again, there is no constitutional impropriety in this -- indeed it is the only way in which the decision whether to recommend the exercise of the prerogative can properly be taken.

Professor Robert Black QC

On Planted Evidence

14 September 2010

The possibility of planted physical evidence is a divisive issue among Lockerbie researchers, and one the Lockerbie Divide so far has had no problem promoting. That might be a problem, but it's natural when the blog's voice is almost exclusively my own. Physically inserted clues to implicate Libya suggests active investigative malfeasance many would rather not consider. A sort of mix-up is acceptable to some,  spurred by denying the best clues but needing to nab somebody. A few coincidences that suggested Libya that took on a life of their own, or some witnesses leaned on, seem plausible.

But in at least a few cases, planting is a more rational explanation than the official one. Consider PK/689, the nearly-intact cover of the bomb-radio's paper manual, made "a bit tatty around the edges" by the Semtex blast just a few inches away, and torn to shreds by forensic tests. Still says almost completely "Toshiba stereo radio/cassette recorder, RT-SF16 BomBeat SF16," a model that could be traced primarily to Libya. Consider also the problems with PT/30 and AG/145, 4-6 mm fragments from the Toshiba radio's main circuit board. Which side, if any, of the board experienced even the slightest explosive blast? The wrong side on PT/30 and neither on AG/145. Both of these show a high convenience-to-plausbility ratio, the key measure of how likely something is to be a work of fiction rather than physics.

And then the pivotal timer fragment PT/35(b), four times the size of the radio board bits listed above. Nearly one cm square, it was from the most identifiable corner of a super-traceable timer made by Swiss swindlers Mebo, and traceable to Libya of course. A Libyan timer set to blow up over land and leave such a lucky fragment is stupid for a Libyan terror plot, excellent if short on subtlety for a frame-up. Papers altered, exam log clearly backdated, no explosive residue testing, bizarre timeline unless it appeared four months later than recorded.

The issue came to the forefront most recently about a week ago when more details were revealed about the tests of Dr. John Wyatt. Professor Robert Black was so kind as to re-type much of a print-only version of an article about the tests and their suggestion that the pivotal timer fragment  was planted. The findings are to be part of Megrahi's upcoming book, and I think they solidly indicate a frame-up of Libya. The new article adds some technical detail to what he told the BBC for a January broadcast.

What's new, briefly, is that the 10mm square PT/35(b) is hundreds of times larger than it should be by his tests. Only at about 150 grams of Semtex-H was he able to recognize circuit board fragments - under a microscope but not with the naked eye. This is less than half the alleged explosive force used on Flight 103 (350-450 grams or as high as 680 by the Indian Head tests, or higher yet minus the small radio presumptions there that topped the testing off at 680, as all a RT-SF16 could hold). At any of these levels of force, nothing remotely like the radio fragments, timer fragment, or manual would survive. It's doubtful so much would survive of the Maltese clothes or perhaps the suitcase itself, as what we were presented with. In short, this body of findings suggests a lot of planting.

Again as before, this 150 gram threshold of plausibility is anecdotal, based on Dr. Wyatt's own characterizations. No detailed report has been released.  We still don't know how he came to do these tests or why - although it was apparently 2008 or earlier, and most likely at the Megrahi team's request,for the second appeal that was never heard.

The story also featured an interview with Lockerbie trial "architect" Robert Black who expressed disinterest in commenting on or promoting this development:

Last night, Robert Black, Professor Emeritus of Scots Law at Edinburgh University ... said: "I have decided to stop commenting on new evidence because, interesting as it may be, it takes the eye off what really matters, namely, that he should never have been convicted in the first place on the flimsy evidence before the court."

There are good reasons to gloss over this evidence. Even if what Wyatt says is totally true, it's something most people can't accept, and so a distraction from whatever more digestible points showing the verdict unreasonable. No need to start off telling novices the science was dishonest too - at least not until they're ready. That's ideally well after the notion of his innocence has been broached and all but proven by a careful look at the facts over the myths. Dissolve the Malta link, explain the alternative actors who make more sense, and cover the testimony of Giaka and Gauci, under the DoJ's money for misinformation program. Any closer look at the securing of the G-guys' testimonies suggests willful intent and frame-up, and from there, some convenient circuit board doesn't seem so outlandish.

But sometimes people will counter, whether they've been mentally prepared or not, "well, there was forensic evidence implicatiing Libya..." At that point, their belief in the science they've heard is the distraction from coming around to the bigger picture. Those of us who seek to reach the fuller truth, or want an answer to that science, will have to consider whether or not this Libyan-linked timer really was involved and left such a huge and recognizable fragment. And at that point there are Dr.Wyatt's tests, complete with the uncertainties noted above. And there is common sense, which suggest about what the tests are said to show - if the plane was ripped open, the radio would be vapor and dust. The things we were shown came from somewhere else.

Commentator "Pete" put it well in the comments section beneath Black's post.

Re that 'bloody timer fragment':

Certainly it would be easier to persuade those with the power to launch a new inquiry if we don't stress the implication that it might expose malfeasance on the part of our agencies and those of our allies.

However... firstly, it could be argued that the BTF was ultimately responsible for Megrahi's conviction. The implication of the Opinion of the Court is that the judges took the BTF to be absolutely conclusive proof of the Libyan origin of the bomb. Forensic evidence is scientific and as such outweighs all else (cf. the conviction of Barry George.) It was Libya what done it; Megrahi is Libyan; therefore Megrahi done it. Hence the perverse interpretation of all the other evidence. Science has spoken.

Secondly, while the BTF remains unchallenged, any exoneration of Megrahi is likely to be painted by Marquise, Duggan et al as 'technicalities'.

Thirdly, isn't it likely that if the investigation is ever reopened, even with Megrahi out of the frame,

McKnacker will restrict the scope to Libya unless there is some reason to doubt the clear implication of the BTF?

Damned if that's not a clear-eyed view. Science has spoken, and judges seem unwilling to question it. But what it said doesn't make sense. We can call science out when it lies, and we should. A fully documented, transparent, non-Libyan-sponsored study would be ideal now to compare with what Wyatt says he's got. Science can, if it hasn't already, allow us to see which is correct here: common sense, or those who accept miracle after miracle as their natural right in chasing Libya.

Further thoughts in comments section.

Susan of Grandeur

A Tough Sell on Capitol Hill, part four
May 22 2010

From Unregistered to Unfit
As a congressional aide in 1994 Susam Lindauer supported the claims of Dr. Richard Fuisz’, as explained in part three. This was a vague claim of knowledge of the true bombers of Flight 103, Syrians rather than the Libyans charged.

This was a small episode, however, and Lindauer is most famously known for activities a decade later. She got in serious legal/political trouble after a January 2003 attempt to urge the Bush administration to rethink its push for war in Iraq - and reportedly getting paid for it by Saddam Hussein’s government.

As it so happens, Lindauer’s second cousin was President Bush’s chief of staff Andy Card, and it seems it was her attempt to get leverage by playing the Andy card that got her noticed. Some kind of investigation then found she had met with Iraqi agents in Baghdad in 2002 and accepted $5,000 in cash and a vial of anthrax. Kidding on the second one. [1]

However she got the idea, Lindauer was jailed in March 2004 for the good advice and acting as an “unregistered agent” of Iraq. While the occupation ground on, Lindauer had her head examined and was deemed mentally unfit to stand trial or, by extension it’s implied, to do much else. This is a tactic used both to smear critics and also to protect the ill. In this case, multiple doctors and anecdotal evidence agree Lindauer has psychic powers and a special destiny, or suffers paranoia and delusions of grandeur, depending. [1]

It was decided she would have to take anti-psychotics to “become competent” for trial, and she refused to accept the need (or maybe was afraid of dampening her special powers). Judge Michael Mukasey of Federal District Court in Manhattan decided the Government’s case was not strong or important enough to warrant forced medication. So she was released on bail – 100 times her alleged payment from Iraq - in September 2006. On effectively dismissing the government’s case, Mukasey told the New York Times “there is no indication that Lindauer ever came close to influencing anyone, or could have.” [1]

2009: Sage Susan Speaks
She would continue to make furtive attempts, of course, and eventually returned to the Lockerbie case. In a letter that she sent to Professor Black’s site of that name, just before Abdelbaset al Megrahi’s release in 2009, Lindauer made an interesting string of statements. First, she supported the controversial decision to send Megrahi home, as he was fully innocent. But Abu Nidal was involved, based on “confessions,” and he had been harbored once by Libya. Therefore, “Libya would not be entitled to rescind its apology.” [2]

Nidal is suspected of working for the US all along, but I’ve not studied that nor seen any compelling evidence of his involvement in PA103. It was megrahi’s (and Fhimah’s) plot that was the case against Libya, not hosting Abu Nidal, and, as Professor Black pointed out, there has been no “apology.” “[Libya] has acknowledged responsibility for the acts of its citizens. If Mr Megrahi's conviction is overturned there is then no Libyan citizen convicted of anything for which the state has accepted responsibility.” [2]

Perhaps to build up her unfitness resume, she explained her special claims to authority:

“During negotiations for the Lockerbie trial -- which I started in New York with Libya's diplomats at the UN -- I saw documents* which prove Abu Talb and Ahmed Jibril orchestrated the attack. Abu Nidal was the third head of the hydra.” [emph mine]

She may have been involved in some way, but not in a position to “start” negotiations on such an issue. For this she cites papers that she delivered.in late 1997, plus “back-channel talks” where she personally “assured [Gaddafi’s] government that his two men would have access to witnesses and documents to prove their innocence.” [2] I could see Gaddafi being influenced by her, but otherwise, I'm with Mukasey.

She also explained in a follow-up letter and a comment her 9-year CIA/DIA job in “anti-terrorism” in both Iraq and Libya. From this she knew of “something very special” about her assignment the CIA wants kept quiet. But she was "strong enough to stand up to them,” and that was just why “they had to hit me so hard." The “unfit for trial” decision, she surmises, was both a government ploy to stop their own weak case going ahead and of course a "hit" to smear her reputation.

Susan Lindauer may in fact know something, and could have been targeted for discrediting by a Bush team bent on making examples of do-gooders. Nonetheless Lindauer and, more importantly, her information, seem quite a bit off. On Lockerbie she’s added nothing of value, and otherwise, to invert an old saying, even if they are out to get you, that doesn’t mean you’re not paranoid.
---
Sources:
[1] New York Times. "Ex-Congress Aide Accused in Spy Case Is Free on Bail." http://www.nytimes.com/2006/09/09/nyregion/09spy.html?_r=1
[2] The Lockerbie Case. 13 August 2009. (letter, follow-up, R Black note, Lindauer comment.) http://lockerbiecase.blogspot.com/2009/08/from-susan-lindauer.html

FROM LOCKERBIE TO ZEIST (via Tripoli, Tunis and Cairo)

*Note: What follows is an article on the establishment of the Camp Zeist Trial written by Professor Robert Black. It was previously published in a Maltese book edited by Joe Mifsud - Lockerbie: Qabel il Verdet (Before the Verdict), released in 2000.  It was sent in to me by Robert Forrester, and with Prof. Black's express permission, here it is, and interesting broad-sweep view of a years-long campaign to implement the trial the Americans had been demanding. (- C.L. March 2 '10)*

FROM LOCKERBIE TO ZEIST 

(via Tripoli, Tunis and Cairo)

by

Robert Black QC

Professor of Scots Law

The University of Edinburgh

"Call the diet: Her Majesty's Advocate against Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhima."  

It was with those words that on Wednesday 3 May 2000 the long-delayed Lockerbie trial opened in the High Court of Justiciary sitting at Kamp van Zeist near Utrecht in the Netherlands.  There were those who predicted that this trial would never take place and there were those who worked tirelessly, but ultimately unsuccessfully, to try to ensure that it would not.  My purpose in this paper is to give you an account of my part in attempting to secure, over some rather powerful opposition, that there would in fact be a trial.

The Event

On Wednesday, 21 December 1988 at 7:03 pm GMT a Boeing 747 airliner owned and operated by Pan American World Airlines and cruising at 31,000 feet exploded above the small town of Lockerbie.  Pan Am Flight 103 had taken off from London Heathrow some 38 minutes before and was en route to JFK Airport in New York.  Aboard the aircraft were 243 passengers and a crew of sixteen.  None survived.  The vast majority of those on board were United States citizens, but other nationalities represented included British, French, Israeli, Hungarian, Canadian, German, Spanish, Belgian and Norwegian. Although the disaster occurred only four days before Christmas and every other transatlantic flight was fully booked, this particular aircraft was more than one-third empty, only 243 out of 412 seats being occupied.

Debris from the explosion completely demolished three houses in Sherwood Crescent, a small street of privately owned detached houses, and eleven townspeople were killed instantly.

The Investigation

Within a week it had become apparent to the joint team of British and American investigators that this had been no accident and that the cause of the destruction of the aircraft had been a bomb.  There then followed the most extensive criminal investigation ever conducted in Scotland -- or, it seems probable, anywhere else -- into an act of terrorism.  The investigation was under the control of the Dumfries and Galloway police -- the smallest force in Scotland.  Also closely involved in the investigation were other United Kingdom police forces and personnel from the British, United States, and west German intelligence services.

Around and to the south of Lockerbie some 845 square miles of land were combed for debris.  Over a period of several years more than 15,000 people were questioned; information and evidence were sought in more than 30 different countries.  The aircraft had been some thirty minutes late in leaving Heathrow.  Had it been on schedule, the bomb (assuming that it was detonated by a timing mechanism) would have exploded over the Atlantic Ocean, sparing the town of Lockerbie but making investigation of the accident and recovery of physical evidence very much more difficult.

In mid-1990 it was reported (in the Washington Post and the London Times among other places) that sources within the US Central Intelligence Agency were indicating that the evidence pointed towards the atrocity's having been committed by Ahmed Jibril's Syrian-backed Popular Front for the Liberation of Palestine-General Command (PFLP-GC).  The theory was that this group had been commissioned and paid by Ayatollah Khomeini to destroy an American airliner in revenge for the American warship Vincennes shooting down in the Persian Gulf an Iranian Airbus containing pilgrims to Mecca on 3 July 1988 resulting in the death of all 290 people on board.

Libya Enters the Frame

It will therefore be appreciated that it came a something of a surprise when on 14 November 1991 the prosecution authorities in Scotland and the United States simultaneously announced that they had brought criminal charges against two named Libyan nationals who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service.

According to the Scottish and American prosecutors, what had happened was this.  The two Libyans had manufactured a bomb using a Toshiba cassette recorder, Semtex explosive and a digital electric timer (supplied and manufactured by a Swiss company, MeBo AG).  The device had been placed in a brown Samsonite suitcase in Malta, along with items of clothing purchased for the purpose from a particular shop (Mary's House) in Sliema.  Using stolen Air Malta luggage tags, the Libyans (one of whom had occupied the post of station manager for Libyan Arab Airlines in Malta) introduced the suitcase into Luqa  airport's inter-line baggage system as unaccompanied luggage on Air Malta Flight KM 180 from Malta to Frankfurt, with directions for its onward transmission (first) on to a feeder flight (PA  103A)  to Heathrow and (second) on to Pan Am Flight 103 from Heathrow to JFK in New York.

On 27 November 1991 the governments of the United Kingdom and the United States each issued a statement calling upon the Libyan government to hand over the two accused to either the Scottish or the American authorities for trial.  Requests for their extradition were transmitted to the government of Libya through diplomatic channels.  No extradition treaties are in force between Libya on the one hand and United Kingdom and the United States on the other.

Libyan internal law, in common with the laws of many countries in the world, does not permit the extradition of its own nationals for trial overseas.  The government of Libya accordingly contended that the affair should be resolved through the application of the provisions of a 1971 civil aviation Convention concluded in Montreal to which all three relevant governments are signatories.  That Convention provides that a state in whose territory persons accused of terrorist offences against aircraft are resident has a choice aut dedere aut judicare, either to hand over the accused for trial in the courts of the state bringing the accusation or to take the necessary steps to have the accused brought to trial in its own domestic courts.  In purported compliance with the second of these options, the Libyan authorities arrested the two accused and appointed a Supreme Court judge as examining magistrate to consider the evidence and prepare the case against them.  Not surprisingly, perhaps, the UK and US governments refused to make available to the examining magistrate the evidence that they claimed to have amassed against the accused, who remained under house arrest until they were eventually handed over in April 1999 for trial at Kamp van Zeist.

The United Nations

The United Nations Security Council (of which the UK and the USA are, of course, permanent members) first became involved in the Lockerbie affair on 21 January 1992 when it passed Resolution 731 strongly deploring the government of Libya's lack of co-operation in the matter and urging it to respond to the British and American requests contained in their statements of 27 November 1991.  This was followed by Security Council Resolution 748 (31 March 1992)  requiring Libya to comply with the requests within a stipulated period of time, failing which a list of sanctions specified in the Resolution would be imposed.  Compliance was not forthcoming and sanctions (including trade and air transport embargos) duly came into effect in April 1992.  The range and application of these sanctions was  extended by a further Resolution passed on 11 November 1993.  The imposition of sanctions under these last two Resolutions was justified by the Security Council by reference to Chapter 7 of the Charter of the United Nations on the basis that Libya's failure to extradite the accused constituted a threat to world peace.

An Attempt to Resolve the Impasse

I first became involved in the Lockerbie affair in early 1993.  I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions.  They asked if I would be prepared to provide (on an unpaid basis) independent advice to the government of Libya on matters of Scottish criminal law,  procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities.  This I agreed to do, and submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. 

In the light of this material, it was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but that since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision on surrender for trial would have to be one taken voluntarily by the accused persons themselves, in consultation with their independent legal advisers.  For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers which had already been appointed to represent the accused.  This team consisted of lawyers from Scotland, England, Malta, Switzerland and the United States and was chaired by the principal Libyan lawyer for the accused, Dr Ibrahim Legwell.  The Libyan government asked me to be present in Tripoli while the team was meeting so that the government itself would have access to independent Scottish legal advice should the need arise.  However, the Libyan government expectation was clearly that the outcome of the meeting of the defence team would be a decision by the two accused voluntarily to agree to stand trial in Scotland.

I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland.  In the course of a private meeting that I had a day later with Dr Legwell, he explained to me that the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence in this case the degree of impartiality and open-mindedness that accused persons are entitled to expect and that a fair trial demands.  A secondary consideration was the issue of the physical security of the accused if the trial were to be held in Scotland.  Not that it was being contended that ravening mobs of enraged Scottish citizens would storm Barlinnie prison, seize the accused and string them up from the nearest lamp posts.  Rather, the fear was that they might be snatched by special forces of the United States, removed to America and put on trial there (or, like Lee Harvey Oswald, suffer an unfortunate accident before being put on trial).

 The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it.

An Innocent Abroad

My journeys to and from Tripoli in October 1993 were interesting.  Because of UN sanctions, air travel to Tripoli was out of the question.  The normal procedure at that time was to fly from Europe to the nearest Tunisian airport on the holiday island of Djerba and then travel by car along the coast road to Tripoli, a frightening five-hour journey at the best of times but especially so when being driven at breakneck speed in a Libyan government black Mercedes whose driver clearly regarded it as the duty of every other road user to get out of the path of his vehicle and refused to concede even the possibility that any  road user, Tunisian or Libyan, might fail to do so. 

On my return journey I was unable to get a flight from Djerba to any European airport and so took an internal flight from Djerba to Tunis in the naive belief that flights to European destinations would be more frequent from the Tunisian capital.  On arrival in Tunis at 5pm I discovered that there were no further flights to any European destination that day.  I made a booking for an early flight to London the following morning and proceeded to try to find accommodation for the night.  It was only then that I discovered that a meeting of the Council of the PLO was taking place in Tunis and that there was accordingly not a single room to be had in any of the major hotels in the city.  Eventually, however, my taxi driver indicated that he had a friend who ran a small hotel and that he was sure that I would be able to find accommodation there.  He was indeed correct, though I suspect that I am the only guest in the history of the establishment who has ever paid for a room there other than by the hour.

The Neutral Venue Proposal

Having mulled over the concerns expressed to me by Dr Legwell in October 1993, I returned to Tripoli and on 10 January 1994 presented a letter to him suggesting a means of resolving the impasse created by the insistence of the governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves for trial by jury in either of these countries.  This was a detailed proposal, but in essence its principal elements were: that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with this major alteration, namely that the jury of 15 persons which is a feature of that procedure be replaced by a panel of judges who would have the responsibility of deciding not only questions of law but also the ultimate question of whether the guilt of the accused had been established on the evidence beyond reasonable doubt.

In a letter to me dated 12 January 1994, Dr Legwell stated that he had consulted his clients,  that this scheme was wholly acceptable to them and that if it were implemented by the government of the United Kingdom the suspects would voluntarily surrender themselves for trial before a tribunal so constituted.  By a letter of the same date the Deputy Foreign Minister of Libya stated that his government approved of the proposal and would place no obstacles in the path of its two citizens should they elect to submit to trial under this scheme.

The UK Government's Initial Attitude

On my return to the United Kingdom I submitted the relevant documents to the Foreign Office in London and the Crown Office (the headquarters of the Scottish prosecution service) in Edinburgh.  Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that Professor Black had taken leave of what few senses nature had endowed him with. That remained the attitude of successive Lord Advocates and Foreign Secretaries for four years and seven months.  During this period the British government's stance remained consistent: United Nations Security Council Resolutions placed upon the government of Libya a binding international legal obligation to hand over the accused for trial to the UK or the US authorities.  Nothing else would do.  If Libyan law did not currently permit the extradition of its own nationals to stand trial overseas, then Libya should simply alter its law (and, if necessary, its Constitution) to enable it to fulfil its international duty.

Over the years British government sources put forward six specific objections to my proposal.  There was no merit in any of these objections, as I think I have conclusively demonstrated in an article published in November 1997: see “The Lockerbie Proposal”  1997 Scots Law Times (News) 304.

Delay

For almost five years successive governments of the United Kingdom (of both old Conservative and New Labour political persuasions) consistently and fervently maintained that the "neutral venue" scheme which I had proposed and which had been accepted by the Libyan government and defence lawyers in January 1994, was totally and absolutely unsatisfactory and could provide no resolution to the Lockerbie impasse.  For a flavour of the vehemence of  government opposition to the scheme, as recently as early 1998, reference may be made to the article by the then Lord Advocate,  Lord Hardie “The Lockerbie Trial” 1998 Scots Law Times (News) 9, to the statement made in the UN Security Council on 20 March 1998 by the UK Permanent Representative, Sir John Weston (see www.britain-info.org/bistext/ukmis/speeches/20mar98.stm) and to the  statement in the House of Commons on 29 April 1998 by Foreign Office Minister Derek Fatchett (see HC Hansard, 29/04/1998, cols 299-302).

President Nelson Mandela of South Africa expressed his strong support for the proposal during his attendance at the Commonwealth Heads of Government Conference in Edinburgh in October 1997.  But that seemed to cut no ice with Robin Cook, the new Foreign Secretary who, admittedly, probably had other more personal matters on his mind at the time.  

Not surprisingly, Libyan patience at the refusal of the United Kingdom and the United States even to contemplate the “neutral venue” solution eventually began to wear thin.

In April 1998 Dr Jim Swire (the spokesman for the relatives group UK Families Flight 103) and I had a meeting in Cairo with the Secretary-General of the League of Arab Nations, Dr Esmet Abdul Majid, and were informed that in the light of more than four years of British and American intransigence the Libyans were seriously considering announcing withdrawal of their support for the proposal.  It was suggested to us by Dr Majid that it might be appropriate for us, if we wished to avoid this outcome, to make yet another trip to Tripoli.  This we did, and in a meeting with Dr Ibrahim Legwell were assured that it remained the position of the suspects that they would surrender for trial if such a court were established.  It was the Libyan government that was apparently, because of British and American procrastination, having second thoughts about permitting its citizens to leave the country to stand trial voluntarily before such a tribunal. 

The Libyan Foreign Ministry committee, with whom all of my previous dealings had been, arranged for Dr Swire and me to have a meeting with Colonel Gaddafi and this took place on 20 April 1998 at his reinforced concrete tent on the outskirts of Tripoli.  The meeting was initially a frosty one, with the Colonel refusing to make eye contact but instead staring straight ahead with his arms folded and making lengthy pronouncements about the inflexibility and intransigence over more than four years of the British government.  When eventually he interrupted his monologue to take breath, we were able to dive in with comments to the effect that the Labour government had been in office for less than a year, was still finding its feet in foreign affairs and that it was possible to detect some signs that its position over the Lockerbie issue might just be somewhat more flexible than that of its Conservative predecessor.  Gaddafi then made a few highly complimentary remarks about Tony Blair, and the remainder of the meeting was held in a much more friendly atmosphere.  After about an hour, we departed with the reassurance that the Libyan government’s policy in relation to a “neutral venue” trial would remain unchanged for at least a further six months.  As we were leaving Gaddafi's compound the then Libyan Foreign Minister, Omar al-Muntasser, who had been present at the meeting, said to us: "You made the Leader laugh three times!  Someone will pay for that!"  I think he was joking.

The Volte-face

From about late July 1998, there began to be leaks from UK government sources to the effect that a policy change over Lockerbie was imminent, and on 24 August 1998 the governments of the United Kingdom and United States announced that they had reversed their stance on the matter of a "neutral venue" trial.  In a letter of that date to the Secretary-General of the United Nations, Kofi Annan, the British and American Acting Permanent Representatives to the UN stated:

 "....  in the interest of resolving this situation in a way which will allow justice to be done, our Governments are prepared, as an exceptional measure, to arrange for the two accused to be tried before a Scottish court sitting in the Netherlands.  After close consultation with the Government of the Kingdom of the Netherlands, we are pleased to confirm that the Government of the Kingdom of the Netherlands has agreed to facilitate arrangements for such a court.  It would be a Scottish court and would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges.  The Scottish rules of evidence and procedure, and all the guarantees of fair trial provided by the law Scotland, would apply."

The details of the arrangement -- the fine print -- are to be found in two documents: a British Order in Council (SI 1998 No 2251), made on 16 September 1998, conferring the necessary legal authority for Scottish criminal proceedings against the two Libyan suspects to be conducted in the Netherlands, and an international agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom, concluded on 18 September 1998, making the diplomatic arrangements necessary for the "neutral venue" trial to take place.  The scheme set out in these two documents differs in detail from that which I proposed, and to which I had obtained Libyan assent, in January 1994; but the framework is the same.

Pitfalls along the Route

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court.  Why the delay?  The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team and the Libyan government as having been deliberately designed to create pitfalls to entrap them.  And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers, these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations. 

Between 20 and 22 September 1998, Dr Swire and I were again in Tripoli and were able to provide to the Libyan government and the Libyan defence team a measure of reassurance regarding some of the issues that concerned them.  However, it was we  who (having received the information hot off the presses from a journalist in The Hague) had to inform the Libyan government that the chosen location in the Netherlands for trial was Kamp van Zeist, a former NATO base to which the air force of the United States still had extant treaty rights of access.  I anticipated that this information would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by Her Majesty's Government in selecting, or agreeing to, such a site.  But they did not do so.  This, more than anything else, convinced me that the Libyan government and the Libyan defence lawyers genuinely wished a trial to take place and that the concerns they had expressed regarding details of the scheme now on offer were genuine concerns, not merely a colourable pretext for evading their earlier commitment to such a solution.

On 22 September we had a further meeting with the Leader of the Revolution.  On this occasion the meeting took place not in Tripoli but 400 kilometres to the east in a genuine (not reinforced concrete) Bedouin tent in a desert location inland from the town of Sirte.  Surrounded by sand dunes and noisily ruminating camels, Colonel Gaddafi, Dr Swire and I  discussed the details of the British scheme.  He accepted my assurance that at least some of the concerns that Libyan government lawyers had raised were unwarranted and that it would be worthwhile to continue to seek clarifications and reassurances through the office of the Secretary-General of the United Nations regarding the remaining issues. 

Incidentally, this meeting with Gaddafi was held on the day that President Clinton's deposition in the Monica Lewinsky case was televised.  In the course of the pleasantries that took place before we all got down to business, Gaddafi informed us that he had spent the morning watching the President's performance on CNN television.  What most shocked him, he said, was the revelation that on occasions while Miss Lewinsky was dutifully serving her President, the latter was speaking to foreign Heads of State on the telephone.    Gaddafi's comment  was that he thought that the President should have it cut off.

Conclusion

Although many within the governments of Britain and the United States and within the media were sceptical, the suspects did eventually, on 5 April 1999, surrender themselves for trial before the Scottish court at Kamp van Zeist.  That trial, after lengthy delays necessitated by the defence's need for adequate time to prepare, started on Wednesday 3 May 2000. 

I feel a distinct measure of pride in the part that I, a Lockerbie boy born and bred, and a simple professor of law, played in bringing it about.  I have reason to suspect, however, that my government feels  no  sense of gratitude towards me.   And I feel no pride whatsoever in the outcome of the proceedings.  The conviction of Abdelbaset al-Megrahi on the evidence led at the trial constitutes, in my view, a flagrant miscarriage of justice, and one that I hope to live to see rectified.

Professor Black's Reward

Professor Black's Reward
The Lockerbie Divide 
15 March 2010

I'd like to address a minor controversy that arose recently, and may arise again, about Scots Law Professor Robert Black's negotiation of the framework for the trial that resulted in Megrahi's conviction in 2001. I recently re-posted Professor Black's 2000 article From Lockerbie to Zeist (via Tripoli, Tunis and Cairo), outlining his journey in the late 1990s to get the trial agreed to by all sides.  An anonymous reader posted a comment there reading in full:

Some observations and questions:

1)“It came of some surprise when on 14 November 1991 the prosecution authorities in Scotland and the United States simultaneously announced that they had brought criminal charges against two named Libyan nationals who were alleged to be members, and to have been acting throughout as agents, of the Libyan intelligence service”

Why would it come as such a surprise? Surely Pr. Black was well aware of Libya’s involvement and support of terrorist activities; including the Abu Nidal Organization and the Popular Front for the Liberation of Palestine-General Command – some of whom were arrested in the Autumn leaves sting in Germany, where bomb making equipment was siezed. Said equipment had many similarities (outside of the timing device) to the PA103 bomb.

2)Who exactly were the group of British businessmen who approached Professor Black and what exactly were their desired “major engineering works in Libya” ? Oil springs to mind. BP perhaps? Smacks of a deal in the desert… Oh what a wicked web…

3)Pr. Black insults the reader by insinuating that anyone in their right mind would believe that he (Pr. Black) would, on an unpaid basis, endure traveling to Libya against sanctions, and risk being kidnapped or killed at that time. But then again, perhaps Black defies the definition of “right mind”, and/or "unpaid".
March 9, 2010 2:19 PM

My limited experience and gut instinct say it's Richard Marquise, but at any rate likely an American with a deep connection to the case and a gripe against Black. Did the Professor just help arrange the trial to help end sanctions and make millions in oil kickbacks?  I had first agreed that oil was the most likely business to have sent people to the seek his help, and conceded that possibly "he got paid indirectly, or secretly, or what have you." I strongly suggested the commenter was involved in spinning the investigation, and asked how much he was paid, and closed with this ponderable:

If "unpaid basis" means literally that, in all way shape or form, I take his word. The point is, it doesn't change the fact that he arranged the framework for a trial where the Libyans WERE handed over to Scottish jusrisdiction as demanded. Megrahi was then convicted. The US maintains its sanctions though the UN does not.
You act as if this is a bad thing, helping arrange Camp Zeist. Why would one be upset and look to discredit such work? 

A concerned reader suggested I remove the comment, and maybe my responses, as being "over the mark" and plain offensive. Yeah, but it was on-topic, and a question people will only naturally wonder about. I was concerned enough to ask Professor Black himself. In his South Africa season at the moment, it took a day or so to hear of his lack of worry, and a clarification that will likely fail to satisfy Anonymous:

"I wasn't paid -- either by the businessmen or the Libyans. Indeed, the fact that no fee was involved was one of the main reasons why the Dean of Faculty (the leader of the Scottish Bar) recommended to the businessmen that they should approach me rather than any other member of the Scottish Bar. The businessmen in question were not involved in the oil industry: their field was civil engineering and construction."
- e-mail, March 13, 2010 11:13 PM

Was it oil-related engineering? Oh, give it a rest...

Robert Black helped change history a little, and to some people, this alone could be plenty reward for such works. Aside from that, if one is too cynical to accept hunger for Justice or the Common Good as motives, or a reward in the afterlife, we might also consider bragging rights as the "architect of the Lockerbie trial," or the position from which to publish a book on the adventure. He wouldn't be the first.

I'm just savvy enough to suspect multiple motives, and if money had been in there, I personally would see no ethical issues with it. That said, the professor wasn't paid. I'm ready to move on.  Let this post serve as the spot to discuss this issue any further, and leave From Lockerbie to Zeist for discussing that paper's content.