Editor's Notes: Lockerbie - a miscarriage of justice?

To this day, it stands as the deadliest terrorist action ever to hit Great Britain. It saw the killing of more American civilians than any terrorist attack with the exception of 9/11. It prompted the most expensive criminal investigation in British history. And it may now turn out to be Britain's gravest miscarriage of justice. Nineteen years after Pan Am Flight 103, en route from London to New York, was blown up over Lockerbie in Scotland with the loss of all its passengers and crew, the perennial suspicion that the investigation was skewed and the wrong parties held responsible is hardening. If so, the implications are horrific, potentially implicating the American and British authorities in a cover-up which enabled the guilty state sponsors to evade punishment and, emboldened, to commission further murderous attacks. On Thursday, a minor procedural hearing in an Edinburgh court marked the beginning of Abdelbaset Ali Mohmed al-Megrahi's appeal against his conviction for murder in the bombing of Pan Am Flight 103. A Libyan intelligence officer and head of security for Libyan Arab Airlines, Megrahi is one of only two people ever prosecuted in the case. He was indicted in 1991 along with Lamin Khalifah Fhimah, Libyan airlines' station manager at Malta's Luqa Airport, where the prosecution alleged that the suitcase containing the Lockerbie bomb began its journey. Ten years later, a panel of three Scottish judges acquitted Fhimah but convicted Megrahi; he was sentenced to life imprisonment with a stipulation that he serve a minimum of 20 years in jail, later increased to 27 years - a curiously light term for mass murder. His first appeal was dismissed in 2002. Earlier this summer, after repeated rejections, he finally won leave to mount his second. Libya's purported culpability is generally presented in the context of its various mid-1980s confrontations with the United States - notably Libya's bombing of a Berlin nightclub used by US troops, and US air attacks on targets in Benghazi and Tripoli in 1986, including a strike on the personal quarters of Col. Muammar Gaddafi in which his adopted daughter was killed. Libya gave up Megrahi and Fhimah for trial after years of resistance and consequent UN sanctions, and then paid compensation to the Lockerbie victims' families as a condition for the lifting of those sanctions (which had cost it an estimated $30 billion). But Gaddafi savaged the Scottish judges when they found Megrahi guilty, Libya has never formally accepted specific responsibility for the bombing, and in 2004, its prime minister told the BBC that it had capitulated only because "we thought it was easier for us to buy peace." The decision by the Scottish Criminal Cases Review Commission to finally grant Megrahi his appeal, announced in an 800-page report after a nearly four-year study, was based on six possible grounds for a miscarriage of justice. Crucially, the commission found problems with the testimony of a Maltese shopkeeper, Tony Gauci, the central witness tying Megrahi to the bombing. Gauci had identified Megrahi as the man who bought clothing and other items from his store in the Maltese resort of Sliema two weeks before the Lockerbie blast - the very items whose charred remains, it was established, were packed into the brown Samsonite suitcase in which the bomb was hidden. But now the commission has established that four days before he picked out Megrahi in a line-up, Gauci had been shown a photograph of the suspect in an article about the bombing - rendering the identification profoundly flawed. Moreover, the commission cited documents indicating that Gauci had been paid up to $2 million by American intelligence agencies for his testimony. He had changed that testimony repeatedly over the years, including on what emerged as the significant matter of whether Christmas lights were on in the street outside his shop, "Mary's House," when Megrahi purportedly came shopping. Gauci was also strikingly described by the former top Scottish law officer who issued the warrant for Megrahi's arrest, Lord Fraser of Carmyllie, as being a "slightly simple fellow... not quite the full shilling... an apple short of a picnic," who might have been "easily led." Fraser, two years ago, actually urged that Megrahi be sent home to a Libyan jail for the remainder of his sentence. The commission was reportedly troubled, too, by the existence of a classified report relating to the timing device by which the Semtex plastic-explosive bomb was purportedly detonated - a document which was not disclosed at the trial. The chain of evidence by which Megrahi was convicted involved the sale of this particular Swiss-manufactured timing device, a MeBo MST-13, to a Libyan military unit of which he was a member. Now, that chain of evidence has apparently been weakened. Megrahi did not attend Thursday's procedural hearing, but is expected to soon seek a conditional release ahead of the full appeal - so called "interim liberation." If his lawyers can persuade the Scottish judges that he will not flee, the sole Lockerbie convict could be only weeks away from freedom. But it is more likely that he will have to wait a little longer, until the completion of the appeals process next year. No smoking gun The prosecution's case was acknowledged by the judges themselves in their 2001 verdict to have been beset by "uncertainties and qualifications." Key witnesses had lied, the CIA's Libyan insider agent was discredited, and they lamented that they had been given no "explanation of the method by which the primary suitcase" was smuggled aboard. There was certainly no smoking gun: No witnesses or forensic evidence tying Megrahi to the bomb itself. Dr. Jim Swire, the longtime spokesman for the UK victims' families, whose daughter Flora was killed on Flight 103, has branded Megrahi's conviction "one of the gravest miscarriages of justice in history." In a phone interview on Tuesday, he expressed the conviction that the new information that has emerged since the trial would now see Megrahi freed. Hans Koechler, appointed by the UN Security Council on the nomination of secretary-general Kofi Annan to serve as an observer throughout the Lockerbie legal proceedings, also told me this week he was certain the conviction would be overturned. "They'll cancel the judgement," Koechler said flatly down the phone from Austria. "The appeal court will decide that a miscarriage of justice has occurred, because of the unreliability of Tony Gauci's evidence." Robert Black, the professor emeritus of law at the University of Edinburgh who formulated the legal mechanism that facilitated the 2001 trial, held before a panel of three Scottish judges in The Netherlands, said the same thing. "Megrahi will go free," Black told me by phone. "He should never have been convicted. The evidence does not show him to have had anything to do with [the Lockerbie bombing]." The original thesis But if they are right, who did orchestrate and carry out the bombing of Pan Am's Boeing 747 over Lockerbie, and why were those responsible not held to account? It is here that the Lockerbie case lurches from a grave potential miscarriage of justice, based on flawed evidence, to still more sinister territory. Throughout the close to 20 years since the bombing, "conspiracy theories" have ebbed and flowed, with fingers pointed in all directions based on all manner of supposed evidence. Such theorizing, of course, is a familiar feature of numerous terrorist investigations, no matter how unambiguous the trail of evidence may seem. With Lockerbie, however, the dominant "conspiracy theory" constantly proposed by the skeptics is a little different. For it is the theory that the investigators themselves advanced and followed for the first weeks and months of their investigation. It is the theory that senior politicians in various governments privately, and in some cases publicly, endorsed. It is a logical explanation for both the motivation and the logistics of Lockerbie. And it has nothing to do with Abdelbaset Ali Mohmed al-Megrahi. On February 7, 1989, just a few weeks after the Lockerbie explosion, I reported in The Jerusalem Post that the bomb that destroyed Pan Am Flight 103 had been concealed in a radio-cassette recorder. I further reported that the crash investigators had established that the device was similar to devices found in the possession of members of Ahmed Jibril's Popular Front for the Liberation of Palestine-General Command, 17 of whose alleged members had been arrested in a Frankfurt suburb a few weeks before the bombing. I wrote that article on the basis of official documentation that I personally saw in London. That same February 7, 1989, edition of the Post, coincidentally, carried a report from a news conference Ariel Sharon, then Israel's trade and industry minister, had held the day before during a visit to Madrid. Asked who was responsible for Lockerbie, Sharon said: "Israel believes it was Ahmed Jibril." In the subsequent days and weeks, the evidence for this claim mounted: The bombing investigators confirmed that the bomb had indeed been hidden in a radio-cassette player, a model known, with murderous irony, as the "Toshiba Bombeat." It was reported that four similar devices had been found in the possession of the arrested PFLP-GC cell in Germany, which was said to have been planning attacks on airplanes heading to the US and Israel; these devices were detonated by a barometric pressure device and timer, designed to activate when a plane reached a certain altitude. One of the devices seized by German police exploded when it was being examined by a bomb-disposal expert in a Frankfurt police station, killing him. It was reported that a fifth bomb had been built and had disappeared - presumably the bomb that blew up Flight 103. Among those arrested in the PFLP-GC cell was its leader, Hafez Dalkamouni, and the Toshiba bomb-maker, Marwan Khreesat. (Khreesat, who was quickly released, later turned out to be a Jordanian intelligence agent and the reported source of the German police information on the cell, which he said had been checking Pan Am flight schedules, casing Frankfurt airport, and also contemplating an attack on an Iberia plane from Madrid to Tel Aviv. He is also said to have reported that the missing fifth bomb had been taken away by Dalkamouni before the arrests.) Next, Sweden arrested several alleged PFLP-GC members and contacts on terrorism charges relating to Lockerbie, including Mohammed Abu Talb. Talb is still serving a life term in Sweden, having been convicted in 1989 for involvement in a 1980s European bombing campaign that featured attacks on the Amsterdam office of El Al and a synagogue in Copenhagen. Talb has steadfastly maintained that he had nothing to do with Lockerbie, even being brought from jail to testify to this effect as a prosecution witness at the Lockerbie trial... and being rewarded with immunity from prosecution. (Conspiracy theorists have a field day with Talb, a former Egyptian army officer who has been reported to have also been clothes shopping in Malta in the weeks before Lockerbie, to have met Dalkamouni there and in Cyprus, to have also been cautiously identified by Gauci in a photograph at some point, and to have circled the December 21 date on his calendar at home in Sweden.) It was also reported that American intelligence had established that the Syrian-hosted PFLP-GC had been paid to carry out the Lockerbie bombing. By Iran. To the tune of $10m., part or all of which was said to have been paid into a Swiss bank account whose number was found in Dalkamouni's possession immediately after the bombing. Iran's presumed motive: to avenge the downing, by the US Navy's guided-missile carrier USS Vincennes, of an Iran Air Airbus in the Persian Gulf five months before Lockerbie, in which all 290 passengers and crew were killed. The US said it had mistaken the civilian airliner for a fighter jet; Iran said the attack was deliberate and vowed revenge; Ayatollah Khomeini promised the skies would "rain blood." Lockerbie also occurred amid the crisis over American hostages being held by the Iranian-sponsored Hizbullah in Lebanon. Indeed an American intelligence team was killed on Flight 103. It included Maj. Charles McKee, who was on secondment to the Defense Intelligence Agency in Beirut and had left the Middle East that morning having apparently been trying to track down the hostages. Noted Swire: "They had bought their tickets in Beirut. It may be that the terrorists knew this flight was a particularly juicy target." In April 1989, CBS News reported that Khalid Jaafar, a 21-year-old Lebanese-American who died on the plane, had been tentatively identified by US Federal investigators as the unwitting bomb carrier, and that the device had been planted in his suitcase by a relative of the man who "set up the network which carried out the attack" - Hafez Dalkamouni. More arrests were said to be imminent. The net appeared to be closing. Prof. Black told me this week that he has been shown "the official minutes of the investigation. They were on the verge of announcing who'd done it, and it wasn't Libya. They were within days of saying that it was the PFLP-GC and Iran." And he added with dry understatement: "Those involved were very annoyed when the climate of the investigation changed." New direction AMONG THE factors that gradually changed that climate was the reported emergence of CIA information on the meeting where Libya intelligence purportedly decided to commission the attack. There was the now queried identification of Megrahi by shopkeeper Gauci. A CIA informant in Libya was also said to have named Megrahi and Fhimah as the bombers. And there was the news that a tiny piece of charred material discovered at the crash site, ostensibly found in a remnant of clothing from the "Megrahi" suitcase, was a fragment of a Swiss-made digital electronic timing device. Now it seemed the bomb couldn't have been Dalkamouni's missing fifth device after all, because the fragment had apparently been traced to a consignment of such timers purchased by Libya. Identical timers had been seized from two Libyan terrorists arrested 10 months before Lockerbie, in Senegal. The evidence relating to the discovery of this timer and its provenance has long been contested. While it made plain that it had "serious misgivings" about assertions from an unnamed former senior Scottish police officer that he planted the incriminating fragment at the crash site by order of the CIA, found no basis for claims of fabricated evidence and rejected the notion of malevolent involvement by the CIA, the Scottish review commission is nonetheless now apparently troubled by aspects of the crucial Swiss timer evidence, as well. 38 minutes SWIRE IS adamant that the principle established by the 14th century English friar and logician William of Ockham - that the simplest explanation that fits all known facts is usually the right one - applies to the Lockerbie bomb that killed his daughter and 269 others. "The Iranians had told the world that they would seek revenge for the Vincennes attack," he began, checking off what he sees as the simplest sequence of events. "They had colluded in the past with the PFLP-GC under Jibril, and now they colluded again. The PFLP-GC was the 'sensible choice' because, as has been established, it maintained a workshop on the outskirts of Damascus that manufactured timing devices" involving an air-pressure switch for bombs to detonate aboard airplanes. The German authorities, having found several such devices built into domestic objects when they arrested members of the PFLP-GC in October 1988, Swire went on, alerted the international authorities to the danger. "Germany had warned the UK and US about the PFLP-GC devices well in advance of Lockerbie," he noted. The Germans also tested one of them by taking it up in a 747, "and they established that a bomb detonated by these timers would go off between 32 and 42 minutes after take-off. "Flight 103 was in the air for 38 minutes [before it blew up]," he pointed out, "right in the middle of the time frame." In contrast to the narrative that led to Megrahi's conviction, which requires the incendiary suitcase to have begun its journey in Malta, and other theories which hold that the case began its journey in Frankfurt, Swire's personal conviction is that it was loaded at Heathrow. He noted that the first appeal court, in 2002, heard that there had been a break-in at Heathrow the night before the bombing, and that the Iranian Air facility was immediately adjacent to the baggage assembly area where transit luggage for Flight 103 was loaded. The suitcase was smuggled into Heathrow at night, Swire believes, and then brought from the Iranian facility to the unsecured baggage assembly point and placed in the clearly marked (with a big Pan Am logo) Flight 103 container on the day of the bombing. He recalled that the chief baggage handler, John Bedford, testified that he saw two additional suitcases had been loaded into the relevant container for Flight 103 when he returned from a coffee break that day. The crash investigators, Swire went on, established that the explosion occurred precisely where those cases had been placed, above a single layer of baggage that Bedford had already packed into the container. Swire contrasted that simple sequence with the official narrative, under which the terrorists immensely complicate their mission by sending their bomb on two flights before it reaches Heathrow, with all the attendant security and timing complexities. Planes often run late; indeed, Flight 103 was late taking off. And yet, in the official narrative, the purported Libyan timing device, which did not feature an air-pressure switch, made its convoluted journey to Heathrow and then detonated successfully soon after the Pan Am flight's delayed take off. Which is more plausible, Swire asked, a bomb with a conventional timer making a Malta-Frankfurt-Heathrow journey and detonating 38 minutes into the third of its flights, or a bomb with an air-pressure switch, proven to detonate 32-42 minutes into a flight, doing precisely that? A bomb, moreover, of a kind known to have been in the possession of the PFLP-GC... one of whose bombs had gone missing. Of course, the counter-argument is that had Flight 103 departed on schedule, and the bomb been detonated by an electronic timer set for that schedule, it would have been over the Atlantic when the bomb exploded, and the orchestrators would likely have been untraceable... Fabrication of evidence? FOR THE first year or so, Swire noted, the investigation did rightly focus on Iran, Syria and the PFLP-GC. But the investigation was skewed in the run-up to the first Gulf War, he claims. The US-led coalition, gearing up to take on Saddam Hussein, needed Syria to stay out of the conflict and did not want to face "hordes of Iranian foot soldiers swarming across the border to attack it. So it was not worth irritating Iran and Syria." In fact, US officials first publicly tied Libya to Lockerbie in October 1990, two months after Saddam had invaded Kuwait. Libya, Swire went on, was "the perfect scapegoat." It could not affect the Gulf War. And its name had already been blackened. Swire believes it will be convenient for the appeals court to free Megrahi on a "semi-technical" count - "something along the lines of the prosecution having failed to give the defense access to all the evidence," without the truth ever coming out. And that truth, he said carefully, involves what "I fear was the deliberate fabrication of evidence" that enabled Megrahi to be charged and Libya to be framed. By this he means the fragment of the purported timer, which he says he fears was planted, and the identification of Megrahi, which he says may have been achieved as a consequence of the large sums of reward money made available by US intelligence for information in the Lockerbie case. "Intelligence services act in the perceived best interests of their own countries," Swire said in a bitter reference to the alleged skewing of the case. "That is not the same as getting to the truth... The Scottish justice system never had a chance. "I didn't used to believe that our governments would do this," he concluded. He recalled that he met with Gaddafi to encourage him to give up Megrahi for trial, "because I believed Scottish justice was the best in the world. I feel guilty for [Megrahi] now, because I worked so hard to get him put on trial... The deceit needs to be brought to light." A dubious judgement UN OBSERVER Hans Koechler was far more circumspect at first when asked who blew up Flight 103 and why the investigation may have been skewed. "I am definite on only one matter," he told me. "The decision of the courts in 2001 and [in the appeal of] 2002 made no sense. It was not consistent. The indictment charged that the two Libyans had acted together. The court's judgement said they did not coordinate and that one [Fhimah] was innocent. Yet Koechler ultimately made plain his conviction that the case was fatally compromised. "My personal impression is that the authorities in the UK, in Scotland, didn't want a full investigation. Only a child could believe that a lone intelligence officer could have planned and carried out Lockerbie. Yet they have not looked for others. If Scotland is serious about the rule of law, it should investigate until all the culprits are found... What they have produced is a very dubious judgement - one person, only one person, and he may not even have done it!" And Koechler added that he had no other explanation for Britain's determined refusal to order further investigation of the case, or for the lack of pressure from the US. "Most of the dead" - 188 of the 270 victims - "were Americans," he stressed. Black was more outspoken. Like Swire, he is adamant that Lockerbie was a PFLP-GC operation, financed by Iran to avenge the Vincennes attack, and he is "scandalized" by the cover-up. It's terrible that "national governments would get up to this kind of thing," he said. But as a "parochial Scottish lawyer," he went on, he was most pained "that the criminal justice system in my country lent itself to this." He too speculated that the timing of the Lockerbie affair, coinciding with the first Gulf war, explained the skewing of the investigation. "The PFLP-GC was funded and protected by Syria," he noted. "And with the unfolding of Operation Desert Storm... the coalition needed at least the benevolent neutrality of Syria." Black added that "it was never anticipated that Libya would surrender the two suspects for trial. The thinking was, 'We'll just generally blame the Libyans.'" Koechler, by contrast, said he could not advance an alternate theory, "because I do not have the access [to evidence] of British, German and American officials." Then he added dryly: "I must assume they do know what happened." Minefield of theories THE LOCKERBIE affair is immensely complex, a minefield of conflicting theories, from highly credible to thoroughly implausible. It does seem curious, but not out of the question, that terrorists would have loaded a bomb intended for Pan Am flight 103 onto a feeder flight two stops away. Such complexity. Such risk of flight delays foiling their bomb plot. Such danger of the unaccompanied luggage alerting security suspicions. It seems strange, too, but far from impossible, that the very kind of device found with the PFLP-GC in Germany, set to detonate precisely as the Lockerbie bomb detonated, was not the bomb on the plane. Iran's motivation seems persuasive, too, the more so given its track-record, notably in Argentina, for orchestrating massive "revenge" terror attacks. Indeed, a prime concern if Lockerbie was an Iranian operation is that, having never been exposed, Teheran was both underestimated by the counterterrorism community and emboldened to strike again, with the consequent loss of other innocent lives. Yet to muddy the picture still further, some theorists have speculated that the PFLP-GC cell did carry out the bombing, but on behalf of Libya, not Iran. They are persuaded by the Swiss timer's provenance, and reinforced by Gaddafi's known supply of Semtex to the IRA and his close ties to the PFLP-GC, which he funded heavily in the 1980s. Halevy and Thatcher HERE IN Israel, the former Mossad officer and eventual chief Efraim Halevy told me this week that, although he didn't recall all the details, "to the best of my knowledge the Libyans were the perpetrators. I don't know if it was in conjunction with others." Nahum Admoni, who headed the Mossad at the time of the bombing, said he was not prepared to comment on the case. And his successor, Shabtai Shavit, who took over the Mossad at the height of the Lockerbie investigation in the UK, said the matter was "ancient history" and that he only remembered vaguely "all sorts of speculation about Syria, Jibril, the Libyans... I was dealing with unrelated matters." By contrast, Robert Baer, the CIA's former top agent in the Middle East, who worked on the Lockerbie case, told me flatly last week that Pan Am 103 was blown up by one of Dalkamouni's bombs. Margaret Thatcher, British prime minister at the time of Lockerbie, for her part, implicitly seemed to rule Libya out, writing in her memoirs, The Downing Street Years, that the 1986 US air strikes on Tripoli and Benghazi did not prompt a feared Libyan revenge attack. "There were revenge killings of British hostages organized by Libya," she wrote, "but the much-vaunted Libyan counterattack did not and could not take place." It is hard to imagine that Thatcher, if she was persuaded that Libya was responsible for the deadliest attack on Britain since World War II, would have written, as she then went on to specify, that in the wake of the 1986 US air strikes, "There was a marked decline in Libyan-sponsored terrorism in succeeding years." Remarkably, Thatcher does not mention Lockerbie at all in her book, which was published in 1993. The gravest terrorist outrage ever perpetrated in her country, ignored in a comprehensive work of 862 pages, except for the four-word reference in the "Chronology" for 1988 on page 871: "December 21: Lockerbie bombing!" Definitive answers, of course, should rightly have been supplied by that most costly criminal investigation in British history. Instead, the case against the only man ever convicted for Lockerbie is collapsing, and the governments whose citizens figured most prominently among the dead seem unconscionably unwilling to dig relentlessly for the truth, having repeatedly resisted calls for a wider public inquiry. Would the British and American governments be prepared to mount so extensive a cover-up for the expediency of keeping Syria onside during the first Gulf War and avoiding irritating Iran? It seems inconceivable. Yet the official explanation - the narrative that ought to be marshalled to swat away so unthinkable an accusation - is now being questioned more pointedly than ever. Combatting terror BLACK AND Koechler are both grimly convinced that the truth about Lockerbie will never come out. Koechler is renewing calls for a new, independent investigation, without the participation of the US, UK or Libya. But in the next breath he said, "It will not happen." In a follow-up e-mail, Koechler added that "criminal justice cannot be conducted under circumstances in which intelligence services are allowed to decide what, and to what extent, evidence is made available in a court of law and where 'national interests' are used as an excuse for not disclosing relevant information." Black said Megrahi will be released, the British government will "stonewall" and the American government will deride the incompetence of "what they'll call the 'Mickey Mouse' Scottish courts for letting him go. 'The guilty man would never have gone free in America,' they'll say." But if Black is most aggrieved by the alleged subversion of the Scottish legal apparatus, Koechler is concerned, too, for the battle against terrorism. "If you want to be credible in combatting terror, you must look for those responsible for terrorist attacks," he said simply. "And if you are not seeking all the culprits in this case, you have no credibility in other cases. You cannot apply double standards. The rule of law must be upheld. The victims' families have the right to justice. And so does the wider public." IN FACT, the public has the right not only to justice but to protection. For if, as a consequence of incompetence or cynical realpolitik, the true culprits are not tracked down and prosecuted, they and their government sponsors are free to orchestrate further murderous outrages. And experience shows that this is precisely what they do. Linda Amar contributed research to this report.

Editor's Notes: Lockerbie - a miscarriage of justice?

US and UK authorities will face bitter allegations that they skewed the investigation for reasons of political expediency... and the guilty were left free to bomb again.

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