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A Perverse Verdict


first published in Problems of Capitalism and Socialism, No 64/65



On 21st December 1988, 270 people were killed when Pan Am flight PA103 from London Heathrow to JFK New York was brought down over Lockerbie. Almost three years later, on 14th November 1991 the prosecution authorities in Scotland and the United States announced simultaneously that they had brought criminal charges against two Libyan nationals, Abdelbaset Ali Mohmed al-Megrahi and Al Amin Khalifa Fhimah, for the bombing.

In the indictment, the two were alleged to be members of, and to have been acting as agents of, the Libyan intelligence service, the Jamahariya Security Organisation (JSO). The implication of the charges was that the Lockerbie bombing was an act of terrorism ordered by the Libyan state, that is, by Colonel Gadaffi. The assumption was that the bombing was in revenge for the US bombing of Libya from British airbases in 1986.



The indictment of the two Libyans in November 1991 came as a great surprise since it was widely believed up to then that the bombing was the work of Palestinians acting on behalf of Iran, in revenge for the shooting down in the Persian Gulf of an Iranian airliner carrying about 350 pilgrims to Mecca by the US guided missile destroyer Vincennes. This happened in July 1988 a matter of months before the bombing. But in November 1991 the world was asked to believe that Libya was responsible, and that the action was in retaliation for the US bombing of Tripoli and Benghazi on 14th April 1986 from airbases in Britain, when about 100 civilians were killed, including Gadaffi's 2-year old adopted daughter.

Margaret Thatcher authorised the use of airbases in Britain. Lockerbie isn't mentioned at all in her 900-page autobiography, The Downing Street Years. Of the predicted Libyan retaliation for the bombing she boasted:-

'It turned out to be a more decisive blow against Libyan-sponsored terrorism than I could ever have imagined. We are all too inclined to forget that tyrants rule by force and fear and are kept in check in the same way. There were revenge killings of British hostages organized by Libya, which I bitterly regretted. But the much vaunted Libyan counter-attack did not and could not take place. Gadaffi had not been destroyed but he had been humbled. There was a marked decline in Libyan sponsored terrorism' (pp 448-9).

This was published in 1993, long after the two Libyans were charged. It appears that she didn't believe in a Libyan connection to Lockerbie.



The two accused were eventually tried under Scottish law by three Scottish judges without a jury at Camp Zeist in the Netherlands. The judges-Lords Sutherland, Coulsfield and Maclean-delivered their unanimous verdict on 31st January 2001, finding Megrahi guilty and acquitting Fhimah. We have reproduced the judgement in full in a separate article. We have done so because it is evident from the judgement itself, without referring to the trial proceedings, that the conviction of Megrahi is perverse. In it, the judges relate the prosecution's account of how the Lockerbie bombing might have been carried out-by introducing an unaccompanied bag containing a bomb into the international airline baggage system at Luqa airport in Malta-and conclude that it was done that way, and that it was done by Megrahi. But there is no evidence, let alone conclusive evidence, that a bomb was introduced at Luqa airport and no conclusive evidence connecting Megrahi with the bomb.

It is inconceivable that the three intelligent men who put their names to the judgement believe that the prosecution proved that Megrahi was guilty beyond reasonable doubt. As we show in an analysis of the judgement presented below, reasonable doubt leaps out of it all over the place. The judgement is perverse. This extraordinary outcome is a consequence of the extraordinary decision of the Scottish prosecution authorities to indict the two Libyans in the first place. They did so on the evidence of Abdul Majid Giaka, a former member of the Libyan intelligence service, the JSO, and from August 1988 a CIA asset. During the trial, the defence demolished his credibility as a witness, so much so that the judgement discounts his evidence almost entirely. Before they charged the two Libyans in November 1991, Scottish prosecution authorities had a duty to ensure that their key witness was credible. They did not do so. This gross incompetence had consequences of geopolitical importance: it led to economic sanctions being imposed on Libya for most of the 90s at the behest of Britain and the US in an attempt to force Libya to hand over of the accused for trial.

What is more, the CIA and therefore the US Government knew that Giaka was not a credible witness-it was in the cables which his CIA handlers sent back to Langley about him from August 1988 onwards-but they kept this information from the Scottish prosecution authorities. The CIA may even have furnished Giaka with the 'evidence' he gave about the two Libyans. Be that as it may, the Scottish prosecuting authorities allowed themselves to be conned by the CIA.

So, what was at stake in the trial at Camp Zeist was about much more than the guilt or innocence of the two Libyans in the dock. For the judges to pronounce them innocent was an indictment of their fellow professionals in the Scottish legal system who had allowed themselves to be conned by the CIA into bringing the charges in the first place. It was also an indictment of Britain and the US for pursuing a vendetta against Libya for most of the 90s to force the handing over of two innocent people.

So, what could the judges do but suspend reasonable doubt and find at least one of the Libyans guilty ? On 1st June last year after the trial in Camp Zeist had started the prosecution at last saw uncensored versions of CIA cables about Giaka and became aware of the awful truth of Giaka's history, which if revealed to the defence would mean that his credibility as a prosecution witness would be undermined. When the defence applied to the Court for the same access to the cables, desperate to protect their key witness, the prosecution lied to the Court that the censored material would not be useful to the defence (see below). The person who told this enormous whopper was the Lord Advocate, the chief law officer of Scotland, who led for the prosecution at Camp Zeist.



As we have said, the key prosecution witness at the trial in Camp Zeist was Abdul Majid Giaka. Without him, the two Libyans, Megrahi and Fhimah, would never have been indicted. Whenever, in the intervening years, journalists and others questioned the soundness of the case against them, the prosecuting authorities in Edinburgh and Washington always responded by boasting that they had a witness who could connect the accused directly with the Lockerbie bomb. The witness in question was Giaka.

Giaka was a member of the Libyan intelligence service, the JSO, who in August 1988 a few months before the Lockerbie bombing offered his services to the CIA. In July 1991 he gave the CIA startling eyewitness evidence connecting Megrahi and Fhimah with the Lockerbie bomb (whereupon he was taken to the US and put on a witness protection programme, where he has remained ever since). A few months later in November 1991 they were charged with the bombing in Scotland and the US. Without Giaka's evidence, they would never have been charged.

The credibility of any witness should be of concern to prosecuting authorities. The more so when he is the key witness in the biggest murder trial in British history with profound geopolitical implications. Even more so when he is a former member of Libyan intelligence who has defected to the CIA and who stood to receive $4 million of reward money from the US Government if his evidence was instrumental in securing a conviction for the Lockerbie bombing.

Plainly, it was incumbent upon the Scottish prosecuting authorities to look upon Giaka's evidence with a very sceptical eye and to assess his credibility as a witness thoroughly before charging the two Libyans. This they failed to do. Crucially, they failed to get sight of uncensored versions of the regular cables about him sent by his CIA handlers in Malta to CIA headquarters in Langley in the period from August 1988 onwards, which contained the CIA's own assessment of his credibility. It seems that prior to the charges being laid in November 1991 the CIA had allowed them to see censored versions of the cables with large parts blacked out. But it wasn't until 1st June 2000, after the trial in Camp Zeist had begun, that they saw uncensored versions of these cables.

It was, unsurprisingly, the blacked out parts which were relevant to an assessment of Giaka's credibility. They revealed that, as of 1st September 1989, when he had been working for the CIA for over a year (and months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him. He is described as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information. The clear inference from this is that by 1st September 1989 Giaka had still not given his CIA masters the crucial eyewitness 'evidence' incriminating Megrahi and Fhimah, otherwise these criticisms of his value and of the worth of the information supplied by him could not have been made.

Had the Scottish prosecuting authorities done their job in 1991 and made it their business to acquaint themselves with the CIA's experience of Giaka then Megrahi and Fhimah would never have been charged-and Libya would not have had economic sanctions imposed on it for most of the 90s for refusing to extradite them. Clearly, the CIA deliberately kept vital information about Giaka's lack of credibility as a witness from the Scottish prosecuting authorities. But it was their job to make sure their key witness was credible, to demand a full account of Giaka's history with the CIA and to bring charges against the two Libyans only if that history revealed him to be credible.

(There is, of course, an alternative explanation to this: that the CIA supplied Giaka with the 'evidence' incriminating Megrahi and Fhimah and dangled a carrot of a $4 million reward in front of him if he performed well enough at a trial to get them convicted. Megrahi was a suspect by early 1991 with tentative identification evidence against him, so it is possible that the CIA decided in July 1991 to make their hitherto useless asset perform a useful service for them by incriminating the two Libyans. Obviously, Giaka could only perform that service if the CIA's experience of him was kept away from the Scottish prosecuting authorities-and the defence.)



The prosecution saw the uncensored versions of the CIA cables about Giaka on 1st June 2000 at the US embassy in The Hague, having promised to keep the censored parts confidential. How this came about is not clear. Presumably, the prosecution made a request to the CIA. If so, it was not obviously a sensible thing to do from their point of view. There is a clear obligation in Scottish law that the prosecution has a duty to disclose to the defence any information which supports the defence case or casts doubt upon the prosecution case. In principle, therefore, information from the uncensored cables which undermined Giaka's credibility would have to be disclosed to the defence, and a confidentiality agreement with the CIA could not override that principle. So, on the face of it, from the prosecution point of view it would have been far better if they had remained in ignorance.

(Why the CIA consented to the prosecution seeing the uncensored cables is also a puzzle, since they must have known that there was a grave danger that as a result Giaka would be discredited and the trial would collapse. At the time there was some public controversy about the CIA failing to make information available for the trial and at one point the Director of the CIA, George Tenet, made a statement to the victims' families saying that the CIA was committed to making every relevant piece of evidence available to the Court. Perhaps that's why the CIA felt obliged to give the prosecution unrestricted access of the cables for the first time.)

When the prosecution saw uncensored versions of the cables on 1st June 2000, they must have been panic stricken since their key witness had been revealed to be utterly unreliable. They kept quiet about their sight of the uncensored cables for three months until 21st August, the day before the trial was due to resume after its summer recess. When the defence applied to the Court next day for access to the uncensored cables, the prosecution objected strenuously and simply lied to the Court, denying that the censored material would be useful to the defence.

The Lord Advocate of Scotland, who led for the Crown at the trial, told the Court that the members of the prosecution team who saw the uncensored CIA cables were fully aware of the obligation upon them to make available to the defence teams material relevant to the defence of the accused and, to that end, considered the contents of those cables with certain principles in mind. He said:-

'First of all, they considered whether or not there was any information behind the redactions [the censored material] which would undermine the Crown case in any way. Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid [Giaka]. They also considered whether there was anything which might bear upon the special defences which had been lodged and intimated in this case. On all of these matters, [they] reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way.'

One of the trial judges, Lord Coulsfield, then intervened:-

'Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?'

To which the Lord Advocate replied:-

'...there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters'.

That is a barefaced lie by the chief law officer of the Crown in Scotland. The uncensored cables revealed, amongst other things, that the CIA believed Giaka to be in the business of selling information for his own benefit. One doesn't have to be a lawyer, let alone the chief law officer in Scotland, to recognise that this 'impinges upon the credibility' of Giaka as a witness, as did other matters from the uncensored cables. A witness in court who is caught out lying can be charged with perjury and even gaoled, but the chief law officer of the Crown in Scotland can apparently lie with impunity. However, the Lord Advocate's lies were in vain. The Court did not accept that the defence should be denied access to the uncensored cables and he was instructed by the Court 'to use his best endeavours to ensure that the information in the unedited cables was disclosed to the defence'. The CIA conceded that the defence could see the unedited cables-they had to, otherwise the case would most likely have collapsed-and for the first time in history CIA internal documents were made available to a foreign court. With the aid of the unedited cables, the defence destroyed Giaka's credibility as a witness when he gave evidence on 26th-28th September.