X.The Present Official Stance of the Government of Scotland

Along with the judges the cabinet members of the present Scottish Government must also know the truth about Lockerbie. In the face of a hostile and gullible America it has to be acknowledged how courageous they were to release al-Megrahi ostensibly on compassionate grounds in 2009. Sadly, but for perhaps understandable reasons, they have felt hitherto unable to go the whole hog and admit they know he was an innocent scapegoat. Thus they continue to throw away good Scottish taxpayers’ money after bad on a preposterous expedition by Dumfries and Galloway police officers to Libya (see The Guardian, 8 December, 2011). Although with some sense of guilt, the author therefore embarked on a one-man-campaign of aggravating their discomfort.

Emailing the Scottish Government on 1 August 2011 he invited them to acknowledge that al-Megrahi’s conviction could no longer be sensibly sustained. On 30 August, a nameless spokesperson responded with the stock reply that “[i]t would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case. . . . [T]he Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi.” Wasting no time in making a further nuisance of himself, the author replied on 2 September, observing that–

“for the Scottish Government to declare that they ‘do not doubt the safety of the conviction of Mr Al-Megrahi’ appears to be a very different proposition from tactfully abiding by a studied silence on the merits. . . . [T]he self-effacing sentence ‘it is not for us to cast doubt’ on such and such is qualitatively quite different from avowing ‘we do not doubt’ that X is the case. On its most natural meaning the latter implies that the Government have formed a rational view of the case after due consideration of the relevant facts. . . . It is difficult to believe that on such a vexed issue as Lockerbie some at least of the Scottish body politic have not made some effort to get to grips with the case details.”

Against the background of those observations the author set out a series of detailed questions asking for chapter and verse on the decision-making process according to which the cabinet determined that they believed in the safety of the conviction. Initially no response was forthcoming and it was only when the author in another publication (The Jewish Chronicle, 30 September, 2011) accused the Scottish Government of stonewalling that any response was engendered. However, the spokesperson declined to rise to the bait and the author subsequently sent a modified inquiry. Assuming the cabinet’s faith in the conviction to have been vicarious, that is to say based on the judges’ view of the facts, the author asked this time for details of the decision-making process by which the cabinet chose without consideration of the facts to adopt the judges’ view vicariously. Needless to say this engendered no response.

In fact the notion that simple protocol precludes the Scottish Government from stepping on judicial toes is completely unfounded. Any consideration of their prevarication and obfuscation on facilitating a general inquiry into the case suggests they are only too well aware of the powers they actually hold.

In 2007 the Scottish Criminal Cases Review Commission (SSCCRC) authorised Mr al-Megrahi’s second appeal against conviction. However, the newly elected minority SNP Government quickly ushered through a statutory instrument which effectively banned publication of the Commission’s statement of reasons without the consent of its informants. This would have allowed such interested parties as the witness Anthony Gauci to block publication. Then, in the run-up to Scotland’s May 2011 Election, the party professed to declare that they would remove the ban, but they eschewed the swift use of another statutory instrument to do the job. Instead, they chose to follow the time-consuming route of primary legislation and moved the Criminal Cases (Punishment and Review) (Scotland) Bill, a measure which would allow informants to block publication under the pretext of data protection. However, as the Committee of Justice for Megrahi (JFM) argued before the Justice Committee of the Scottish Parliament on 7 February, 2012, s.194K(4) of the Criminal Procedure (Scotland)Act 1995 explicitly provides that where SCCRC disclosure is permitted by a Statutory Instrument (inter alia) such disclosure “is not prevented by any obligation of secrecy or other limitation on disclosure (including any such obligation or limitation imposed by, under or by virtue of any enactment).” In other words, neither UK data protection legislation nor any other legislative or common law obligation of secrecy can operate as any bar to disclosure. The eminently sensible solution suggested by JFM was to dispense with the consent requirements from the 2009 statutory instrument and to drop from the Bill those clauses which created the obstacle to publication of the Statement of Reasons. In spite of their having been forced neatly into a corner it is anticipated that the Government will find some equally facile stratagem for avoiding the issue.

Similarly indicative of the SNP’s protective attitude towards the reputation of the Zeist judges is their Criminal Procedure (Legal Assistance, Detention and Appeals)(Scotland) Act 2010, rushed through under the puzzling guise of emergency legislation on the very day JFM officially lodged petition no. 1370 calling on Parliament to order an inquiry into the case. In giving the courts wide powers to reject applications for leave to appeal s.7 effectively nullifies the SCCRC’s power to act as an independent arbiter. The discretion to review al-Megrahi’s conviction judicially lies therefore entirely in the hands of that very judiciary who found him guilty in the first place and went on to uphold the conviction on appeal. At the same time, Lord Advocate Frank Mulholland issued the ominous warning that the abolition of double jeopardy enacted just before the May 2011 Election (mirroring the power under the English Criminal Justice Act 2003 to retry certain defendants previously acquitted) could well be used to seek the re-trial of Lamin Fhimah, al-Megrahi’s acquitted co-defendant.

While Alex Salmond’s government continue to trot out the reiteration of their faith in the safety of al-Megrahi’s conviction they profess to keep an open mind on the subject, claiming to support an inquiry with broader international sponsorship: in effect a reference to the United Nations. Adopting such an approach is a posture Salmond and company can afford to make, secure in the knowledge that it is never going to happen. Unless and until Scottish independence is attained this would have to involve Whitehall and HMG have shown little inclination to risk transatlantic displeasure by questioning Libyan guilt. Moreover, in 2003 the UN Security Council passed a binding resolution to drop from its agenda all matters relating to the Lockerbie bombing. Although the General Assembly is not bound by the resolution its powers of inquiry are much more limited than those of the Security Council, having no power to compel citizens of any member state to attend as witnesses or to compel member states to surrender up documentary or other evidential material. It therefore enjoys less investigatory power than do ordinary official Scottish tribunals of inquiry. But even if the Scottish Government did seek to initiate a relatively toothless inquiry of the sort open to the General Assembly the idea that Mr Salmond might go cap-in-hand to HMG with a request to petition the UN on his country’s behalf is a droll one, to say the least. Yet if he overcame those qualms and if he persuaded HMG to petition the UN on Scotland’s behalf, the establishment of a General Assembly inquiry would require a two-thirds majority resolution and it would be a forlorn hope they might ever surmount that hurdle, given the inevitable perception that Scotland – a country with no UN mission – remains itself responsible for, and ought to be dealing with, the failure of its justice system to deal adequately with the problem instead of trying to pass the buck.

On 9 November, 2010, the Scottish Parliament considered the JFM Committee’s petition 1320 and found that the Salmond Government was in error in claiming to have no power or remit to open an inquiry into the Zeist trial. Not only did they cite two previous occasions when an executive decision was made to set up an inquiry into judicial judgments but they drew the Scottish Government’s attention to its powers under the Inquiries Act 2005. With the SNP government engaging in such hoopla the Scottish people might understandably be wondering if an independent Scotland would be entirely safe in the hands of the party’s current leadership.

There is little doubt that al-Megrahi’s conviction is the only putative link between the atrocity and the Gaddafi regime. Even then, Gaddafi’s payment of billions of dollars in compensation is not necessarily evidence of any more than his acquiescence, under US pressure, to shed Libya’s pariah status. The payment was explained as an acknowledgment of “responsibility” but there was an implied caveat that it was in the sense that the Libyan government was the official employer of “rogue” elements in the secret service who were neither instigated nor authorised to carry out the bombing. Even with the overthrow of the Gaddafi regime there is likely to be a continued stigma attaching to Libya, which the Libyan people and their new government must have a keen interest in shedding.

Even if there was the slightest truth in the ludicrous notion that the primary suitcase had made its way as unaccompanied baggage from Malta to Heathrow, having somehow been smuggled into the system at Luqa airport it would be difficult to see how any blame could conceivably attach to the people of the Island state. As we have seen security at Luqa competed with the best but even the most diligently designed and administered precautions can be defeated by utter determination to do evil. Nonetheless, a conclusive demonstration that Luqa was not the entry point would no doubt be received with satisfaction by the island’s government and people. To that end it may be timely to note that Dr Swire very recently visited Malta where he was warmly received by Prime Minister Muscat and others (see Robert Black QC’s blog http://lockerbiecase.blogspot.co.uk/ covering 5 and 9 November 2013, in particular).

It is clear that on any detailed and balanced scrutiny of the evidence as a whole the PFLP-GC remain as strongly as ever the leading contenders for suspicion of culpability, if not proof of guilt, together with their Iranian sponsors who commissioned and funded the bombing of PanAm 103. While the PFLP-GC continues to enjoy the patronage of the Syrian Assad regime, there is little reason to suppose that the regime’s attitude today differs significantly from that expressed during a discussion about Pan Am 103 and the PFLP-GC between US Secretary of State James Baker and the Syrian Foreign Minister in September 1990. According to a US Defence Intelligence Agency Terrorism Review summary it was noted that “although the US has provided evidence of PFLP-GC complicity, the Syrian government has dismissed it as insufficient” (summary dated 15 September 1990, see http://www.dia.mil/foia/panam103.pdf 18 March, 2010, cited by Miller above, n. 40). Two months later it was noted in the DIA Terrorism Review that the “US has long sought Jibril’s expulsion for his role in the bombing of Pan Am 103” (16 November, 1990, same web ref, cited Miller, n.41). The Assad regime has always maintained strong and close links with Hezbollah in Lebanon, an organisation supported by Iran. Hezbollah is closely allied to Hamas, another organisation supported by Iran. The common aim of these diverse elements is their dedication to the overthrow of the State of Israel. If it is not too simplistic to make the point Israel’s hand can only be strengthened in its struggle to oppose and neutralise that aspiration by a demonstration to the satisfaction of general Western democratic opinion that it was Palestinian terrorists sponsored by figures at the heart of the Iranian Government who were almost certainly responsible for murdering 259 passengers and crew, mainly US and UK citizens, on board PanAm 103 and 11 residents of the town of Lockerbie.

As already pointed out (at page 2) the silence of the Government of Israel is curious, since they would seem to have much to gain from revealing what they know about the involvement of the PFLP-GC in the destruction of Pan Am 103. However that silence in the event is hardly inexplicable. As already noted it benefits Israel more to forego the propaganda advantage of accusing their enemies, Iran and their contractor, the Palestinian extremist group bearing responsibility, than to break ranks with, the American intelligence community.

XII. Resurrecting the Case against Iran

1. Belated official confirmation of early

briefings to journalists

It was stated at the outset of this treatise that in the immediate wake of the the destruction of Pan Am 103 an assessment by the CIA gave most credence to a claim by the “Guardians of the Islamic Revolution” that they had avenged the shooting down of IranAir 655. Five days after the indictments were issued against the two Libyans the U.S. Department of State circulated a “fact sheet” which noted that “[t]he dominant hypothesis of the early stages of the Pan Am 103 investigation focused on indications that the bombing was the outcome of joint planning by the Iranian Revolutionary Guard Corps . . . and the PFLP-GC.” “Reliable intelligence reporting,” it continued, “indicated that the PFLP-GC and elements of the Iranian Government were planning to attack a US target in retaliation for the accidental downing in July 1988 of an Iranian Airbus by a US warship” (“The Iranians and the PFLP-GC Early Suspects in the Pan Am Flight 103 Bombing: Background information on the early stages of the investigation of the bombing of Pan Am Flight 103 over Scotland in 1988 and the initial hypothesis of the involvment of the Iranian Revolutionary Guard Corps (IRGC) and the Popular Front for the Liberation of Palestine-General Command”, Department of State Dispatch Published by the Bureau of Public Affairs, vol 2, no. 46, 18 November 1991). The text went on to describe the shift in focus to Libya and conjectured the possibility of “multiple state sponsors.” Apart from this terse reference to a possible collaboration between Iran and the PFLP-GC over the atrocity the only statements implicating Iranian officials and the PFLP-GC in a deal to avenge the shooting down of IranAir flight 655 by the U.S. Navy consisted of accounts by investigative journalists supposedly based on informal briefings by officials in the intelligence community.

Even after the FBI and Dumfries and Galloway Constabulary were shifting the focus of their inquiries towards Libyan culpability the American intelligence community remained in little doubt as to the true culprits. It has already been noted that in September 1990 US Secretary of State told his Syrian counterpart that there was a substantial body of evidence pointing to PFLP-GC culpability for Pan Am 103. Signficantly, this was after James Thurman of the FBI had purported to identify the fragment PT-35b as part of a PCB from a MEBO MST-13 timer of the kind supplied to Libya (see above) and as late as February 1991 the DIA were noting Mohtashemi’s payment of $10 million for “terrorist activities” and that he had “paid the same amount to bomb Pan Am103” (DIA Intelligence Report, February 1991, http://www.dia.mil/ foia/panam103.pdf, 18 March 2010, cited Miller, above, at n.38).

While it is unlikely that the impending liberation of Kuwait served as the primary factor in the decision to forego castigating Iran for the destruction of Pan Am 103, at the same time there is an alternative “narrative” which may well explain the existence of an understanding, decision or even a “deal” that allowed Iran to escape obloquy, blame and retaliation.