By Norm Dixon

14 February 2001 -- The eminent barrister Horace Rumpole has often noted that the “golden thread running through the history of British justice” is that a defendant is innocent until proven guilty by the prosecution “beyond a reasonable doubt”. Of course, Rumpole is a fictional character created by writer John Mortimer. As the verdict handed down in the Lockerbie bombing trial proves, the “golden thread” is just as fictional.

On January 31, the three Scottish lords sitting in judgement on the charges against two Libyans accused of planting the bomb that felled Pan Am flight 103 over Scotland on December 21, 1988, found Abdelbaset Ali Mohmed al Megrahi guilty of the murders of the 270 people killed in the disaster. Al Amin Khalifa Fhimah was found not guilty.

The nine-month trial was held in the Netherlands and conducted according to Scottish law. It was the result of an agreement between Libya and the US and British governments that finally allowed the trial — which had been stalled for almost five years by London's and Washington's insistence that the case be held in either the United States or Britain — to be heard in a “neutral” third country.

In their 82-page judgement, the three judges found that, despite “uncertainties and qualifications”, “there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused [Megrahi]”.

According to the judges, the evidence showed that Megrahi, Libyan Arab Airlines' security chief at Malta's Luqa airport, had purchased items of clothing from a shop in Malta that were of the same brand and type as those that forensics experts had determined were in the Samsonite suitcase that contained the bomb that destroyed Pan Am 103. From the presence of these brands and types of clothes in the suitcase, the judges inferred that Megrahi had somehow succeeded in having the “item of baggage”, unaccompanied by a passenger, transferred from Malta, via Frankfurt, to London's Heathrow airport, where it was loaded onto the doomed aircraft.

The judges added that with “other background circumstances” — such as Megrahi's previous (and seemingly continuing) service with Libya's security organisation (JSO), his “association” with the Swiss company that manufactured a type of timer which the prosecution claimed was attached to the bomb and “his movements [between Malta and Libya] under a false name at or around the material time” — “a real and convincing pattern” formed.

Unexpected

Ian Bell wrote in the Scottish Sunday Herald on February 4, “Last week you would have been hard-pressed to find an Edinburgh lawyer willing to bet on any guilty verdict being reached at Camp Zeist. The same belief was evident, it is reported, in Whitehall.”

Robert Black QC, the highly respected professor of Scottish law at Edinburgh University who in 1994 first suggested the plan for a third country trial, told the BBC on February 4: “This was a very, very weak circumstantial case. I am absolutely astounded, astonished. I was extremely reluctant to believe that any Scottish judge would convict anyone, even a Libyan, on the basis of such evidence.”

Michael Scharf, a law professor at the New England School of Law, agreed, telling the February 2 New York Times: “It sure does look like they bent over backwards to find a way to convict, and you have to assume the political context of the case influenced them.”

Even some of the British relatives of the Lockerbie victims were sceptical: “All we know from this trial is that one of the two was innocent. I think we should be grateful... But we have our doubts about the guilt of Megrahi”, Martin Cadman, whose son was killed in the disaster, told the February 2 London Independent.

Beyond reasonable doubt?

The prosecution case, and the judges' verdict, rested fundamentally on two points: it was Megrahi who purchased the clothes which were packed into the suitcase that contained the bomb, and that suitcase began its fateful journey in Malta rather than either Frankfurt airport or at Heathrow.

Yet, Megrahi was never positively identified as the man who purchased the clothing, the prosecution did not provide any physical or documentary evidence to link Megrahi to the suitcase or the bomb components, and no evidence was offered to prove that the suitcase began its journey in Malta, let alone that it was Megrahi who sent it on its way.

The guilty verdict hinged most on the testimony of Tony Gauci, the owner of the clothes shop in Malta. In their judgement, the judges stated: “We are nevertheless satisfied that his identification so far as it went of the first accused as the purchaser was reliable and should be treated as a highly important element in this case.”

In their verdict, the judges described the torturous path Gauci's “identification” of Megrahi had taken. The shopkeeper was first interviewed by police on September 1, 1989, and described the purchaser as being “six feet or more” in height and well-built. On September 13, he told police the man was about 50 years old.

Megrahi is five feet, eight inches tall, of medium-build and was 36-years-old in December 1988.

On September 14, 1989, Gauci was shown 19 photos and identified a man as being “similar” to the purchaser but added that the purchaser was 20 years older. The man's photo — who was not Megrahi — was included because police thought he resembled an artist's impression and an identikit portrait based on Gauci's description.

On September 26, 1989, Gauci viewed more photos and pointed out another man included at the suggestion of German police. On August 31, 1990, Gauci was shown 24 photos and pointed out a man who, he said, had a face with a similar shape and style of hair to the purchaser. It was not Megrahi.

On December 6, 1989, and again on September 10, 1990, Gauci was shown photos but did not identify anybody. Included both times were photos of Abo Talb, a Palestinian jailed in Sweden in 1989 for terrorist bombings. Yet, Gauci told the court that in late 1989 or early 1990 his brother had shown him a newspaper article about the Lockerbie disaster which included a photo of a man with the word “bomber” printed across it. Gauci said he thought it was the man that bought the articles from him or that it resembled the person who bought the clothes from him. The man was Abo Talb.

On February 15, 1991, police showed Gauci 12 photos. Gauci told police that all the men in the photos were younger than the purchaser. The police pressed Gauci to “allow for any age difference” and look again. He pointed to a photo and said the man “resembles the man who bought the clothing ... of all the photographs I have been shown, this photograph 8 is the only one really similar to the man who bought the clothing, if he is a bit older, other than the one my brother showed me [of Abo Talb].” Photograph 8 was Megrahi's 1986 passport photo.

Towards the end of 1998 or the beginning of 1999, Gauci approached police after he was shown a magazine article about the Lockerbie disaster which named Megrahi as a suspect. He told police that the photo of Megrahi in the article “looks like the man” he sold clothes to.

On August 13, Gauci picked out Megrahi from an identification parade with the words: “Not exactly the man I saw in the shop. Ten years ago I saw him, but the man who look a little bit like exactly [sic] is number 5”. At the trial, Gauci pointed to Megrahi and said he “resembles him a lot”.

The defence lawyers protested that Gauci's eventual, less than positive identification of Megrahi had taken place after the defendant's photo had been in the world news for years.

In their verdict, the judges admitted that Gauci “never made what could be described as an absolutely positive identification”. The judges defended their assessment of Gauci's “identification” with the incredible statement that, “There are situations where a careful witness who will not commit himself beyond saying that there is a close resemblance can be regarded as more reliable and convincing in his identification than a witness who maintains that his identification is 100% certain.”

Gauci was also unclear as to when the items were purchased. On the witness stand, he agreed the date was either November 23 or December 7, 1988. The prosecution insisted it was December 7 and in the verdict, the judges did too.

However, in his statements to police and in his testimony at the trial Gauci said that it had been, or was, raining when the purchaser entered the shop. The nearby Luqa airport's chief meteorologist testified that it did not rain on December 7, but did so on November 23.

Interestingly, before the indictment of the two Libyans, the press reported that the police had stated that the clothing had been purchased on November 23.

Why is this important? First, because Megrahi was in Malta on December 7 but investigators could find no evidence that he was there on November 23, and second, because Abo Talb, who Gauci first identified as the purchaser, might have been. Talb had visited Malta from Sweden in late October 1988. When he left on October 26, he flew to Sweden on a return ticket valid for one month, raising the possibility could have returned.

Talb, who testified at the Lockerbie trial, could only prove he was in Sweden until November 10 and most of December, including on December 7. Talb presented no evidence to prove he was in Sweden after November 10 and before December 5. It is therefore possible that Talb entered Gauci's shop on November 23.

In December 1989, it was reported in several major newspapers that Scottish police, in papers filed with the Swedish legal authorities, had named Talb as the suspect “in the murder or participation in the murder of 270 people”.

The judges, however, chose to declare that “there is some support for Abo Talb when he said that he remained in Sweden and did not return to Malta after 26 October 1988”.

PFLP-GC

Talb's possible involvement is in line with the defence team's argument that there was a more plausible — and simpler — theory of how the bomb-laden suitcase reached Heathrow than the prosecution's convoluted speculations.

Talb was a member of the Syria-based Palestinian Popular Struggle Front, which worked closely with another Syria-backed terrorist group, the Popular Front for the Liberation of Palestine-General Command (PFLP-GC). On October 26, 1988 — less than a month before the Lockerbie disaster — West German police raided PFLP-GC safe-houses and seized Toshiba radio cassette players, explosives, detonators, timers, barometric pressure devices, as well as Pan Am timetables and unused airline baggage tags.

The cache suggested a plot to bomb an aircraft. A trade mark of the PFLP-GC's bombs at the time were that they were concealed within Toshiba radio cassette players. The bomb that brought down Pan Am 103 had been concealed in a Toshiba player, although a different model from that generally used by the PFLP-GC. That not all the PFLP-GC's stock of bombs had been discovered was proven when, in April 1989, three explosive devices were seized in a raid.

At first, US and British investigators also were convinced that the PFLP-GC — with the backing of the Syrian and Iranian governments — was the prime suspect in the Lockerbie disaster.

The FBI in April 1989 leaked news that the PFLP-GC had smuggled the bomb onto flight in Frankfurt. The Washington Post on May 11, 1989, reported that the US State Department had stated that the CIA was “confident” that the PFLP-GC had carried out the attack on behalf of the Iranian government. The attack was said to be in retaliation for the 290 pilgrims massacred while returning from Mecca when a US warship blew a Iranian passenger jet out of the sky as it passed over the Persian Gulf.

On December 16, 1989, the New York Times reported that Scottish investigators had announced that they had “hard evidence” that the PFLP-GC was behind the bombing.

In October 1990, US and British authorities suddenly did a backflip as the US build-up in the Gulf was gathering pace following Iraq's invasion of Kuwait. Investigators attention suddenly shifted from the Syria-backed PFLP-GC to Libya. In 1991, the two Libyans were formally indicted.

What changed between 1988 and 1991? Syrian dictator Hafiz Assad was an enthusiastic participant in the 1991 Gulf War against Iraq, whereas Libya's leader Moammer Qadhafi opposed the war and campaigned for a peaceful settlement.

The judges rejected this alternative theory, although they did “accept that there is a great deal of suspicion as to the actings of Abo Talb and his circle, but there is no evidence to indicate that they had either the means or the intention to destroy a civil aircraft in December 1988”.

This contention is based on the claim that the Lockerbie bomb was triggered by a Swiss-made timer of a type (MST-13) that had been supplied to the Libyan army in the mid-1980s. Yet the owner of the company that made the devices testified that MST-13s had also been supplied to the East German Stasi spy agency. East Germany is known to have harboured the PFLP-GC.

Despite the judges' proviso that “we are unable to exclude the possibility that any MST-13 timers in the hands of the Stasi left their possession, although there is no positive evidence that they did and in particular that they were supplied to the PFLP-GC”, their verdict stated that “the evidence relating to [the terrorist activities of the PFLP-GC] does not create a reasonable doubt in our minds about the Libyan origin of this crime”.

`Major difficulty for Crown'

The judges' verdict doggedly insisted that “we are satisfied that it has been proved that the primary suitcase containing the explosive devise was dispatched from Malta, passed through Frankfurt and was loaded onto PA103 at Heathrow”.

Yet, the judges contradict themselves by admitting that there were no records that showed any unaccompanied baggage was carried on the flight to Frankfurt and that all luggage in Malta was checked by military personnel for the presence of explosives. The judges noted that the Luqa airport had a “relatively elaborate security system” and security procedures that “seem to make it extremely difficult for an unaccompanied and unidentified bag to be shipped on a flight out”.

The judges conceded that: “If therefore the unaccompanied bag was launched from Luqa, the method by which that was done is not established, and the Crown accepted that they could not point to any specific route by which the primary suitcase could have been loaded... The absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 [the Malta to Frankfurt flight] is a major difficulty for the Crown case.”

The judges' determination to deny that the bomb could have been introduced at a point other than Malta, and by a culprit other than Megrahi, led them to ignore that the security at Frankfurt airport was notoriously lax — something the US law enforcement authorities knew about at the time.

According to an October 30, 1990, US NBC television news report, “Pan Am flights from Frankfurt, including 103, had been used a number times by the [US Drug Enforcement Agency] as part of its undercover operation to fly informants and suitcases of heroin into Detroit as part of a sting operation to catch dealers in Detroit... Informants would put suitcases of heroin on the Pan Am flights apparently without the usual security checks ... through an arrangement between the DEA and the German authorities.”

The report stated that the DEA was investigating the possibility that a young man who lived in the US and regularly visited the Middle East may have unwittingly carried the bomb aboard flight 103.

An investigation commissioned by Pan Am's insurance company in 1989 also concluded that the most likely source of the bomb was that the PFLP-GC had infiltrated the DEA's protected drug smuggling operation and succeeded in having the bag containing the bomb placed on Pan Am 103 in Frankfurt.

Megrahi should have been found not guilty because the prosecution did not prove him guilty beyond “reasonable doubt”. A terrible miscarriage of justice has taken place because the three loyal servants of the British imperialist ruling class who sat in judgement on the fate Megrahi and Fhimah had already decided to find one of them guilty regardless of the facts.

The lords knew that the political stakes were too high to allow both Libyans to walk free. Such a verdict would have exposed the lies upon which nine years of UN sanctions, which have cost Libya US$33 billion and 10,000 lives, have been based. It would have also shed some light on the cynical, sleazy and embarrassing political operations that the US government is involved in throughout the world.