Panam 103 Case Far From Solved

by Alexander Cockburn

Qaddafi is now thundering his outrage from Tripoli, Libya, to the gratification of many in the West, but Libya's leader has a point: The evidence the judges used to find Megrahi guilty is entirely circumstantial and extraordinarily weak. It is with good reason that Robert Black, professor of law at the University of Edinburgh and the man who persuaded Qaddafi to release the two Libyans for trial in Holland, denounced the verdict as "astonishing."

Black, a former judge with 13 years' experience and Scotland's leading expert on criminal procedure and evidence, is telling the press Megrahi stands a better-than-average chance of being acquitted on appeal. Black is saying that in his view, the Crown case had failed to comply with strict Scottish legal rules. "I thought 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."

As long ago as January 1994, both Qaddafi and the accused affirmed in writing that they would be prepared to agree to a trial under Scot law before a court headed by a Scottish judge (assisted by a panel of judges from other countries) in a neutral country, a compromise forged by Professor Black. In August 1998, the British and Americans finally agreed.

Professor Black relates how he journeyed to the Libyan leader's tent, deep in the desert, to discuss the announcement. Qaddafi had been glued to CNN, watching Clinton's grand jury appearance in the Lewinsky matter. "These things happen, men will be men," he said indulgently. "But what was absolutely outrageous was that he was on the phone with important foreign leaders while this was going on. It should be cut off!"

In April 1999, Megrahi and Fhimah arrived in Holland. The Scots prosecutors knew that they had a weak case, based, in important respects, on promises from the United States that they had the incriminating evidence ready on hand. In essence, the case was based on the presumption that (a) the timer for the bomb was from a batch sold by a Swiss firm to Libya, (b) that fragments of clothing retrieved from the crash site and identified as having been in the suitcase that contained the bomb had been bought by the accused Megrahi from a shop in Malta, (c) that Fhimah's diary revealed a guilty interest in obtaining Air Malta luggage tags and (d) that a "secret witness," Abdulmajid Giacka, a former colleague of the accused pair in the Libyan Airlines office in Malta, would testify that he had observed them either constructing the bomb or at least saw them loading it on the plane to Frankfurt, Germany.

But Edwin Bollier, the Swiss manufacturer of the timing device at issue, testified that he sold timers of similar type to the East Germans, their ultimate destination unknown. In the course of his testimony it emerged that Bollier had been connected to many intelligence agencies, including both the Libyans' and the CIA. The Maltese shopkeeper could say only that Megrahi "resembled" the man who bought the clothes, refusing to identify him positively as the purchaser. Fhimah's references in his diary to luggage tags were clearly linked to a moneymaking scheme on his part to print tags for the Libyan airline.

This brings us to Giacka, the mystery witness. Lawyers for the defense formed the impression that he might be less than a formidable witness for the prosecution when they came to Washington in November 1999 to "precognose" him, as is their right under Scottish law. On arrival, they were blindfolded by the FBI and driven around suburban Washington for some hours in a closed truck. When they were finally permitted to remove their blindfolds they beheld a figure wearing a false beard and a "Shirley Bassey-type wig." Questioned by the Scots, he declared that the most he could affirm was that he had seen the accused, with a suitcase, in the neighborhood of the Malta airport luggage area, the day before the bombing.

In late August of last year a senior prosecution official began to remark dolefully that the case was "always a matter of circumstance," i.e., that they had never had more than circumstantial evidence, a shaky basis for embargoing an entire country for nearly a decade. In fact, the evidence in the CIA's possession point more clearly in the direction of the original suspects in the case, members of a group known as the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), which is closely linked to Iran.

The Iranians had a clear motive for an attack on an American airliner, following the destruction of an Iranian airbus over the Persian Gulf carrying 290 passengers, including 66 children on July 3, 1988. The U.S. Navy missile cruiser Vincennes had casually blown it out of the sky despite clear indications that it was a civilian plane. The United States declined to apologize and gave medals to the Vincennes' crew.

The initial U.S. and British investigations pointed clearly to a case against the Iranians as having contracted with the Lebanese-based PFLP-GC, or a section thereof, to exact revenge. Two months before Lockerbie, the Germans had arrested members of this group outside Dusseldorf, Germany, as they were preparing bombs specifically designed to bring down airliners. U.S. intelligence had traced a payment of $500,000 into the account of a professional bomber named Abu Talb in April 1989. Shown a picture of Talb by a British reporter in 1990, the Maltese shopkeeper who sold the clothes found in the bomb-suitcase declared that he "most resembled" the purchaser. The Scottish police had at one point been about to charge Talb, who, since 1989, has been serving time in a Swedish jail for a series of bomb attacks in Sweden and Denmark.

In March of 1989 however, Margaret Thatcher called George Bush to discuss the case. The two leaders agreed that it was important to "cool it" on the Iranian angle, since they were in no position to punish the Tehran regime, which had just survived the 8-year war with U.S./U.K.-sponsored Iraq. Thus, the perennial football, Muammar Qaddafi, was drafted in as the suspect of choice.

Megrahi was convicted on entirely circumstantial evidence, basically reposing on the fact that he was in Malta and dubiously identified by the shopkeeper. Hence, Black's view that the verdict of the three judges is "astonishing." Megrahi has to file an appeal within two weeks of the verdict. For the United States government, the bizarre judgment of the Scottish judges came as a somewhat unexpected but delightful gift. If the two Libyans had been acquitted, the spotlight would possibly have swiveled to Iran's complicity in the bombing. But the new Bush administration is eager to mend relations with Iran. Qaddafi can retain his standing as the all-purpose-devil, with the United States probably welshing on the pledge it made to end sanctions if Qaddafi released the Libyans for trial.