Earlier this month, together with other supporters of the ‘Lockerbie bomber’, Abdelbaset al-Megrahi, I found myself accused in the Scottish Review of being an obsessive conspiracy theorist, impervious to fact or reason. The article’s author, The Times columnist Magnus Linklater, believes that, far from being a stain on Scottish justice, Mr Megrahi’s case ‘triumphantly vindicates’ it.
He argues that we prefer innuendo, myth, and half-truths to straight evidence and independent judgement, yet he displays exactly that preference. For good measure, he misrepresents his opponents, mangles logic and contradicts himself.
He ascribes to us two related conspiracy theories: firstly that the bombing was commissioned by Iran and carried out by the Syrian-based anti-PLO, Popular Front for the Liberation of Palestine – General Command; and, secondly, that there was a grand conspiracy to shift blame to Megrahi and Libya, to which the police, the Crown Office, witnesses, judges, senior politicians and the intelligence services were all willing parties.
A word about that term ‘conspiracy theory’. It’s a cheap and nasty little put-down that herds honest truth-seekers into the same pen the Elvis-was-abducted-by-aliens crowd, while relieving the user of the obligation to properly address the facts. It is also politically loaded – only ever being employed against those who challenge the official line on controversial issues.
If the Iran/PFLP-GC scenario is a conspiracy theory, then so too is what the Crown posited at Mr Megrahi’s trial. That theory went as follows. On 21 December 1988 he placed a suitcase on board Air Malta flight KM180 from Malta to Frankfurt. It contained a bomb concealed within a Toshiba BomBeat radio-cassette player and was labelled for New York on PA103. From Frankfurt it was transferred to a Heathrow then loaded onto PA103.
The suitcase was packed with clothes that Mr Megrahi had bought in Malta on 7 December, from a shopkeeper called Tony Gauci. He took the case to Malta on 20 December and the following morning flew home on a flight whose check-in time overlapped with KM180’s. Before leaving, he managed to place the suitcase on KM180 with the help of his former LAA colleague Lamin Fhimah, with whom he stood trial.
The two men fronted companies for the Libyan intelligence service, the JSO. One of them, ABH, co-owned by Megrahi, shared Zurich offices with electronics company Mebo, which, three years before Lockerbie, had supplied 20 unique electronic timers to Libya, one of which was used in the bomb.
As conspiracy theories go, it was pretty lousy. Mr Linklater acknowledges that the case was entirely circumstantial. What he ignores is that, towards the end of the trial, the Crown amended the indictment, quietly dropping many of the conspiracy claims, a tacit admission that much of its theory was unsupported.
What of the evidence? Mr Linklater summarises it as follows, thoroughly exaggerating its strength in the process: ‘It placed al-Megrahi in Malta on the relevant date, travelling in the company of another intelligence operative, holding a false passport, and identified as the purchaser of clothing, later found in the case which held the explosives. Forensic evidence, in the form of a fragment of timer used to detonate the bomb, had been supplied to the Libyans by its Swiss manufacturer. Subsequent evidence also turned up some $1.8 million in al-Megrahi’s personal bank account, calling into question the Libyan government’s description of him as a low-ranking airline worker.’
Megrahi was in Malta on the morning of the bombing, but the more ‘relevant date’ was the one on which the clothes were bought. According to the Crown, this was 7 December when there is no dispute that he was on the island. Was that really the purchase date? The shopkeeper Tony Gauci couldn’t remember, but was able to provide the police with a number of clues. One was that his brother Paul was at home watching football on TV. Paul was able to narrow down the dates to 23 November and 7 December. Another was that the Christmas lights had not been erected. Official records, unearthed after Mr Megrahi’s conviction, showed that the lights were illuminated on 6 December, which appeared to rule out 7 December. Tony also told the police that, as the man left the shop, he bought an umbrella because it had started to rain. Meteorological data, collected just a few kilometers away at Luqa airport, showed that it rained at the relevant time on 23 November, but not on 7 December. There seemed little doubt, therefore, that 7 December was not the date of the clothes purchase. In convicting Megrahi, the judges relied on Mr Gauci’s trial testimony – which contradicted his police statements – that the purchase was around a fortnight before Christmas; and on the concession by defence witness Major Joseph Mifsud, that, although there was no rain at Luqa on 7 December, there was a theoretical 10 per cent chance that a few drops of rain may have fallen at the shop.
Mr Megrahi was not, as Mr Linklater claims, identified as the clothes purchaser. Mr Gauci fell well short of a positive identification, saying only that Megrahi resembled the man. Other aspects of his description ruled Megrahi out: the man was around 50, 6ft tall, heavily built, dark skinned and with a full head of heair, whereas Megrahi was just 36 at the time, 5ft 8 inches tall, light skinned and with a receding hairline.
The timer fragment – in fact a fragment of circuit board – was certainly a visual match for the circuit boards used in the 20 timers supplied to Libya. The Crown’s main forensic expert said it was both visually and materially ‘similar in all respects’. However, in 2009, when preparing Megrahi’s second appeal, we learnt that the fragment bore a crucial metallurgical difference to the boards in the 20 timers. This difference had been noted in reports by two prosecution scientists. The man who made those boards, a technician at Swiss company Thüring, who was also a prosecution witness, confirmed that the fragment could not have originated from one of those boards.
Megrahi never claimed to be ‘a low-ranking airline worker’. Rather, he said that he held a number of fairly senior positions within the Libyan Arab Airlines (LAA). He also admitted that he used his connections to senior Libyan government and intelligence figures to make a nice living importing goods, mainly through the company ABH. Company records show that it dealt in everything from police cars to schools equipment. Its main business was sourcing spare parts for LAA, which was hit by a US embargo on the sale of aircraft equipment to Libya. He needed the false passport, he said, to conceal his connection to the airline industry (his regular passport gave his profession as flight dispatcher, whereas the false one did not).
There were other planks to the prosecution case, which Mr Linklater does not mention. Shortly after being charged, Mr Megrahi had lied to a US TV interview, denying both a connection to Mebo and travelling to and from Malta on a false passport on 20/21 December. A former LAA colleague and CIA informant Magid Giaka, also testified that, shortly before the bombing, Mr Megrahi arrived in Malta with a brown Samsonite suitcase, which Mr Fhimah helped him to carry out of the airport. Mr Megrahi’s explanation for the lies is that he feared that, if he said anything that confirmed key elements of the prosecution case, it would provide the US with an excuse to repeat the air raids of 1986, which killed scores of Libyans. As he followed his lawyers’ advice not to give evidence, his story was never tested at trial. Mr Giaka’s was, and, to put it kindly, was found to be wanting. To put it less kindly, he was exposed as a money grabbing fantasist. He was done for by a series of CIA cables in which his handlers described in rich detail how he took them for a ride and provided little useful in return. Most of the damning details were redacted in the cables originally disclosed to the defence. The CIA only agreed to relax its censorship under pressure from the court. (The saga provided the trial’s most scandalous episode, to which I shall return later.) Mr Giaka was the sole source of the claim that Mr Megrahi was a senior intelligence agent. He also claimed that Colonel Gaddafi was a freemason.
Mr Linklater should be well aware of all these weaknesses in Mr Megrahi’s conviction, yet he fails to report them. Setting them aside, many aspects of the Crown’s conspiracy theory verged on preposterous. Megrahi chose a small shop, rather than an anonymous chain store and bought clothes in a random manner, which seemed designed to bring attention to himself. Rather than compartmentalising the operation, as any sensible terrorist would, he then returned to the island a fortnight later executed the final leg of the plot by planting the bomb. Furthermore, he chose to launch the bomb from Malta’s Luqa airport, where Mr Fhimah was well known, and which had unusually strict baggage procedures that required the head loader physically counting the number of bags to see that they matched the number checked in (his load sheet confirmed that the number did match – a further substantial flaw in the Crown case, which Mr Linklater fails to acknowledge). The night before the plot, rather than laying low, he and Mr Fhimah visited a Maltese friend of Mr Fhimah’s, who had never previously met him. Mr Fhimah introduced him under his real name. He then stayed the night at the Holiday Inn under his false name, having stayed there on 7 December under his real one. He kept the false passport for 12 years, well after its expiry date, and allowed his lawyers to hand it over to the Scottish prosecutors. He was supposedly an airport security expert yet he sent the bomb on a three-legged journey, which, he must have known, might be plagued by winter delays and luggage system foul-ups. Furthermore, he set the timer to detonate only just over an hours after PA103’s scheduled departure time and only 38 minutes after its actual take off.
Libya’s supposed motive was revenge for the US air raids of 1986. This element of the theory was contradicted by none other than Margaret Thatcher. In her autobiography, published two years after the Libyans were indicted, she wrote in justification of her support for the attacks: ‘[The air raids] turned out to be a more decisive blow against Libyan-sponsored terrorism than I could ever have imagined … the much-vaunted Libyan counter attack did not and could not take place. Gaddafi had not been destroyed but he had been humbled. There was a marked decline in Libyan-sponsored terrorism in succeeding years.’
Since the fall of Gaddafi in 2011, no evidence has emerged publicly to suggest that the Libya was involved in the bombing. Three years ago, at the start of the revolution the opposition leader and former justice minister, Mustafa Abdel Jalil told the Swedish newspaper Expressen that he had proof that Gaddafi was behind the bombing. When asked about this proof by the BBC a few weeks later, the best he could offer was that the regime had paid for Megrahi’s legal case – fact that was both well-known and entirely irrelevant. He later claimed that Expressen had misquoted him. Inconveniently for the Crown, some senior anti-Gaddafi figures have denied that Libya was involved in the bombing and the country’s first interim justice minister, Mohamed al-Alagi, has stated publicly since the revolution that Megrahi was innocent. Moreover, in the two and a half years since the revolution began, the only document to surface from the ransacked offices of the old regime is a letter from Megrahi to his relative Abdullah Sennusi in which he proclaims his innocence.
In defending the official narrative, Mr Linklater offers the following king-sized non-sequitur: ‘Even the Libyan government appears to accept that the origins of the plot lie in their country – it has appointed prosecutors to liaise with Scottish investigators in their search for further proof.’ The appointment of prosecutors does not connote an acceptance of Libyan involvement.
Mr Linklater points out that my books barely touch upon another alleged case of Libyan aviation terrorism, the bombing of UTA flight 772 in 1989. The reason is simple: I am not an expert on it and am therefore happy to accept that the official case – that Libya was entirely to blame – might well be true. (French journalist Pierre Péan, who is an expert, has, I am told, destroyed the official case.) The UTA bombers’ use of a Samsonite suitcase and a timer, according to Mr Linklater, makes the attack ‘strikingly similar’ to Lockerbie, yet the Sikhs who blew up Air India flight 182 in 1985 also used a Samsonite case and a timer. A more startling parallel, in my view, is the fact that the forensic cases both rested on tiny fragments of the alleged timers recovered from a vast crash site, which were analysed by the same discredited FBI expert, and traced to a shady European supplier. And, as with Lockerbie, the prosecution rested upon the erratic testimony of a single witness.
What, then, of the Iran/PFLP-GC conspiracy theory? Mr Linklater ascribes it to Megrahi’s supporters, yet the Justice for Megrahi campaign, to which most of the supporters are signatories, is deliberately neutral on the matter. For reasons I am about to explain, I am not, however, as I cautioned in my book Megrahi: You are my Jury, the case against these alternative suspects may turn out to be as flawed as the one against Megrahi – a statement that undermines Mr Linklater’s characterisation of me as wholly wedded to this counter theory.
Iran had a clear and credible motive for the bombing: to avenge the death of the 290 people who died when the US battleship the Vincennes accidentally shot down Iran Air flight 655 over the Persian Gulf. Declassified US intelligence documents state as a matter of fact that Iran hired the PFLP-GC. In the Autumn of 1988 a PFLP-GC cell in West Germany began planning an attack on western airlines. Its bomb-maker, Marwan Khreesat, who was later revealed to be a mole for both the German foreign intelligence service and its pro-Western Jordanian counterpart, confessed that he had made five barometrically triggered bombs, two of which he had concealed within a mono Toshiba BomBeat radio cassette players. The Lockerbie Toshiba BomBeat was stereo. He was adamant that the cell was on the verge of an attack and that its leader, Hafez Dalkamoni, had shown an interest in Pan Am.
Dalkamoni, Khreesat and a number of their associated were arrested by two months before Lockerbie, with the police recovering a huge terrorist arsenal, including one of the Toshiba bombs. All bar Dalkamoni and one other were released within days, while others remained undetected, including, according to Khreesat, an airline security expert one known as Abu Elias. Less than three weeks before the bombing a US State Department security bulletin warned ‘Team of Palestinians not assoc[iated] with Palestinian Liberation Organisation (PLO) intends to atk [attack] US tgts [targets] in Europe. Time frame is present.’ Remarkably, it continued: ‘[Targets] specified are Pan Am airlines and US mil[itary] bases.’ Although the PFLP-GC was not named, the group was opposed to the PLO and had an infrastructure in Europe.
According to retired CIA Middle East specialist Robert Baer, who was involved in the early stages of the Lockerbie investigation, the CIA established within days of the flight 655 that Dalkamoni met members of the Iranian intelligence service, the Pasadaran. Iranian instructions, said Baer, were ‘crystal clear: Blow up an American airplane – in the air in order to kill as many people as possible.’ He would not be drawn on his sources, but insisted they were ‘as good as it gets.’ Baer has never claimed to have first hand knowledge of the of the bomb plot, but merely reported what was stated as fact in the intelligence community at the time. He is not, as Mr Linklater claims, one of my principal informant, but merely added detail to what I, and many others, had already gleaned from elsewhere. Well before he went on the record in 2002, declassified US intelligence documents had surfaced, which stated as fact that Lockerbie was a PFLP-GC operation. Another, written by the Defence Intelligence Agency in September 1990, following a visit to Syria by US Secretary of State James Baker, states that Syria had promised to had over members of the PFLP-GC if the US would provide proof of its role in the bombing: ‘Damascus has demanded evidence of the PFLP-GC’ s involvement. This has been especially true with regard to PFLP-GC involvement in Pan Am 103. Although the US has provided evidence of PFLP-GC complicity the Syrian Government has dismissed it as insufficient.’ By the time the memo was written, the Lockerbie investigation had swung decisively towards Libya, yet the US government had evidence of PFLP-GC involvement, even if it didn’t meet the Syrians’, no doubt very high, standards of proof. Five months later, at the end of February 1991, by which time the investigation was solely focused on Libya, a DIA report stated that Iran’s interior minister, Ali Akbar Mohtashemi, had paid $10 million for the bombing.
Iran had a powerful motive: revenge for the US Navy’s shoot-down of Iran Air flight 655, which killed 290 six months before Lockerbie. Declassified US intelligence documents state as fact that Iran hired the PFLP-GC. Another, written months after the investigation had switched to Libya, stated that Iran’s interior minister had paid the bombers $10 million. In October 1988 a PFLP-GC cell in West Germany was caught by the police planning an attack on western airlines. Its bomb-maker, Marwan Khreesat, confessed that he had made five barometrically triggered bombs, two of which he had concealed within a mono Toshiba BomBeat radio cassette players. The Lockerbie Toshiba BomBeat was stereo.
Apologists for the official line have claimed that the intelligence documents merely recycled old and unreliable intelligence, yet a deep-cover CIA asset called Richard Fuisz was told by numerous high ranking Syrian officials as late as 1995 (for years after the two Libyans were indicted) that the PFLP-GC’s leader, Ahmed Jibril, was taking credit for the bombing. These sources, said Fuisz in a 2001 court hearing, the scope of which was severely limited by the CIA, interacted with Jibril on a constant basis. Mr Linklater wrote in an email to me: ‘I am amazed that you should be touting shadowy [my italics] CIA agents like Fuisz and Baer, whose evidence would never stand up in court.’ He stopped short of calling them liars, presumably because there is nothing to suggest that they are, but the pejorative verb and adjective were enough to signal that neither they, nor I, were to be trusted. How does Mr Linklater know that their evidence would not stand up? If the CIA had loosened its leash on Fuisz, he could have named names, and provide leads and evidence that would have been accepted in court.
On to that second conspiracy theory. According to Mr Linklater’s Times column of 13 August 2012, we allege a huge plot to shift the blame from Iran and the PFLP-GC to Libya, which involved: ‘the planting or suppression of forensic evidence, the control of witnesses by intelligence services, the approval of senior politicians, the complicity of police officers, a prosecution team prepared to bend every rule to secure a conviction, and a set of senior Scottish judges willing to go along with that [my italics].’
The last sentence is key. It suggests that we claim that everyone from the police to the judges plotted with government and intelligence services to protect the likely bombers and convict those whom they knew to be innocent. The trouble is neither I, nor the great majority of Mr Megrahi’s supporters, have ever made such a claim. In his Scottish Review article Mr Linklater quotes the following passage of my book Megrahi: You are my Jury, which, I believe, clearly does not posit a mega conspiracy: ‘The police cannot be blamed for following leads that fell into their laps. Together with the Crown, they stitched together a flimsy case based around a mercenary double agent, a highly unreliable identification, a hopeless CIA informant, some highly equivocal documents and overstated forensic conclusions, but, again, they were only doing their jobs.’
My latest book, Scotland’s Shame, sets out my view more explicitly:
‘Let us be clear, there was no grand conspiracy by the intelligence services, senior politicians, police officers, prosecutors and judges to subvert the Lockerbie investigation and frame Megrahi and Libya. Conspiracies, of course, do sometimes happen, but seldom ones involving so many diverse parties.
There is, however, no doubt that important evidence was suppressed, that US intelligence agents interfered with the crash site and that some of the evidence against Megrahi was highly dubious. It can also be reasonably argued that the case against Libya was concocted in order to serve the agenda of the government of US president George H. W. Bush, who came to power less than a month after the bombing. In all these things the Scottish authorities were, very likely, no more than unwitting accomplices.’
To be clear, I believe that two different things happened: firstly, the US government ensured that blame was from Iran and the PFLP-GC to Libya; secondly, the Scottish criminal justice system screwed up massively. The first I consider likely, but unproven, the second I consider a cert. Both are based upon a rational evaluation of the available facts. I do not believe that the second occurred because the Americans told the Scots to exonerate the real culprits and frame innocents, indeed I find such suggestions fanciful. In an email to me, Mr Linklater wrote: ‘I’ve been in the [journalism] business for more than 40 years, and have learned over that time a simple principle of reporting: that good investigation requires sound proof.’ Yet he has failed to produce any evidence that the majority of Mr Megrahi’s supporters have posited a grand conspiracy. The Justice for Megrahi campaign committee have formally alleged that some of the failures might have involved criminal conduct by certain Crown servants. They do not, however, claim that it happened at the behest of governments and intelligence services.
There was a clear motive for the US government to shift the blame from Iran to Libya. The Reagan administration was mired in the Iran-Contra arms-for-hostages scandal. As a number of journalists have documented, most notably the scholarly Robert Parry, Reagan’s successor, George Bush Snr, who took office within a month of Lockerbie, spent his entire presidency trying to dodge the tide of scandal. Like Reagan, he was also preoccupied with the fate of US hostages held in Lebanon. If Iran was not appeased, it had the power to severely damage his presidency. Libya, by contrast, had no leverage over the US, moreover, toppling Gaddafi had been a White House obsession throughout the 1980s. As another great American journalist, Bob Woodward, revealed, CIA director William Casey launched one of the biggest covert programmes in the agency’s history, with the clear aim of toppling Gaddafi. Disinformation – that is lying and fakery – was at its core, furthermore it had a number of key personnel in common with the Iran-Contra operation.
Defenders of Megrahi’s conviction assert that the key breakthroughs in the investigation emerged through old-fashioned detective work. However, behind the scenes, the CIA played a key role. One of the Crown’s main witnesses, Majid Giaka, was a CIA asset, while another, Mebo boss Edwin Bollier provided information to the Swiss police at the behest of the CIA. According to his main client, that most diligent of Iron Curtain intelligence agencies, the Stasi, he was almost certainly a western intelligence mole. At Megrahi’s trial it emerged that the CIA had had one of the Mebo timers for two years prior to Lockerbie and we subsequently learned that the agency knew months before the bombing that the devices had been made by Mebo and supplied to Libya. It was the CIA who matched the circuit board fragment to the timers, while trying to conceal its own role in the ‘discovery’ by insisting that an FBI forensic expert take credit for it. There is a cloud of evidential anomalies hanging over the fragment’s provenance. In view of the fact that it was not, as we now know, from one of the 20 timers supplied by Bollier to Libya, is it really far-fetched to suggest that the CIA planted a fake fragment in order to conclusively link Libya to the bombing? According to the head of the FBI investigation, Richard Marquise, his Swiss counterpart believed the fragment was a plant, yet he was not derided as a crazy conspiracy theorist, indeed Marquise acknowledged that the same though also crossed his mind.
It was supposedly months of old-fashioned detective work that revealed that the bomb had come from Malta, via Frankfurt. Yet US diplomatic security officer Fred Burton let slip that the CIA told him within 10 days of the bombing that the bomb had come from Malta, which again raises the suspicion that the agency predetermined the investigation’s outcome.
I have spent many months doing my own old-fashioned detective work among the mountain rescue volunteers, police officers and military personnel who searched the crash site. Among them were rescue team members who recounted seeing American officials in Lockerbie within two hours of the crash, at around 9 pm. The team leader recalled that some of the officials had gathered in a room in the police station, where they were studying maps. A helicopter pilot told me how he ferried around the crash site two CIA agents who conducted their own searches unsupervised by the Scottish police. Officially no Americans reached town before 11pm and the authorities have always denied that there was American interference at the site. They have also denied that large quantities of drugs or cash were found, yet I have spoken to a local man who found drugs and have a precognition statement by one who was present when drugs were recovered. I have also spoken to people who found large bundles of dollars. There may well be innocent explanations for these events, in which case the authorities should tell us what they are, rather than denying that they happened. And, instead of writing me off as a conspiracy theorist, perhaps Mr Linklater should get out and do some door knocking of his own.
The core of his argument is that we have dismissed hard evidence in favour of speculation, yet our chief concern is not the suspicion that blame was shifted. Rather, it is that the evidence that convicted Mr Megrahi was anything but hard, and that the hard evidence that should have acquitted him was withheld. Our case is built on facts, not speculation – these facts in particular:
- The trial court judgment, delivered by three of Scotland’s most senior judges, was deemed unreasonable by the Scottish Criminal Cases Review Commission. In saying: ‘The Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from [Gauci’s shop] Mary’s House’, the commission came as close as it legally could to saying that it considered the guilty verdict itself to be unreasonable..
- The SCCRC discovered that the Crown had withheld numerous items of evidence that, in its view, would have been important to Megrahi’s defence. No fewer than four of the SCCRC’s six appeal referral grounds concerned such undisclosed evidence.
- During the trial, two senior prosecutors viewed the previously redacted extracts of CIA cables concerning the key Crown witness and CIA informant Magid Giaka. They reported back to their boss, the Lord Advocate Colin Boyd QC, that there was nothing within them that might assist the defence, and he relayed the assurance to the court. However, when that material was later disclosed to the defence, it was found to contain numerous damaging details, including:
- Repeated references not only to Giaka’s desire for sham surgery to in order to fake an injury that would enable him to avoid military service, but also his repeated and successful pleas to the CIA to pay for it.
- The fact that his CIA handlers believed that he had acquired money through illegal commissions and perhaps through low-level smuggling.
- References to other meetings with him, for which no cables had been disclosed.
- The fact that the CIA had grown increasingly dissatisfied with him and had been on the verge of sacking him.
The revelations prompted Fhimah’s leading counsel, Richard Keen QC, to comment: ‘Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond. I frankly find it inconceivable that it could have been thought otherwise.’ The SCCRC noted that Mr Boyd’s assurance to the court was ‘difficult to understand’, adding: ‘The matter is all the more serious given that part of the reason for [the prosecutors] viewing the cables on 1 June, 2000, was precisely in order to assess whether information behind the redacted sections reflected upon Majid’s credibility.’ (For more on this subject see my earlier article for the Scottish Review.)
4. The Crown Office allowed the police to obtain a $2 million reward for the most important prosecution witness, Tony Gauci, despite the payment of such rewards being against its own rules (a subject on which I have also written for the Scottish Review).
5. The Crown withheld the results of forensic tests, which had been supervised by the chief prosecution forensic scientist, that directly contradicted his crucial assertion that the timer fragment was ‘similar in all respects’ to the boards used in the timers supplied to Libya.
6. Despite being under a legal obligation to investigate all leads, not only those that point to Libya, the police and Crown Office have failed to interview witnesses who can attest to the fact that the fragment could not have originated from the Libyan timers.
7. When, in 2012, the committee of Justice for Megrahi submitted a summary of their allegations of criminal misconduct in confidence to the justice secretary, Kenny MacAskill and invited him to appoint an independent investigator to consider them, MacAskill instead passed them to the Crown Office and told them to take the allegations to the police, even though Crown Office officials and police officers were named in the allegations. Despite having seen neither the detailed allegations, nor the supporting evidence, the Crown Office immediately declared publicly that they were ‘without exception, defamatory and entirely unfounded’ and that the committee had been ‘deliberately misleading’, ie were liars.
These are all facts, not opinions or theories. I believe that they add up to the greatest scandal in Scotland’s post-devolution era. Mr Linklater fails to acknowledge most of them and the rest he brushes over lightly. It isn’t as if there are no precedents for the criminal justice system behaving extremely badly. The 15-year debacle of the Shirley McKie case tells us all we need to know about its capacity for denial and distortion of the truth.
The Crown Office’s response to the Justice for Megrahi committee’s allegations is especially disturbing. The allegations remain unproven and their subjects are entitled to the presumption of innocence, but they were made in good faith by people of intelligence and integrity, among them a former police superintendent, the former parish priest of Lockerbie and the father of one of the Lockerbie victims. The recently retired former chief constable of Dumfries and Galloway police, Patrick Shearer, appeared to be taking the allegations seriously, but the Crown Office’s petulant and partisan response ruled out from the start any prospect of prosecutions.
In two previous articles on the case, published in The Times on 13 August 2012 and 4 October 2013, Mr Linklater failed even to acknowledge that the SCCRC had referred Megrahi’s conviction to the appeal court, let alone that it had done so on six grounds. Only after I had taken him to task in an as yet unanswered open letter did he acknowledge this fact. However, rather than engaging with the SCCRC report’s awkward contents, he has used it to mow down his straw men of conspiracy nuts. In a Times article on 21 December he claimed that the report ‘triumphantly vindicates’ the justice system. This is like suggesting that the emergency services who save lives at a train crash are a triumphant vindication of rail safety.
He asserts that the SCCRC disposes of most of our ‘cherished theories’ in particular claims that evidence had been manipulated by the police. These allegations emanated not from Mr Megrahi’s supporters, but from a former police officer known as the Golfer. Mr Linklater is not the first one to highlight the weaknesses in the Golfer’s evidence. Two years ago another journalist wrote that his accounts were ‘erratic, often inconsistent and sometimes contradictory.’ That journalist was me. Strange, then, that Mr Linklater should have inferred that I cherish the Golfer’s claims.
He accuses us of rejecting parts of the report that don’t suit us, when we in fact accept most of them. But if, as we believe, the report is a curate’s egg, are we not entitled to say so? Parts of it are demonstrably poor, for example, the commission conducted a lengthy review of the evidence concerning the timer fragment, yet failed to uncover the crucially important fact – based upon the evidence of Crown witnesses – that it could not have originated from one of the Libyan timers. Its investigation of events at the crash site was very limited and it failed to interview any of the civilian and military witness who attest to the events and finds that I have described above. The enquiry team failed to follow up Robert Baer’s claims with anyone except the police and MI5, neither of whom, I would suggest, was motivated to give them any credibility. (The commission did not conclude, as Mr Linklater implies, that Baer was not to be trusted, rather it noted that it had no reason to doubt his credibility. Despite what Mr Linklater suggests, no one, least of all Baer, has ever claimed that he had direct knowledge of the information he relayed.)
It is not only Mr Linklater’s ‘conspiracy theorists’ who don’t accept all the SCCRC’s findings: neither did the lawyers who led Megrahi’s second appeal (which, sadly, he felt compelled to abandon in order to secure compassionate release). They also contended that there were serious failings in the conduct of his defence and that the defence team was mistaken in not leading certain evidence in relation to, inter alia, the PFLP-GC, Heathrow airport and Tony Gauci. I am not a lawyer and therefore make no judgement on the defence team, who have vigourously contested these claims. But to imply, as Mr Linklater does, that it is a matter of uncontested fact that they properly evaluated all the evidence is simply misleading.
Mr Linklater is apparently oblivious to the contradictions in his own arguments, with occasionally hilarious consequences. For example, having dismissed my summary of the police investigation as ‘little more than a caricature’, he delivers this cartoon-like portrait of his antagonists: ‘Once seized with the virus of suspicion, nothing in the way of fact or reason will deter those who are determined to prove their case.’ He berates me for using the phrase ‘we may never know’, when referring to the influence that the British and American governments may have had on the case, declaring: ‘I have always distrusted that phrase ‘we may never know’ – it is a means of dropping a hint without ever revealing whether there is any truth in it.’ How marvellous that he later writes: ‘The SCCRC raised questions about the identification, which, it determined, were grounds for appeal. Whether that would have overturned the verdict we may never know [my italics].’
The hint dropped by this particular ‘we may never’ is that the verdict would have stood. To drive home the point he claims that Megrahi might have been convicted, even if he had not been correctly identified as the clothes purchaser. If he has properly read the court’s judgment, he should know that the ‘identification’ – not an identification at all, of course – was central to the conviction. But maybe he hasn’t properly read it, because, as he acknowledges, he is not a Lockerbie specialist. This is especially apparent in his account of the Heathrow evidence, which has come under fresh scrutiny thanks to the publication of the book Adequately Explained by Stupidity? by another of his targets, Dr Morag Kerr. His Times article of 21 December highlighted an assertion by Mr Megrahi’s trial counsel, Bill Taylor QC, that the Heathrow evidence was ‘tested to destruction’. An unnamed member of the defence team added: ‘If the suggestion is that the bomb was placed on board at Heathrow, how on earth did it occur to anybody to take a trip to Malta in order to buy some children’s clothing, in order to take that clothing back to London to assemble a bomb? It just doesn’t stack up.’ Again, this was odd, because during his final submissions to the court Mr Taylor argued, quite rightly, that Maltese clothing did not prove that the bomb had begun its journey in Malta. Clothes bought weeks earlier had plenty of time to leave the island prior to the bombing. Mr Linklater says that the implication that the bomber bought clothes in Malta and planted the bomb at Heathrow ‘requires a heavy suspension of disbelief.’ The idea that the same person bought the clothes and planted the bomb is, I agree, far fetched (although this is what the Crown posited at trial), but the not the suggestion that the bombers used the clothes to lay a false trail to Malta. As Mr Taylor asked during his final submissions: ‘If the clothes buyer had intended to place the bomb bag onto a plane at Luqa, having regard to the high level of risk of detection, wouldn’t one have expected him to remove the clothing labels?’
Mr Linklater claims that the SCCRC found the evidence of a Heathrow bomb ‘so thin’ that it did not bother to examine it. What the SCCRC actually said was that it did not examine the Heathrow evidence because it received no submissions on the matter, and because it received substantial attention at trial. The evidence we found when preparing Megrahi’s second appeal was, in the view of senior counsel, significant and should have been before the trial court. It is clear, both from Dr Kerr’s analysis and the second appeal team’s, that the trial court was not given a clear view of the Heathrow evidence.
The undisputed Crown case was that the bomb exploded in a luggage container numbered AVE4041. Most of the bags in there had been unloaded from the Frankfurt feeder flight, PA103A, including, according to the Crown, the brown Samsonite suitcase from Malta. However, there was some other luggage in there, which had been loaded before PA103A arrived. These were supposedly Heathrow interline bags, meaning they had arrived at Heathrow on other flights. All of the loaders who were involved in packing AVE4041 confirmed something very significant: before the Frankfurt bags were loaded the entire floor of the container was covered with luggage. One of the loaders, John Bedford, recalled seeing something still more significant: a brown hardshell suitcase ‘the type Samsonite make’, positioned very close to where the explosion later occurred. He saw it when AVE4041 was in the interline baggage shed, well before the Frankfurt flight arrived. Bedford was clear that he hadn’t put it there and so too was the only other person on duty in the shed, Sulkash Kamboj.
The police produced a detailed schedule of all the baggage that could have found its way into AVE4041. It demonstrated that a maximum of six Heathrow interline bags could have been in the container before PA103A arrived, all of which were within the normal size range. However – and here’s the rub – covering the base of the container could have required seven or eight standard sized cases, just as in this photo:
The schedule showed something else very important: none of the six legitimate bags were brown, hard-shelled suitcases.
The loader who added the Frankfurt bags, Amarjit Sidhu, was sure that he did not move any of the bags that were already in AVE4041 when he added the Frankfurt bags, indeed, most of the loaders said that it was not their custom to rearrange bags. So, the Bedford suitcase must have been very close to the explosion, indeed, according to the Crown case, it should have been immediately below the brown Samsonite one from Malta. If the Malta suitcase existed, then the police should have recovered fragments of two brown hard-shelled cases, but they only found fragments of one. So, what happened to the Bedford case? The likely answer is that it contained the bomb and that the Malta case never existed. Security around the interline shed was non-existent and, as Bedford acknowledged in evidence, anyone with airside access could have placed a suitcase into the container.
The Crown claimed that the bomb suitcase was in the second layer of luggage, slightly overhanging the angled section of AVE4041. The scientific support for it is, to say the least, equivocal. And, if you look back at that photo, it’s clear that a suitcase could be in the bottom layer yet still overhang the angled section.
The Crown disclosed the police schedule to the defence early on during the trial preparations and notified them that they would be running an exclusion case, ie they would show that all the bags in AVE4041 were legitimate apart from the one allegedly from Malta. But the schedule was not among the Crown productions that were later lodged with the court and, in the event, the Crown did not run an exclusion case, perhaps because they could not exclude the Bedford suitcase.
The Crown told the defence that the schedule contained inaccuracies, which may account for why the defence did not use it at trial. However, there is no evidence that the schedule’s key findings – that there were only six legitimate items in AVE4041 when the Frankfurt flight arrived, none of which was a brown hard-sided case – were mistaken. If there was such evidence, the Crown would likely have used it to undermine the Bedford bag theory.
The defence have argued that they tested the Heathrow evidence to destruction, but Dr Kerr disagrees. Whoever is right, it remains the case that much of the key the evidence was not tested to destruction before the court. The Crown relied on the Maltese clothes and documents from Frankfurt airport to support their claim that the bomb had come from Malta, while the defence submitted that the Bedford case matched the bomb suitcase; that it was at, or could easily have been moved to, the location at which the explosion occurred; and that remains of only one brown hard-shelled case had been recovered. The crucial baggage schedule was not put before the court, likewise the voluminous witness and documentary evidence upon which it was based. Detailed evidence forensic and witness evidence about the likely positioning of most of the blast damaged cases (a potentially crucial issue in determining the location and identity of the primary suitcase) also went unheard and so too did the evidence of Sidhu, who added the Frankfurt luggage, who was sure that he never rearranged any of the bags.
The judges sidestepped the issue of the Bedford suitcase. They acknowledged that Bedford was ‘a clear and impressive witness’ and that the evidence supported the defence submission ‘that a suitcase which could fit the forensic description of the primary suitcase was in the container when it left the interline shed.’ They got around this by relying on evidence from another loader, Terence Crabtree, who was not involved in loading the Frankfurt bags into AVE4041, that luggage was sometimes rearranged. They acknowledged that, if this had happened – and according to the actual loader of AVE4041, Sidhu, it didn’t – then the Bedford case could have ended up in the second layer, in exactly the position that the Crown claimed the primary suitcase was in. But, they then added: ‘if there was such a rearrangement, the suitcase described by Mr Bedford might have been placed at some more remote corner of the container, and while the forensic evidence dealt with all the items recovered which showed direct explosive damage, twenty-five in total, there were many other items of baggage found which were not dealt with in detail in the evidence in the case.’ So, it seemed that the judges believed that it for was the defence to run an exclusion case in order to prove the Bedford suitcase bomb scenario, not for the Crown to run one in order to prove the Maltese scenario, which was a novel reversal of the burden of proof, and one that fell a long way short of testing the Heathrow evidence to destruction. Dr Kerr has written much more on the subject in her book. It is an impressive work, rigorously detailed and logical. Her aim has been to uncover the truth, not to win a tactical court battle.
Mr Linklater’s biggest howler is his assertion that Dr Kerr and I claim that the bombing was linked to a break-in that occurred at Heathrow 15 hours earlier. We do no such thing, indeed we both accept that the break-in may well be wholly irrelevant. Mr Linklater points out, as I have previously, that the matter was considered and rejected at Mr Megrahi’s first appeal, but this does not excuse the Crown’s failure to disclose it. Had the security guard who discovered it not come forward after Mr Megrahi’s conviction, it would probably have remained covered up.
For all that he insults me as an irrational conspiracy theorist, we should be grateful to Mr Linklater for his contributions. The Megrahi case deserves public debate and, until he emerged as the voice of the ‘It-couldn’t-happen-here’ tendency, that debate was very one-sided. When boiled down, his defence of the conviction is that the Crown case ‘has been tested and re-tested under the strict conditions imposed by a court of law’, whereas the counter evidence has not. Yet he knows that court scrutiny is no guarantee of a conviction’s safety. The most notorious miscarriage of justice cases, like the Birmingham Six and the Guildford Four, were only resolved when the courts accepted the evidence and arguments of the victims’ supporters. Which begs a big question: when those convictions still stood, but their weakness were widely known, would Mr Linklater have defended them with equivalent vigour? As he might say, we may never know.