Lockerbie resurgens: al-Megrahi, the myths and the unanswered questions
David Cameron’s visit to Washington this month (July 2010) collided with the resurrection by some American Senators of the controversy over the release in August 2009 on compassionate grounds by the Scottish government’s Justice Secretary of Abdelbaset Ali Mohmed Al Megrahi, the Libyan convicted (quite possibly wrongly) of responsibility for the 1988 Lockerbie bombing. Many, not all, American relatives of Lockerbie victims, and their Senators, are furious, not only that al-Megrahi was released, but also that he’s still alive, 11 months after being released on the grounds that he had only three months to live. This seems to the Americans, and some others, to strengthen their suspicion that the mass murderer was actually released in exchange for a lucrative Libyan oil drilling contract being awarded to BP (BP! All together now: ‘Booooo!’).
Herein lies one of several Lockerbie mysteries. In 2007 the then British government agreed that al-Megrahi should not be excluded from the scope of the Prisoner Transfer Agreement (PTA) being negotiated with Libya, as the UK side had originally demanded. Jack Straw, then UK Justice minister, publicly acknowledged that this ‘concession’ (which implied that al-Megrahi could be transferred to serve the rest of his prison sentence in Libya) was motivated by British commercial interests in Libya, including the BP contract. But it was part of the original UN-approved agreement on the management of the Lockerbie suspects that if either of them was convicted, as al-Megrahi was, he would serve his sentence in the UK (in practice meaning in Scotland, as the whole process was to be conducted under Scottish law). The terms of the agreement, formally approved by the UN Security Council in resolution 1192 of 27 August 1998 , are set out in a letter from the UK and US Acting Permanent Representatives to the UN, circulated in the UN as document S/1998/795 of 24 August 1998 (pdf). The requirement that any sentences must be served in the UK could hardly be clearer:
“If found guilty, the two accused will serve their sentence [sic] in the United Kingdom.” (para 4).
In the event, one of the two accused was acquitted. Al-Megrahi was convicted. Clearly any transfer of al-Megrahi to serve part of his sentence in Libya under the Prisoner Transfer Agreement so laboriously negotiated with the Libyans by Messrs Blair and Straw would have contravened the arrangements approved by the Security Council in 1999.
Question: when Blair and Straw made their concession to the Libyans under which al-Megrahi was not after all to be excluded from the PTA, did they know, and remind the Libyans, that whatever the PTA said, under the original agreement approved by the UN, al-Megrahi couldn’t be transferred to serve the rest of his sentence in Libya?
There are plenty of other murky questions still to be answered about the whole affair, but this must surely be one of them. (An additional puzzle is why the embattled Scottish First Minister and Justice Secretary, Alex Salmond and Kenny MacAskill, never ones to miss a trick, have not seized the opportunity to skewer Tony Blair and Jack Straw by pointing out from the beginning that their PTA could never have been used to transfer al-Megrahi to a Libyan prison.)
It was painful to hear Messrs Obama and Cameron at their White House news conference on 20 July vehemently denouncing the Scottish Justice Secretary’s decision to release Megrahi on compassionate grounds after independent medical opinion had declared that he was dying of terminal prostate cancer and would probably — but not certainly — be dead within three months. Under Scottish law that prognosis provided clear grounds for compassionate release. Obama and Cameron are decent humane people and it’s hard to believe that they really disapprove so strongly of such an obviously humane decision by the Scots. Presumably they both think it expedient to condemn the release in order to placate the grieving Lockerbie relatives and, especially, the indignant Senators. I doubt whether we’ll ever know whether the decision was really based solely on compassion for a dying man, or whether it was influenced, even subliminally, by pressure from London not to let al-Megrahi die in prison for fear of the effects of that on UK commercial interests with Libya, or (perhaps more likely) by fear of what might be revealed if al-Megrahi’s appeal against conviction was allowed to proceed.
There has been legitimate criticism of Cameron for his public dismissal in a foreign country of a perfectly reasonable and legally watertight decision by a senior member of the Scottish government. There was nothing to stop him pointing out that in making his decision, MacAskill was acting in a quasi-judicial capacity, not on behalf of the Scottish government although he is a senior member of it: that the decision was in accordance with Scottish law and precedent: and that due process was rigorously followed. None of that is affected by Cameron’s (and Obama’s) disagreement with the decision, which in the end comes down to a matter of judgement. Why did Cameron fail to explain, if not to defend, the action of a member of one of Britain’s established and democratically elected governments? Having virtually been wiped out in Scotland, the Conservatives might show a little more respect and tact in commenting on the Scottish government’s actions.
Several well informed people believe there are skeletons in this cupboard which powerful people in the UK and the US want to keep securely and permanently locked away right where they are. For example, an impressive body of respectable opinion, by no means all professional conspiracy theorists, is not convinced that al-Megrahi was properly convicted. It’s impossible to know whether this doubt was a factor in Kenny MacAskill’s mind when he made his decision: fortunately for him, there were ample other grounds for compassionate release. It does look however as if some of those concerned were anxious that al-Megrahi’s appeal should not be heard, either because it would risk bringing Scottish justice into disrepute by discrediting the original trial as unfair and defective, or for more sinister reasons. Or were the likely consequences of al-Megrahi’s appeal possibly succeeding simply too awful to contemplate — for example, the reactions to be expected in the US, and the appalling questions then to be answered: if the two Libyan suspects didn’t do it, who did? And what compensation would be due to al-Megrahi or, if he had died in the meantime, his family?
So why did al-Megrahi agree to abandon his appeal before it could be heard? Was it because he feared that he would not live long enough to see it determined, or because abandoning the appeal was a condition, implied or explicit, of his release on compassionate grounds? Perhaps someone should put this question to al-Megrahi while he is still alive.
A recent article in the Independent newspaper alleged that the Libyan government had paid the doctors whose prognosis that al-Megrahi would die within three months had provided the justification for his release on compassionate grounds:
There are several facts that batter these claims with question marks. The most obvious is that, 11 months later, Megrahi isn’t dead. It’s the most amazing medical recovery since Lazarus. Or is it? It turns out the doctors who declared him sick were paid for by the Libyan government, and one of them says he was put under pressure by Libya to offer the most pessimistic estimate of life expectancy. Susan Cohen, whose only daughter died in Lockerbie, asks: “Why didn’t the Scottish Government pay for the doctors?”
[Johann Hari, the Independent, 23 July 2010]
But as a crisp comment on this canard pointed out, —
This is utterly untrue. The medical report was by Scottish doctors, NHS cancer experts. The ones paid for by Libya were not part of the evidence used by the Justice Secretary. Fact checking mate, you call yourself a journalist?
Indeed, the main medical advice on which MacAskill relied was provided by the Director of Health and Care of the Scottish Prison Service, Dr Andrew Fraser, who has been described by MacAskill as a doctor of “unimpeachable integrity”. Yet the slanderous claim that the prognosis had been provided by doctors paid by the Libyan government spreads like toadstools all over the blogosphere and into the MSM. Moreover, it has repeatedly been made clear that the three-month prognosis was accompanied by a warning that he might die earlier, or he might live longer: no forecast in such circumstances could be certain. And who knows whether al-Megrahi would still be alive if he had been left in his Scottish prison cell to die, in a foreign country miles from his family? As to the repugnance commonly expressed at the ‘hero’s welcome’ he received on his arrival back in Libya, it needs to be pointed out that he was being welcomed back as a victim of a monstrous injustice, the Libyans believing almost to a man and woman that he had been wrongly convicted; this was the opposite of a welcome accorded to a mass murderer and terrorist.
I’m generally suspicious of conspiracy theories but in this case I seem to smell a number of rats — not least because of the decision of the Scottish Criminal Cases Review Commission (SCCRC) in June 2007 after lengthy study of the case to refer it to the High Court for a second appeal against conviction. There were also a number of reports by Hans Köchler, who had been an international observer of the original trial, appointed by the Secretary-General of the United Nations, and who described the decisions of the trial and appeal courts as a “spectacular miscarriage of justice”. Some of the relatives of the victims, who have naturally followed all the proceedings closely, are doubtful whether al-Megrahi was properly convicted. There is a strong suspicion that Iran may have been involved, including a specific Iranian said to have been in the pay of the CIA (I am not of course suggesting that the CIA could have been involved in planning or carrying out the bombing). Al-Megrahi’s fellow-Libyan co-defendant was unanimously acquitted by the judges. There’s a good deal of doubt about the actual whereabouts on the relevant day of the principal prosecution witness, on whose testimony al-Megrahi’s conviction effectively stands or falls, and about his alleged identification of al-Megrahi at the trial, which was both shaky and possibly compromised. Even the vehemence of American protests at al-Megrahi’s release tends to arouse suspicion: what beans did they fear he might spill once out of prison? Why all the effort to prevent the second appeal from coming to court? And so on. It really does look as if someone, somewhere, has been and still is hiding something.
It’s important, however, to stress that it’s most unlikely that the British Labour government was involved in any kind of conspiracy with the Scottish Executive, not least because of enmity between Labour and the SNP and the obvious risk that the wily Alex Salmond would use any double dealing against it. UK ministers certainly made it clear that Britain’s commercial and other relations with Libya would be damaged if al-Megrahi were to be allowed to die in prison in Scotland: but this clearly expressed a hope that he would be transferred under the PTA (which, as noted earlier, would have been contrary to the original agreement); and there’s not the slightest evidence that this sentiment was a factor in MacAskill’s mind in deciding on al-Megrahi’s release on compassionate grounds. All the same, I wonder why the previous UK government and the US government have hitherto refused to allow Scotland’s First Minister, Alex Salmond, to release the texts of their correspondence with him about the issue — correspondence which Salmond says he is ready to release immediately if the other two governments will consent to release. Perhaps we shall at last be allowed to read that.
Footnote: The attempt by US Senators to summon Kenny MacAskill (and Jack Straw), to be grilled in Washington DC about al-Megrahi’s release by a Senate Committee, strikes many of us, including me, as impertinent. Our political leaders are answerable to the British people through their elected legislatures, not to the legislators of a foreign country, however powerful. I am glad that both MacAskill and Straw have both declined the ‘invitation’, although I regret that Straw at first shilly-shallied (talking of needing to consult Gordon Brown, of all people, before deciding what to do), instead of immediately and robustly saying, in effect, in the immortal words of the great American tennis-player, “You have got to be JOKING!!!” The action of both the Labour and the Conservative spokesmen in the Scottish parliament in criticising MacAskill’s refusal to appear before the US Senate Foreign relations Committee was nakedly opportunist and unprincipled; on this issue the Scottish executive plainly deserved full cross-party support.
Note to Ephems visitors: This post is based on sections of an earlier piece on this blog and responses to comments on it, but with substantial new material added, including detailed chapter and verse for the assertion that under the original arrangements approved by the UN Security Council, al-Megrahi, once convicted, was required to serve his sentence in the UK and so could never have been transferred to Libya under the PTA.
Update (26 July 2010):
Guardian Letters, Monday 26 July 2010
Vital point missed in Megrahi controversy
- The Guardian, Monday 26 July 2010
In all the renewed controversy over the release of Abdelbaset al-Megrahi, the man convicted of the Lockerbie bombing (Unthinkable? Bush testifies to Chilcot, 24 July), a vital point seems to have been missed. Under the terms of the US-UK “initiative” under which Megrahi was convicted, he was required to serve his sentence in the UK. The initiative was accepted by Libya and approved by UN security council resolution 1192. For that reason Megrahi could never have been transferred to serve the rest of his sentence in Libya under the prisoner transfer agreement (PTA) negotiated by the Blair government with Libya, regardless of whether Megrahi was included in or excluded from its scope.
It’s difficult to understand how the PTA came to be signed when it could never have been used to transfer Megrahi, the only Libyan then in UK custody. If BP was pressing for Megrahi to be transferred under the PTA, why was it not told that this was ruled out by the terms of the original agreement? Why didn’t Alex Salmond and Kenny MacAskill point this out to Tony Blair and Jack Straw when they were arguing about the pros and cons of the PTA? Above all, when Blair and Straw made their “concession” to the Libyans under which Megrahi was not after all to be excluded from the PTA, did they remind the Libyans that Megrahi couldn’t be transferred to Libya? If not, why not?
In an article published on Comment is Free on 1 September 2009, Oliver Miles pointed out that Megrahi’s transfer to Libya under the PTA would have been contrary to the original agreement. It’s strange that even then no one seems to have seen the implications of this.