April 20, 2001

Foreign Devil

The political corruption of three Scottish judges has preserved Libya’s Colonel Muammar Qaddafi as one of the United States’ indispensable devils, outranked only by Fidel Castro in protraction and utility of service to the world’s number one imperial and war-making power. (As the recent imbroglio with China nicely illustrated, a useful devil has to be insignificant as a substantive threat to US interests. China is far too significant to US corporate interests to be trifled with lightly, and so the spy plane crisis was resolved without too much ado.)

Qaddafi has been a useful devil for over quarter of a century, reaching an apogee as a "threat" in the Reagan years when the CIA invented a Libyan assassination team, supposedly headed south from Canada to attack the White House, which was speedily fortified by concrete barricades that remained in place for many years thereafter. The US struck back by bombing Qaddafi’s compound. The White House had prepared a news release regretting the "accidental" death of the Libyan leader, but found to its chagrin that Qaddafi had survived the raid, which did manage to claim the life of his daughter.

Then came the downing of PanAm Flight 103 over Lockerbie in December, 1988 with the deaths of 270 people, followed by a determined bid by US security agencies such as the CIA and FBI to pin the blame on Qaddafi. In fact there’s plenty of evidence to suggest that Iran instigated the sabotage of PanAm Flight 103 in revenge for the shooting down of its civilian airbus over the Persian Gulf by the US missile carrier Vincennes, whose officers were subsequently decorated for their heroism in blowing away the civilian plane and 290 passengers. But the US had scant way of punishing Iran, and so Libya once again was mustered to fulfill its Satanic role as the convenient receptacle for US outrage.

The case against Libya and specifically the two Libyans, Abdelbasset al Megrahi and Al Amin Fhimah, was always frail in the extreme, which is no doubt why Qaddafi finally agreed to send the two for trial by Scotch judges in a courtroom in Holland. The actual trial left most dispassionate observers all the more convinced that the three judges would have no option but than to find the prosecution’s case non-proven. But then came a huge public relations victory from the US and its ever compliant satellite, the UK. The three Scotch judges declared that Megrahi was indeed guilty of planting the bomb, and sentenced him to 20 years, a verdict he is now appealing. They found Fhimah innocent.

Now, in the first criticism of the verdict in the trial of two Libyans, Hans Koechler, a distinguished Austrian philosopher appointed as one of five international observers at the trial at Zeist, in Holland by Secretary General Kofi Annan to observe the trial, has issued a well merited denunciation of the Judges’ bizarre conclusion. "In my opinion," Koechler writes, "there seemed to be considerable political influence on the judges and the verdict."

Koechler’s analysis of the proceedings is by no means an exercise in legal esoterica. Basically, he points out that the judges found Megrahi guilty even though they themselves admitted that his identification by a Maltese shop owner (summoned by the prosecution to testify that Megrahi bought clothes later deemed to have been packed in the lethal suitcase-bomb) was "not absolute" and that there was a "mass of conflicting evidence."

Furthermore, Koechler queries the active involvement of senior US Justice Department officials as part of the Scottish prosecution team "in a supervisory role." No one should have needed an Austrian philosopher to point out that the verdict was a travesty. So feeble was the prosecution case that, last September, Scotland’s most prominent legal expert, Professor Robert Black of Edinburgh University, predicted that the judges would have little option other than a unanimous "not guilty". Such expectations in the integrity of Scottish justice, were similarly nourished by many others, including Nelson Mandela, many of the victims’ relatives, the defendants themselves and all those who had previously resisted efforts to drag the accused in front of a US Federal Court or some similar Star Chamber.

Assuming a requisite degree of judicial impartiality, the prosecution case absolutely depended on proving beyond a reasonable doubt that Megrahi was the man who bought the clothes, traced by police to a Maltese clothes shop, and later packed in with the bomb. In 19 separate statements to police prior to the trial the shopkeeper, Tony Gauci, had failed to make a positive identification. In the witness box, Gauci was asked five times if he recognized anyone in the courtroom. No answer. Finally, the exasperated prosecutor pointed to the dock and asked if the man sitting on the left was the customer in question. Even so, the best that Gauci could do was to mumble that "he resembled him."

Gauci had also told the police that the man who bought the clothes was six feet tall and over 50 years of age. The evidence at the trial established that Megrahi is 5 feet 8 inches tall and that in late 1988 he was 36 years of age. The clothes had been bought either on November 23 or December 7, 1988. Megrahi had been in Malta on December 7 but not on the November date. The shopkeeper recalled that the man who bought the clothes had also bought an umbrella because it was raining heavily outside. Maltese meteorological records introduced by the defense showed clearly that while it did rain all day on November 23, there was almost certainly no rain on December 7. If it did rain on that date, the shower would have been barely enough to wet the pavement. Nevertheless, the judges held it proven that Megrahi had bought the clothes on December 7.

No less vital to the prosecution case was its contention that the bomb that destroyed PanAm 103 had been loaded as unaccompanied baggage onto an Air Malta flight to Frankfurt, flown on to London, and thence onto the ill fated flight to New York. In support of this prosecutors produced a document from Frankfurt airport indicating that a bag had gone from the baggage handling station at which the Air Malta bags (along with those from other flights) had been unloaded and had been been sent to the handling station for the relevant flight to London. On the other hand there was firm evidence from the defense that all the bags on the Air Malta flight had been accompanied and had been collected at the other end. Nevertheless, the judges held it proved that the lethal suitcase had indeed come from Malta.

The most likely explanation of the judges’ decision to convict Megrahi despite the evidence, or lack of it, must be that either (a) they panicked at the thought of the uproar that would ensue on the American end if they let both of the Libyans off, or (b) they were simply given their marching orders by high authority in London. English judges are used to doing their duty in this manner – see, for example, the results of various "impartial" judicial inquiries into British atrocities in Northern Ireland over the years, including Bloody Sunday and the post-internment torture scandal – but we had hoped, ludicrously so in retrospect, that the Scotch were made of sterner stuff.

In closing arguments, the prosecution had stressed the point that Megrahi could not have planted the bomb without the assistance of Fhimah; both defendants were equally guilty, and they stood or fell together. Nevertheless, the judges elected to find one of the two conspirators guilty and the other one innocent, a split verdict that Koechler finds "incomprehensible." It is however entirely comprehensible if we accept that the judges knew that there was no evidence to convict either man but that it was politically imperative for them to send one of them down for twenty years and thereby pass the buck to the appeal court. Given the legally threadbare nature of the judge’s 82-page "opinion" justifying their actions, many observers are assuming that the five man panel of judges who will eventually hear Megrahi’s appeal will have to do the right thing. But that is what many said about the original trial.