This month marks the sixteenth anniversary of the conviction of Abel Basset Al Megrahi, the only man convicted of the 1988 Lockerbie bombing. In this personal essay, the former Justice Secretary Kenny MacAskill reflects on the Lockerbie trial, the events which accompanied it, and his decision to release Megrahi from prison in 2009, on compassionate grounds.
Last month saw the 29th anniversary of Pan Am flight 103 exploding over the skies of south-west Scotland killing all aboard and 11 residents in the small town of Lockerbie located directly below. Even in these troubled times, it remains the worst terrorist atrocity to afflict the UK. Memories of it are seared in every Scot alive at that time, as with the Ibrox Disaster before it, and the Dunblane massacre after it.
Like many others, I can recall exactly where I was when I first heard of the tragedy. I was at home watching my eldest son, who was just over a year old, when a newsflash came up at the end of the regular Channel 4 news programme about a flight missing over south-west Scotland. By the time the later news programmes were broadcast, the full extent of the tragedy was apparent.
Little did I know then that I would have a major part to play in the continuing saga that is Lockerbie. It’s an issue that is with us to this very day, and will continue long after I have passed from this life. Flight 103 had neither started, nor was ever due to, touch down on Scottish soil. However, a delay of six minutes at Heathrow airport saw the bomb detonate over Lockerbie and not the North Atlantic, as had been planned by the perpetrators. As a consequence, not only was that small town shrouded in misery – ultimately, Scottish justice would also find itself on trial.
It is less well known that this month brings the sixteenth anniversary of the conviction of Abel Basset Al Megrahi at a Scottish court convened at Camp Zeist in the Netherlands. He remains the only man convicted of the crime. Megrahi was released by me in 2009, on compassionate grounds, when I was Justice Secretary. In many ways, the trial has overshadowed both the events leading up to it, and actions subsequent to it. For some, it has become a cause célèbre and for others, simply the culmination of the tragedy.
Yet, the Lockerbie bombing is not just the story of one man and his journey through the courts. It is also one of international intrigue and diplomatic duplicity. The atrocity didn’t happen in isolation – in many ways, it was the culmination of years of terror and counter-terror. The trial and subsequent appeals only formed part of a far wider picture, one in which vested state interests were being pursued, and in which economic goals mattered more than justice.
I had always known that on the issue of the Lockerbie bombing, Scotland was but a small cog in a big wheel – yet I had no idea just how small a cog, or how big a wheel.
Scotland, and the Scottish legal system, wasn’t simply unaware of much of what was going on – it was deliberately kept in ignorance of it. When making my decision to release Megrahi in 2009, I was conscious that there were events ongoing elsewhere, but I had no idea just how deep they ran, or the extent of the deceit of the British and US governments. I was only to discover this as I researched a book on the affair after I stood down from office.
I hadn’t intended ever commenting on the case. However, at the urging of a friend, I had kept a diary throughout the process of my involvement in it. On the positive side, the necessary delay in writing on the affair opened up time and space for reflection. Encouraged once more by friends, I decided to do some research. What I discovered truly amazed me. I had always known that on the issue of the Lockerbie bombing, Scotland was but a small cog in a big wheel – yet I had no idea just how small a cog, or how big a wheel.
For many, especially in Scotland, the Megrahi trial itself has come to overshadow the events that led up to both the atrocity and its consequences. Perceived or real failings amongst police, prosecutors, judges, or even myself, have often distorted scrutiny of the wider issues at play. The focus, even in the media, has been on the court case rather than on the economic and security deals being traded for prisoners, or on the nature of strategic alliances, of which there were many.
Reporting of the fact that evidence was denied to the Scottish court, and threats to close down Scottish press coverage of this issue, has been muted to say the least. I know this from discussions with an Editor threatened, and with the UK Minister doing the threatening. Even false news (a popular term at this point in time) has been allowed to become received wisdom, such as the so called ‘hero’s reception’ for Megrahi after his release and return to Tripoli (despite being exposed as fake by both WikiLeaks and former State Department officials).
Perhaps there should have been more wariness all those years ago, when an Italian air force plane in UN markings collected Megrahi and his co-accused – Al Amin Khalifah Fhimah – from Tripoli, to take them to the Netherlands for trial. For though this was to be a trial held under Scots law (albeit convened in a former Dutch air force base), the major ground rules had already been set. However, the Scottish judges presiding over the trials has not yet been notified of those rules.
Vested financial interests should perhaps also have been discerned. The first Scots lawyers to visit Gadhafi travelled on a plane provided by Babcock and Wilcox. Others later returned on the private jet of Tiny Rowland.
For the trial had been brokered by Britain and the United States, in negotiation with Libya, with the intervention of many other actors (the United Nations in particular) at the very highest levels. Sanctions were hurting Libya; it needed to negotiate. The West, for its part, wanted a strategic partner in the campaign against Islamic terror, as well as access to Libya’s natural resources. The trial came about just as major companies were lobbying for access to Libya. American companies in particular were concerned at European businesses – such as BP – gaining a foothold in the North African country while they were still excluded. Marathon Oil, among others, lobbied the White House relentlessly.
The negotiations eventually resulted in the Libyans choosing Scots law for the process, albeit in a neutral venue. Scots law would always be preferable to a trial in America where little justice could be expected, and where anyone convicted was unlikely ever to see the light of day again. Handing citizens over to the United States was as unacceptable to the Gadhafi regime as it remains to every Libyan grouping to this day.
The discussions also covered the question of who would appear for trial. Megrahi and Fhimah were offered up. Others, far more culpable and senior, were also sought by the police and prosecutors. But the deal brokered by the UN exculpated Gadhafi and his leading henchmen – like Abdullah Senussi, Gadhafi’s head of military intelligence – from facing justice. The Libyan leadership was thus given a get-out-of-jail card. Others were not so lucky.
Advice from Scottish lawyers to the accused not to present themselves for trial was ignored: new Libyan lawyers provided by the Gadhafi regime made it clear that these men would be going to the Netherlands, no matter what.
Megrahi and his co-accused were the highest-ranking officials that the Libyans were prepared to sacrifice – and the lowest-ranking that the West would accept. Western interests dictated that it was acceptable to live with the Libyan leadership being absolved; but someone had to stand trial. The legal process provided cover for the political and economic deals the West wanted and so Megrahi and Fhimah were offered up in the Libyan national interest.
Advice from Scottish lawyers to the accused not to present themselves for trial was ignored: new Libyan lawyers provided by the Gadhafi regime made it clear that these men would be going to the Netherlands, no matter what. Libya, crippled by Western sanctions, required these two to take the fall for the country – and they were lightning conductors, drawing attention away from anyone higher up.
A VERDICT REACHED. JUSTICE SERVED?
And so it was that one man – Megrahi – was convicted and the other acquitted, sixteen years ago this month. The trial process was highly unusual, not just in its setting but in its format, with three judges sitting without a jury.
There are certainly questions over the reliability of Megrahi’s conviction in light of evidence that has since come to light. That’s quite understandable given the circumstances of the attack, and the scale of the crime scene. Indeed, it was a quite remarkable police investigation and great credit should be given to those involved. That said, the post-trial evidence which has emerged doesn’t mean that Megrahi was uninvolved in the crime. A mere innocent abroad, he certainly was not. He was a senior Libyan agent, from Gadhafi’s tribe, married into senior families who had faithfully carried out the regime’s instructions, both before and after Lockerbie.
This will doubtless be the focus of yet more debate. That is understandable. Yet the spotlight should also be on the deals that were conducted by the West with Gadhafi, both before and after the trial. Oil and minerals were traded for rendered prisoners, and also for military materiel and training for Gadhafi’s elite forces. However, it suited the interests of the UK and US to have attention fall on the Scottish justice system, rather than on their own double-dealing and collusion with Tripoli. This complicity preceded the trial and continued well beyond my eventual decision to release Megrahi in 2009.
RELEASING ABDEL BASSET AL MEGRAHI
People will continue to form their own judgements on my decision to release Megrahi on compassionate grounds. That’s their right and entitlement. But I stand by my position. Further information received since has only reinforced my view.
The decision to be taken fell to me as Justice Secretary: it was clearly a ministerial responsibility. But in the early days of the first ever Scottish National Party-led Scottish government in Edinburgh, there was a need for damage limitation in such a fraught and morally complex case. Hence I emphasised that this was my decision and my decision alone. I knew it would have a big impact but could never imagine just how big. And though I knew that reaction to the decision would make things difficult, with so many high-level interests involved, I could never conceive just how deceitful so-called allies could be.
Before that happened, however – and this is an issue which receives far less attention – I had the opportunity to transfer Megrahi. I chose to reject this opportunity. Prisoner transfer applications are routine and were invariably granted by me, as by both my predecessor and successor. The process applies to bringing Scots who have committed crimes abroad home, as well repatriating foreign offenders from our land.
The imperative was simple – no transfer deal, no contract – and the UK was anxious that its own company benefit from the substantial profits to be made, and not an American competitor.
What was unusual about this particular Prisoner Transfer Agreement (PTA) was how it came about – and why I refused it. Indeed, it was the only one I ever rejected. As Jack Straw (then UK Home Secretary) told me, the UK-Libya PTA came about as the UK government sought to support BP’s interest in obtaining a lucrative contract in Libya. The imperative was simple – no transfer deal, no contract – and the UK was anxious that its own company benefit from the substantial profits to be made, and not an American competitor.
I rejected the transfer application for Megrahi. I did so not because it was the only one in existence that allowed for the state and not just the prisoner to apply; nor because there was only one Libyan prisoner in a Scottish jail – the man convicted of the Lockerbie bombing. I did so instead because it became clear that undertakings had been given at the time of the trial that any sentence given to Megrahi should be served in a Scottish prison.
This information came to me not from the UK government – which was focused only on driving through the Prisoner Transfer Agreement – but from Eric Holder, the United States Attorney General. At the time the trial was being agreed, he had been the Deputy Attorney General. He was therefore a man well-placed to know what had been agreed. Holder was adamant that any sentence meted out to Megrahi should be served in a Scottish jail, even if David Miliband, the UK Foreign Secretary at the time of my decision, was unforthcoming on the issue. That is why I ruled out a prisoner transfer application which I would normally have authorised.
The decision to release Megrahi on compassionate grounds has been fully aired and documented. I followed the rules and guidance, and I believe I adhered to the values we hold as a society. That there should be dignity in death, even for the most heinous of offenders, and that families who have committed no crime should be able to say their farewells, are values I stand by.
Megrahi lived considerably longer than the expected ninety days that had been indicated by medical specialists. However, the quality of his ‘extended’ life was poor and he remained a sick man throughout. There may have been good reasons for the prolonging of his life. In Libya, he had access to medication that wasn’t available through the NHS at that time, as well as the best medical care that money could buy (ironically, this included a nurse and a doctor from Scotland, as I was later told!). But Megrahi’s extended hold on life may equally have been a testament to the human spirit: a man who would have turned his face to the wall in a foreign prison cell now had something to live for, even in extremis, back at home.
I’m used to people taking opposing positions on my decisions; that goes with the job. I do, however, object strenuously to the disparagement of those who served the Scottish justice system at this time. No system is foolproof and that’s why safeguards are built in. All systems can make errors and need to be able to accept and atone for them. But the constant focus on just one aspect of the Lockerbie tragedy ignores the much wider picture, and lets the British and American governments off the hook for their hypocrisy and duplicitous actions.
I believe those who were involved in the Scottish justice system, at all levels in this case, deserve praise and respect. Most especially, this should go to those who attended the horrific crash scene and dealt with it as best they could. They shouldn’t be defamed for alleged planting of evidence. The work was hard and horrifying – and all at a time before PTSD was properly acknowledged, never mind treated. A dogged and determined investigation should be appreciated for the fine skills the investigators deployed – not denigrated for alleged falsities. Then, at the trial stage, both prosecutors and judges acted professionally in dealing with the facts then before them.
There are good people who have genuine doubts about the integrity of the trial, such as Dr Jim Swire, who lost his daughter in the tragedy. Though I respect them, I profoundly disagree with them. Meanwhile, there are others who are part of a ‘Megrahi industry’ that has been in business since the corporate jets were first utilised. Conspiracy theories abound and most, as is usually the case, are simply nonsensical.
I’ve always supported the Scottish government’s position on the benefits of having an international enquiry to consider all aspects of the Lockerbie affair.
Meanwhile, it shouldn’t be forgotten that not just the American victims’ families but most others stand by the conviction, even if almost all recognise that there’s more still to come out. Much has, of course, been leaking out in dribs and drabs as further information about British and American links with Libya emerge, and as the CIA extract more people in the know from the failed Libyan state they’ve created. I’ve always supported the Scottish government’s position on the benefits of having an international enquiry to consider all aspects of the Lockerbie affair. A Scottish court alone has no powers to compel the necessary witnesses, or obtain the required information.
Yet while there are legitimate questions over the strength of the conviction, which I share, this bombing was carried out by Libya. The evidence shows it, Gadhafi admitted it, and the National Transitional Council which replaced him also accepted that his regime was culpable.
The Lockerbie bombing was the horrific culmination of years of terror and counter-terror. From atrocities at Rome and Vienna airports and bombings in Berlin bars, to sanctions on Libya and even air strikes on Gadhafi’s family compound in 1986. It culminated in the downing of an Iranian airliner by the USS Vincennes in July 1988, killing all aboard. President Bush refused to apologise for this act and it caused outrage across the Arab world. A bounty was put up to avenge the act and that was accepted by the Popular Front for the Liberation of Palestine General Command (PFLP-GC).
This group was planning the downing of a Pan Am airliner, resulting in the Helsinki warning in the form of a memorandum issued by the US State Department to American embassies. This has fuelled conspiracy theories ever since. In fact, all it showed is what we’ve come to experience in recent years: that security services know something is planned, but don’t necessarily know when or where, and security is tightened accordingly.
However, the detention of a PFLP-GC cell in Germany some two months before the Lockerbie bombing spiked the initial bombing plan. Those arrested had Pan Am timetables and bag tags, and were planning an operation in a similar style to what ultimately befell Flight 103. Thwarted this time, what was to be done to fulfil the contract?
The PFLP-GC operated closely with the Libyans – also with Syria, Iran, and other Middle East states. In the PFLP-GC’s time of need, the Libyans stepped into the breach to help them in their next, decisive, plan. Tripoli had been aware of what had been going on, as Gadhafi himself would later admit. Though, as he added, had they planned it, they wouldn’t have used Malta as it was too geographically close to Libya and would have raised suspicion. But, presumably needs must and so Libya finished off the terror strike initially planned by the Palestinians. There are serious questions as to just how the fateful bomb was placed aboard the Pan Am aircraft in Malta: it remains a mystery to this day. But Gadhafi confirmed that it was planted there.
Megrahi and Fhimah weren’t the principal parties involved, although – as noted earlier – suggestions of their complete innocence are fanciful. Those who would sanctify Megrahi forget he was a senior security service agent in a despicable regime. The idea that he just found himself in Malta on a false passport, with no apparent luggage as some innocent abroad, is absurd. I certainly doubt that he was the bomber, but given who he was and the roles he held, I have no doubt that he was involved in the wider operation.
As reviews and reminiscences converge on the sixteenth anniversary, and with a potential further appeal still outstanding, time hasn’t stood still. Some of the key participants are no longer here; both Megrahi and Gadhafi are dead. However, others such as Saif Gadhafi, the tyrant’s son, and Abdullah Senussi, his trusted henchman, are walking the streets of Tripoli. Meanwhile Moussa Koussa, the former regime foreign minister who was secreted out of Libya by MI6 to be debriefed in London, is living a life of luxury in Qatar.
Why they weren’t prosecuted at the time, and why haven’t been brought to justice since, are questions that must continued to be asked. The information they hold must be known to the British and American authorities, yet it remains secret. Likewise, over time, more information about UK and US collusion with the Gadhafi regime has emerged.
There was faux outrage over the so-called ‘hero’s reception’ for Megrahi on his return to Libya, after his release from Scotland. In fact, that reception that never took place.
There was faux outrage over the so-called ‘hero’s reception’ for Megrahi on his return to Libya, after his release from Scotland. In fact, that reception that never took place. Film was spliced together from two separate events to make it appear that there was a jubilant crowd at the airport, waiting to meet him. In fact, the crowd in the film was neither there, nor aware of his release, nor celebrating it. But it suited Libyan interests to portray to the world a hero’s welcome, just as it suited the British and Americans to confirm the lie and berate Scotland for something that didn’t actually happen.
A few months after I authorised Megrahi’s release, Amnesty International disclosed that the Police Service of Northern Ireland had been training Gadhafi’s elite brigade. Munitions were also being supplied by the West. A few years later, Human Rights Watch detailed how MI6 and the CIA had been rendering prisoners – and even their pregnant wives – to the regime. Further allegations have since come to light and Jack Straw faces court action over his alleged involvement.
As ever, Tony Blair played a starring role. Information since obtained showed that the day following his celebrated embrace of Gadhafi in the notorious ‘deal in the desert’, a multi-million pound contract was won by Shell. The following day too, prisoner renditions began and continued throughout Gadhafi’s rule.
The Americans were complicit in all of this as well. A few months before I authorised Megrahi’s release, Hillary Clinton – then US Secretary of State – met Saif Gadhafi and announced that she looked forward to the US and the regime doing business together. Just weeks before, President Obama had shaken Gadhafi’s hand at a meeting. Libya was opening for American business and prisoners were being traded.
Of course, another of the great ironies is that those traded and tortured were later among those supported by the British and Americans as they fought against Gadhafi. That came about when it became clear that the despot was neither compliant nor stable, and Britain and the US turned on their one-time ally as they had done decades before. Libya today lives with the consequences of the Libyan conflict, as does the rest of the world.
So as the anniversary comes round, people will form their own views and make their own judgements – on me, and on Scottish justice. But let them also examine the economic and strategic backdrop which saw sanctions dropped and prisoners rendered in return for access to natural resources and a strategic ally against Islamic terrorism. The process of justice around the Lockerbie bombing offered up two minnows but protected the major players – a situation which continues to this day. It was a process which also saw Britain and America condemn the release of Megrahi while openly consorting with Gadhafi.
The court case, like Scotland more broadly, was just one small cog in a far larger wheel.
Kenny MacAskill was an SNP MSP between 1999 and 2016. He was Justice Secretary from 2007 until 2014. Before that he was a lawyer in Edinburgh. Since stepping down from politics, Kenny has written in the media and is the author of several books on Scottish Politics and the Scottish Diaspora. His most recent books are The Lockerbie Bombing. The Search for Justice and Jimmy Reid – A Scottish Political Journey.
Feature image: The Lockerbie Disaster memorial in Lockerbie cemetery. Image: StaraBlazkova [CC]