McKangaroo Court for Pan Am 103

In that peremptory style that has so endeared him to his fans down the years, Libya's Muammar Qaddafi said before the verdict on the two Libyans in the Lockerbie trial that the three Scottish judges had three options: to acquit, to resign or to commit suicide. In the event, the canny trio took a fourth course, which was to find one Libyan, Abdelbaset al Megrahi, guilty of the murder of 270 passengers on Pan Am flight 103 in December 1988, and the other, Al Amin Fhimah, innocent.

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

Black is telling the press that Megrahi stands a better-than-average chance of being acquitted on appeal. Black is a former judge with 13 years' experience, and Scotland's leading expert on criminal procedure and evidence. He's saying that in his view the Crown case had failed to comply with strict Scottish legal rules. "I thought this was a very, very weak circumstantial case. I am absolutely astounded, astonished. I was extremely reluctant to believe that any Scottish judge would convict anyone, even a Libyan, on the basis of such evidence."

The chances of Libyans getting a fair trial are about the same as those of Qaddafi getting a fair shake in the Western press. He is after all a devil of great seniority in the bestiary of the West, outranked only by Fidel Castro and Saddam Hussein. According to the history automatically summarized in any account of the case, Qaddafi finally caved under the pressure of sanctions and agreed to hand over the two Libyan "intelligence officers" accused of planting the bomb.

According to the indictments, they stood accused of constructing the infernal device and hiding it inside a Toshiba cassette player, which they then packed in a suitcase and loaded on a flight from Malta to Frankfurt on Dec. 21, 1988. Thanks to fake luggage tags, the case was then allegedly forwarded to London and finally onto Pan Am 103 for the fatal flight to New York.

In fact, as long ago as January 1994 both Qaddafi and the accused affirmed in writing that they would be prepared to agree to a trial under Scots law before a court headed by a Scottish judge (assisted by a panel of judges from other countries) in a neutral country, a compromise forged by Prof. Black. For many years the British government took no interest in this solution, preferring a more summary approach devised by the British security services. According to the whistle-blowing former British intelligence officer David Shayler, MI-6 was fomenting a plot to kill Qaddafi, contingent on a promise by the conspirators to hand over Megrahi and Fhimah once they had taken power in Tripoli.

As with so many of its schemes, the MI-6 conspiracy collapsed, and in the fall of 1997 it became apparent in London and Washington that the U.S. and UK might have to agree to a trial under Qaddafi's conditions after all. Nelson Mandela threw his significant political weight behind the compromise devised by Black, while the Organization of African Unity stated that they would soon cease to cooperate with the sanctions regime.

Accordingly, in August 1998, the British and Americans announced that they would be prepared to hold a trial under Scottish law in a neutral country in front of an all-Scottish panel of judges (the only deviation from the 1994 proposal). Prof. Black relates how he journeyed to the Libyan leader's tent, deep in the desert, to discuss the announcement. Qaddafi had been glued to CNN, watching Clinton's grand jury appearance in the Lewinsky matter. "These things happen, men will be men," he said indulgently. "But what was absolutely outrageous was that he was on the phone with important foreign leaders while this was going on. It should be cut off!"

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

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

This brings us to Giacka, the mystery witness. Since 1991 he had been living under witness protection in the United States, receiving a combined stipend of $320,000 from his hosts. In the event of a conviction he stood to collect up to $4 million in reward money. Lawyers for the defense formed the impression that he might be less than a formidable witness for the prosecution when they came to Washington in November 1999 to "precognose" him, as is their right under Scottish law. On arrival, they were blindfolded by the FBI and driven around suburban Washington for some hours in a closed truck. When they were finally permitted to remove their blindfolds they beheld a figure wearing a false beard and a "Shirley Bassey type wig."

Questioned by the Scots, Giacka declared that the most he could affirm was that he had seen the accused, with a suitcase, in the neighborhood of the Malta airport luggage area, the day before the bombing.

Prior to Giacka's appearance in the box, the defense subpoenaed CIA cables mentioning him. Copies of agency communications were duly presented, with large portions blacked out. The prosecution, who admitted having seen the cables in their entirety, swore blind that the concealed passages contained nothing of any relevance to the case. The judges were unimpressed, and directed that the defense be allowed to see them. It transpired that the blacked-out portions contained much of relevance, including Giacka's demands for money and CIA assistance in helping him evade the Libyan military draft, as well as an agency officer's comment that his reliability was very much open to question. Furthermore, they also indicated that the CIA had not, despite sworn statements to the contrary, handed over their entire file on Giacka.

It was at this point, in late August of last year, that a senior prosecution official began to remark dolefully that the case was "always a matter of circumstance," i.e., that they had never had more than circumstantial evidence, a shaky basis for embargoing an entire country for nearly a decade. In fact, the evidence in the agency's possession points more clearly in the direction of the original suspects in the case, members of a group known as the PFLP-GC, closely linked to Iran. The Iranians had a clear motive for an attack on an American airliner, following the destruction of an Iranian airbus over the Persian Gulf carrying 290 passengers, including 66 children, on July 3, 1988. The U.S. Navy missile cruiser Vincennes had casually blown it out of the sky despite clear indications that it was a civilian plane. Afterward, the U.S. Navy concealed the fact that the Vincennes had been in Iranian territorial waters at the time, refused to admit error or pay compensation, and handed out medals to the ship's officers for heroism in combat.

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

The Scottish police had at one point been about to charge Talb, who since 1989 has been serving time in a Swedish jail for a series of bomb attacks in Sweden and Denmark. In March 1989, however, Margaret Thatcher called George Bush to discuss the case. The two leaders agreed that it was important to "cool it" on the Iranian angle, since they were in no position to punish the Tehran regime, which had just survived the eight-year war with U.S./UK-sponsored Iraq.

Following the Iraqi invasion of Kuwait in August 1990, it became more imperative than ever to obfuscate any suspicion of Iranian complicity in Lockerbie, given the importance of Iranian assistance for the upcoming war with Saddam Hussein. Thus the perennial football, Muammar Qaddafi, was drafted in as the suspect of choice.

Megrahi was convicted on entirely circumstantial evidence, basically reposing on the fact that he was in Malta and dubiously identified by the shopkeeper. Hence Black's view that the verdict of the three judges is "astonishing." After the verdict came down, one view of the courtroom observers was that he had been very poorly represented by his lawyer, William Taylor, whereas Fhimah's counsel was extremely competent.

Sentenced to life, to be served in Barlinnie prison in Glasgow, Megrahi has to file an appeal within two weeks of the verdict, whose merits will then be assessed by another Scottish judge. If this judge decides the appeal has merit in its challenge, the decision will be reviewed by five Scottish judges, who will voyage to the courtroom in Zeist, Holland, for their deliberations. Megrahi will be held in Zeist for the duration of his appeal. His case could also end up being reviewed on human rights grounds in a European court.

For the United States government the bizarre judgment of the Scottish judges came as a somewhat unexpected but delightful gift. If the two Libyans had been acquitted, the spotlight would possibly have swiveled to Iran's complicity in the bombing. But the new Bush administration is eager to mend relations with Iran. Qaddafi can retain his standing as all-purpose devil, with the U.S. probably welshing on the pledge it made to end sanctions if Qaddafi released the Libyans for trial.