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MICHAEL SCHARF: It was actually lucky for the investigators that delayed on takeoff by about ten minutes, because it was ten minutes from the coast. So had the bomb gone off ten minutes later the plane would have blown up over the ocean and no one would ever have been able to piece together who was responsible for the tragedy of Pan Am 103.
KEITH PORTER: This week on Common Ground, the criminal trial for the bombing of Pan Am Flight 103.
MICHAEL SCHARF: At a minimum, in a trial of this complexity and this length, you have to assume that there's going to be a lot of inconsistencies. It's been a long time now. It's been nine years. So eyewitness accounts are going to change.
KRISTIN MCHUGH: Common Ground is a program on world affairs and the people who shape events. It's produced by the Stanley Foundation. I'm Kristin McHugh.
PORTER: And I'm Keith Porter. One of the most important and unusual international trials in history is about to get underway. Over eleven years ago, a Boeing 747 exploded over the little town of Lockerbie, Scotland. Two-hundred and fifty-nine people on the plane and eleven people on the ground died. In early May, two men from Libya will be tried on the accusation that they are responsible for that bombing. The trial and the chain of evidence are complex, but today we are fortunate to be joined by a legal expert who could make sense of the law and logistics involved in the case. Michael Sharf is Professor of Law and Director of the Center for
International Law and Policy at the New England School of Law.
MICHAEL SCHARF: As most people probably remember, in 1988, on the shortest day of the year, which is December 20, just five days before Christmas, there were news broadcasts all over the country, "We interrupt this program to tell you there's been a catastrophe." And Pan Am 103, which was a Boeing 747, the largest of all the aircraft in the sky, was flying from London (Heathrow) to Kennedy in New York City, carrying a lot of Americans and people from a hundred different countries as well. Many of the Americans were exchange students from Syracuse University. And Pan Am 103 blew up in the sky five miles up over Lockerbie. And it rained down on the small town in Scotland.
PORTER: What happened on the ground in Lockerbie?
SCHARF: Well, immediately after the plane crashed down, and also decimated this small, little town, that was known for nothing but a small tourist attraction with very ancient ruins, many of the houses had just been exploded. On the ground eleven people were killed. Many more were missing. Several were injured. The little town of Lockerbie didn't have advanced police force. They called in the Scottish national police and immediately they realized that they had a criminal investigation on their hands. They took the Lockerbie Academy, which was the public school, and they turned that into investigation central. They took the ice skating rink and turned that into the morgue, and they got as many people as they possibly could to start combing the area, and their first mission was to try to get all of the bodies.
And because this was a criminal investigation, because 747s don't just fall out of the sky, they figured it was probably an act of terrorism, they had to be very careful with the bodies, to preserve them and to maintain the chain of custody, because every body was a piece of evidence. And because of that it took several days for
them to actually collect the bodies. And so the family members were very upset that they couldn't get the remains of their loved ones right away. Some of the
remains stayed out, with little flags next to them, until the experts could come out and actually handle them properly.
So the next step after they got the bodies was to start reconstructing the aircraft by picking up every little piece of the aircraft. And in addition to that they picked up
every little piece of luggage and anything that they could find. Now when an aircraft blows up five miles up, and they had 110 mile-an-hour wind at the time, the
pieces of the aircraft actually scattered over an area that was eight hundred square miles, from one side of the coast to the other side of the coast of Scotland. Some
of that area is dense forest that has no paths through it. Some of the pieces of the aircraft were visible from above by helicopter, but were almost impossible to get
to. So they had to bring in experts to scale trees. And it took them about eight months to get all the little pieces. And they had them assembled in a giant hangar and
they re-created the aircraft. One of the things found was that the left front portion, just behind the cockpit of the aircraft, there was a bomb explosion. And they
could tell where the bomb blew up, exactly which luggage bin underneath—it was 14A that had been. And they could figure out where the luggage came from.
When they picked up all the pieces of the luggage, they could find out which ones had traces of Semtex, which is a plastic explosive used in a bomb. They also find a microchip about the size of a thumbnail that went to a Toshiba radio, and a Toshiba radio had pieces of Semtex also in it. And so they figured out the bomb had been placed in this radio. And that was actually the modus operandi of a terrorist group that had been operating in Germany and had been apprehended with several of these Toshiba radios, just two months before the bombing.
PORTER: It's interesting that they were able to find all these things. Now, if this was a terrorist act, and we can safely assume that, how much farther would that plane have had to fly before the bomb had gone off while they were over the ocean and we would know none of what we know now?
SCHARF: It was actually lucky for the investigators that delayed on takeoff by about ten minutes, because it was ten minutes from the coast. So had the bomb gone off ten minutes later the plane would have blown up over the ocean and no one would ever have been able to piece together who was responsible for the tragedy of Pan Am 103.
PORTER: It's truly an amazing story, that we were able to recover so much of this plane and trace some of this evidence. Now, these two suspects have been turned over. Tell us who these two suspects are and tell us about the chain of evidence that sort of goes back to them.
SCHARF: What they end up having is two Libyan officials, low level officials. One's name is al-Megrahi, and he is a Libyan intelligence agent. And other other's name is Fhimah, and he was an employee of the Libyan national airline. And the strange thing about the investigation is that for the first two-and-a-half years of the investigation, all of the signs pointed to this PLO group acting out of Germany. This is the same PLO group that had been found two months before with Toshiba
radio bombs in their possession. They had five of them that were recovered and they believed that there had been a sixth bomb, and that was the bomb on Pan Am
The theory was that Iran was behind the Pan Am 103 bombing, because in August of the same year the Vincennes, which was an American warship in the Mediterranean, had blown up an Iranian Airbus. And the Iranian parliament and several officials vowed retaliation, basically jihad on the United States, said, "we will make them pay the same way they made us pay." That happened on July 4th, which was five days before their most important holiday of the year. And interestingly enough, Pan Am 103 blows up five days before Christmas, one of America's most important holidays of the year. So that was seen as no coincidence.
Now, the Iranians have connections with this particular PLO group that was acting out of Germany. And so the links were all there. Everybody thought they knew who had done it. And all of a sudden the indictment is released and the indictment comes down saying it's the Libyans. Now, coincidentally, right at that point, the
PLO group, the Iranians, and the Syrians—who also were very—they were the patrons of this PLO group, were having relations with the United States where we
were trying to improve our diplomatic relations with these countries, especially because, if you think about the timing, it was Desert Storm being fought. We were
trying to get a coalition of Arab countries against Iraq. We were trying to restart the peace process between Syria and Israel. We were trying to get Iran to be back
in the fold of civilized countries.
And so there was a lot of conspiracy theorists that believed that the government had decided that we would blame Libya because they were the easy scapegoat, and not Iran and Syria, because they had suddenly become politically important to the foreign policy of the United States. And in fact, Libya could have had a role to play, and they all could have had a role to play, because Libya had, for a long period of time, also been patrons of these terrorist groups, sharing bomb technology, sharing passports, sharing training bases. But the question is, was the Libyan government, was Gaddafi really responsible? And the US theory is that this was in retaliation for the 1986 bombing of Tripoli, where the United States had dropped bombs on Gaddafi's house and had killed his little daughter, who was just an infant at the time, and who he very much cherished. And he had vowed retaliation too. So we have a number of country's leaders who are vowing retaliation on the United States just at the moment of time when the giant 747 falls from the sky over Lockerbie.
PORTER: Well now we have this situation where these two suspects have been turned over. In return for that, the sanctions against—the UN sanctions against—Libya, have been suspended. These two suspects are going to the Netherlands for some reason. Tell me how they ended up there and what will happen to them?
SCHARF: Libya, for a long time refused to surrender the suspects to the United States or the United Kingdom. And they basically said they will not get a fair trial in the United States. And from our experience with recent terrorist trials like the World Trade Center bombing, involving defendants from the Middle East, there seems to be some evidence that you can't get a very good trial in New York City, when you're a terrorist and you're from the Middle East. So I can understand his concerns. He wanted, originally, to send them to Malta, which is a country that's in between Europe and Libya. They have friendly relationships. But the United States and Great Britain thought that Malta's relationships may be too cozy and that they could be influenced by their close proximity.
So then they started talking about maybe sending them to the Netherlands, which has become this country now known for international criminal justice. It's where the Yugoslavia Tribunal's headquarters is; it's where the International Court of Justice headquarters is.
PORTER: And it's where the International Criminal Court would be…
SCHARF: Exactly. Once the Rome statute comes into effect, that's where the Permanent International Criminal Court will exist. And so the suggestion was made and most surprisingly the Libyans were very much in favor of having a trial of these two individuals, as long as it wasn't in the United States or Great Britain. As long as it was neutral territory. The next question is who should be the judges. And the compromise that was worked out is that the Scottish judges would preside over this trial. Also, that there wouldn't be a Scottish jury, because the thinking was that the juries would be all emotional and would be unfair to the defendants, but the Scottish judges could very neutrally and unbiasedly exercise judicial restraint and fairly try this case. So, the Brits were the first to finally say, "All right, we think Gadaffi's serious about this. Let's call his bluff, if it's a bluff, let's do this trial if it's serious. Let's lift the sanctions," because the UK very much wanted to restart its trade relations and get oil again from Libya. And the United States was very reluctant. Ultimately Tony Blair convinced Bill Clinton to go along with this plan and they're going to have the trial at Camp Zeist, which is an American closed military base that has now been restructured with high-tech equipment to be a very modern trial. They're going to have the three Scottish judges. They're going to apply Scottish law. They're going to have the two Libyans there, and they're going to parade in a thousand witnesses from all over the world.
PORTER: There'll be a fourth alternate judge also, right? In case somebody gets sick?
SCHARF: You always need to do that because this trial is supposed to be a year-long trial and if someone gets ill and misses part of the trial, or worse, and is
unable to make the final decision, they cannot have a two-judge decision. It has to be the majority of the three judges. So they'll have a fourth judge that sits in through all the proceedings and at the end of the day if the other three judges are fine then they'll make the decision. But it makes, only makes sense to have that protection.
MCHUGH: Coming up, more on the Pan Am 103 trial.
SCHARF: My own belief is that there is a good chance that the Libyans were involved in this. It's much more complicated I think. There were many other countries involved, including Syria, including Iran, though the United States doesn't want to admit that. But that the trial is unlikely to prove, that the Libyans—these two Libyans—were responsible beyond a reasonable doubt.
MCHUGH: Printed transcripts and audio cassettes of this program are available. Listen at the end of the broadcast for details. Or visit our Web site at
commongroundradio.org. Common Ground is a service of the Stanley Foundation, a nonprofit, nonpartisan organization that conducts a wide range of programs
designed to provoke thought and encourage dialogue on world affairs.
PORTER: The trial will be held in the Netherlands, with Scottish judges. What's the rule of law here? What's the jurisdiction that will be applied?
SCHARF: They're going to apply the Scottish rules and procedures. And Scottish law is different from both British law and from American law—and Libyan law—in some very important ways. Some of which favor the defense and some of which favor the prosecution. Those that favor the defense is that the judges in Scotland can issue three possible verdicts. You know, in the United States you're either guilty or not guilty. Well, in Scotland they have the verdict of "proven," the verdict of "not proven," and the verdict of "not guilty." And not proven is often a compromise verdict, when there is some evidence of guilt but it doesn't rise to the level of beyond reasonable doubt. And when it is not proven the individuals are set free and the record is murky. You don't know whether they did it or not. We only know that they're not convicted. That is one possibility from this trial that favors the defense.
Another thing that favors the defense is that no one can be convicted in Scotland without corroboration of all material facts. So that means that every element of the crime, they have to have credible evidence from more than one source. They can't just have one eyewitness that says, "I saw Fhimah plant the suitcase on the airplane" that ended up blowing up the plane. They need to have a second source or that evidence can't come in. And that's not at all what it's like in the United States or in Britain at large. Because in the United States we often have convictions; just the question is, was the witness credible or not. And if the judges believe
them, or the jury believes them, you have a conviction. So that favors the defense.
Now, for the prosecution, the elements that favor their case are that you don't need a unanimous jury verdict, or even a majority, super-majority of the jury like you have in the United States. In the US, we can't just have a six to five jury verdict. It has to be at a minimum of eight to three, or some, eight to four, because of Supreme Court decisions. In this case we have three judges and the rule is that if you have two judges you can have a conviction. So, all they have to do is get two judges; if they can split the judges, one thinks its innocent, one thinks its guilty, and you can convince that middle judge, you're going to win your case for the prosecution, which is a lot easier.
PORTER: Would it be possible for there to be a proven/not proven/guilty from each judge?
SCHARF: Now wouldn't that be interesting.
PORTER: What would happen then?
SCHARF: Well, they would have to, they would have to sit together and work it out. And if they couldn't work it out, it would be a mistrial and they'd have to start the whole case over again with three new judges. At the end of the case, if the prosecution feels that the judges messed up and that they didn't fully understand the
evidence or that they misapplied the law, they can appeal an acquittal. And in the United States that is not possible because of our double jeopardy rule. In the
United States once you're acquitted, once you're O.J. Simpson and they find you not guilty, no matter how much the verdict seems inconsistent with the evidence,
you walk free and they can never try you again.
PORTER: At least not in a criminal proceeding.
SCHARF: In the United States you could have a civil trial afterwards, with a different standard of evidence, but you cannot have another proceeding.
PORTER: Okay. But under Scottish law this would be possible.
SCHARF: And in Scottish law, not only the defendant can appeal, but the prosecutor can appeal. And there's only one level of appeal. You don't keep appealing
to the mid-level courts and all the way up to the Supreme Court. You just appeal to the five judges that sit in Edinburgh and they can either order a new trial or they can set aside the lower court's decision.
PORTER: This is all fascinating the way this is going to play out. I mean, we have the neutral country, we have judges from one country, we have the defendants
from another country. Who will be the prosecutor in this case?
SCHARF: So the prosecutors we have are Alan Turnbull and Alistair Campbell, who will be representing Lord Advocate General's Office. And the Lord Advocate General is Andrew Hardy, from Scotland. The defense team is made up of William Taylor, who's Queen's Counsel, Alistair Duff, who's also Queen's Counsel. These people are going to be wearing the white silk, flowery suits and have the wigs on; you know, all the bells and whistles, even though they're in the Netherlands. And then a Libyan lawyer by the name of Kamal Hassein al-Magir.
PORTER: Is this going to be televised?
SCHARF: Well, the Yugoslavia tribunal's proceedings were televised. And there was a motion made by television, like Court TV, to have this proceeding televised. They decided they would not televise it. Which I think is unfortunate, because there's a real educational value, as well as a value for the American people who feel that they want to see justice being done as well as know that justice is done. On the other hand the families are able to follow the proceedings on a special Internet Web site that the Department of Justice has created, which will be maintained out of Syracuse University Law School. And they will have the daily trial transcripts and also analysis of what happened every day of the trial. That's not available to the general public, however. And it's unclear yet whether journalists will be given access to this so that they can write their stories. But I assume most journalists will want to go to Camp Zeist and actually watch the trial live.
PORTER: What's the timeline for the trial?
SCHARF: Trial was supposed to begin in February but the defense asked for a delay; the prosecutor also had had motions to try to protect certain witnesses' identity, and that's been taking some time. So they decided to set the trial opening date—firm decision—May 3. And they have a list of 1,100 witnesses. They're going to have to pare them down. I mean, that's way too many witnesses for a trial, even of this magnitude. But they are assuming it is going to be a year-long trial.
PORTER: Now we've talked a little bit about how the court proceeding will go and what the possible verdicts are. What about the punishment? What could these two men be facing?
SCHARF: Right. Now in the United States they obviously would face the death penalty. And US people would feel that that was perfectly appropriate for such an atrocious crime. In Scotland, as in all of Europe, they have done away with the death penalty. It's actually a violation of their international treaty, the European Convention on Human Rights. So these people at most can get a life sentence. And they will do their sentence, if they're found guilty, in Barlinnie Prison, which is in Scotland. And one of the interesting things here is that even though England and Scotland and Libya did not have diplomatic relations, as a condition of having this trial go forward, they agreed to have a consulate open up in Edinburgh, near the Barlinnie Prison, so that the Libyan diplomats can visit on a daily or a weekly basis,
the two Libyans, should they be found guilty, for the rest of their life, to make sure that they're being treated properly.
PORTER: In the process of turning over these two suspects to this court there were a lot of negotiations that went on and there is this—there's always been the talk that there were secret deals made. That perhaps there was some deal cut that the guys wouldn't finger Gadaffi as being involved or whatever. Have you heard this same talk? And what are the rumors? And do you know if any of these happen to be true?
SCHARF: There were many deals that were made. We went through some of them already. There had to be judges not a jury; it had to be neutral ground; they have to have UN monitors permanently stationed inside this Barlinnie Prison as well, to make sure that if the Libyans are found guilty that they're treated well. I mentioned the fact that the Libyans were able to establish consulates so that they could monitor them. But the press have also reported that part of the deal is that no senior Libyan intelligence officers would be required to testify at the trial. And that the prosecution could not try to trace the orders of the bombing all the way to Gadaffi himself. And the prosecutors have been denying this every single day. They say there are no deals. If it's relevant to the trial, it's relevant. Now, one of the strange things that happened in a pretrial motion, the defendants said you cannot charge us for conspiracy. You can only charge us for murder. Because for conspiracy there has to be a conspiratorial act in Scottish territory, and all the acts alleged here were in Malta or in Libya. Had that succeeded, the conspiracy count would have dropped out and they could not bring evidence in linking Gadaffi, because the conspiracy apparently goes all the way up to Gadaffi. The judges decided that the conspiracy count would remain. And so that seems to indicate that this trial has the potential of playing a truth-telling function, of establishing the record of the big picture and not just the individuals' role in this case.
PORTER: What's the potential fallout of all of this for Libya and for Gadaffi? We already know that the sanctions, the UN sanctions, have been suspended, because he turned them over. What might each verdict lead to as far as Libya's relationship with the rest of the world?
SCHARF: If the verdict is not proven, or acquittal altogether, Gadaffi's going to claim, "You see, I was not behind the bombing; for eight years the world community put punishing sanctions on my country, it cost billions and billions of dollars in lost trade, and the world community not only has to rehabilitate me and accept me back with open arms, but has to make amends for this mistake." That's one possibility. Even if they find the individuals guilty, however, I don't think Fhimah and Megrahi will squeal on or implicate Gadaffi. Because their families remain in Libya and there would be this danger to their families, implied or explicit, should they try to implicate their leader. And also, even if they are found guilty, Gadaffi has already won, because the Security Council has permanently lifted the sanctions, they've put an end to Gadaffi's pariah status; the US seems poised to remove Libya from its list of terrorist-supporting countries; the Europeans have already started trade with Libya again. And so by just turning these individuals over to this international venue in the Netherlands, Gadaffi has won.
PORTER: What do you think is going to happen? As you look at this evidence and you examine the law, what are the chances that we'll have a conviction here?
SCHARF: I used to play this role in Court TV during the Yugoslavia War Crimes trials; they used to ask me, you know, "What do you think is going to happen?", so I'm used to looking in the crystal ball and trying to figure this out. And one has to be careful. You never know for sure, especially when you're talking about 1,100 witnesses. A lot of this evidence, however, has been publicly aired. It's been aired when the indictment was made available, it's been aired in the Scottish investigation by the magistrate, and it's been aired in the civil lawsuit brought by the families of Pan Am 103. So I think we really know pretty well what the evidence is going to be in this case. There is a lot of inconsistent evidence. The key eyewitnesses have changed their story. The key physical evidence, which was a thumb-sized circuit board to a timer which was supposed to have been traced back to a Swiss company in Zurich called Mebo, and the president of this company had told the investigators that he sold twenty timers just like this one to the Libyans, has unraveled, because the president has since said, "I also sold, at the same time, in the same batch with the same general numbers, to the East German police." And the East German police we now know from the opening of their secret files of the Stasi, were providing these timers and other assistance to the PLO and other terrorist organizations. In addition, the head of this company, Mebo, said there was a break-
in in his company and that the blueprints for these timers had been stolen just three months before the accident, so anybody would have access to creating this particular circuit board. That was the best evidence linking it.
The eyewitness accounts have unraveled because the individual who worked at a clothing store in Malta—and this is the same clothing store that sold the clothes that was found in the suitcase containing the bomb—he was originally asked to describe the individual, and his description didn't match either of the two defendants. Then they came back to him and they showed him a picture of Fhimah and he said, "Yes, that's the guy." Well, this picture, which will be showed in court, doesn't look like the defendant. It really looks like Gadaffi. And further, he's given another description which looks much closer to one of the Palestinian terrorists who was in Germany at the time that they found all these Toshiba radio bombs being built. He's now in jail in Sweden on charges of blowing up bombs in Sweden, and his wife
has testified that he had made trips to Malta and bought clothes at that store.
So, the key evidence seems to be unraveling. At a minimum, in a trial of this complexity and this length, you have to assume that there's going to be a lot of inconsistencies. It's been a long time now. It's been nine years. So eyewitness accounts are going to change. Also, the US expert in charge of forensics is the same discredited FBI agent who got totally blown away during the O.J. Simpson trial and he has been forced to resign in disgrace from the FBI forensics lab. So he's not going to be a very effective witness when he tries to explain why we think this little circuit timer is the same one that the Libyans had. So, if I had to look in a crystal ball, I would say that my own belief is that there is a good chance that the Libyans were involved in this. It's much more complicated, I think. There were many other countries involved, including Syria, including Iran, though the United States doesn't want to admit that. But that the trial is unlikely to prove, that the Libyans—these two Libyans—were responsible beyond a reasonable doubt. Nor that Gadaffi had ordered this bombing.
PORTER: That is Michael Sharf, Professor of Law and Director of the Center for International Law and Policy at the New England School of Law. For Common Ground, I'm Keith Porter.
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