Pan Am 103 Bombing

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Pan Am 103 Bombing

Opinion of the Scottish High Court

Court Opinion

By: Lord Ranald Sutherland, Lord John Cameron Coulsfield, and Lord Ranald MacLean

Date: January 31, 2001

Source: Opinion of the Scottish High Court delivered by Lord Sutherland in causa Her Majesty's Advocate v. Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah, Prisoners in the Prison of Zeist, Camp Zeist (Kamp van Zeist), The Netherlands.

About the Author: Four judges of the Scottish High Court were appointed to preside over the trial of the defendants in the Pan Am Flight 103 bombing over Lockerbie, Scotland. Lord Ranald Sutherland, a judge since 1985, had worked primarily in appeals courts. Lord John Cameron Coulsfield, a judge for twelve years at the time, was editor of the journal Scottish Law and Practice Quarterly. Lord Ranald MacLean had been appointed to the bench in 1990. A fourth judge, Lord Alastair Cameron Abernethy, was an alternate who took part in deliberations but did not vote.

INTRODUCTION

At 6:25 p.m. on December 21, 1988, Pan Am Flight 103, originating in Frankfurt, Germany, took off from London's Heathrow Airport with 243 passengers and 16 crew members aboard, including 189 American citizens. The flight path of the plane, a Boeing 747–121A, was to take it over the British Isles and the North Atlantic Ocean on its way to New York City and Detroit. Twenty-one minutes later, at 6:56, the plane leveled off at 31,000 feet. Seven minutes after that, air traffic control transmitted final oceanic clearance, but the plane did not acknowledge the transmission and dropped off the radar screen.

What controllers subsequently learned was that at 7:02 and 50 seconds, the plane had violently exploded over Lockerbie, Scotland. Most of the wreckage landed in Sherwood Crescent, a residential area on the southern edge of Lockerbie. The impact killed eleven people on the ground, gouged a crater measuring 155 by 196 feet, and demolished twenty-one residential buildings. The impact of the crash was so great that the British Geological Survey thought that it had recorded an earthquake measuring 1.6 on the Richter scale. Other parts of the wreckage landed in the countryside east of town, and bits of the plane were scattered up to eighty miles away.

Charged with investigating the crash was the United Kingdom's Air Accident Investigation Branch (AAIB). The AAIB sifted through mud and debris to find four million pieces of the plane's wreckage while forensic examiners dealt with the gruesome task of recovering bodies, many still strapped in their seats, hanging from trees and scattered in nearby gardens and yards. The AAIB determined that the explosion was caused by what investigators call an improvised explosive device (IED), a bomb. The investigation centered on a Toshiba radio and cassette recorder packed in a brown suitcase in the plane's cargo hold. Inside the recorder were the remains of a timing device that detonated the bomb, which consisted of about 14 ounces of plastic explosive.

In November 1991, the Lord Advocate, Scotland's chief law-enforcement officer, issued a warrant for the arrest of two Libyan suspects in the crime. The men, Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah, had ties to the Libyan intelligence service and to Libyan Airlines. What followed was the diplomatic task of extraditing the two from Libya, a task made especially difficult given the virulent anti-Western sentiments of Libya's leader, Colonel Muammar al-Qaddafi, who argued for eight years that the men could not get a fair trial in a Scottish court.

The United Nations imposed economic sanctions against Libya, and it was not until United Nations secretary general Kofi Annan and South African leader Nelson Mandela intervened that Qaddafi agreed to extradite the men on the condition that the trial be held in a neutral third country. Accordingly, the Netherlands agreed to set aside a former air force base, Camp Zeist, as the site of the trial, and the men were handed over on April 5, 1999. Based on 10,000 pages of testimony from 235 witnesses, the court issued its verdict on January 31, 2001. A portion of the verdict, which lays out the chain of circumstances that led to the bombing, is reproduced below.

PRIMARY SOURCE

[82] From the evidence which we have discussed so far, we are satisfied that it has been proved that the primary suitcase containing the explosive device was dispatched from Malta, passed through Frankfurt and was loaded onto PA103 at Heathrow. It is, as we have said, clear that with one exception the clothing in the primary suitcase was the clothing purchased in Mr Gauci's shop on 7 December 1988. The purchaser was, on Mr Gauci's evidence, a Libyan. The trigger for the explosion was an MST-13 timer of the single solder mask variety. A substantial quantity of such timers had been supplied to Libya. We cannot say that it is impossible that the clothing might have been taken from Malta, united somewhere with a timer from some source other than Libya and introduced into the airline baggage system at Frankfurt or Heathrow. When, however, the evidence regarding the clothing, the purchaser and the timer is taken with the evidence that an unaccompanied bag was taken from KM180 to PA103A, the inference that that was the primary suitcase becomes, in our view, irresistible. As we have also said, the absence of an explanation as to how the suitcase was taken into the system at Luqa is a major difficulty for the Crown case but after taking full account of that difficulty, we remain of the view that the primary suitcase began its journey at Luqa. The clear inference which we draw from this evidence is that the conception, planning and execution of the plot which led to the planting of the explosive device was of Libyan origin. While no doubt organisations such as the PFLP-GC [Popular Front for the Liberation of Palestine-General Command] and the PPSF [Palestinian Popular Struggle Front] were also engaged in terrorist activities during the same period, we are satisfied that there was no evidence from which we could infer that they were involved in this particular act of terrorism, and the evidence relating to their activities does not create a reasonable doubt in our minds about the Libyan origin of this crime.

[83] In that context we turn to consider the evidence which could be regarded as implicating either or both of the accused. . .

[84] We deal first with the second accused. The principal piece of evidence against him comes from two entries in his 1988 diary. This was recovered in April 1991 from the offices of Medtours, a company which had been set up by the second accused and Mr. Vassallo. At the back of the diary there were two pages of numbered notes. The fourteenth item on one page is translated as "Take/collect tags from the airport (Abdulbaset/Abdussalam)". The word 'tags' was written in English, the remainder in Arabic. On the diary page for 15 December there was an entry, preceded by an asterisk, "Take taggs from Air Malta", and at the end of that entry in a different coloured ink "OK." Again the word 'taggs' (sic) was in English. The Crown maintained that the inference to be drawn from these entries was that the second accused had obtained Air Malta interline tags for the first accused, and that as an airline employee he must have known that the only purpose for which they would be required was to enable an unaccompanied bag to be placed on an aircraft. From another entry on 15 December (translated as "Abdel-baset arriving from Zurich") it appears that the second accused expected the first accused to pass through Malta on that day. In fact the first accused passed through on 17 December and missed seeing the second accused. In his interview with Mr Salinger in November 1991, the second accused said that he had been informed by his partner Mr Vassallo that the first accused had spoken to him and asked him to tell the second accused that he wanted to commission him with something. On 18 December the second accused travelled to Tripoli. He returned on 20 December on the same flight as the first accused. The Crown maintained that the inference to be drawn from this was that on that date the first accused was bringing component parts of the explosive device into Malta, and required the company of the second accused to carry the suitcase through Customs as the second accused was well known to the customs officers who would be unlikely to stop him and search the case. This would be consistent with the evidence of Abdul Majid. Finally the Crown maintained that in order for the suitcase to get past the security checks at Luqa on 21 December and find its way on board KM180, someone would have to organise this who was very well acquainted with the security controls at Luqa and would know how these controls could be circumvented. As someone who had been a station manager for some years, the second accused was ideally fitted for this role. Further, there was a telephone call recorded from the Holiday Inn, where the first accused was staying, to the number of the second accused's flat at 7.11a.m. on 21 December. The Crown argued that this could be inferred to be a call arranging for the second accused to give the first accused a lift to the airport, and also it could be inferred that the second accused was at the airport from the fact that the first accused received special treatment both at check-in and at immigration control before departing on the LN147 flight to Tripoli.

[85] There is no doubt that the second accused did make the entries in the diary to which we have referred. In the context of the explosive device being placed on KM180 at Luqa in a suitcase which must have had attached to it an interline tag to enable it to pass eventually on to PA103, these entries can easily be seen to have a sinister connotation, particularly in the complete absence of any form of explanation. Counsel for the second accused argued that even if it be accepted that the second accused did obtain tags and did supply them to the first accused, it would be going too far to infer that he was necessarily aware that they were to be used for the purpose of blowing up an aircraft, bearing in mind that the Crown no longer suggest that the second accused was a member of the Libyan Intelligence Service. Had it been necessary to resolve this matter, we would have found it a difficult problem. For the reasons we are about to explain however we do not find it necessary to do so. The Crown attach significance to the visit by the second accused to Tripoli on 18 December 1988 and his return two days later in the company of the first accused. As we have indicated, we cannot accept the evidence of Abdul Majid that he saw the two accused arriving with a suitcase. It follows that there is no evidence that either of them had any luggage, let alone a brown Samsonite suitcase. Whatever else may have been the purpose of the second accused going to Tripoli, it is unlikely that his visit was to hand over tags, as this could easily have been done in Malta. We do not think it proper to draw the inference that the second accused went to Tripoli for the purpose, as the Crown suggested, of escorting the first accused through Customs at Luqa. There is no real foundation for this supposition, and we would regard it as speculation rather than inference. The position on this aspect therefore is that the purpose of the visit by the second accused to Tripoli is simply unknown, and while there may be a substantial element of suspicion, it cannot be elevated beyond the realm of suspicion. The Crown may be well founded in saying that the second accused would be aware of the security arrangements at Luqa, and therefore might have been aware of some way in which these arrangements could be circumvented. The Crown however go further and say that it was the second accused "who was in a position to and did render the final assistance in terms of introduction of the bag by whatever means". There is no evidence in our opinion which can be used to justify this proposition and therefore at best it must be in the realm of speculation. Furthermore, there is the formidable objection that there is no evidence at all to suggest that the second accused was even at Luqa airport on 21 December. There were a number of witnesses who were there that day who knew the second accused well, such as Abdul Majid and Anna Attard, and they were not even asked about the second accused's presence. The Crown suggestion that the brief telephone call to the second accused's flat on the morning of 21 December can by a series of inferences lead to the conclusion that he was at the airport is in our opinion wholly speculative. While therefore there may well be a sinister inference to be drawn from the diary entries, we have come to the conclusion that there is insufficient other acceptable evidence to support or confirm such an inference, in particular an inference that the second accused was aware that any assistance he was giving to the first accused was in connection with a plan to destroy an aircraft by the planting of an explosive device. There is therefore in our opinion insufficient corroboration for any adverse inference that might be drawn from the diary entries. In these circumstances the second accused falls to be acquitted.

[86] We now turn to the case against the first accused. . .

[87] On 15 June 1987, the first accused was issued with a passport with an expiry date of 14 June 1991, by the Libyan passport authority at the request of the ESO who supplied the details to be included. The name on the passport was Ahmed Khalifa Abdusamad. Such a passport was known as a coded passport. There was no evidence as to why this passport was issued to him. It was used by the first accused on a visit to Nigeria in August 1987, returning to Tripoli via Zurich and Malta, travelling at least between Zurich and Tripoli on the same flights as Nassr Ashur who was also travelling on a coded passport. It was also used during 1987 for visits to Ethiopia, Saudi Arabia and Cyprus. The only use of this passport in 1988 was for an overnight visit to Malta on 20/21 December, and it was never used again. On that visit he arrived in Malta on flight KM231 about 5.30 p.m. He stayed overnight in the Holiday Inn, Sliema, using the name Abdusamad. He left on 21 December on flight LN147, scheduled to leave at 10.20 a.m. The first accused travelled on his own passport in his own name on a number of occasions in 1988, particularly to Malta on 7 December where he stayed until 9 December when he departed for Prague, returning to Tripoli via Zurich and Malta on 16/17 December.

[88] A major factor in the case against the first accused is the identification evidence of Mr Gauci. For the reasons we have already given, we accept the reliability of Mr Gauci on this matter, while recognising that this is not an unequivocal identification. From his evidence it could be inferred that the first accused was the person who bought the clothing which surrounded the explosive device. We have already accepted that the date of purchase of the clothing was 7 December 1988, and on that day the first accused arrived in Malta where he stayed until 9 December. He was staying at the Holiday Inn, Sliema, which is close to Mary's House. If he was the purchaser of this miscellaneous collection of garments, it is not difficult to infer that he must have been aware of the purpose for which they were being bought. We accept the evidence that he was a member of the JSO, occupying posts of fairly high rank. One of these posts was head of airline security, from which it could be inferred that he would be aware at least in general terms of the nature of security precautions at airports from or to which LAA operated. He also appears to have been involved in military procurement. He was involved with Mr Bollier, albeit not specifically in connection with MST timers, and had along with Badri Hassan formed a company which leased premises from MEBO and intended to do business with MEBO. In his interview with Mr Salinger he denied any connection with MEBO, but we do not accept his denial. On 20 December 1988, he entered Malta using his passport in the name of Abdusamad. There is no apparent reason for this visit, so far as the evidence discloses. All that was revealed by acceptable evidence was that the first accused and the second accused together paid a brief visit to the house of Mr Vassallo at some time in the evening, and that the first accused made or attempted to make a phone call to the second accused at 7.11a.m. the following morning. It is possible to infer that this visit under a false name the night before the explosive device was planted at Luqa, followed by his departure for Tripoli the following morning at or about the time the device must have been planted, was a visit connected with the planting of the device. Had there been any innocent explanation for this visit, obviously this inference could not be drawn. The only explanation that appeared in the evidence was contained in his interview with Mr Salinger, when he denied visiting Malta at that time and denied using the name Abdusamad or having had a passport in that name. Again, we do not accept his denial.

[89] We are. . . satisfied that the evidence as to the purchase of clothing in Malta, the presence of that clothing in the primary suitcase, the transmission of an item of baggage from Malta to London, the identification of the first accused (albeit not absolute), his movements under a false name at or around the material time, and the other background circumstances such as his association with Mr Bollier and with members of the JSO or Libyan military who purchased MST-13 timers, does fit together to form a real and convincing pattern. There is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused, and accordingly we find him guilty of the remaining charge in the Indictment as amended.

'90' The verdicts returned were by a unanimous decision of the three judges of the Court.

SIGNIFICANCE

The trial of Abdelbaset Ali Mohmed al Megrahi and Al Amin Khalifa Fhimah for the Lockerbie terrorist bombing attracted widespread international attention. The prosecution argued the terrorism was state-sponsored and that the men were acting under the direct orders of Colonel Qaddafi himself. Qaddafi's motive was vengeance for a 1986 U.S. bombing raid on Tripoli, Libya, conducted from British air bases. In that raid, Qaddafi's adopted daughter was killed.

The defense argued that the bombing was the handiwork of a militant terrorist faction of the Popular Front for the Liberation of Palestine with aid from Syria and Iran. In finding al Megrahi guilty and Fhimah not guilty, the court did not address these larger geopolitical issues, instead focusing entirely on the actions and movements of the two accused.

What remained outstanding was the issue of compensation. In October 2002, the Libyan government offered the victims' families $2.7 billion, about $10 million per family. On August 15, 2003, the Libyan government accepted formal responsibility for the bombing, and on September 12, 2003, the United Nations lifted its sanctions against the country, though the United States continued to refuse to do business with Libya, branding it a terrorist state.

Through the remainder of 2003 and 2004, Qaddafi tried to soften his image as a rogue leader. He received western European leaders; traveled to Brussels, Belgium; renounced efforts to develop weapons of mass destruction; and compensated victims of other terrorist attacks with Libyan connections. Al Megrahi is serving a twenty-seven-year sentence in Greenock prison near Glasgow, Scotland.