Pan Am Flight 103 Revisited

Now that the decision has been made to transfer the case of the self-proclaimed mastermind of the September 11 attacks, Khalid Sheikh Mohammed, to a civilian trial in Manhattan instead of a Military Commission, the families of the thousands who perished on 9/11 will face a year or more to relive the horror of that day. Imagine a scenario where Mohammed, who has already confessed and bragged about his actions, is released from prison and allowed to go home to a hero's welcome; then, try to imagine the pain that those families would endure.

This is the pain that the families of Pan Am Flight 103 victims experienced when the only person convicted of that 1988 bombing was released by the Scottish government to return to Libya last summer. The families' anger and frustration was matched by that of countless of police officers, investigators, prosecutors, intelligence officers and government officials from 19 separate nations who spent 20 years on the case.

Pan Am Flight 103 exploded over Lockerbie, Scotland, on its way from London to New York on Dec. 21, 1988. All 259 passengers and crew and 11 residents of the town of Lockerbie perished. A joint investigation between Scottish and American authorities led to the indictments of two Libyans, Abdelbaset Al-Megrahi and Al Amin Khalifa Fhimah, in 1991. Col. Muammar Gadhafi of Libya refused to turn these men over for a trial unless it would take place in an Arab country. In spite of three United Nations (UN) resolutions and the imposition of strict economic sanctions, the accused bombers remained in Libya. The U.S. Congress and two presidential administrations did what they could, to no avail, but the families continued to pressure Congress to amend the Foreign Sovereign Immunities Act to permit a civil suit against Libya.

In 1999, after lengthy negotiations, Libya agreed to a trial of the two accused citizens in a specially convened court in the Netherlands. The agreement required that any person found guilty would serve his sentence in Scotland. In May 2000, the trial began before three senior Scottish judges, without a jury; in 2001, after 130 court days of trial, the judges found Megrahi guilty beyond a reasonable doubt and acquitted Fhimah. Megrahi appealed his conviction and 27-year prison term, but his appeal was rejected unanimously by five Scottish appellate judges in 2002. Col. Gadhafi paid substantial compensation to the victims' families and "accepted responsibility" for the actions of his citizens. With Megrahi serving a life sentence in Scotland, the victims' families had a small measure of justice, even though he had not acted alone.

Due to its location in the Netherlands, the Scottish press did not cover this lengthy trial as closely as it would have if it had been held in Scotland, and the Libyan government had mounted a massive public relations effort in Scotland and in the United States to claim Megrahi's innocence. It is worthwhile, then, to list some of the factors before the court in finding Megrahi guilty beyond a reasonable doubt.

  • Megrahi was found to be an agent of the Libyan Intelligence Service and who carried a false passport.
  • Libya was proved to have bombed a French flight over Africa in 1989.
  • Libyan officials received 20 sophisticated bomb timers from a company called MEBO[AU: spell out?], and a fragment of one of these was among the debris found at Lockerbie.
  • Megrahi had business relations with MEBO, shared a business address with that company, and had experience with explosives using these timers.
  • Megrahi traveled to Malta on Dec. 7, 1988, and purchased random clothing to fill up the suitcase that was determined to have contained the radio cassette bomb.
  • The timer fragment was found along with parts of the radio in a blast-damaged fragment of a shirt manufactured in Malta and carried by Mary's House, whose shopkeeper identified Megrahi as the purchaser of numerous articles of clothing that were forensically determined to have been in the bomb bag.
  • Fhimah's diary documented that he had accomplished the task of obtaining luggage tags from Air Malta, and his access badge indicated that he used it in December 1988.
  • Fhimah and Megrahi traveled from Libya to Malta together on the evening of Dec. 20, 1988.
  • Megrahi used his false passport and stayed in Malta less than 24 hours before returning to Libya.

All of this history was revisited in 2007 when British Prime Minister Tony Blair, in a parting act, signed a Prisoner Transfer Agreement with Libya but claimed that the Lockerbie bomber was not a consideration in negotiating this treaty. The Scottish government, new to its independence under devolution, protested that it was now responsible for its own foreign policy and did not want to be included in this Prisoner Transfer Agreement, which to them clearly covered Megrahi, the only Libyan residing in a Scottish prison. The British government claimed that it was not able to negotiate the exclusion of Scotland from coverage under the agreement, but said that the decision to cover Megrahi was for the Scots to make. It was later claimed by UK officials as well as Col. Gadhafi's son, Saif Gadhafi, that the agreement was always designed to include Megrahi.

The British government appeared to wash their hands of the decision to release Megrahi, so the question fell to the Scottish Minister for Justice, Kenny MacAskill. To be eligible for release under the Prisoner Transfer Agreement, there can be no pending legal action, and Megrahi had been reluctant to give up his latest appeal, launched as a result of a recommendation of the Scottish Criminal Review Commission. His attorneys did, however, seek to have him released under a provision of Scottish law governing "compassionate release," whenever a prisoner is within three months of death. Claiming terminal prostate cancer, Megrahi had applied for such a release the previous November, but a court determined that his prostate cancer was not as advanced as claimed. Six months later, Megrahi and his attorneys mounted another effort, with much support from the tabloids, a Scottish Member of Parliament, a retired law professor who had been pleading Megrahi's case for years, and even from some victims' families in Scotland, to declare him to be within the required three months of death. Some physicians, paid for by Libya, found him to be terminally ill but never produced a medical report.

With pressure mounting, MacAskill told the Scottish Parliament that he would make a decision to release Megrahi either under the provisions of the Prisoner Transfer Agreement or under compassionate relief.

On June 20, 2009, U.S. Attorney General Eric Holder telephoned MacAskill and stated that the U.S. was opposed to Megrahi's release, that there had been an agreement among nations that the prisoner would serve his term in Scotland, and that if released, Megrahi would return to "a hero's welcome in Libya." During a state visit to Africa, Secretary of State Hillary Clinton also telephoned MacAskill with a similar message, and the White House made it known to MacAskill that President Obama was opposed to the release of Megrahi. The families of the American victims also made their case in a teleconference with MacAskill from the British Embassy in Washington, D.C., and the Consulate in New York. MacAskill told the victims' families that he would tell them his decision before they read it in the press. The families thought that they had been convincing enough in their teleconference and that their wishes would prevail.

On August 18, Megrahi received permission to withdraw his appeal, On August 19, John Brennan, assistant to the President for homeland security and terrorism, spoke to MacAskill at the behest of the President and came away from the conversation not knowing what MacAskill would do. However, he had been assured through diplomatic channels that the Libyans would not have any "celebratory activities" if Megrahi's release to Libya took place.

On August 20, MacAskill announced that he was releasing Megrahi on compassionate grounds based on a report of several Libyan-paid physicians that Megrahi had three months to live. Pertinent parts of the medical report have not been made public. MacAskill's announcement stated that he was not releasing Megrahi under the Prisoner Transfer Agreement between the UK and Libya.

Within the hour, Megrahi was on a Libyan government plane in the company of Saif Gadhafi. The promise of "no celebratory activity" was broken with parades and demonstrations in Libya. The timing coincided with the celebration of the 40th anniversary of the revolution that brought Gadhafi to power.
FBI Director Robert Mueller, breaking a lifelong practice of not commenting on another prosecutor's case, wrote a very strong protest to MacAskill calling the release a "miscarriage of justice." On the three-month anniversary, Sen. Charles Schumer (D-N.Y .) called for the return of Megrahi to a Scottish jail, but there is little that can be done in that regard.

Nevertheless, the families continue to protest, and they are usually met with approval. For example, when Col. Gadhafi traveled to New York for an appearance at the UN in September, they organized a large demonstration, along with Libyan expatriate groups who had family members killed and protestors from Northern Ireland whose families experienced deaths as a result of explosives and weapons provided to the IRA by Libyans for many years.

The constant reappearance of Col. Gadhafi on the world stage reopens the wounds of the family members touched by the tragedy of Pan Am Flight 103. Khalid Sheikh Mohammed's trial in New York will do the same to the families of those who perished in the September 11 attacks.

Francis J. Duggan
Published in TransLaw, A publication of the Federal Bar Association, Section on Transportation and Transportation Security Law, Winter 2010
Used with permission of the author