March 4, 2000 Peabody, Massachusetts
by Helen Engelhardt
As soon as he learned of our meeting scheduled to take place at the Peabody Marriott the first weekend in March, the new Lord Advocate of Scotland asked if he might join us in order to introduce himself, and reassure us that the recent unexpected resignation of Lord Hardy would not interfere with the prosecution's case as it prepares to go to trial in two months.
Mr. Boyd born in Falkirk, Scotland, received a B.A. in Economics and Politics from Manchester University, his law degree from Edinburgh University and became a Queens Counsel in 1995; an Advocate Depute or senior prosecutor. He was appointed Solicitor General for Scotland May 1997 (roughly the equivalent of being the Deputy Attorney General) the second highest post in their prosecution service. He held that post until last month when he became the Lord Advocate of Scotland. He is married with three children.
He thanked the Board and George Williams for inviting him to come to our meeting. Having been the designate Lord Advocate for about a week, he officially became the Lord Advocate when he took the oath of office a week ago Thursday. The following day, he went down to London to meet with the English families and this week he has flown to the United States to meet the American families. Following the meeting with us, he and his party went to Washington and met with about 40 other people.
We were pleased to see Norman McFadyen again, and were introduced to Neill Gillian and Howard Hart both Public Information Officers from the Crown Office and Ann Den Bieman, Fiscal (Attorney), Family Liaison Officer from the Crown Office. She is our contact person for the legal issues of the case who will be at Camp Zeist along with two other family liaison officers.
The new Lord Advocate filled in some more facts in his biography: In May of 1997, he was appointed Solicitor General for Scotland on the same day as Andrew Hardie took office as Lord Advocate. Both men were fully briefed on the evidence in the Lockerbie case. They worked with the Department of Justice, the State Department of the United States and their Foreign Office developing a proposal for trial in a third country, a proposal which was finally made in August of 1998.
"I think that this is probably the first time in international jurisprudence that you've actually established a court in a third country under rules of the foreign court. We have the International War Crimes Tribunal but weâ€™ve never had a court of one country actually sitting in another.
A lot of people were sceptical that we would ever get the two accused from Libya. I never shared that skepticism. It did seem to me to be logical for Qadaffi to turn over the two accused. I don't like to say well I told you so...but because we were not just calling someone's bluff but were serious about this, we had to take steps to make sure that we could mount a trial.
There were two aspects to this: we had to go through what we call a "precognition exercise" - a further investigative step of our witnesses and the other aspect of that was how were we going to present this in court.
Who is going to do it and how logistically would this be done? We appointed two Q.C.'s to present the case: The first is Alistair Campbell... a very well respected member of the justice system in Scotland.. who took the position of senior prosecuting counsel. And he was joined by Alan Turnbull, also a Q.C., who has a very good reputation both as a criminal defense lawyer and as a prosecutor.
And we also put together a team under Norman McFadyen who would be responsible for amassing the evidence, putting it into proper form, undertaking the precognition exercise, and in essence, the preparation of the case. And that took perhaps a month or so to put into place.
We also appointed two Junior Counsels: Morag Armstrong and Jonathan Lake...They are the people you will see in wigs and gowns.. asking the questions, leading the evidence and in the end of the day, cross examining the defense witnesses.
Andrew Hardie asked me to take on the role of supervising the preparation of the case. So what I did in consultation with Norman McFadyen and Alistair Campbell was to form what rapidly became known as the Lockerbie core team...And that core team met on a weekly basis. We were able to put in place all the parts of the jigsaw.. Beyond the formality of the weekly meeting, I kept myself in regular contact both with Alistair and with Norman McFadyen...
In May 1999, there was a meeting of prosecutors from all over the world in Dumfries. We needed their help in order to bring together the various pieces of evidence. We have witnesses from 22 countries -22 if you count Scotland and England as being different! Apart from the witnesses from the United Kingdom, we can't compel them to come to court, so we needed people to assist us in persuading them to come...
In January of this year, I chaired a two day conference at the high court in Zeist, the purpose of that was to enable us to get assistance of the practicalities of bringing witnesses over from other countries. There were representatives from Malta, from Sweden from Germany and from Switzerland as well as from the United States and United Kingdom...
I want to turn to the events of the last few weeks, to Lord Hardie's resignation as Lord Advocate and his appointment as a judge. I know, because I've heard from a lot of people, about the disappointment that they feel...there are a couple of aspects that I do want to respond to, because there has been speculation in the press between him going to the bench and the Lockerbie trial. There has been unfounded speculation in the Scottish press in particular. Let me make it quite clear that his resignation has absolutely nothing to do with Lockerbie.
It has been said that it was some reluctance on his part about the evidence, or some fear that the trial would in some way not succeed or come to a premature end. First of all, he has said publicly that it is not true, he has said to me that it is not true, and it is not logical because I know the evidence, Norman McFadyen knows the evidence, Brian Murtaugh knows the evidence, the prosecution team knows the evidence and it simply doesn't square with the facts..
Also, we always built into the system enough people so that if one or more in fact, disappeared, that the trial would continue. We have strength in numbers and depth in numbers...Andrew Hardie's role would have been present at the start of the trial and he would have gone back from time to time. My role would have been to draw back as we got nearer the trial...I will now continue and take the role Andrew Hardie would have taken, but I will leave the bulk of leading the evidence to the people in whom I have confidence and trust - Alistair Campbell and Alan Turnbull.
There is said to be some kind of deal which would inhibit the way in which we prosecute this case. Let me make it quite clear: I am not aware of any deals which would inhibit the way in which I or the rest of the prosecution team prosecute this case. Nor would I have been party to any such deal..I have not seen any document which would preclude me from leading the evidence in any way.
Even if there had been some document purported to do that, it could not bind me as Lord Advocate in the way I do my job, because written into the Scotland Act which is now effectively the Constitution for Scotland, there is a provision that in the exercise of my function...I will act independently of any other person. If anyone did try to pressurize me, there would be a political and constitutional scandal in Scotland...With all respect to your President, if Bill Clinton himself said there had been some deal. ..I would ignore it.
The terms of the indictment names the two accused and narrates various things which are supposed to have happened. .and then it goes on, "being members of the Libyan Intelligence Services and in particular being respectfully, the head of security of Libya Arab Airlines and thereafter the Director of Center for Strategic Studies Tripoli/Libya and the station manager of Libyan Arab Airlines in Malta, you did conspire together and with others to further the purposes of the Libyan Intelligence Services by criminal means, namely the use of explosive devices in the commission of acts of terrorism directed against nationals...of other countries, and in particular, the destruction of a civil passenger aircraft and murder of its occupants..."
Quite clearly from our perspective it is a conspiracy which involves the Libyan Intelligence Services and individual members...
Family witnesses. We are working very hard to reduce to an absolute minimum the number of family members if any, required to give evidence at Camp Zeist. We are in detailed discussion about identification of the baggage (with the defense) and hope to resolve that within the next couple of weeks.
Video Links. The court is wary of the whole process and if there is a breach of the arrangements that they have made the consequences will be certainly exclusion for the family member who has made the breach and I'm afraid to say.. it might throw the whole thing in doubt for others...
The Crown opposed the application by the BBC and other media for access to the television signal for live and news transmission ....because witnesses from other countries are not compellable. We cannot get them there except by persuading them... and we know that there are witnesses. .who for very very good reasons are understandably reluctant to give evidence; live T.V. coverage would make their appearance impossible..
The next couple of months will be very difficult...For the prosecuting team as we get closer to the trial, the focus of attention begins to come on to us even greater...we have to deal with "noises off"...conspiracy theorists and so on and so forth. We can't respond to this. .except in court. ..It is tedious to read every day that the case is falling apart, so and so has changed their testimony, etc. And...it is going to be difficult for you. As the trial becomes ever closer, the emotional pressures on many of you will become that much greater. And that is why I am very pleased we are working with the Office of Victims of Crime and appointed Ann Den Bieman to be the family liaison officer between the Crown and ourselves. Let me make a confession. In Scotland we are not very good at dealing with victims of crime. I've learned a great deal from Kathryn Turman.. . We are 100% committed to this trial. We are ready to proceed on May the third and only the court can now stop us from doing that."
As soon as Lord Advocate Boyd concluded by saying, "I'd like to throw it open to take any questions," our President George Williams was on his feet with the question everybody was expecting. The answer we got from Lord Advocate Boyd was most unexpected, however.
GW: "We have to raise the subject of the letter. ..It's important for us to know the contents of the letter and the annex.. You've just said that you've seen nothing that would preclude the evidence. .that could mean that you've seen the letter and nothing in it precludes the trial. ..But that letter could say that the US and England could withhold evidence that could lead elsewhere (beyond Qadaffi), the FBI, CIA, Crown evidence could be withheld from you guys...
#1.Have you seen the documents, those two documents specifically. And
#2, can you accept what's in those documents as a Scot? Because I believe that the Scots have the highest degree of integrity in the entire world."
L.A: "Yes, I have seen both of the documents. I've seen the letter and I've seen the annex. I first saw the annex some considerable time ago and was not aware that I had seen it.. because I didn't think there was anything in that document which was in anyway remarkable...The letter I saw for the first time after taking office. I can assure you that there is absolutely nothing in that that would make me take to the hills. Far from it. Nothing that would have made Lord Hardie take to the hills. Am I willing to show it to you? I have no problem with it. If it were published, I have no problem with it. .but it is not for me to discuss with you."
Bob Monetti: "Our concern is that the US or the UK government could withhold their agents from your court and there's nothing you can do about that.. We need to know that if that happens, you will tell us."
Brian Murtagh: "FBI evidence? They've got it all. They've had it for years. The Intelligence evidence has recently been made available and the witnesses to go with it., There isn't a smoking gun or even a cap pistol to go with it...If we can't link Qadaffi directly to this, it's because we don't have the evidence as opposed to not sharing or putting any restraints on its use."
Helen Engelhardt: "When asked a direct question, you gave a direct answer. When we asked the previous Lord Advocate...about the letters. he said (as you did) that he knows nothing about an agreement which would preclude etc etc ..You've read the letter and (because) it doesn't fit under constraining the prosecution, you can say that you haven't seen any such document, instead of directly saying the first time, 'I have seen these letters and you don't have to be anxious about them, even though their existence was initially denied and they continue to be withheld from you.' ...If this document is so innocent and pro forma then why does our government withhold it from us?. .They are fueling this paranoia."
Norman McFadyen: "I've had some previous experience with a UN document. There is a special privilege which attaches to United Nations documents...Only Kofi Annan can release that letter."
Brian Murtagh: "The letter doesn't give the defense any legal basis to keep evidence out. That's the important thing...If that's any comfort to you...I wish that folks were not torturing themselves over it."
Norman McFadyen: "There's an irony in this. The reason the UN was used as a conduit in these negotiations was specifically to avoid our countries drawn into negotiations with Libya about terms for surrender of the accused...one side effect of that is that we then do not have control over the paperwork."
George Williams: "We however, will pursue the publication of it. We insist on that."
Another question that was discussed in depth was what will happen if other people are implicated by testimony given during the trial? In itself that will not be enough to bring those named into this trial or in to a future trial - further evidence is necessary. As Brian Murtagh explained, "You would have to present the evidence to a grand jury, indict them, try them. Neither in Scotland nor in the United States, if evidence comes out in the course of a trial is this automatic inclusion of somebody as a defendant. It has to be a separate proceeding."
When will the witness list be given out and how much notice will we be given to help us plan when to travel over to the trial? At the moment, Norman McFadyen could not give us definite information. He's working on the sequence the trial will follow; hopes to give us at least a month's notice. We will know more as he does. On a similar concern, at the end of the trial when the judges retire to render a verdict, they will try to notify us a week or two in advance. Because the trial is expected to last a year, the following schedule has been agreed upon to allow the judges to maintain connection with their families: One week the court will sit Mon through Friday lunchtime. They will return the following Monday late and court will reconvene Tuesday through the entire day Friday. This is the best way they've been able to balance getting the trial over with as quickly as possible, with maintaining their lives. For the folks who come from Dumfries, they have to fly to Glasgow and drive and hour and a half.
Kathryn Turman took the podium after our break, to give us the latest developments on the services being put into place for our benefit. The downlink from Camp Zeist to New York and Washington: Because of the time difference, the feed will be delayed to a civilized hour; we will not have to get up at 3 a.m.!
The actual site in New York: The Jacob Javits Federal Building 26 Federal Plaza 21st Floor. We are going to receive an application form in the mail. Then we will receive a badge. In order to enter any of four* secured sites which are extensions of the courtroom in Camp Zeist, we have to inform OVC a day in advance, and then wear the badge as our ID. The room at the Javits Building is not large; it holds perhaps 40 people -all the more reason why the OVC staff needs to be given advance notice.
The four downlink sites are in New York Washington, London and Dumfries. Kathryn wants us to remember that victims came from over 21 different countries; that within the United States, families live in 45 different states. It was impossible to set up the sites to meet everyone's needs.
Housing. Even though OVC is only able to pay for one week's visit to Camp Zeist for two members of each family, RPI (the firm which handles the arrangements) will assist anyone in making reservations for return visits.
Press Pressure. As the trial approaches and after it begins, we will find ourselves under increasing pressure to give interviews. Remember that we always have the right to refuse. Controlling the circumstances of giving interviews gives us a means to decrease our stress. Kathryn told us about an important new bill which will amend the Anti-terrorism provision of the Victims of Crime Act to enable OVC to have more flexibility in using their terrorism victim reserve fund in cases occurring outside the US. The system works when it is a domestic incident impacting one state. It falls apart when the act of terrorism occurs abroad because the states don't have jurisdiction or legislative authority to use their funds for those cases.
OVC is currently limited to providing funds to a state victims' compensation program. The proposed legislative change would enable OVC to quickly funnel emergency funds to the agency in the best position to provide assistance OR to directly pay some expenses for victims. Also, the proposal would give OVC authority to establish a terrorism victims compensation program that would provide a consistent, equitable way to assist victims of terrorism abroad with crime-related expenses, including emergency travel, funeral bills, etc. It would be modeled on a similar program operated by a sister agency in Justice that provides benefits to families of public safety officers killed in the line of duty. If people are interested in supporting the bill, they can call Kathryn at 800 -363- 0441. Or write to her Email address:
TURMANK@ojp.usdoj.gov and she will let you know who to contact on the Hill (For our readers who are entitled to log on to the Syracuse Web Page, you can find two letters there under Official Messages. One is from Lord Hardie regarding his registration as Lord Advocate dated February 17, 2000, addressed to Kathryn Turman. The other is from Ann den Bieman, Scottish Crown Office, introducing herself to family members, detailing her involvement in the Lockerbie case.)