Wreckage from Pan Am flight 103

Set in the tranquility of the Dutch countryside, the trial of the two Libyans accused of bombing Pan Am flight 103 and killing 270 persons on December 21, 1988 has not yet reached it's 50th day in session, yet it is already clear that the prosecution's case is showing signs of major cracks. The investigation, which led to the charges being brought against Al-Amin Khalifa Fhimah and Abdel Basset Ali al-Megrahi, was heralded as the largest criminal investigation in history. With the combined resources of the Scottish Police, the FBI and the CIA being brought to bear on this case, one might have expected a case which contained more in the way of hard evidence. Thus far, however, the Crown has presented a case composed entirely of circumstantial evidence and recent revelations at the trial show that some of it may be fatally flawed.

In the last few weeks we have seen an issue develop at the trial concerning the evidence of Libyan informer Abdul Majid Giaka. Prosecuting authorities on both sides of the Atlantic have for many years now indicated that this man would be their star witness. Skeptics were told to stay quiet and await his testimony at the trial. Giaka, who has been in the U.S. Witness Protection Program since July 1991, arrived at Camp Zeist on August 14 expecting to testify at the trial. The nearest he got to the courtroom was driving past it in his motorcade of U.S. deputy marshals who provide his protection and he flew back to the United States on August 31. During those two weeks, instead of hearing the testimony of Giaka, the court has been preoccupied with legal submissions and arguments over a number of classified CIA cables sent by Giaka's handlers in Malta back to CIA headquarters in Langley, Virginia.

The legal row erupted on August 22 when the court reconvened after the summer recess. William Taylor, QC for Megrahi, informed the judges that there were some 25 CIA cables relating to Giaka and that he had been informed the day before that the prosecution had seen much fuller versions of these cables than had been provided to the defense, thus placing the defense at distinct disadvantage. The Crown admitted that they had been shown a version of these cables on June 1 and that what they had seen was "blacked out" or redacted from the version given to the defense.

The Lord Advocate of Scotland, Colin Boyd, told the court that what Advocate Deputy Alan Turnbull QC had seen was irrelevant to the defense's case and was also information which could be a threat to the national security of the United States. The judges were not impressed with this argument and ordered Boyd to use his best endeavors to approach the CIA and have these edited portions made available to the defense. Meanwhile, the court agreed with the defense that they could not hear the testimony of Giaka until the issue of the CIA cables was resolved.

Alongside the CIA cables, the defense also challenged another item--a diary belonging to Fhimah that the Crown wished to present to the court. The court was told that the diary was obtained without a search warrant and as such they challenged its admissibility.

By Friday of that week, Boyd had produced for the defense and the court the largely unedited versions of the CIA cables. The contents were regarded by the defense as being "highly relevant" to their case. During lengthy legal debates we were treated to some of the "irrelevant" information that the Crown had decided should be denied to the defense. The idea that the Crown saw themselves as the arbiters of this information was at best an appalling lack of judgment and at worst an attempt to suppress information damaging to their case.

The new information showed that the CIA agents in Malta had questioned the value of Giaka as an informer. In a cable dated September 1989 (over a year after the CIA recruited him as an informer), they contemplated cutting off his $1000 per month salary as he had not provided them with the quality of information they had hoped he would. They doubted that he was an agent for the JSO (Libyan External Intelligence) and had decided to inform him that he would be put on "trial" status until January 1990. This is hardly a ringing testimonial for any informer and its importance to the defense was enormous.

If the CIA agents closely involved with Giaka held this opinion in September 1989, what happened in the intervening period to July 1991 to alter this opinion and make his testimony so crucial to this trial? If he possessed any information linking either of the two accused to the Pan Am 103 bombing, why was it not offered in the months leading up to the attack in December 1988, at which point Giaka had already been on the CIA's payroll for four months? Could it be that he was not able to supply them with this information until a decision was made to shift the focus of the investigation from Syria and Iran to Libya?

Evidence already given at the trial by a senior Scottish Police detective, Harry Bell, shows that a photograph of Megrahi was first shown to Maltese shopkeeper Tony Gauci in February 1991, after Bell was contacted by Special Agent Philip Reid of the FBI. Once again we are forced to ask why it took so long for Giaka to implicate Megrahi or Fhimah. Did it take from August 1988 until February 1991 for Giaka to implicate either of the accused? We certainly can deduce that it must have been at least after September 1989, when coincidentally his source of CIA money was threatened with withdrawal.

The use of information gathered by paid informers is already a contentious issue before courts in many jurisdictions and it has certainly become a major issue at this trial. The issues relate to motivation and credibility. Giaka would have been made aware that the U.S. Department of Justice was offering a huge reward (around $4 million) for information leading to the conviction of those responsible for the bombing of Pan Am 103 and this may prove to be yet another hurdle for the prosecution to overcome.

The defense, sensing that the CIA may hold further information on Giaka, as well as on other groups that were originally the prime suspects in the investigation, successfully petitioned the court to once again have the Lord Advocate use his "best endeavors" with the CIA and request that it hand over all information it had on Giaka and the Damascus-based Popular Front for the Liberation of Palestine-General Command (PFLP-GC), specifically Mohammed Abo Talb, a member of the PFLP-GC

Scottish Lord Advocate Colin Boyd

On September 21, the court will hear whether or not the Lord Advocate has been successful in his requests to the CIA. If he is unsuccessful in his "best endeavors" route, the judges have left the door open to revisit another submission from Richard Keen QC for Fhimah, which they rejected in favor of asking Boyd to explore his present course of action. The legal remedy sought by Keen was for formal "letters of request" to be submitted to the U.S. government so that a federal judge can review all the pertinent documents held by the CIA and sanction the release of such documents (excluding those which pose a real threat to American national security). The judges originally rejected this request because Boyd informed the court that this procedure might take anywhere from six months to two years, during which time the court would have to be adjourned. Such a lengthy adjournment would likely be greeted by an outcry from many of the families of those murdered on Pan Am flight 103, but it may be the only solution for the judges to ensure that the accused receive a fair trial.

In any case, the Crown still has other problems with regard to the testimony of another contentious witness: Mohammed Abo Talb, who is currently serving a life sentence in Sweden for terrorist attacks in Copenhagen. Talb was originally the prime suspect in the Pan Am 103 bombing and has been named in the special defense cited by lawyers for both accused Libyans.

Talb has been linked to a PFLP-GC cell that was operating in Malta during 1988 and police found a diary in his Swedish apartment in which the date of December 21, 1988 (the day of the Pan Am bombing) is circled. Needless to say, this circumstantial evidence incriminates Talb at least as much as the note in Fhimah's diary saying "get Air Malta taggs" (sic) incriminates the accused. When Maltese shopkeeper Tony Gauci was asked to look at the photograph of Megrahi, he commented that this photograph "most resembled the man who bought clothes" in his shop, but went on to say "other than the picture of the man shown to me by my brother." The other picture Gauci was referring to was a photograph of Talb shown to him by his brother Paul.

The clothes in question are alleged to have been bought by Megrahi on the December 7, 1988, remnants of which the Crown alleges were found among the wreckage of the Pan Am plane. The defense will claim that the clothes were bought earlier by Talb and will present evidence of this to challenge the prosecution's claims.

So we have as good an identification of Talb as we have of Megrahi. Moreover, Talb is a convicted bomber with connections to a group that was making bombs hidden in Toshiba tape recorders that were nearly identical to the one alleged to have brought down Pan Am flight 103. We have also learned that Talb has agreed to testify at the Camp Zeist trial in return for a reduction in his sentence. A senior source in the Swedish police, who spoke on condition of anonymity, confirmed that an arrangement has been reached between the UK and Swedish authorities which will allow Talb to apply successfully for a "time limit" to be put on his sentence in return for his cooperation with Scottish prosecutors.

Talb, who has consistently refused to be interviewed by the defense, was thought extremely unlikely to attend as a witness and, as the Scottish court has no power of subpoena, there has been speculation for months as to why he would even contemplate attending. It is now clear that the prospect of a release date was the price for his cooperation, but it will no doubt be another issue raised prior to or during his testimony. Whether the case against the Libyans will stand up to scrutiny in court cannot be predicted, but clearly the events of the last few weeks have been the biggest setback to the Crown since the trial started on May 3.

Amid all of the publicity generated by the CIA cables about Giaka, the Crown has tried to reassure the families that all is not lost, that its case does not rely on the testimony of a single witness. For years they have been hinting at DNA, fingerprint and other hard evidence which we were told would be produced at the trial. With the Crown's case admittedly on their last evidentiary chapter, we are still waiting.