$2m Witness Payment, Bogus Forensic Evidence and Pentagon Memo Blaming Iran:
How Lockerbie bomber appeal threatened Scottish justice
By ANTONIA HOYLE and FIDELMA COOK
August 25, 2009 "The Daily Mail" -- As the political furore over the release of convicted Lockerbie bomber Abdelbaset Al Megrahi engulfs three countries in bitter recriminations, The Mail on Sunday can now reveal the new and compelling evidence which he says would have proved his innocence.
In a submission to the Court of Appeal running to thousands of words, Megrahi’s lawyers list 20 grounds of appeal which include:
The closely guarded submission was obtained by Ian Ferguson, an investigative journalist and co-author of the book Cover-up of Convenience - The Hidden Scandal of Lockerbie.
But the evidence will never be tested in open court after the dying Libyan abandoned it last week to spend his final days with his family.
Mr Ferguson, who has had 100 hours of unprecedented access to the 57-year-old former Libyan intelligence agent during his eight years in jail, claimed last night: ‘From the start there was a determination to try to prevent this appeal being heard.
'It opened but never got off the ground, with stall after stall as each month Megrahi weakened with the cancer that was killing him.
‘There was rejoicing in the Crown Office in Edinburgh when he was released and the appeal abandoned.
'There may well be political manoeuvres behind his release but at the heart was a decision to save the face of the Scottish judiciary - in particular the Crown Prosecution, who would have been shown to have been involved in an abuse of process by non-disclosure of witness statements.’
It took the use of the U.S. Freedom of Information Act to unlock the full intelligence documents which are now highlighted in the appeal submission.
They show memos from the U.S. Defense Intelligence Agency (DIA) which suggested the downing of Pan Am Flight 103, which killed 270 people in 1988, was in response to the shooting down of an Iranian Airbus by the American warship USS Vincennes five months earlier.
In a memo dated September 24, 1989, and reproduced in the appeal submission, the DIA states: ‘The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar Mohtashemi-Pur, Iran’s former interior minister.
‘The execution of the operation was contracted to Ahmad [Jibril], Popular Front for the Liberation of Palestine General Command [PFLP-GC] leader, for a sum of $1million [£600,000.
‘$100,000 of this money was given to Jibril up front in Damascus by the Iranian ambassador to Sy [Syria], Muhammed Hussan [Akhari] for initial expenses.
'The remainder of the money was to be paid after successful completion of the mission.’
Another DIA briefing - Pan Am 103, Deadly Co-operation - in December 1989 named Iran as the country most likely to be behind the outrage.
Discounting Libya’s involvement on the basis that there was ‘no current credible intelligence’, it added: ‘Following a brief increase in anti-U.S. terrorist attacks after the U.S. airstrike on Libya, Gaddafi has made an effort to distance Libya from terrorist attacks.’
The memos and reports, denied in full to the original trial, were available to the Scottish Criminal Cases Review Commission which, two years ago, cast doubt on the safety of Megrahi’s conviction based on six separate counts of the legal argument.
Their view opened the way for a second appeal. That report has never been made public.
Mr Ferguson said: ‘Megrahi was made the scapegoat for whatever reason and from that point everything went in reverse to try to make the crime fit.’
Central to Megrahi’s conviction was the evidence of Maltese shopkeeper Tony Gauci, who claimed that Megrahi had bought clothes allegedly found in the suitcase bomb.
Lawyers were due to claim that Gauci was paid a $2million reward for his evidence, which followed more than 20 police interviews, and that many of the often wildly conflicting statements taken on each occasion were withheld from the defence.
Mr Ferguson says that, although too late for the submission, lawyers were planning to spring a witness called David Wright, an English builder who was on holiday in Malta and who is said to have information about the clothes shop.
He would have produced evidence as to the date and buyer of the clothes, seriously undermining Gauci’s reliability and credibility.
It is now believed that Gauci has moved to Australia.
Other new evidence listed in the grounds for appeal would have called in new witnesses to prove that the fragment of circuit board from a timing device found near the crash and pointing to Libyan involvement simply could not have survived such an explosion.
Subsequent analysis carried out by an independent forensic scientist found no trace of explosive on the tiny piece.
A Swiss businessman would have given evidence that his company - which supplied the alleged timer - did not just do business with the Libyan intelligence service, as was claimed, but also with the Stasi, the East German secret police.
Also due to be called was a witness who would allegedly discredit the accepted account that the suitcase in which the bomb was placed had somehow travelled unchecked and unaccompanied from Malta to Frankfurt and on to the Pan Am flight.
Questions would have been asked as to how a fragment of cloth - believed to be from the clothing wrapped around the bomb - subsequently came to be packed with material linking it direct to the bomb.
Mr Ferguson added: ‘Had this appeal gone ahead and witnesses recalled and cross-examined, I believe it would be shown that some had most definitely perjured themselves or deliberately misled the court.
‘It is no wonder that some people were hoping Megrahi would die before certain witnesses were called.
'The release on compassionate grounds is a blessed release for them, as much as it was for him.’
Mr Ferguson, who now lives in France but continues to pursue ‘leads’ in the case, first met Megrahi in 2002 and says he was a constant visitor over the years as they went over every aspect of the evidence against him.
‘From the start I was struck by his total, unchanging, quiet protestation of his innocence.
'He readily admitted that his job was sanction-busting for the Libyan government but never anything more sinister.
‘He frequently said he knew his government were involved in many things but always looked me straight in the eye and said: "I am not a killer".
Despite seeing the by then frail and faltering Megrahi only four weeks ago as he waited to hear if he could be sent home, Mr Ferguson insists he did not press him on any political dealings which may have been going on behind the scenes.
He added: ‘Politics may have got him into prison but I believed it was only evidence that could get him out.
'I never believed, though, that he would give up the appeal after so many years of fighting for it. That was all we focused on in our meetings - his refusal to give up.
'At the end, though, I agreed with his decision because, otherwise, he would not have been able to get what he most wanted - to live out his last days with his family.’
Megrahi was diagnosed with terminal cancer in September last year.
Mr Ferguson, who saw him two months later, said: ‘He already looked very different. His complexion was drawn and he’d lost a lot of weight.
'He cried as he told me how he had been called into the prison governor’s office and learnt his cancer was inoperable and ultimately untreatable.
‘He called his wife and they were both crying for 15 minutes. He wasn’t embarrassed to cry in front of me.
'I’d had cancer myself in 2002, so I knew what he was going through.
'I contacted a psychologist specialising in this disease who I hoped would help him deal with it.’
Since Megrahi’s diagnosis, Mr Ferguson has seen him four times.
He added: ‘Our visits were shortened because he couldn’t sit down for too long before being in pain.
'Because he is so religious he wasn’t scared of death but he was desperate to have his name cleared before he died.
‘I felt he was being blackmailed but he never admitted it.
'The Crown wouldn’t agree to transfer him unless he gave up his appeal and the longer they stalled the more fragile he became physically. In the end he just couldn’t continue.’
He first met Megrahi and his lawyer in Glasgow’s Barlinnie prison - and quickly became convinced that he was innocent.
He said: ‘The first thing I asked him was if he had had anything to do with the bombing.
'He insisted he hadn’t and was convinced from the start his conviction would be overturned. He seemed smart and intelligent without being arrogant and very angry.
'The evidence was purely circumstantial and came at a time when the West wanted to implicate Libya at a time when it was politically inconvenient to accuse the real culprits.’
Over the months the pair reached a tacit understanding: ‘It was never spoken outright but Megrahi knew I would never jeopardise his trust by writing about our meetings.’
Surprisingly, despite the hours spent together, neither considered the other a friend.
Mr Ferguson said: ‘No, I could never say that.’
Meanwhile, despite what Mr Ferguson claims to be compelling evidence, the director of the FBI Robert Mueller last night launched a scathing attack on Scottish Justice Secretary Kenny MacAskill for allowing Megrahi to return to Libya.
Mr Mueller is said to have written him a letter, which is published on the FBI website, stating: ‘Your action gives comfort to terrorists around the world who now believe that, regardless of the quality of the investigation, the conviction by jury after the defendant is given all due process, and sentence appropriate to the crime, the terrorist will be freed by one man’s exercise of “compassion”.
‘Your action makes a mockery of the emotions, passions and pathos of all those affected by the Lockerbie tragedy.
'But most importantly, your action makes a mockery of the grief of the families.’