Al-Megrahi: I agree with the Americans

by Carl Gardner on August 20, 2009

It appears that the Scottish Justice Secretary Kenny MacAskill is likely to announce today the release on compassionate grounds of the man convicted of the Lockerbie bombing, Abdel Baset Ali al-Megrahi. British justice ministers are obviously feeling quite compassionate this summer.

I’m against this move. Some will argue that al-Megrahi is innocent anyway, and that his original, unusual trial and conviction in 2001 (in a Scottish court sitting in the Netherlands without a jury) was unfair. Maybe; but the way to settle that would be by appeal, an appeal al-Megrahi has now abandoned. It would be quite wrong to allow any doubts about his guilt to affect a decision that should be purely about whether his terminal cancer means he ought to be set free.

I don’t think it does. Professor Karol Sikora, one of Britain’s leading cancer specialists, may think al-Megrahi has only a “very short time to live”; no doubt he’s right. But I don’t take as gospel everything doctors say, however expertly and sincerely, about prisoners they examine. Anyone who remembers the Ernest Saunders case is always likely to wonder whether a prisoner is really as ill as his doctors say, and I think Professor Sikora goes too far in pressing the Scottish government to make an “urgent decision”. His role is simply to give his medical prognosis: I’d have more confidence in that if he left it to others whether and when any decisions should be taken. In any event, this does not seem to be a case, like Biggs, of a man confined to his bed unable to speak. Indeed it seems the prisoner was able to speak to the minister only days ago.

If al-Megrahi is flown to Libya tomorrow, as it seems is intended, then he’ll be beyond the reach of any license such as applies in Ronald Biggs’s case. A miraculous recovery, or even simply an easeful and longer than expected departure from this world, would take place far beyond the practical reach of Scottish justice. And al-Megrahi is a much worse offender than Ronald Biggs. Like Biggs, he owes us years of his unserved sentence. Unlike Biggs, though, he also murdered 270 people – most of them Americans.

Which is why American politicians have reacted angrily to the prospect of the release, Hillary Clinton saying release would be “absolutely wrong”, and a group of senators including John Kerry and Edward Kennedy writing to MacAskill this week to make their opposition clear. I understand their view, and I agree with them.

If the decision is part of a deal with Libya, perhaps relating partly to oil, then of course it would be disgraceful and shameful. But it’s disgraceful and shameful anyway. Had all those 270 dead been Scottish, does anyone think Kenny MacAskill would be doing this?

{ 16 comments… read them below or add one }

1 Chuck Unsworth August 20, 2009 at 09:57

“British justice ministers are obviously feeling quite compassionate this summer.”

Well, that’s possibly stretching the point. I rather thought this matter was being dealt with by the Scots alone – but that’s a little unwise without chapter and verse confirmation. So, what might Gordon Brown’s involvement be?

Clearly you believe that those who have a different view as to the conduct of the original trial – and the doubts which have been subsequently voiced – are wrong. However what we can observe is that in recent years political expediency has taken firm precedence over Law. Perhaps it was ever thus, but maybe we should not have our noses rubbed in it.

2 Peter Hargreaves August 20, 2009 at 10:56

I have followed the Lockerbie case for some time. As a point of principle, I think that there should be some crimes for which even compassionate release must not be available and those duly convicted of mass murder ought not to receive such compassion. Justice will be the loser if al-Megrahi is released and there is the clear possibility that encouragement may be given to other rogue States to engage in similar acts knowing that, in the end, political expediency and economic interests will prevail.

The appeal (which followed the Scottish CCRC report) will not be heard. It has been “abandoned”. This is a tragedy since those doubts – often so eloquently expressed by Dr Jim Swire (father of a victim) and Professor Robert Black QC – will not be aired in open court. If Scottish justice got it wrong at Camp Zeist we may never really know. [Of course, al-Megrahi lost one appeal].

I agree with you that “experts” ought not to press for an “urgent decision”. That is not a matter for them but, as you will will be well aware, experts frequently do just that even in court cases. The miraculous recovery of Saunders has, of course, made everyone cynical but terminal prostate cancer is not really that difficult to diagnose.

I can understand the Americans being angry about this and one wonders whether there will be a price to pay. I would not be surprised if there were and, like revenge, it will probably be served cold. Many of the Scots will also be angry. Let’s not forget that the fireball which was PA103 (Boeing 747 London Heathrow to New York) was over Lockerbie and people on the ground were also killed. The aviation community will also be angry because they will feel that they have been “let down” and made more vulnerable to terrorist action.

Another interesting angle relates to “devolution”. Criminal Justice is (supposedly) left to Scotland. Foreign Affairs is not devolved to Scotland. What is the position when the two come together? It would seem that the Foreign Office are holding the trump card?

We must now await the formal announcement – expected at 1pm (BST) 20th August. Will it also include an announcement of a formal inquiry? I’m not holding my breath.

3 Carl Gardner August 20, 2009 at 11:31

Chuck, my reference to “British ministers” wasn’t implying Westminster involvement in this decision – it was simply a reference to the fact that Jack Straw felt compassionate to Ronald Biggs, and now apparently Kenny MacAskill feels compassion towards a-Megrahi.

I don’t have a settled view about his guilt at all, in fact – I don’t know enough about the case, so I think I should presume his conviction safe. But my real point is that that’s irrelevant. You question the safety of the conviction by means of an appeal (as Peter says, a further appeal in fact). Compassionate release is something else, and I think campaigners against miscarriages of justice will not help terminally ill prisoners be treated compassionately if they start linking compassion and innocence in politicians’ minds.

Peter, okay, prostate cancer may be easy to diagnose – but how firm can the prognosis be? Were I in MacAskill’s shoes I’d be wondering whether al-Megrahi might survive four, five or six months, or even seven or eight months, rather than three; and what if any interviews he might be capable of giving in Libya.

As for there being a price to pay – yes, there’s bound to be, at least in American attitudes to Scotland and its government. Perhaps to Britain generally. Why should they listen to what anyone here says about Gary McKinnon if we go releasing convicted terrorists?

I’ve certainly not forgotten there were Scottish victims. I just think the other victims seem to be of little account here. If Harold Shipman had lived long enough to have cancer, would he have been released to die? Unthinkable. He seems to have killed about 250 people, so fewer than al-Megrahi as it happens. But of course his victims were all, or at least overwhelmingly, British.

A final thought. I’ve not opposed control orders in principle for terror suspects, although they do trouble me. This, though, throws them into sharp relief. Westminster was happy to imprison indefinitely people merely suspected of involvement in terrorism; we’re still happy to put them under pretty severe restrictions akin to a sort of house arrest. Yet actual convicted terrorists, in Scotland at least, are just let free.

4 Peter Hargreaves August 20, 2009 at 12:08

Agree that compassion and innocence (or “possibly unsafe conviction”) must be kept distinct. There have been suggestions that they have not been in this case.

The prostate cancer has been diagnosed and if, as seems to be the case, Professor Sikora has said not long to live then that will be the case. There are few more eminent in the field of oncology. One would be thinking weeks rather than months. [Of course, the actual report to the Scots Justice Minister might have been more precise].

I agree that the Americans will now be even less likely to listen to the British in cases such as Gary McKinnon. However, in political terms, the matter will not be entirely simple because America also wants a big slice of the wealth which lies beneath the deserts of Libya. Nevertheless, I certainly feel that there will be a price to pay somewhere, somehow.

Re Shipman. Yes, he is believed to have killed more than al-Megrahi. He was a mass murderer and in my view (expressed earlier) he would also not have been entitled to release on a compassionate basis. Of course, there were no international complications (such as massive exploration contracts) connected to Shipman. He was relatively small fry and so the politicians could have safely left him to twist in the wind.

I also agree that there is something bizarre about releasing a convicted terrorist but keeping those not convicted subject to draconian control orders. Are you expecting logic from politicians, Carl? If my view that mulitple murderers do not become eligible for compassionate release were to be adopted then there would at least be a rational and defensible position even if, as will inevitably the case, not everyone agreed with it.

5 Carl Gardner August 20, 2009 at 13:38

Interestingly Kenny MacAskill in his statement just said al-Megrahi could live longer than three months. So I don’t think the medical advice can have been more precise than that. Anyway, MacAskill said (I think – I find it surprising) that the medical reports will be published. If that’s right, we’ll see what they say.

6 Chuck Unsworth August 20, 2009 at 13:51

Re MacAskill’s suggestion that the reports may be published, when is this likely? And how many people are sufficiently knowledgeable to read and understand them – and form some sort of prognosis? In any event, by the time they are published al-Megrahi will be long gone – possibly in every sense.

No, I think there’ll be a certain outcry about this affair, but maybe it’s time the Americans were given to understand that they don’t own everything.

As to your comments about Straw, it’s my view that he did not ‘feel compassionate’ towards Biggs. He merely felt the heat of public opinion – as expressed by the mainstream media.

7 Carl Gardner August 20, 2009 at 14:02

maybe it’s time the Americans were given to understand that they don’t own everything

I worry that this could even be part of the motivation behind the decision, and people’s support for it.

8 Chuck Unsworth August 20, 2009 at 14:33

Well, that’s the penalty for mixing international politics and Scottish Justice, eh?

9 Polonius August 20, 2009 at 21:45

A successful appeal would be embarrassing to the governments of several countries. Where there’s terrorism, the standard government reaction seems to be some form or other of the politician’s syllogism. The American approach is along the lines of “We must invade somewhere. The culprits were from Saudi Arabia, but we can’t invade there – Afghanistan will do.” The British approach seems to be to convict somebody – anybody will do.

That goes some way towards satisfying the immediate lust for revenge. If they convict the right people, so much the better – it stops them committing crimes and deters others. But it’s intensely embarrassing when it goes wrong. If an appeal succeeds, it’s apparent that the real culprits are still out there somewhere. Furthermore, potential terrorists can see no point in not committing crimes if they think they’ll be considered innocent until proved Irish/Muslim/whatever.

I think Lord Denning understood that, and he pointed out that the death penalty is an effective way of preventing such appeals. Of course, he also felt that the possibility of embarrassing police officers with evidence of their perjury constituted grounds for rejecting such appeals. (Many readers will know that that was the speech where he coined the term “appalling vista”, preempting Microsoft by a quarter of a century.)

If I was a real conspiracy theorist, I’d say that the Scottish government saw an opportunity to avoid an embarrassing defeat at the appeal, especially if the rumours turn out to be true. Peter
.-= Polonius´s last blog ..London court strikes a blow in the war on photography =-.

10 simply wondered August 20, 2009 at 23:29

carl, while not being part of an anti-american feeling on this (tho i plead guilty to same in a general sense), i think there is every reason to make our decisions within our legal system without reference to what americans (or anyone other than those whose job it is to decide such things) think about it. the principle of comity is based on the right to determine legal issues that are properly the concern of our legal system and respect other systems to do the same if they have proved themselves to be fit to do so. so yes – bollocks to what america may think about this.

similarly, if the extradition of gary mckinnon is in line with international agreements then we had to do it (i have no idea whether it was). if we don’t like the agreement, then we change it.

it is good that decisions like the biggs decision in england at least will no longer rest with a politician. it is good for the rule of law if such decisions are taken by the appropriate part of the judiciary. that’s why we have them and why they are and should remain unelected – tho it helps that it annoys the daily male, too.

i would have preferred that the appeal had been heard and the result seen to be honest, open and divorced from any political embarassment it may have caused. that would certainly have been the most respectful option for the dead and their relatives. i’m not saying they (or any of us) are necessarily entitled to respect under the legal system (much though they deserve it) but they are entitled to an honest examination of the facts and a truthful verdict.
.-= simply wondered´s last blog ..pointless post about a non-sad search =-.

11 Peter Hargreaves August 21, 2009 at 11:24

I hope that I have not misunderstood this but, as I see it, MacAskill could not release al-Megrahi under the prisoner transfer agreement (PTA) with Libya if any legal proceedings were on-going. However, MacAskill actually refused to release him under the PTA. The release was purely on campassionate grounds and, under those grounds, it should not matter whether legal proceedings are on-going. If this is right, then why did al-Megrahi either have to drop the appeal or choose to drop the appeal (which arose from the Scottish CCRC’s lengthy report)? Maybe I am missing something here?

Of course, there will be no inquiry now and the detailed truth may never be known. MacAskill virtually said as much when he stated that this was a matter for others. I cannot see any reason why the London government would wish to open up this matter. None of it shows devolution in a good light particularly when foreign affairs and criminal justice come together.

The next time we hear government Ministers talking about never giving in to terrorism let us remember Lockerbie. I am of the view that this decision has made the world less safe by enabling terrorists to realise that no matter what they do we lack the will to keep them in prison until they die. Compassion has a place in criminal justice but surely not for mass murder.

12 Carl Gardner August 21, 2009 at 16:46

Polonius, if you think he’s innocent, fair enough: but that means you’re not agreeing with the decision about compassion at all, are you? You wanted him released for other reasons, not these. It’s quite wrong to mix the issues all together.

Simply, I agree the Scots should decide this without being influenced by the Americans. I don’t think the Americans should be allowed to dictate this kind of thing. It’s just I think the Americans are right, and MacAskill’s decision is wrong.

Peter… I agree! The unnecessary dropping of the appeal makes this all look unfortunately murky.

13 Polonius August 21, 2009 at 19:28

Carl,

I really don’t know whether he’s innocent or not, though what I’ve read of the new evidence certainly looks like grounds for reasonable doubt. I haven’t researched this matter as much as, say, Jim Swire, but I have a lot of respect for his opinion.

The mixing of the issues is a consequence of the leaden pace of the appeals process. I genuinely can’t understand why the SCCRC review and the second appeal have taken so long (IANAL!) If the appeal had been heard two years ago, we wouldn’t be in this mess now, however it had turned out. Now we’re talking about compassion for a man whom a considerable body of opinion believes to be innocent. I know he’s legally guilty, but politicians inevitably are (and in a democracy should be) influenced by public opinion.

From Peter’s comment and an apparently informed comment in another place, it appears there’s no legal reason for him to abandon his appeal as a precondition of compassionate release. Like you and Peter, I am unhappy about that. To me, it strongly suggests a sordid deal has been done.
.-= Polonius´s last blog ..Abdelbaset Ali al-Megrahi =-.

14 barboy August 22, 2009 at 12:35

Whilst I do not believe the decision was inspired by the opportunity to stick one on the USA, that does certainly seems to be an interpretation which will resonate. Repercussions will follow and, as others have said, it does little to aid special pleadings on behalf of the likes of that poor sod McKinnon. Notwithstanding, it is, perhaps, time that the USA did get put back in their box. To which end, they can always be reminded that the US government has done way more than its fair share when it comes to sponsoring terrorism, and often with a financial motive. So, if it is true, and Mandleson etc., did indeed cut a deal and let the convictee free in return for trade advantages at a time when our economy is on its uppers, we can remind the USA that, when it comes to pragmatism trumping justice, the Yanks have done a lot worse.

15 james c August 24, 2009 at 13:30

Carl,

Are you not making a major assumption, which is that the American government is opposed to the release of this prisoner? My own suspicion is that, one way or another, US companies will benefit from the opening up of trade relations with Libya.

16 Gordon August 24, 2009 at 14:45

What I found difficult to understand was MacAskill’s rabbitting on about “a higher power”. So was he saying that because al-Megrahi was going to meet his maker then he HAD to be released? I’m no specalist on Scots law but I can’t think the law (or any Code of Practice) would specifically require early release. So it seems to me that MacAskill was simply saying he’s dying and therefore, irrespective of all the hurt he has brought, he HAS to be granted early release. What an utter disgrace, there are no grounds that I can see that justify his, certainly no other arguments (other than that he’s dying’) was reported as being advanced.

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