- The Washington Times - Monday, May 1, 2000

CAMP ZEIST, The Netherlands After seven years of international sanctions and delicate diplomatic maneuvering, two members of the Libyan intelligence service go on trial Wednesday accused of the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

Many legal experts think they will be acquitted.

The case against Abdel Basset Ali al-Megrahi and Lamen Khalifa Fhimah is the result of the largest British criminal investigation in history, and has been painstakingly built by an international team of investigators who gathered tens of thousands of pieces of evidence from 20 countries.

But the rules of Scottish law combined with cold trails, questionable witnesses, political pressures and unmistakable signs of trouble within the prosecution team give the victims’ families reasons to fear the justice they have waited a decade for may still be denied.

“Up to now, I had no problems with any delays” in starting the trial, said Bert Ammerman of River Vale, N.J., whose brother Tom was aboard the plane. “The way I looked at it is that every day these two spent in jail was a bonus.”

Mr. Megrahi and Mr. Fhimah are accused of planting a suitcase on the doomed Pan Am flight, which on Dec. 21, 1988, departed Frankfurt for Kennedy Airport in New York with a stopover in London.

The bomb, thought to be hidden in a Toshiba cassette recorder, exploded with such force that the Boeing 747 left a trail of debris stretching more than 70 miles from Lockerbie to the North Sea. All 259 passengers and crew from 21 countries died in the blast, and 11 more persons were killed on the ground.

The Libyan government has repeatedly proclaimed the innocence of the two former intelligence officers and has threatened to sue the United Nations or United States for losses sustained during an air embargo. Those sanctions were imposed to force Tripoli to turn over the suspects and agree to a trial.

The Libyan government is a known sponsor of terrorism, and many legal observers say there is little question that Libyan intelligence was involved in the bombing.

But whether the prosecutors can convince a panel of three Scottish judges that Mr. Megrahi and Mr. Fhimah were responsible is increasingly doubtful.

Some witnesses a few of whom have lived in the U.S. witness protection program for a decade have dubious pasts and foggy memories. The prosecution’s star witness, the retailer who says he sold Mr. Megrahi the clothing that links him to the suitcase, stands to receive millions in reward money.

“It’s unwinnable,” said Michael Scharf, an expert on international law who is writing a book about the Lockerbie case. “The prosecutors know it. They keep delaying, and they’re afraid.”

Scottish criminal law is very much like the American system, with one major difference: Judges can return a verdict of “not proven” if they believe the accused are guilty but the evidence was insufficient to convict.

This amounts to an acquittal and requires that the accused be set free.

Washington lawyer Mark Zaid called it ironic that by holding out for a trial under U.S. or Scottish law, the prosecution has placed itself in a position where it will have to meet a higher burden of proof than if the trial had been at the International Court of Justice as Libya had long proposed.

“There are a lot of questions out there for both sides,” said Mr. Zaid, who represents more than a dozen relatives of the victims in a civil suit against the two defendants and the Libyan government. “But a conviction is possible. From our standpoint, we think the evidence is firmly there.”

Mr. Zaid, who plans to use evidence presented at Camp Zeist to make his own case, admits he is discomforted by signs of trouble within the prosecution team.

The original chief prosecutor, Lord Andrew Hardie, shocked observers when he resigned from the case in February to become a judge. He dismissed as “outrageous” the accusations he was leaving a sinking ship.

He was replaced by his assistant, Colin Boyd, who insisted the change would not hurt the case and also denied that the case was in trouble.

The prosecution sought another delay last week, saying it needed time to process the defense’s last-minute introduction of 119 new witnesses.

The court denied the request on Thursday, saying the accused had already spent an unconscionable 416 days in detention without a trial.

The families of the 189 American Lockerbie victims have accepted the delays and official explanations with varying degrees of desperation and resignation.

They have kept pressure on American legislators and diplomats but are united by little except their shared pain. Many are pursuing a cash settlement through the civil suit, some want vengeance, others just want to mourn quietly and move on.

By most accounts, the political ramifications of the Lockerbie bombing have overshadowed, and complicated, the legal proceedings.

The most troubling example of this is a February 1999 letter from U.N. Secretary-General Kofi Annan to Libyan leader Moammar Gadhafi that finally persuaded Libya to turn over the suspects for trial.

State Department officials have reportedly classified the letter and its annexes, while British and Libyan officials say that it is up to Mr. Annan to release the text.

U.N. officials say the letter is private and shall remain that way. All deny the letter limits a full trial.

But family members to whom State Department officials have read excerpts of the letter say it contains a promise to the Libyan leader that his government will not be implicated in the Pan Am inquiry. The most quoted passage says the proposed trial would not undermine Col. Gadhafi’s regime.

Scottish prosecutors say they will follow the evidence wherever it leads, but few believe the two suspects acted entirely on their own.

Rep. Benjamin A. Gilman of New York, chairman of the House International Relations Committee, is one of a half-dozen legislators who have tried to get the letter released.

“He is very concerned that a deal has been cut with Gadhafi,” said a spokesman, Les Munson. “If there’s nothing in the letter, why can’t we have at it?”

The judges have ruled that the trial may not be televised for fear of violating the right of the defendants to a fair trial. A press room has been created, however, in a nearby building inside the air base.

Special arrangements have been made to allow the victims’ families to follow the trial via closed-circuit television feeds and a State Department-funded Web site. But access to both is so severely limited that family members have been warned they will be cut off if their own lawyers gain access to either source.

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