Pan Am Bombing Case May Be Difficult

It has taken more than 10 years of police work and international diplomacy to get two Libyan suspects in the 1988 Pan Am Flight 103 bombing charged, fingerprinted and locked away at Camp Zeist, a former air base in the Netherlands that has been ceded to Scotland for the duration of their trial.

Now prosecutors must convince a panel of three of Scotland’s High Court judges that the Libyans--Abdel Basset Ali Megrahi, 46, and Lamen Khalifa Fhimah, 42--are guilty of the bombing that killed 270 people aboard the aircraft and on the ground in Lockerbie, Scotland.

Under Scottish law, the judges may consider three possible verdicts--guilty, not guilty, and not proven.

“Not proven is a kind of halfway house where the court says there is not enough evidence to convict or acquit,” said Peter Duff, professor of law at Aberdeen University in Scotland. “It counts as an acquittal.”

Most legal experts do not expect the judges to resort to a not-proven verdict, but the possibility underlies the tough job ahead for prosecutors.

The Scottish prosecutors’ case rests on U.S. and Scottish indictments from 1991, which claim that the two suspects were intelligence agents working for the regime of Col. Moammar Kadafi when they planted a bag carrying a bomb-laden radio cassette recorder on an airplane in Malta.

The indictments assert that the bomb was flown on an Air Malta flight to Frankfurt, Germany, where it was transferred to a Pan Am feeder flight to London’s Heathrow Airport and then to U.S.-bound Pan Am Flight 103. Among the dead were 189 Americans.

The suspects are accused of having obtained and attached the appropriately marked Air Malta tags that routed the bag and allowed it to circumvent security checks. They also are said to have obtained and set the timer on the bomb so that it would explode about an hour after Flight 103 was scheduled to leave Heathrow, causing the plane to blow up over Lockerbie.

The case links the suspects to the brown Samsonite suitcase allegedly carrying the bomb along with clothing that was purchased in Malta by a Libyan supposedly resembling Megrahi.

“We don’t know how strong a case it is. Various television programs have indicated there are very grave difficulties with the prosecution scenario,” said Robert Black, a professor of law at Scotland’s Edinburgh University.

Black was one of the first to suggest the idea of a trial in a third or “neutral” country as a way around U.S. and British demands for the extradition of the suspects and Libya’s refusal on grounds that they would never receive a fair trial in either the United States or Britain. Libya had insisted on a trial by a panel of international judges.

Under the mediation of South African President Nelson Mandela and the Saudi Arabian government, the United States and Britain agreed to hold the trial in the Netherlands, and the Libyans agreed to a trial under Scottish law by a panel of Scottish judges.

“It is probably more difficult to convict under Scottish law [than American or English] because there are stricter rules of evidence,” Black said.

Scottish law requires crucial facts to be corroborated by more than one source. “A single eyewitness, even if he is believed by the court, wouldn’t be enough,” Black said, adding that corroboration may come in the form of physical or forensic evidence.

On the other hand, Black noted, a panel of judges rather than a jury trial probably favors the prosecution. “The general view is that juries are more likely to acquit than judges,” he said. “It is generally thought that if someone is guilty, he would rather be tried by a jury because you can pull the wool over the eyes of a jury and you can’t over a judge’s.”

But the Libyans insisted on a trial by judges because they feared that a Scottish jury could not be found that had not been influenced by pretrial publicity.

In Scotland, unlike the United States, jurors cannot be questioned or vetted by attorneys.

The suspects are to be committed for trial this week. Under Scottish law, proceedings must begin within 110 calendar days unless the defense requests additional time, which it is expected to do.

Each of the suspects will have his own Scottish lawyers who, like the prosecution, will be paid by taxpayers.

The trial will be held at Camp Zeist, where the suspects are being held in separate cells with signs indicating the direction of Mecca for Muslim prayers. Scores of Scottish police and justice officials have been brought in to arrange the trial and patrol the camp, which is encircled by a 10-foot-high fence and razor wire.

The high-security courtroom, in a former hospital, will be organized like a Scottish court. The two defendants, flanked by police, will face the three judges. A fourth judge will sit in reserve.

There will be no opening statements, said John Grant, a professor of Scottish law at Glasgow University. The trial will begin with the first witness.

“We will lose a lot of the histrionics and drama,” Grant said. “You needn’t ram home points to the judges. They will understand things right away.”

Grant said this would be the first time a Scottish court has sat abroad and the first case involving serious criminal charges that has been tried by judges rather than a jury.

The prosecution plans to call witnesses from Libya, according to Howard Hart, a spokesman from the Crown Office in Edinburgh, and hopes that Libya will feel compelled by U.N. Security Council resolutions “to cooperate with the court in securing the attendance of witnesses.”