Lockerbie Trial Dismissal Sought

The defense in the Lockerbie bombing trial urged a panel of judges Tuesday to drop the charges against one of two Libyans accused of blowing up Pan Am Flight 103, arguing that there is insufficient evidence to prosecute him.

The Scottish court hearing the case at a special high-security courtroom in the Netherlands was told that there is “no case to answer” against Lamen Khalifa Fhimah, who is on trial with Abdel Basset Ali Megrahi for the 1988 bombing that killed 270 people, most of them Americans.

Attorney Richard Keen said the crucial issue for the judges to decide is whether the prosecution has proved that Fhimah was aware of an intention to use explosives to destroy a commercial aircraft and kill the passengers on it.

“If he was not aware of that objective, then he cannot be guilty of conspiracy, he cannot be guilty of murder and he cannot be guilty of the alleged breach of the Aviation Security Act,” Keen said, listing the charges against the defendants.

He argued that a jury--and in this case, the judges are acting as jury--”would have to speculate, and that they cannot do.”

Although the move is considered unlikely to succeed, legal experts say it highlights weaknesses in the prosecution’s circumstantial case, particularly against Fhimah.

The prosecution, which closed its case last week, alleges that Megrahi and Fhimah are Libyan intelligence agents who worked for Libyan Arab Airlines at Malta’s Luqa Airport. They are accused of sending an unaccompanied suitcase containing a radio-cassette player filled with explosives from Malta via Frankfurt, Germany, to London, where the piece of baggage allegedly was loaded onto the flight bound for New York.

The bomb supposedly was timed to explode when the plane was over the Atlantic Ocean, where all evidence would have disappeared in deep waters. But the Christmastime flight was delayed in bad weather and exploded over Lockerbie, Scotland.

The defendants deny any involvement with the bombing, and their attorneys will offer a different scenario--that Palestinian extremists based in Syria were responsible for the attack.

Since the trial opened in May, the prosecution has laid out its case that Megrahi and Fhimah loaded the radio-cassette player--packed with Semtex explosive and a Swiss-made timer--into a brown suitcase along with clothes bought in Malta. They then allegedly checked it onto an Air Malta flight with baggage tags transferring it in Frankfurt to a Pan Am feeder flight to London and on to New York.

The prosecution presented visas and airline tickets showing that both men traveled frequently between Libya and Malta, and demonstrated that they were at Luqa Airport boarding a flight for Tripoli, the Libyan capital, at the same time the bomb-laden suitcase allegedly was checked in.

The owner of a Maltese clothing store also testified that a man resembling Megrahi bought clothing from him around Christmas 1988 that was like clothing found in the wreckage of Flight 103.

A former Libyan spy turned CIA mole testified that Fhimah had unlocked a desk drawer at Luqa Airport one day in 1986 to show him bricks of explosives kept there. Fhimah’s diary also showed an entry just before the bombing that read, “Take/collect tags from Air Malta,” followed by “OK.”

As its final witness, the prosecution called Pierre Salinger, the former ABC News correspondent and press spokesman in the Kennedy White House. Salinger interviewed the defendants in 1991, and Megrahi denied visiting the clothing store.

The testimony apparently was meant to show that the defendants were lying, but Salinger repeatedly tried to announce to the court that he believes the two are innocent. He was prevented from telling the court that he thinks it was a Syrian and Iranian operation and that there has been a cover-up by the United States and Britain.

University of Edinburgh law professor Robert Black, who subscribes to the defense theory that Syrian-based Palestinians were responsible for the bombing, said that “there is a fatal flaw at the heart of the crown case.”

“There is an essential component to all three charges: that the suitcase containing the bomb started in Malta. That is an absolutely essential component, and they haven’t proved it. All they have proved is that it would have been theoretically possible and the two accused would have had access.”

But a Western observer based in The Hague who has been following the case closely said the prosecution has made a “very meticulously organized and prepared case.”

Under Scottish law, there are three possible judgments in the case: guilty, not guilty and not proven.

“It is very difficult for the prosecution. There is lots of circumstantial evidence but an absence of direct evidence,” said Clare Connelly, a law professor at the University of Glasgow who has been monitoring the trial.

The Western observer noted, however, that the burden of proof is no stricter in a Scottish court than a U.S. court. He sounded more optimistic about the prosecution’s case, saying, “I am waiting to confront the naysayers with their categorical statements.”

The Rev. John Mosey, whose 19-year-old daughter, Helga, died in the explosion, has sat through most of the trial, which has cost British and U.S. taxpayers about $50 million so far. He said the defense made a “spirited case” Tuesday that the circumstantial evidence doesn’t link Fhimah to the bombing but that he couldn’t tell how the judges were responding.

“We didn’t come looking for a conviction--we came looking for the truth, and part of the truth is, are these two guilty or innocent?” Mosey said.

A decision on the dismissal motion is expected soon.