Emerson, Steve

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Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 36 | Issue 22004The Lockerbie Terrorist Attack and Libya: ARetrospective AnalysisSteve EmersonFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationSteve Emerson, The Lockerbie Terrorist Attack and Libya: A Retrospective Analysis, 36 Case W. Res. J. Int'l L. 487 (2004)Available at: https://scholarlycommons.law.case.edu/jil/vol36/iss2/13THE LOCKERBIE TERRORIST ATTACK AND LIBYA: A RETROSPECTIVEANALYSIS*Steve EmersontFollowing the horrific terrorist crime that saw Pan Am flight 103literally blown out of the sky, an incredible journey of forensicinvestigations and intelligence began that ultimately resulted in amomentous court verdict in 2001. The forensic investigation alone into PanAm 103, was one of the most intense, meticulous and expensive criminalinvestigations ever undertaken.As many will recall, the initial theory was that Iran had effectively"subcontracted" this murderous project to Syria and Libya in retaliation forthe U.S. downing of an Iranian jet. In fact, in the months before the PanAm 103 bombing, a Syrian cell possessing barometric bombs had beenarrested in Frankfurt. It was thought at the time that these bombs were tobe placed on aircraft departing from Frankfurt to Britain. That theorychanged dramatically eighteen months later after the discovery of athumbnail sized microchip in the fields outside of London. This chip wasforensically traced to a Swiss manufacturer which, in turn, was finallytraced to Libya.Rather than detail the actual components of the investigation, it ishelpful to step back and consider the Pan Am 103 investigation and trialfrom a cost-benefit analysis perspective to determine whether U.S. interestswere ultimately served. On the plus side, it is clear that the conviction ofAbdelbaset al-Megrahi provided the opportunity for the world to gain atleast a partial insight into the culpability and involvement of Libya ininternational terrorism. Al Megrahi was convicted and sentenced to aminimum of twenty years in prison before parole eligibility although theconcurrent nature of sentencing in this case means that he may only windup serving one month for each victim that he killed. In the criminal justiceworld, mass killers that benefit from concurrent sentences are described as* Presented at the War Crimes Research Symposium: "Terrorism on Trial" at CaseWestern Reserve University School of Law, sponsored by the Frederick K. Cox InternationalLaw Center, on Friday, Oct. 8, 2004t Steven Emerson is an expert on terrorism and national security and considered one ofworld's leading world authorities on Islamic extremist networks. He serves as the ExecutiveDirector of The Investigative Project on Terrorism, one of the world's largest archival dataand intelligence on Islamic and Middle Eastern terrorist groups. Mr. Emerson is also theauthor of the New York Times bestseller, 'American Jihad.'487CASE W. RES. J. INT'L L.getting "freebies". It is no less offensive and inappropriate in cases ofterrorist murder.A Scottish court found that al-Megrahi was "serving a foreigngovernment," but the absence of any further prosecution left open thequestion of whether he was acting alone or possibly as a rogue agent.Additionally, his alleged accomplice was acquitted and the Libyan dictator,Muammar Gaddafi was never found to be criminally liable. Megrahi'sconviction did however clearly demonstrate that the Libyan governmentitself was implicated in the conspiracy to commit the terrorist act and fewbelieve that much gets done in Libya without Gaddafi's specific direction.Despite this, while the trial focused international attention on Gaddafi'sterrorist regime, Gaddafi himself continued to insist he had nothing to dowith the bombing. Thus, notwithstanding U.S. intelligence, both classifiedand de-classified, the fact remains that the presumptive mastermind formany of the Lockerbie atrocity, Muammar Gaddafi, ultimately escapedcriminal liability.Libya was subjected to sanctions by the U.N. in 1992 after refusing toturn over the two suspects. Seven years later, the sanctions were suspendedby the U.N. after Gaddafi extradited the suspects. However, rather thanturn over the suspects to the United States or Britain, Gaddafi negotiated aspecial arrangement in which a Scottish court held in the Netherlandsserved as the venue for the trial. The result of this deal was that Gaddafisecured preferential treatment for the suspects, compared to the treatmentthey would have received had they been extradited to the United States.After the conclusion of the trial in 2001, Gaddafi's reaction wasconsistent with his bizarre personality. He insisted that the evidence wasfabricated, and that Megrahi was totally innocent, and he scoffed at thejudgment that granted the victims' families $700 M in damages. Candidly,it should be acknowledged that Gaddafi, in his individual capacity, was ableto negotiate an incredibly favorable deal using his inexplicable leveragewith the international and European community. The net result was that hewas able to insulate himself from any sort of criminal culpability or moralresponsibility.Indeed, shortly after the verdict was rendered, Libya resumed tradewith virtually every country in the world except for Britain and the UnitedStates. During the period of international sanctions Libya soughtinternational investments in its natural gas and oil industries. Spain andGermany wanted to invest in these industries, but, in the presence ofinternational sanctions, chose not do so. Even so, during this period, theOrganization of African Unity (OAU) and the Arab League lobbied thenon-aligned community to lift the sanctions. The members of both theArab League and the OAU violated the sanctions. These member-nationscontinued to trade with Gaddafi and provided him with the aviation linksthat had been severed after the imposition of U.N sanctions.[Vol. 36:487LOCKERBIE AND LIBYAThe pressure exerted by the United States and the United Kingdomwas effectively neutralized, in light of Gaddafi's worldwide constituency.In the end, the resolution of the Lockerbie "dispute" could be said to havebeen "conveniently achieved." Megrahi's conviction absolved Europeannations of the need to continue imposing sanctions against Libya. Ratherthan pursue the issue of Gaddafi's involvement in the plot as evidence ofstate-sponsored terrorism, the pretension was legitimately advanced that'justice' had been achieved. After the verdict, the U.S. continued to applysanctions against Gaddafi, but he was otherwise able to re-integrate himselfinto the world community.Gaddafi, however, still felt the pressure and isolation from thecontinuation of U.S. sanctions during the civil lawsuit initiated by thefamilies of the victims of Pan Am 103. The Libyan reaction to the guiltyverdict was truly schizophrenic in nature. Gaddafi himself rejected it, butalso accepted its consequences in some limited ways. In the end, however,the question was whether the United States could satisfy and reconcile thebasic interests of the victims and our national security.The conviction achieved through the trial, from an intelligenceperspective, did not do justice to all the evidence that was collected anddeveloped. This was because of the presence of intelligence that could notsatisfy the burden imposed by the applicable evidence rules. Either theveracity of the intelligence could not be proven, or the intelligence was not"actionable intelligence" that could be corroborated in a court of law. Thisdifficulty represented an unintended but profoundly importantforeshadowing for post 9/11 terrorism trials.To this day, the people that believe al-Megrahi coordinated, plannedand executed this attack on his own could probably fit in a phone booth.This begs the questions of who provided support and resources to Megrahiand who ordered the attack and will they ever be brought to justice? U.S.officials declared that they would continue the investigation, but in reality,the 12 year odyssey and investigation has run its course. In looking beyondthe criminal proceedings, another important question needs to be asked; didthe prosecution have a deterrent effect on Gaddafi and his support forterrorism?It must be acknowledged, even by those who have been critical of thetrial, that Gaddafi ended his logistical support for international terrorismalthough the real motivation for Gaddafi's decision still remains a matter ofspeculation. In late 2003, in another part of the extended story, the U.S.announced that Gaddafi had surprisingly agreed to forfeit his weapons ofmass destruction in exchange for the U.S. terminating its sanctions. Thisprocess is underway but in typical Gaddafi fashion, the story has taken abizarre twist.Earlier in 2004, Gaddafi, himself, was named as a perpetrator in a plotto have the Saudi leader, Crown Prince Abdullah assassinated, supposedlyas a result of a personal insult during an Arab leaders meeting. The person2004] 489CASE W. RES. J. INT'L L.alleging Gaddafi's involvement in this plot was none other thanAbdurahman Alamoudi, himself a notorious American based Muslim leaderwho founded the Islamic Society of Boston and the prison and militaryIslamic chaplaincy programs. Both of these entities of Almoudi's are underintense scrutiny given the undeniable links within each to the propagationof Salafist extremist Islam within America itself.Recently, Alamoudi pled guilty to charges associated with this plot,and is now serving a lengthy prison sentence. Alamoudi claimed at hissentencing that Gaddafi paid him to orchestrate a conspiracy to assassinateCrown Prince Abdullah. Of course, Gaddafi has denied any involvement inthis plot, but one of his top intelligence agents was arrested in Saudi Arabiaand has allegedly confessed to playing a role in this plot. At the same time,Gaddafi, according to U.S. officials has opened up his weapons of massdestruction facilities to full inspection -- the first time a rogue state thatintended to acquire WMD was going to reverse its course.In looking back at the Lockerbie trial, the question remains whetherU.S. interests with respect to national security, justice, and deterrence wereachieved. Did Syria and Iran get a pass? Did Gaddafi get away withmurder? Clearly, the answer is "yes." But the question remains whether, infact, in a pre-9/11 environment, and with the inability to use actionableintelligence to retaliate immediately, did the U.S. have any otheralternative?It's easy to say in a post-9/1 I environment that there should have beenan immediate military response. This is something that many believe wasjustified in 1986, when the United States retaliated against Gaddafi for thedisco bombing in Germany, and would have been justified had the U.S.decided to take military action in the wake of Pan Am 103. However,considering that this was a pre-9/ 11 environment and that there was a delayin finding the actual intelligence, it was very difficult for the U.S. tounilaterally initiate some type of military response.In hindsight, some U.S. interests were clearly served by the Lockerbieprosecution and Libya is apparently on the road to rejoining the nonterrorist world, albeit with closer scrutiny. It may be true that a morevigorous military response akin to the post 9/11 actions against the Talibanand Al-Qaeda would have been more effective but it is equally undeniablethat Libya is no longer the threat it once was. Whether that's because of agenuine change of heart in Mr. Gaddafi or a recognition on his part that'Death from Above' comes in a Libyan version is debatable. What's mostimportant is that one more Middle Eastern Islamic tyrant appears to havegot the point.[Vol. 36:487

The Lockerbie Terrorist Attack and Libya: A Retrospective Analysis

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