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Burden of Proof

Pan Am Flight 103 Case: Special Court Continues Trial of Two Libyans; Defector Ties Iran to Bombing

Aired June 7, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

ROBERT BAER, FORMER CIA TERRORISM SPECIALIST: He is the only person that has tied Libya and Iran into Pan Am 103, into the Lockerbie bombing. This is the first authoritative source that I've ever heard that connected the two countries together. There was always a mystery.

JOHN ZWYNENBURG, VICTIM'S FATHER: The outcome I'm looking for is to hear, see, feel, smell the truth, OK, the facts.

ROSEMARY WOLF, VICTIM'S MOTHER: This is not an abstraction. This is my child, and I know what it must have been for her at the end.

LORD HARDIE, SCOTTISH LORD ADVOCATE: The two accused are charged with conspiracy, among others things, while acting along with others unknown. If ever I get sufficient evidence to identify those other people, I will prosecute them.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: the case of Pan Am Flight 103. A special court continues the trial of two Libyans, but was it the Iranian government that was behind the crash that claimed the lives of 270 people?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is on assignment today.

In Camp Zeist, the Netherlands, two Libyan men are facing trial in the 1988 explosion of Pan Am Flight 103. Two hundred and fifty- nine people onboard the plane were killed, along with 11 on the ground. The Pan Am 103 case is an unusual one, with the trial being held in the Netherlands, presided over by three Scottish judges.

Joining us today from Boston is Michael Scharf, the former counsel to the Counter-Terrorism Bureau at the United States Department of Justice. Joining us from Cleveland, former federal prosecutor Geoffrey Mearns. And here in Washington, Charlie Holman (ph); Rosemary Wolf, who lost her stepdaughter on Pan Am Flight 103; and international law professor Jim Feinerman. And in the back, Sammi Shaded (ph), Leah Elrod (ph), and Bo Bittle (ph).

First, Rosemary, I want to go right to you. And I want, you, I know, have been following this trial. First of all, I want your thoughts on the trial, and how it is going so far.

WOLF: Well, I think the trial has taken off with a lot of surprises because we have had delays, and it hasn't been sequential. The defense has raised some issues that we were surprised were brought up so early. The important thing is that the trial has begun, and now it's important to unravel the mystery.

COSSACK: All right, let's back up a little bit. You unfortunately and sadly lost your step-daughter on the plane, and you are part of a victims' group that, in some way, is monitoring this trial. Tell us about that.

WOLF: About the trial?

COSSACK: No, about your group, and what you've been doing.

WOLF: Well, we've been working for the past 11 1/2 years to try to get the answers to what happened and to try to get some form of justice. We know we don't have the entire truth in this case because there's no way Fhimah and Megrahi did this on their own.

COSSACK: All right, Fhimah and Megrahi are the two Libyan defendants that are on trial right now in the Netherlands.

WOLF: Yes.

COSSACK: Your feelings are that they clearly must not have acted alone.

WOLF: Absolutely not.

COSSACK: And why do you fell that way?

WOLF: They are two intelligence operatives, and there's no way that they would not have carry this out with the rest of the government knowing about this, certainly key people in government, and without Gadhafi knowing. He rules that country with a hard hand. There is no way that is possible.

COSSACK: And your frustration is is that, and we only have these two men on trial, when in fact perhaps many others should be on trial.

WOLF: Absolutely.

COSSACK: Now, there's a letter that has allegedly been written that would seem to indicate that a deal was made by with Gadhafi by United States and others that if he turn these people over, the investigation would be stopped. What do you know about that letter?

WOLF: Well, it is actually an annex that accompanied a letter that secretary-general wrote to Gadhafi before the two were turned off. This annex was apparently signed off by the U.S. and Britain and said, among other things, it said that Fhimah and Megrahi would not be used to undermine the Libyan government, which many inside the government have interpreted to mean, we are only going so far.

Now, there are other things in that annex as well, that deal with witnesses, that deal with interrogation, and I think in context of the entire document, it is very important to make that public.

Now I've been denied that document saying it is classified. However, that document was read to me by people inside the administration before it was sent. So I would like to know why it is suddenly classified when a four-year request is made for it, and if there's nothing to fear, release it publicly, let the world see it.

COSSACK: Michael Scharf, the allegation here, and it is not the first time this has been made, is that the United States' government, along with British government, and perhaps even with Kofi Annan from the United Nations made a deal with Gadhafi, which basically said: If you turn over these two operatives, we will stop the investigation right there and not undermine the Libyan government giving Gadhafi a sense of immunity, if you will. What do you know about that? and what are your feeling on it?

MICHAEL SCHARF, INTERNATIONAL CRIMINAL LAW EXPERT: All right, well, conspiracy theorists are making a great deal about this letter. But, in my opinion, this letter just has some political language that's very vague that says to Gadhafi that the whole purpose of this trial is not to undermine your regime. They have not in the letter promised not to follow the evidence wherever it leads.

And in fact, the suggestion has already been made because, when the defense tried to get conspiracy count dropped from this trial and the prosecutor said, no, the conspiracy count is important because it links the Libyan government and Gadhafi to what these two individuals have done, we don't want that dropped, and the judges agreed with the prosecutor. If the letter said what those who fear it said is true, then they would not have acted that way and pursued the conspiracy count. So I don't think the letter actually suggests what the conspiracy theorists believe it says.

COSSACK: But, Michael, if the letter is -- and we do all now admit that this letter actually does exists, and Rosemary has heard parts of it read to her, if the letter is as benign as you would suggest it is, why then has it now become classified as something that is top security and cannot be turned over? As you know, Senators Torricelli, Kennedy, among others, have tried to get ahold of this letters, in terms of response to these victims' groups, and have been denied the access to that letter and annex.

SCHARF: Right, now, letters between heads of government are routinely classified, and the U.S. government, as a rule, does not release those correspondents. But they can, as an exception, make those available to the public. And in this case, I do think they are misplaying this because, by keeping it confidential, they are playing into the hands of those who fear there's all sorts of nefarious information in that letter. And really, what that letter sets forth is the deal whereby the sanctions imposed on Libya would be lifted once these two individuals were surrendered and the conditions upon that surrender.

COSSACK: All right, let's take a break. Up next, it took nearly 12 years to bring the two defendants to trial, but it not a traditional court. A closer look when we come back.

(BEGIN LEGAL BRIEF)

Rapper Eminem, a.k.a Marshall Bruce Mathers III, is expected to be arraigned today near Detroit on two felony weapons charges, according to prosecutors.

Eminem faces one count of carrying a weapon and one count of assault with a deadly weapon, stemming from a fight after he reportedly saw another man kissing his wife.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Two Libyan men are on trial for the 1988 explosion of Pan Am Flight 103 over Lockerbie, Scotland. Three Scottish judges are presiding over the trial, which is being held in the Netherlands.

Jim, tell us about the trial and the form of this trial. This is unlike what we would see in the United States, isn't it?

JIM FEINERMAN, INTERNATIONAL LAW EXPERT: Yes, and unlike what you'd usually see in Scotland, too, although Scotland has a kind of amalgam system that's partly English common law, or the previous roots of common law, plus the overlay of old-fashion Roman law. In this case, they have agreed, because of the concerns and the interests in this trial, to have a panel of judges rather than a jury try a criminal case, where a criminal case in Scotland would normally have a jury. And there's actually a fourth judge who is kind of an alternate juror. He's there in case anything happens to the other judges who are part of the panel. And they will make all the decisions that would normally be made by a judge and jury.

COSSACK: Now, there's three different verdicts that could come down from this case, isn't there?

FEINERMAN: Yes.

COSSACK: And what are they? I mean, in the United States we have either "guilty" or "not guilty." But in Scotland, or under Scottish law, there's three verdicts.

FEINERMAN: Right, there's "guilty" and "not guilty," but there's an intermediate verdict that is "not proven," probably made most famous by Senator Specter in the impeachment trial. And that verdict is considered to be the equivalent of an acquittal in terms of double jeopardy under Scottish law, but also is considered by most Scottish defendants not to be a complete acquittal. That is, they feel like they're not proven innocent even though our "not guilty" verdict doesn't necessarily prove you're innocent.

COSSACK: But they still have to prove the case beyond a reasonable doubt?

FEINERMAN: Yes, the standard is proof beyond a reasonable doubt, the same as it would be in a U.S. criminal court.

COSSACK: All right, Geoff, you have tried cases -- you have tried -- you were a participant in the Oklahoma bombing case. Tell us about the difficulty of trying this kind of an international terrorist case.

GEOFFREY MEARNS, FORMER FEDERAL PROSECUTOR: Well, some of the problems begin before you even get to trial. The first difficulty that you face in prosecuting international terrorism cases is actually building the case. I know from experience, people who are involved in law enforcement know from experience, when you're prosecuting even domestic crimes, there often is difficulty in getting the various law enforcement agencies to cooperate with one another, whether they're federal, state or local agencies.

Those problems and the suspicions that go along with them are compounded when you are crossing international borders. So the various law enforcement agencies, it takes them awhile to develop the trust necessary to work together towards the common objective.

The second problem, I think, is one that was referred to earlier. Oftentimes in a criminal case, the objective is very clear: to find out the person who is responsible for the crime and to prosecute him or her successfully. But in cases like this one, it's clear that sometimes foreign policy interests may conflict with the principle objectives of the prosecutors, which are to find out what the truth is and to bring those responsible to justice.

COSSACK: In fact, Rosemary, that has been your concern, that foreign policy has trumped justice in this situation, isn't that right?

WOLF: Yes, absolutely.

COSSACK: Tell me why.

WOLF: I don't think that the U.S. and Britain handing over an annex before a trial is ready to begin is something that...

COSSACK: An annex that promises it will stop right here.

WOLF: ... that promises it will stop here -- is something that should have been done. It's absolutely a betrayal of the court system that was set up, of the compromise that was set up. And it's a betrayal of the families and Americans and British who are actually footing the bill for this trial. This is a public trial. And as such, we have a right to know all the conditions under which this trial is going to go forth.

And because of that, to have a policy document with political overtones to it that has some very real messages is an interference, actually, in the prosecution, I believe. And I think it's serious.

COSSACK: Jim, is there an argument to be made that says, look, you've got to do what you've got to do, and if we didn't make -- if we didn't lift the sanctions against Gadhafi and perhaps even make a promise under this annex, although it's disputed, we just wouldn't have even had the two defendants we have now.

FEINERMAN: Well, I think that there is that argument. One can, you know, with 20/20 hindsight say we might have struck a different deal, a harder deal, made more conditions. But there was the danger that we wouldn't get any deal at all and there would have been no trial if some sort of an arrangement hadn't been made. And even in domestic criminal cases, prosecutors make plea bargains which sometimes make victims very unhappy with the ultimate sentences, but you do what you have to do to try and achieve the ends of the criminal justice system, which are multiple.

COSSACK: Michael, there are many who believe in this case, who have studied it very closely, that this is a disaster in the offing in terms of getting a conviction in this case, and that a conviction will never, ever be gotten by the prosecution. Your thoughts on this, and we'll talk a little bit about the evidence, too. First of all, are they going to get a conviction in this case? And I'm not going to won't hold you to it, but what do you think?

SCHARF: I think it's very unlikely that they're going to get a conviction. Probably what you're going to see is the verdict of "not proven."

And the problem -- let me tell you, when I was the counsel to the counter-terrorism bureau at the State Department, for the first two years of the investigation from 1989 to 1991, everybody I talked to in the government, and all the other governments -- and you've heard this publicly stated by government officials -- were convinced that another group was behind this bombing. It was the Palestinian group called the PFLPGC, which operated out of Syria and was doing this bombing on behalf of Iran, which wanted retaliation for the Vensens (ph), blowing up the air bus in the summer of '88.

Now, there was so much evidence that focused on the guilt of the PFLPGC -- they had found bombs in Toshiba radios at their headquarters in Frankfurt, Germany, just like the one that blew up Pan Am 103; there were intercepts; there was clothing that was found at one of the member's house that was from Malta, just like the stuff that was found in the suitcase -- that it's going to be very easy for the defense to point to those people and to that evidence and say, you've got the wrong people here. You're trying to make a case against Libyans because they're an easy target, but what about all the evidence that you're overlooking that had convinced you back in '89 to '91 that it was another group?

COSSACK: And, in fact, Michael, that is what the defense has already done. They have -- under Scottish law, they have to stand up and announce their defense before the trial begins, actually start calling witnesses. And the defense in this case has already gotten up and said, we didn't do this, the PFLP did this. And apparently that's what their strategy is going to be.

SCHARF: And there's two other aspects of the procedures in Scotland that are governing this trial that have not been mentioned that are relevant here. One is something very unique to Scottish justice called the "two source rule." Unlike in the United States where someone can be convicted on the credible account on one eyewitness, in Scotland you have to have two credible pieces of evidence to prove every important element of a case. So that means if they have this eyewitness, Jiaka, who's going to be the star witness of the trial, come up and testify, that's not going to be sufficient.

And in addition, this Jiaka, the eyewitness, is also being given $4 million under the rewards for terrorism protection program. And so the defense counsel are going to say, how reliable is his testimony where he has 4 million reasons to testify and make the case looks like it comes out on behalf of the prosecution?

COSSACK: All right, let's take a break now. We'll go on more of the evidence in this case when we come back.

Up next: 12 years after the crash, a long-awaited trial finally begins in the Netherlands. More when we come back.

(BEGIN Q&A)

Q: What former Charles Manson follower was denied parole Tuesday for the 13th time?

A: Leslie Van Houten, who was convicted in the August, 1969 murders of Rosemary and Leno LaBianca.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Since December of 1988, family members of the victims of Pan Am Flight 103 have been searching for answers. Now, the case of the Lockerbie tragedy is finally having its day in court.

Geoff, let's talk about some of the different kinds of proof problems that you are going to have in this kind of trial as opposed to the traditional one that we would have in the United States. We've heard Michael talk about that you need to have two people, for example, to testify for every fact, to prove every fact. I mean, as a prosecutor, how do you go about preparing for that, and also, the problem of questionable witnesses?

MEARNS: Well, in any criminal case as a prosecutor, even if the law does not require this two-source corroboration rule, you are always seeking to corroborate your compelling evidence; whether it is a second witness whose account is similar, or whether it's a document that's consistent with the witness's testimony. So these prosecutors, whether the substantive rules are changed or are different than what we operate under here in the United States, they will be trying to do the same things that domestic prosecutors would do. One of the problems that I also see is, in the Scottish procedure, they didn't have an opening statement, typically in an American criminal case the prosecutor gives an opening statement that outlines what the prosecution's case will be and it allows the fact- finder, whether it is a jury or the judge, to put in context, then, the different pieces of evidence as they come in.

Here there was no opening statement, and so in my view I think it is far too early -- it's premature for us to make judgments about whether or not the prosecution's case will in the end succeed.

As I understand it, this is going to be a very long trial, perhaps as long as a year. So notwithstanding the fact that they've maybe gotten off to a slow start, and there's some problems with their evidence, I think it is far too early to make judgments.

COSSACK: Michael, we've heard that there are other problems in the evidence for the prosecution in this case. For example, there was a T-shirt that was found that was supposedly wrapped around the bomb that was sold in Malta, and there was initially an identification of the person that sold it; and now that identification doesn't seem to be holding up. Also the person who they found a fuse, and now that person seems to be backing off his statement. Tell us about it.

SCHARF: Right. Well, the T-shirt's actually a baby-glow night shirt for a baby, and it was traced to a company in Malta which said that they had sold that particular one to a place called Mary's House, a very small shop in Malta. They went to Mary's House and they said: Can you describe the guy who bought this and some of the other clothes in the suitcase that had the residue of simtex (ph), the plastic explosives. And he described the individual as being six-foot tall, a high forehead, heavily built, around 50.

Now Megrahi, who was supposed to be the individual, was only 36 at the time, only 5'8", very thin, and if you see his picture, he's got a low forehead, low hairline. So right there the identification wasn't that good. But later they showed him a picture of Megrahi. Now, the picture actually looked more like Gadhafi himself than Megrahi, it was very fuzzy and he said: Yes, that kind of looks like the guy, I think that's the guy.

But the defense counsel have subsequently shown this individual a picture of one Abu Tob (ph), one of the Palestinians I told you about earlier, and the proprietor of Mary's House said: You know, that looks a lot more like the guy I sold the shirt to than that other picture I saw earlier.

COSSACK: All right, Michael, let me interrupt you just one second.

Rosemary, we only have a few seconds left, I want to ask -- recently there was a disclosure this weekend that perhaps the Iranians were involved in this. How does that -- as your group, is that something that you expected, and what impact does it have, if any, on you? WOLF: Well, I'm glad that -- I welcome looking at this information, because a lot of us have believed that Iran commissioned it and that it was carried out with the help of Palestinians, and when Autumn Leaves fell apart that it was handed over to the Libyans. We had thought for years that this was the case, but there's been no proof, there's no -- or at least they tell us there's been no proof.

So that I think this is, it is important to continue to ferret this out and the bottom line here is that even though Iran may have commissioned this, this doesn't let Gadhafi off the hook. Because if he had Libyan operatives...

COSSACK: Rosemary, I'm sorry, I hate to cut you off, but we have to go, because that's all the time we have for today. Thanks to our guests, and thank you for watching it.

At this hour, my co-host Greta Van Susteren is on death row in Texas, interviewing inmate Gary Graham. He's scheduled to be executed on June 22 for a 1981 murder he claims he never committed. We're going to bring you that interview on Friday.

Today, however, at 4:30 p.m., the judge will release his ruling in the Microsoft antitrust case. That's the topic today on "TALKBACK LIVE" at 3:00 p.m. Eastern.

And we'll be back tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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