[Senate Hearing 111-781]
[From the U.S. Government Publishing Office]
S. Hrg. 111-781
THE AL-MEGRAHI RELEASE: ONE YEAR LATER
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 29, 2010
__________
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin BOB CORKER, Tennessee
BARBARA BOXER, California JOHNNY ISAKSON, Georgia
ROBERT MENENDEZ, New Jersey JAMES E. RISCH, Idaho
BENJAMIN L. CARDIN, Maryland JIM DeMINT, South Carolina
ROBERT P. CASEY, Jr., Pennsylvania JOHN BARRASSO, Wyoming
JIM WEBB, Virginia ROGER F. WICKER, Mississippi
JEANNE SHAHEEN, New Hampshire JAMES M. INHOFE, Oklahoma
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
David McKean, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Barrasso, Hon. John, U.S. Senator from Wyoming, prepared
statement...................................................... 47
Gillibrand, Hon. Kirsten E., U.S. Senator from New York,
statement...................................................... 8
Lautenberg, Hon. Frank R., U.S. Senator from New Jersey,
statement...................................................... 5
Prepared statement........................................... 7
List of ``Victims of Pan Am 103 Bombing''.................... 54
McEldowney, Hon. Nancy, Principal Deputy Assistant Secretary,
Bureau of European Affairs, U.S. Department of State,
Washington, DC................................................. 10
Prepared statement........................................... 14
Responses to questions submitted for the record by Senator
Robert Menendez............................................ 62
Menendez, Hon. Robert, U.S. Senator from New Jersey, opening
statement...................................................... 1
Mohler, Dr. James, senior vice president for translation
research, chair, Department of Urology, Roswell Park Cancer
Center, Buffalo, NY............................................ 31
Prepared statement........................................... 33
Porter, Dr. Geoff, consultant, New York, NY...................... 39
Prepared statement........................................... 41
Sartor, Dr. Oliver, Piltz Professor of Cancer Research,
Departments of Medicine and Urology, Tulane Medical School,
Tulane, LA..................................................... 36
Prepared statment............................................ 38
Swartz, Hon. Bruce, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice, Washington, DC........... 17
Prepared statement........................................... 19
Additional Material Submitted for the Record
Letter from Hon. Alex Salmond MSP, First Minister of Scotland,
St. Andrew's House, Edingburgh, with an attachment letter from
the Scottish Affairs Office, British Embassy................... 64
Written statements submitted from families of victims of Pan Am
Flight 103..................................................... 66
(iii)
THE AL-MEGRAHI RELEASE: ONE YEAR LATER
----------
WEDNESDAY, SEPTEMBER 29, 2010
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Robert
Menendez, presiding.
Present: Senators Menendez, Gillibrand, and Barrasso.
Also Present: Senator Frank R. Lautenberg.
OPENING STATEMENT OF HON. ROBERT MENENDEZ,
U.S. SENATOR FROM NEW JERSEY
Senator Menendez. This hearing of the Senate Foreign
Relations Committee will come to order. Good morning, everyone.
Let me start off by thanking our witnesses for being here
today and participating in this critical hearing to shed some
light on the troubling circumstances surrounding the early
release of Abdelbasset al-Megrahi, the convicted Pan Am 103
Lockerbie bomber.
There are those within my own government, certainly within
the Scottish and British Governments, and even some of my
colleagues, who wonder why we have collectively pursued today's
hearing. Why I am pushing--and have been pushing--for an
investigation into the early release of al-Megrahi.
My staff and I have heard from many people who say, ``You
will never get al-Megrahi to return to prison, so why bother?
Why,'' they ask, ``would we test the strong relationships
between the United Kingdom and the United States? Why, when we
have so many other important issues to worry about, like
Afghanistan, Iran, and climate change, would you go down this
road?''
Why? I will tell you why. Because on December 21, 1988, 270
innocent people were sent to their deaths at the hands of a
Libyan terrorist, a mass murderer named Abdelbasset al-Megrahi.
One hundred and eighty-nine of the victims were from the United
States of America. Thirty-four of them were from New Jersey.
Fifty-three of them were from New York. All tolled, we lost
citizens from 21 States and the District of Columbia.
We are here today because it matters to those who lost
their lives, to those who represented them, and, most
importantly, it matters to their families. It matters very
much. It matters also, in terms of the standards that we set
for our fight against terrorism. Do we send a message that a
convicted terrorist, a mass murderer can ultimately, after a
period of time, be free and live in the lap of luxury? Is that
the message that we want to send to other would-be terrorists
in the world? So, it matters to our national security, as well.
We will never forget, nor should we. And I am so, so sorry
that we are inconveniencing those who would rather sweep this
away into the dustbin of history.
We're here today because the terms of the 1998 Lockerbie
justice agreement clearly state that any sentence must be
served in the United Kingdom. In the letter of agreement from
the United Kingdom and the U.S. Acting Permanent Representative
to the United Nations, formally approved by the Security
Council Resolution 1192, it states, ``For the purpose of the
trial, we shall not seek their transfer to any jurisdiction
other than the Scottish court sitting in the Netherlands, and,
if found guilty, the two accused will serve their sentence in
the United Kingdom.'' The language of the agreement could not
be any clearer: ``they would serve their sentence in the United
Kingdom.''
We are a nation founded on the rule of law; and when the
law and our notion of justice is turned on its head, for
whatever reason, we believe it is our obligation to turn it
back again. It is our obligation to ask hard questions, to
demand answers, to get the truth, no matter where it leads or
who might be inconvenienced by it.
The fact is that the Scottish Government claims to have
released Mr. al-Megrahi from prison because he was dying of
prostate cancer and had just 3 months to live. They offered him
compassionate release, something that clearly is permissible
under Scottish law. But, precedent provided that certain
conditions be met. Had those conditions been met, had laws and
precedent been appropriately followed, while I would still
vehemently disagree with the decision, I would respect the
right of the Scottish Government to exercise its jurisdiction.
But, as we will see as the testimony unfolds, the release on
compassionate grounds was deeply, deeply flawed, and perhaps
even intentionally skewed to allow for Mr. al-Megrahi's
release.
Scottish law allows prisoners who are suffering and have 3
months or less to live to receive consideration for
compassionate release. As Scottish authorities said on August
20, 2009, Mr. Megrahi had 3 months or less to live, so they
sent him home to die.
I'd like to have the video played, now, of Mr. al-Megrahi's
release and trip back to Libya.
[Video presentation.]
Senator Menendez. The video is important, for two reasons.
We'll hear testimony about how someone who has the ability to
walk up and down a flight of stairs by themselves, based upon
the determination they had only 3 months to live, would not
likely be able to do so. Second, the images at the end, at his
reception in Libya, paint an image that is incredibly
upsetting, to say the least, to have a hero's welcome, flag-
waving admirers shouting his name, praising him, celebrating
his return; a man who is supposedly dying. And here we are, 13
months after he landed back in Libya, and Mr. al-Megrahi is
still alive, living in freedom. That's why we're here today, to
get to the bottom of this miscarriage of justice.
Obviously the 3-month prognosis was wrong, yet, shockingly,
Scottish authorities still, to this day, insist the initial
prognosis was correct. Well, Mr. al-Megrahi is alive. Instead
of living 3 months, he's lived 13 months and counting, which
clearly means someone was wrong, or worse.
This committee and the families of the victims want to
understand how and why the decision to release was made. What
were the circumstances behind it? Who made the medical
judgments that led to it? Whose interests were served by his
release, and were those interests discussed in advance of his
release?
Now, we have tried to get the answers in a more
comprehensive way. We have asked for the cooperation of
numerous representatives from the Scottish Government, from the
United Kingdom's Government, and representatives of BP. Over 30
people were asked to cooperate with our investigation--All
refused.
Now, I understand the right of any foreign government
official not to choose to participate, but these were clearly a
unique set of circumstances in which I think the greater cause,
the greater good, the greater transparency would have led to a
degree of cooperation. They include former U.K. Ministers of
Justice; the former U.K. Ambassador to Libya; the Scottish
Secretary of Justice, Mr. MacAskill; Dr. Andrew Fraser, the
Chief Medical Officer for the Scottish Prison Service; Dr.
Peter Kay, Mr. al-Megrahi's primary-care physician; Dr. Latif,
his consulting urologist; Drs. Jones and Howard, Mr. al-
Megrahi's consulting oncologist; and many others.
I also want to make it clear, for the record, that we
exchanged correspondence with Mr. al-Megrahi's Scottish lawyer,
with a simple request: Authorize the release of your full
medical records regarding the diagnosis, treatment, and
prognosis of your prostate cancer. And we also asked, if they
were unwilling to do so at this time, to allow for their
publication upon his death. According to response we received
from Mr. al-Megrahi's attorney, Mr. al-Megrahi has declined
those requests.
Among those from BP who refused to cooperate with this
investigation were Tony Hayward, the CEO; Andy Inglis, the
chief executive of BP's exploration and production; Felipe
Posada, chief executive of BP North Africa; Ian Smale, vice
president for strategy; Sir Mark Allen, a consultant and former
MI6 intelligence officer directly involved in this matter. All
refused to cooperate.
I'm most concerned about the refusal of BP to send a single
representative to this hearing. I'm concerned that BP,
operating in our country, extracting resources, seeking permits
for further drilling, is hiding information. I'm concerned,
given their refusal to testify and tell us what they know about
their lobbying efforts and advocacy for Mr. al-Megrahi's
release, given their pitiful early reactions to the devastating
spill in the gulf and their initial withholding information on
the seriousness of the spill, that they are simply bad
corporate citizens.
Hiding information then, hiding it now from the committee,
I find reprehensible. I, frankly, don't know how BP expects to
continue to do business in American if this is the way they
treat Americans, including the families of the victims of al-
Megrahi. I don't know why, given the circumstances, BP should
get a single permit to do business in this country again. And
I'll be looking at that in a separate forum.
Now let me go to the essence of what we will hope to
achieve in the hearing. And I apologize for the extended nature
of this opening statement, but given the challenges that we
have had, we need to set the framework here of what we are
trying to accomplish.
Notwithstanding the stonewalling this committee has been
subjected to, today's hearing will thoroughly explore two
central issues: First, how such an incorrect prognosis was
made. I think we'll make quite clear that the basis for al-
Megrahi's compassionate release was incorrect, so incorrect
that the Scottish Government knew, or should have known, it was
incorrect; and second, if the Scottish Government did know that
Mr. al-Megrahi had more than 3 months to live, why would they
release him?
We're here today to do what we can to get to the bottom of
this. We owe it to ourselves as a nation founded on the rule of
law. We owe it to the families. So, in the absence of those
witnesses, we've gathered experts who will testify today about
Mr. al-Megrahi's medical diagnosis. They'll tell us about the
treatment he received, and the prognosis. They've evaluated the
published facts released by the Scottish Government. These
medical experts will be offering their assessment of that
information. And, according to their written testimony, they
will confirm what we have suspected all along: no medical
professional familiar with prostate cancer, given the facts at
hand, could reasonably have given a 3-month prognosis to Mr.
al-Megrahi.
I also want to announce, at the outset of this hearing,
that we have uncovered new information that the medical experts
have considered.
First, an official with the Scottish Government confirmed
that it was a general practitioner, Dr. Peter Kay, who gave the
final 3-month prognosis when not one of the cancer specialists
was willing to say that the 3 months was an appropriate
prognosis.
We also have new information directly from a Scottish
Government official concerning Mr. al-Megrahi's treatment. A
medical report released by Scottish officials does not state
that Mr.
al-Megrahi received chemotherapy. And in fact, al-Megrahi's own
statements in August 2009 stated that he had not received
chemotherapy. But, we now have information from George Burgess,
a Scottish Government official closely involved with al-
Megrahi's case, who now says al-Megrahi did, in fact, start
chemotherapy in July 2009. We have publicly released redacted
medical records that say nothing about chemotherapy, but a
Scottish Government official who says al-Megrahi was receiving
chemotherapy. I'm not sure which version of the Scottish
Government's story to believe, but I do know one thing: the
discrepancy raises a number of questions, including why the
information was not forthcoming.
Medical experts have said, in their testimony, that when a
man has prostate cancer, and you believe he has less than 3
months to live, you do not give him chemotherapy. Instead, you
try to allow him to live out his remaining days in as much
comfort as possible.
This leads to new questions. Why is it denied, in official
government documents, that Mr. al-Megrahi received chemotherapy
in July 2009? Why did those documents not reveal the fact that
Mr. al-Megrahi received chemotherapy in July 2009? Why are
there discrepancies?
These questions may not be answered today and we'll likely
only find the answers if and when British authorities finally
undertake a truly independent inquiry, which I have urged the
Prime Minister to do in a meeting with him when he was in the
United States.
But the larger question, which we will explore further in
this hearing, is why were the Scottish and British Governments
so determined to release Mr. al-Megrahi? We have an expert
today who'll testify about commercial concerns that may have
influenced U.K. thinking on the merits of Mr. al-Megrahi's
release, and how Libya uses its oil interest as a foreign
policy tool.
We have a lot of ground to cover, so I won't take any more
time.
I appreciate our distinguished colleague, who has been in
pursuit of justice here for the families of Pan Am 103 from the
very first days of the tragedy. And, without objection, I will
turn to him first, because of his schedule, and then turn to
other members who wish to make opening statements.
With that, let me recognize Senator Lautenberg.
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thank you, Mr. Chairman, for your
diligence in pursuit of the truth as to what happened with this
grotesque process, that we learned about and saw on the screen
today, where this murderer was given a hero's welcome. And I
think it was designed deliberately to give word to the world
that Libya was thumbing its nose at what amounts to human
atrocity that was perpetrated by the release of this man; this
man who murdered so many.
And I thank the witness for being here. And I particularly
want to note the presence of family members. Mr. Brian Flynn,
from Montville, NJ--he lost his brother, John Patrick Flynn,
age 21--someone I've gotten to know very well, as I have many
of the victims' families. Bob Monetti, from Cherry Hill, NJ--
his son, Rick, was aboard that plane. He was 20 years old.
Eileen Walsh, from Glenn Rock, NJ, who lost her father, age 62,
her brother, age 34, and a pregnant sister, Lorraine, age 31.
Adelaide Marek lost her sister, Elizabeth, age 30, and
Elizabeth and Dermot Delude-Dix lost her husband and father,
Peter Dix, at age 35.
So, Mr. Chairman, when we see what we can describe as an
act of betrayal--that's what we're looking at, an act of
betrayal--unfortunately, by a country that has been one of our
best friends: Scotland. And so, we look, with your direction
here, to learn the truth. I started with a--on a commission
appointed by President Bush; and for the past 22 years, I have
personally witnessed the quest for justice these families--and
the incredible decision to release this murderer.
Two hundred and seventy lives were lost in the Pan Am
bombing. Thirty-eight came from our home State of New Jersey.
They were on innocent travel. The average age on the airplane
was 27. Many of the victims were college students returning
home for the Christmas holidays. Instead of joy, they were
robbed of the contacts with their children, never--and their
families--never to see them again.
Soon after the bombing, I was appointed to a Presidential
commission by, I mentioned, President George Bush, to
investigate this bombing, and dispatched--we were dispatched to
Lockerbie to learn more about this act of terror. As I saw
firsthand, the Scottish authorities were clearly determined to
get to the bottom of this mass murder. Policemen, in rows, I
saw combing brush and grass, looking for the slightest clue.
The diligence that went into this search, and the final
conclusion, were clearly a consequence of their friendship to
us and the consequence of the damage that happened to families
not only in the airplane, but 11 people on the ground in the
small town of Lockerbie perished at same time.
They were absolutely committed to not leave a stone
unturned as they combed through the foliage and grassy areas,
searching for even the tiniest scrap of evidence. And finally,
over 10 years after the heinous act, the perpetrator, al-
Megrahi, was brought to trial. And I worked hard, here in the
Senate, to secure funding so that the victims' families could
attend the trial that took place in The Hague. Megrahi's
conviction brought them a small degree of comfort, knowing that
a price would be paid for this unconscionable deed and that
Megrahi would spend the rest of his life behind bars.
Unfortunately, the events of last summer tore apart this
small satisfaction that they had, in that justice was being
pursued.
Al-Megrahi was supposedly suffering from a fatal form of
cancer, and the Scottish Government decided to release this
killer back to Libya on so-called compassionate grounds. What
irony it is that this man who took these lives and, without a
thought about it, planned carefully, the court decided that
this was his idea and his management that brought that airplane
down. And he is released on compassionate grounds.
We were told that he had just 3 months to live. And it was
more than a year ago, and this murderer is still feted as a
hero. And while Megrahi was sent home to his family, his
victims never made it home to their families.
To add further pain to the victims' families, this murderer
got a welcome unsubstantiated by anything done that--in his
life, when he arrived in Tripoli, Libya.
Many questions surrounding the circumstances of Megrahi's
release remain unanswered. The first is how the Scottish
Government came to the diagnosis of Megrahi's imminent death,
and whether cancer specialists were ever consulted.
We have also learned that BP entered, with their influence,
anxious to get access to Libya's oil in the months leading up
to the release. And it does not enhance their reputation to see
that a company that misled Americans so often when trying to
cure the problem that developed in the Gulf of Mexico, became
involved with another business deal that they wanted to enter
into. Didn't matter with whom and who was a culprit in a
terrible atrocity. So, with that help, the Lockerbie bomber got
out of jail free--perhaps bought with BP's oil.
Now, we don't know what role these commercial interests,
and perhaps others, played in the final decision. But, we're
absolutely--Mr. Chairman, evidenced by you and by Senator
Gillibrand here and people from this committee--determined to
find out. I requested this hearing, some time ago, last fall,
soon after Megrahi's release, to get to the bottom of these
questions, and I'm pleased that the committee is holding this
hearing today. But, I'm disappointed that the Scottish and the
British Governments refused to show up at this hearing. It's
outrageous that BP has refused to cooperate. If they are
committed to the truth, then they have to give us the answers
we need and that the victims' families deserve.
Make no mistake about it, we're not going to stop asking
these questions. We seek answers. We plead for the truth on
behalf of justice for the families of Pan Am 103.
Those who commit vicious acts of terrorism must know that
they'll be punished. It took over 10 years to bring Megrahi to
justice, and we're not going to give up, even if it takes
another decade to discover the truth about his release.
And I thank you for the opportunity to testify today, and
for holding this critical hearing.
[The prepared statement of Senator Lautenberg follows:]
Prepared Statement of Hon. Frank R. Lautenberg,
U.S. Senator From New Jersey
Thank you, Mr. Chairman. And thank you to the witnesses joining us
today. Most importantly, I want to thank the families of the Pan Am 103
victims. For the past 22 years, I have personally witnessed their quest
for justice. Two hundred seventy lives were lost in the Pan Am
bombing--38 came from my home State of New Jersey. The average age on
the plane was 27: many of the victims were college students returning
home for the holidays, but they never made it back to their families.
Instead, they were robbed of their futures by this barbaric act.
Soon after the bombing, I was appointed to a Presidential
commission to investigate this bombing and dispatched to Lockerbie to
learn more about this terrorist act. As I saw firsthand, the Scottish
authorities were clearly determined to get to the bottom of this mass
murder. They were absolutely committed to leaving literally no stone
unturned as they combed through the foliage and grassy areas searching
for even the tiniest scrap of evidence to find the killers responsible
for this cowardly act. Finally--over 10 years after the heinous act--
the perpetrator, Megrahi, was brought to trial.
I worked here in the Senate to secure funding so the victims'
families could attend the trial. Megrahi's conviction brought them a
small degree of comfort, knowing that a price would be paid for this
unconscionable deed, and Megrahi would spend the rest of his life
behind bars.
Unfortunately, the events of last summer ripped open the wounds of
these families. Megrahi was supposedly suffering from a fatal form of
cancer, and the Scottish Government decided to release this killer back
to Libya on so called compassionate grounds. We were told he had just 3
months to live. That was more than a year ago, and this murderer is
still alive and free. While Megrahi was sent home to his family--his
victims never made it home to theirs. To add insult to injury--this
murderer was given a hero's welcome when he arrived in Tripoli.
Many questions surrounding the circumstances of Megrahi's release
remain unanswered. The first is how Scotland came to the diagnosis of
Megrahi's imminent death--and whether cancer specialists were ever
consulted. We have also learned that BP was desperate to get access to
Libya's oil in the months leading up to the release. Was the Lockerbie
Bomber's ``get out of jail free card'' bought with BP's oil? We don't
know what role these commercial interests--and perhaps others--played
in the final decision, but we are absolutely determined to find out.
I requested this hearing last fall, soon after Megrahi's release,
to get to the bottom of these questions--and I am pleased the committee
is holding it today. But I am disappointed that the Scottish and
British Governments refused to show up at this hearing. And I am truly
outraged that BP has refused to attend. If they are committed to the
truth, then they must give us the answers we need--and that the
victims' families deserve. Make no mistake: we're not going to stop
asking these questions. We want answers. We want the truth. And we want
justice for the families of Pan Am 103.
Those who commit vicious acts of terrorism must know that they will
be punished. It took over 10 years to bring Megrahi to justice. We will
not give up even if it takes another decade to discover the truth about
his release. Thank you for inviting me to testify today--and for
holding this critical hearing.
[Editor's note.--The list of ``Victims of Pan Am 103 Bombing''
submitted by Senator Lautenburg as an attachment to his
statement can be found in the ``Additional Material Submitted
for the Record'' section of this hearing.]
Senator Menendez. Thank you for that, Senator Lautenberg.
And thank you for your continuing commitment to helping us get
to the truth.
Senator Gillibrand.
STATEMENT OF HON. KIRSTEN E. GILLIBRAND,
U.S. SENATOR FROM NEW YORK
Senator Gillibrand. Thank you, Senator Lautenberg, for your
testimony and your passion and your dedication to finding
justice in this matter.
And thank you, Senator Menendez, for holding this hearing,
and for your extraordinary leadership in demanding justice and
accountability, and doing all that you can to bring light to an
area that is very disturbing for all of us.
I also want to thank Dr. James Mohler, chair of the Urology
Department, Roswell Cancer Center, and professor or urology at
the University of Buffalo, who will be joining us later today
for our hearing and offering testimony.
We have the moral responsibility to investigate why a
convicted terrorist responsible for taking so many innocent
lives, including 185 Americans, now walks free and lives in the
lap of luxury. We have to know how an oil company was able to
reap actual profits from the course of these events.
If we don't know what went wrong, we will never be able to
make sure it's right in the future. If we don't know how a
guilty terrorist could go free, then we will not be able to
hold international terrorists accountable in the future.
The mystery over al-Megrahi's medical diagnosis becomes
clearer every single day. Experts are testifying today that his
diagnosis was a sham and that justice was compromised to serve
BP's financial interests.
The reports are extremely concerning, from conflicting
analysis of al-Megrahi's diagnosis to BP's own admission of its
involvement in this case. That's why we asked for an
independent inquiry. Did BP's financial interest in drilling in
Libya contribute to or influence in any way, directly or
indirectly, the release of al-Megrahi?
BP admitted, in 2007, that it told the U.K. Government that
it is concerned that a delay might--that the delay in
concluding a Prisoner Transfer Agreement with the Libyan
Government might hurt the deal it had just signed. It also has
been reported that a special advisor to the company named Mark
Allen, formerly of MI6 and well-connected in Labor Party
circles, raised the transfer agreement with then-Justice
Secretary Jack Straw. Mr. Straw's letters to the Scottish
Justice Ministry, Kenny MacAskill, indicate that the British
Government gave in to Libya's demands for a convicted Lockerbie
terrorist to go free.
This evidence, although circumstantial, is deeply
troubling, not just for the families of the Lockerbie victims,
but for all Americans and all nations of the world who are
committed to bringing terrorists to justice.
Last summer, working with my colleagues Senator Menendez,
Senator Lautenberg, and Senator Schumer, I called on the U.K.
Government to conduct an independent investigation into this
matter. We had a very productive meeting with Prime Minister
Cameron during his first visit to the United States, and he
pledged that his government would do all it could do to
rereview the documentary evidence related to the al-Megrahi
case, and stated that if their review turned up concerns, they
would consider a full investigation.
But, we have the tools of our own, right here in our own
government, to take a long, hard look at this case, starting
with this hearing today. We hope to uncover the real reasons
that a convicted terrorist was released.
I am grateful that Prime Minister Cameron took time to meet
with my colleagues and I on this matter during his first visit
to America as Prime Minister. And I appreciate his pledge to us
that his government would rereview the documents in the matter.
However, I still believe we do need a full investigation,
including testimony of the al-Megrahi release, so that we can
learn from this mistake and assess what steps can be taken so
that justice is served and terrorists are held accountable in
future cases.
Beyond our discussion today, we need two things. We need
the U.K. Government to continue their review and proceed to a
full and independent investigation into this matter, including
taking full testimony. And we need BP to release all the
correspondence on this issue, so that the public knows that we
are getting all of the evidence and all of the facts, so we can
have transparency and full disclosure in this case.
I am hopeful that we begin--as we begin to uncover the
facts today, that we will learn more about what happened here,
because justice must be done in this case. If we are ever going
to win the fight against terrorism, the rule of law must hold
strong.
Thank you, Mr. Chairman, for holding this hearing. And,
again, thank you, Senator Lautenberg and Senator Schumer, for
your leadership on this matter.
Senator Lautenberg. May I be excused, Mr. Chairman?
Senator Menendez. Yes, Senator Lautenberg. Thank you very
much. We appreciate it.
Thank you, Senator Gillibrand, for your statement, as well
as for your leadership and your consistent effort in this
regard. I appreciate all the help that you've lent the Chair in
our effort to get to information.
Before I call up the first panel, let me ask unanimous
consent to include documents into the record, including the
1998 Lockerbie Justice Agreement, U.N. Security Council
Resolution 1192, the Scotland Act of 1998, statements from
victims' families, and other relevant documents to this
hearing.
Without objection, so ordered.
[Editor's note.--The first three documents will be maintained
in the permanent record of the committee. The family statements
and letters can be found in the ``Additional Material Submitted
for the Record'' section of this hearing.]
Senator Menendez. Let me ask the first panel to step
forward, and, as they do, I will introduce them. Our first
panelists are from the Department of State and the Department
of Justice. We appreciate both of them being here. Ambassador
Nancy McEldowney, is the Principal Deputy Assistant Secretary
of State at the Bureau of European and Eurasian Affairs at the
State Department. She has served as U.S. Ambassador to
Bulgaria, the Deputy Chief of Mission in Ankara, Turkey, and in
Baku, Azerbaijan. Ambassador McEldowney has also served at the
White House, as Director of European Affairs on the National
Security Council. She has held a series of posts at embassies
abroad. We thank you very much for being with us today and look
forward to your testimony.
Joining the Ambassador is Deputy Assistant Attorney General
Bruce Swartz. Mr. Swartz was appointed Deputy Assistant
Attorney General in January 2000. He served as deputy
independent counsel in the HUD corruption investigations, as
counsel for international law enforcement. He was also detailed
to the U.K. Serious Fraud Office. He has served as counsel to
the assistant attorney general and as a law clerk to Justice
Harry Blackmun.
Thank you very much for being here. I'm hoping that your
testimony and answers will help us get to some of the facts.
And, with that, Ambassador, let me start with you, to have
a 5-minute summation of your testimony. We shall include both
of your full testimonies for the record. And, with that,
Ambassador, you may start.
STATEMENT OF HON. NANCY McELDOWNEY, PRINCIPAL
DEPUTY ASSISTANT SECRETARY, BUREAU OF EUROPEAN AFFAIRS, U.S.
DEPARTMENT OF STATE, WASHINGTON, DC
Ambassador McEldowney. Thank you very much, Senator.
I'd like to begin by thanking you and the other members of
the committee for convening this very important hearing.
I am also pleased and quite honored to be able to join you
and to offer the State Department's perspective on the
circumstances surrounding the release, last year, of
Abdelbasset al-Megrahi, who was convicted in 2001 and sentenced
to life imprisonment for the bombing of Pan Am Flight 103.
Lockerbie was an act so savage that, even today, when
reminders of terrorism are a daily event, as all of us have
seen, when we open the newspapers this morning and saw the
reports from the closure of the Eiffel Tower, that this tragedy
continues to stir powerful emotions, not only among the family
and friends of those who were lost, but across the United
States and around the world.
Those emotions are shared by hundreds of U.S. employees who
have dedicated countless hours to this case over the years. All
of them have carried an abiding commitment to the memory of
those lives cruelly cut short, and to the determination to
ensure that justice is served. For Secretary Clinton, that
commitment is both personal and unshakably held.
Because of the horrific nature of this crime, it was the
position of the United States Government, when Megrahi was put
on trial, that any sentence of imprisonment should be served to
its full completion in Scotland. That has been our unwavering
and categorically stated position ever since.
It is the view of this administration that the decision by
Scottish authorities to release Megrahi and permit his return
to Libya was profoundly wrong. It was morally wrong because it
was an affront to the victims' families and the memories of
those who were killed. It was politically wrong because it
undermined a shared international understanding on Megrahi's
imprisonment. And it was wrong from a security perspective
because it signaled a lack of resolve to ensure that terrorists
are decisively brought to justice.
As Secretary Clinton and President Obama have repeatedly
stated, a resolute conviction remains that Megrahi should not
be a free man and should be serving out the entirety of his
sentence in Scotland.
The diplomatic and legal efforts to investigate and pursue
justice for those killed in Lockerbie have spanned over two
decades. In response to the express interests of this
committee, I will focus my testimony primarily on the efforts
of the United States Government to ensure that Megrahi remained
imprisoned in Scotland.
Before I do, however, I would like to briefly describe the
circumstances which led to Megrahi's imprisonment in the first
place. In November 1991, after a joint United States-Scottish
investigation, both the United States and Scotland brought
criminal charges against two Libyan nationals, Abdelbasset al-
Megrahi and Lamin Khalifah Fhimah. The United States made
clear--throughout the 1990s, as Libya resisted handing over the
accused, in the face of U.N. Security Council resolutions and
international sanctions--our resolve that the perpetrators of
this crime must be brought to justice.
In an effort to break the long stalemate, the United States
and United Kingdom Governments jointly proposed, in 1998, an
exceptional arrangement for the Libyan suspects to stand trial
before a Scottish court established in the Netherlands. These
arrangements are described in detail in the August 24, 1998,
letter to the U.N. Secretary General, authored by the United
States and the United Kingdom, that you, Senator, have made
reference to. In this letter, the United States and Britain
confirmed, together, that, if found guilty, the two accused
will serve their sentence in the United Kingdom.
As the joint U.S.-U.K. letter clearly reflects, at the time
Megrahi was transferred from Libya to face trial, there existed
a shared and very clear understanding between the United
States, the United Kingdom, and Libya that he would serve his
sentence in Scotland, if convicted.
On July 3, 2009, the British Foreign Office confirmed, in a
letter which has now been made public, a letter to the Scottish
authorities that stated, in the late 1990s the U.K. Government
was committed to ensuring that the Lockerbie accused were tried
before a Scottish court in the Netherlands, and, if convicted,
they would serve out their sentences in Scotland, in accordance
with Scots law.
In response to United States requests in 1998 for binding--
legally binding assurances that the accused would not later be
transferred to Libya, the then-British Government maintained
that it could not enter into a legally binding commitment that
would constrain the hands of future British Governments, but
they nonetheless assured us of their political commitment that,
if convicted, Megrahi would remain in Scotland until the
completion of his sentence.
In January 2001, Megrahi was convicted of 270 counts of
murder and sentenced to life imprisonment. As Libya accepted
responsibility and complied with an agreed settlement on
compensation to the victims' families, efforts began to
reintegrate the country into the international community and
steer it on to a more positive path. The U.N. Security Council
formally lifted international sanctions in 2003.
In December 2003, with encouragement from the United States
and the United Kingdom, the Libyan Government announced its
landmark decision to voluntarily dismantle its WMD and missile
programs. In recognition of this shift toward Libya eventually
becoming a constructive contributor to international peace and
stability, the United States embarked on a step-by-step process
of normalization and removal of sanctions as Libya followed
through and implemented its commitments.
This process culminated 3 years later, in 2006, in the
reestablishment of full diplomatic relations between the United
States and Libya. At no point during this reengagement did the
United States ever deviate from its longstanding position on
Megrahi's continued imprisonment in Scotland.
During this same period, the United Kingdom pursued its own
reengagement with the Libyan Government, reestablishing
diplomatic relations in 1999 as Libya cooperated with the
Lockerbie trial and handed over the accused.
In May 2007, then-Prime Minister Tony Blair traveled to
Libya to sign a series of bilateral agreements, including a
memorandum of understanding on negotiations for a Prisoner
Transfer Agreement. During this same 2007 visit, BP signed an
exploration and production-sharing agreement with the Libyan
Government. This committee has expressed a legitimate interest
in knowing what role BP may have played in the process of
negotiating the Prisoner Transfer Agreement, or the PTA.
Both BP and the British Government have acknowledged
publicly their discussions that took place on this issue in
October and November 2007. According to Foreign Secretary
Hague's July 22 letter to Senator Kerry, BP told the U.K.
Government that failure to conclude the PTA could negatively
impact British commercial interests, including its own.
In attempting to provide this committee with all relevant
information, we have examined all available State Department
records and have not identified any further materials, beyond
publicly available statements and correspondence, concerning
attempts by BP or other companies to influence matters related
to Megrahi's transfer under the PTA, or his release by Scottish
authorities.
Given that Scottish authorities would be the ultimate
arbiters of any transfer application for Megrahi, their
vehement public opposition to his eligibility under a potential
PTA, and their anger upon learning a specific exclusion would
not be included in the agreement, these factors reassured us,
through much of 2008, that they shared our views on his
continued imprisonment in Scotland.
Throughout this period, we continued, both publicly and
privately, to restate U.S. Government views, and we have public
documents to share with you to that effect. However, a new
element was introduced when we learned of Megrahi's diagnosis
with terminal prostate cancer in October 2008. Former Foreign
Secretary David Miliband later explained to the House of
Commons, in October 2009, that, ``British interests, including
those of U.K. nationals, British businesses, and possibly
security cooperation, would be damaged, perhaps badly, if
Megrahi were to die in a Scottish prison rather than in
Libya.'' The Foreign Secretary further stated that, ``Given the
risk of Libyan adverse reaction, we made it clear to them that,
as a matter of law and practice, it was not a decision for the
U.K. Government, and that, as a matter of policy, we were not
seeking Megrahi's death in a Scottish prison--in Scottish
custody.''
Weeks after Megrahi's diagnosis, in November, the U.K. and
Libya signed the PTA, and it entered into force on April 29,
2009. Six days later, on May 5, the Libyan Government submitted
its application for Megrahi's transfer to Libya under the
auspices of the PTA. Throughout this period, the United States
continued to communicate unequivocally to both the U.K. and the
Scottish authorities our longstanding policy that Megrahi
should serve out his complete sentence in Scotland, regardless
of the state of his health, the impact on other countries'
interests, or the possible Libyan reaction.
As the U.K. and Libya moved forward with the PTA, we
intensified our efforts to dissuade Scottish authorities from
transferring Megrahi to Libya. Secretary Clinton highlighted
our longstanding position directly to Scottish First Minister
Alex Salmond soon after taking office, during a meeting in
Washington in February 2009. Two months later, in April, the
United States formally communicated to both British and
Scottish Governments that the imminent entry into force of the
PTA did not change our longstanding position. We also
underscored this message in April to senior officials in
Tripoli. And, as my colleague from the Department of Justice
will clarify, so did Attorney General Holder, in a June phone
call to Scottish Justice Minister MacAskill.
On July 24, Megrahi submitted to Scottish authorities an
application for his release on compassionate grounds as
permitted under Scottish law. Subsequent to this application,
during the second week of August, the State Department again
communicated to Scottish justice officials and to First
Minister Salmon directly our steadfast conviction that Megrahi
should remain imprisoned in Scotland for the entirety of his
sentence, as previously agreed.
We took the exceptional step of releasing this diplomatic
community publicly, because we felt it was so important to
clarify our views. Given the compassionate release was under
consideration in Edinborough, we also underscored to Scottish
authorities that, should they proceed with compassionate
release despite our objections, under no circumstances should
they permit Megrahi to return to Libya. We argued that if they
decided they must release Megrahi, over our protests, that he
should be confined to Scotland, remain under the close
supervision of authorities, and that an independent and
comprehensive medical exam clearly establish that he had less
than 3 months to live.
Senator Menendez. Ambassador, if I could ask you to----
Ambassador McEldowney. Please.
Senator Menendez.--at this point, summarize.
Ambassador McEldowney. Yes. Let me just--we emphasized that
we did not endorse any release of Megrahi, in light of the
seriousness of his crimes.
Let me just also--let me conclude by noting that, when
Scottish Justice Minister MacAskill announced, on August 20,
that, while he had decided to reject Megrahi's application for
transfer under the PTA, but would nonetheless grant his
application for release on compassionate grounds, he explained
his decision by noting that there had been no contact between
BP or Scottish authorities on this issue and that the decision
was based solely on judicial grounds, without political or
economic consideration. He also stated, and stated
subsequently, that the decision to proceed with so-called
``compassionate release'' was based on the medical advice
provided by the Scottish prison service, and that additional
medical experts, compensated by the Libyan Government, played
no part in the decision.
While the Department of State has no evidentiary basis to
disprove these statements, we believe that the fundamental
truth remains that the decision to release Megrahi back to
Libya was a grievous mistake.
British Prime Minister Cameron has stated that he shares
these views and, as previously noted, has undertaken a review
of available government documents to see if further material
can be brought to light.
We have also called upon the Scottish Government to be as
transparent as possible in illuminating their decision. And, in
particular, we believe that a decision by the Scottish
authorities to release the medical documentation that led to a
determination of Megrahi's life expectancy would be appropriate
and would assist in further understanding the basis of their
decision.
As President Obama has stated, all the relevant facts in
this case should be made available. This committee, the
victims' families, and the American people deserve nothing
less.
We value this committee's important efforts to help us
achieve this goal, and appreciate this opportunity to cooperate
with you.
Thank you very much.
[The prepared statement of Ambassador McEldowney follows:]
Prepared Statement of Ambassador Nancy McEldowney, Principal Deputy
Assistant Secretary, Bureau of European and Eurasian Affairs, Bureau of
European Affairs, U.S. Department of State
Thank you, Senator Menendez, for this opportunity to share with you
and other members of the committee the State Department's perspective
on the circumstances surrounding the release last year of Abdelbasset
al-Megrahi, who was convicted in 2001 and sentenced to life
imprisonment for the bombing of Pan Am Flight 103.
Lockerbie was an act so savage that even today, an age when
reminders of the threat of terrorism are a daily occurrence, the
tragedy continues to stir powerful emotions, not only among the family
and friends of those who were lost, but also across the United States
and around the world. Those emotions are shared by the hundreds of U.S.
Government employees who have dedicated countless hours to this case
over the years. All have carried with them an abiding commitment to the
memory of those lives cruelly cut short and to the determination to
ensure that justice is served. For Secretary Clinton, that commitment
is both personal and unshakably held.
Because of the horrific nature of this crime, it was the position
of the United States Government when Megrahi was put on trial that any
sentence of imprisonment should be served to its full completion in
Scotland. That has been our unwavering and categorically stated
position ever since.
It is the view of this administration that the decision by Scottish
authorities to release Megrahi and permit his return to Libya was
profoundly wrong: morally wrong because it was an affront to the
victims' families and the memories of those killed; politically wrong
because it undermined a shared international understanding on Megrahi's
imprisonment; and wrong from a security perspective because it signaled
a lack of resolve to ensure terrorists are decisively brought to
justice. As Secretary Clinton and President Obama have repeatedly
stated, our resolute conviction remains that Megrahi should not be a
free man and should be serving out the entirety of his sentence in a
Scottish prison.
The diplomatic and legal efforts to investigate and pursue justice
for those killed in Lockerbie have spanned over two decades. In
response to the expressed interests of the committee, I will focus my
testimony primarily on the efforts of the U.S. Government to ensure
that Megrahi remained imprisoned in Scotland.
historic understanding on imprisonment
Before I do so, however, I would like to briefly describe the
circumstances which led to Megrahi's imprisonment in the first place.
In November 1991, after a joint U.S.-Scottish investigation, both the
United States and Scotland brought criminal charges against two Libyan
nationals, Abdelbasset al-Megrahi and Lamin Khalifah Fhimah, in
connection with the bombing of Pan Am 103. The United States made clear
throughout the 1990s, as Libya resisted handing over the accused in the
face of U.N. Security Council resolutions and international sanctions,
our resolve that the perpetrators of this crime must be brought to
justice. In an effort to break the long stalemate, the U.S. and U.K.
governments jointly proposed in 1998 an exceptional arrangement for the
Libyan suspects to stand trial before a Scottish court established in
the Netherlands. The arrangements are described in detail in the August
24, 1998, letter to the U.N. Secretary General authored by the United
States and United Kingdom. In the letter, the United States and Britain
together affirmed that ``If found guilty, the two accused will serve
their sentence in the United Kingdom.''
As the joint U.S.-U.K. letter reflects, at the time Megrahi was
transferred from Libya to face trial, there existed a shared
understanding between the United States, the United Kingdom, and Libya
that he would serve his sentence in Scotland if convicted. On July 3,
2009, the British Foreign Office confirmed in a now-public letter to
Scottish authorities that in the late 1990s ``the U.K. Government was
committed to ensuring that the Lockerbie accused were tried before a
Scottish Court in the Netherlands and, if convicted, they would serve
out their sentences in Scotland, in accordance with Scots law.'' In
response to U.S. requests in 1998 for binding assurances that the
accused would not later be transferred to Libya, the then British
Government maintained it could not enter into a legally binding
commitment that would constrain the hands of future British
governments. They nonetheless assured us of their political commitment
that, if convicted, Megrahi would remain in Scotland until the
completion of his sentence.
u.s. reengagement with libya
In January 2001, Megrahi was convicted of 270 counts of murder and
sentenced to life imprisonment. As Libya accepted responsibility and
complied with an agreed settlement on compensation to the victims'
families, efforts began to reintegrate the country into the
international community and steer it onto a more positive path. The
U.N. Security Council formally lifted international sanctions in
September 2003, though the United States maintained its own sanctions
because of continuing concerns about Libyan behavior.
Three months later, in December 2003, with encouragement from the
United States and United Kingdom, the Libyan Government announced its
landmark decision to voluntarily dismantle its WMD and missile
programs. In recognition of this shift toward Libya becoming a
constructive contributor to international peace and security, the
United States embarked on a step-by-step process of normalization and
removal of sanctions as Libya followed through and implemented its
commitments. This process culminated 3 years later, in 2006, in the
reestablishment of full diplomatic relations between the United States
and Libya. At no point during this reengagement did the United States
deviate from its longstanding position on Megrahi's continued
imprisonment in Scotland.
united kingdom, libya, and the prisoner transfer agreement
The United Kingdom pursued its own reengagement with the Libyan
Government during this same period, reestablishing diplomatic relations
in 1999 as Libya cooperated with the Lockerbie trial and handed over
the accused. In May 2007, then Prime Minister Tony Blair traveled to
Libya to sign a series of bilateral agreements, including a memorandum
of understanding on negotiations for a Prisoner Transfer Agreement
(PTA). During this same 2007 visit, BP signed an Exploration and
Production Sharing Agreement with the Libyan Government.
This committee has expressed an interest in what role BP may have
played in the process of negotiating the PTA. Both BP and the British
Government have acknowledged publicly their discussions that took place
on this issue in October and November 2007. According to Foreign
Secretary Hague's July 22 letter to Senator Kerry, BP told the U.K.
Government that failure to conclude the PTA could negatively impact
British commercial interests, including its own. In attempting to
provide this committee with all relevant information, we have examined
all available State Department records and have not identified any
materials, beyond publicly available statements and correspondence,
concerning attempts by BP or other companies to influence matters
related to Megrahi's transfer under the PTA or his release by Scottish
authorities.
Given that Scottish authorities would be the ultimate arbiters of
any transfer application for Megrahi, their vehement public opposition
to his eligibility under a potential PTA--and their anger upon learning
a specific exclusion would not be included in the agreement--reassured
us through much of 2008 that they shared our views on his continued
imprisonment in Scotland. A new element was then introduced when we
learned of Megrahi's diagnosis with terminal prostate cancer in October
2008. Former Foreign Secretary David Miliband later explained to the
House of Commons in October 2009 that ``British interests, including
those of U.K. nationals, British businesses, and possibly security
cooperation, would be damaged--perhaps badly--if Megrahi were to die in
a Scottish prison rather than in Libya.'' The Foreign Secretary further
stated that ``Given the risk of Libyan adverse reaction, we made it
clear to them that as a matter of law and practice it was not a
decision for the U.K. Government and that as a matter of policy we were
not seeking Megrahi's death in Scottish custody.''
u.s. opposition to transfer or release
Weeks after Megrahi's diagnosis, in November, the U.K. and Libya
signed the PTA, and it entered into force on April 29, 2009. Six days
later, on May 5, the Libyan Government submitted its application for
Megrahi's transfer to Libya under the auspices of the PTA. Throughout
this period, the United States continued to communicate unequivocally
to both the U.K. and Scottish authorities our longstanding policy that
Megrahi should serve out his complete sentence in Scotland, regardless
of the state of his health, the impact on other countries' interests,
or the possible Libyan reaction.
As the U.K. and Libya moved forward with the PTA, we intensified
our efforts to dissuade Scottish authorities from transferring Megrahi
to Libya. Secretary Clinton highlighted our longstanding position
directly to Scottish First Minister Alex Salmond soon after taking
office, during a meeting in Washington in February 2009. Two months
later, in April, the United States formally communicated to both the
British and Scottish governments that the imminent entry into force of
the PTA did not change our longstanding position on Megrahi's
incarceration. We also underscored this message in April to senior
officials in Tripoli, as did Attorney General Holder in a June phone
call to Scottish Justice Minister Kenny MacAskill.
On July 24, Megrahi submitted to Scottish authorities an
application for his release on compassionate grounds, as permitted
under Scottish law. Subsequent to this application, during the second
week of August, the State Department again communicated to Scottish
justice officials and First Minister Salmond our steadfast conviction
that Megrahi should remain imprisoned in Scotland for the entirety of
his sentence as previously agreed. The text of this diplomatic
communication was released by the State Department on July 26 of this
year. Given that the compassionate release option was under
consideration in Edinburgh, we also underscored to Scottish authorities
that should they proceed with release despite our objections, under no
circumstances should they permit Megrahi to return to Libya. We argued
that if they decided they must release Megrahi over our protests, he
should be confined to Scotland, remain under the close supervision of
authorities, and that an independent and comprehensive medical exam
clearly establish that he had less than 3 months to live. We emphasized
that we did not endorse any release in light of the seriousness of
Megrahi's crimes, but that such a tightly conditioned scenario would be
less objectionable than any outcome that permitted his return to Libya.
Secretary Clinton reinforced this message in a phone call to Justice
Minister MacAskill on August 13, as did Deputy National Security
Advisor John Brennan on August 19.
megrahi's release and u.s. reaction
To our grave disappointment, Mr. MacAskill announced on August 20
his decision to reject Megrahi's application for transfer under the
U.K.-Libya PTA but to grant his application for release on
compassionate grounds. In choosing the latter option, the Scottish
Government not only permitted Megrahi's return to Libya, as would have
occurred under prisoner transfer, but allowed him to do so as a free
man able to spend the remainder of his life at home with his family and
friends--a clear travesty of justice.
In explaining the decision, both at the time and subsequently, Mr.
MacAskill and Mr. Salmond have stated that there was no contact between
BP and Scottish authorities on this issue and that the decision was
based solely on judicial grounds without political or economic
consideration. They have also stated that the decision to proceed with
so-called ``compassionate'' release was based on the medical advice
provided by the Director of Health and Care of the Scottish Prison
Service that 3 months was a reasonable prognosis for Megrahi's life
expectancy, and that additional medical experts compensated by the
Libyan Government played ``no part in the decision.''
The Department of State has no evidentiary basis to dispute or
disprove these statements, but the fundamental truth remains that the
decision to release Megrahi back to Libya was a grievous mistake.
British Prime Minister David Cameron has stated that he shares this
view, and the Prime Minister has asked the U.K.'s Cabinet Secretary to
conduct a review of British documents to determine if any further
relevant materials can be brought to light. We have also called upon
the Scottish Government to be as transparent as possible in
illuminating the circumstances surrounding their decision. In
particular, we believe that a decision by the Scottish authorities to
release the medical documentation that led to a determination of
Megrahi's life expectancy would be appropriate and assist in further
understanding the basis of their decision.
As President Obama has stated, all the relevant facts in this case
should be made available. The committee, the victims' families, and the
American people deserve nothing less. We value the committee's
important efforts to shed light on this issue and appreciate this
opportunity to cooperate with you toward achieving that goal.
Senator Menendez. Thank you very much.
Mr. Swartz.
STATEMENT OF HON. BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Swartz. Mr. Chairman, Senator Gillibrand, members of
the committee, family members of the victims of Pan Am 103,
thank you for this opportunity to appear this morning on behalf
of
the Department of Justice to discuss the release of Abdelbasset
al-Megrahi, the convicted Pan Am 103 bomber.
There are three points I would like to make this morning.
First, the Department of Justice has pursued this case
relentlessly--our prosecutors and our FBI agents--for over two
decades.
Second, as part of that pursuit of justice, the Department
of Justice, along with the Department of State, has taken the
unwavering position that al-Megrahi, upon his conviction,
should serve his entire sentence in Scotland, and should not be
returned to Libya under any circumstances.
And third, again as part of that commitment to this matter,
upon Megrahi's release, the Department of Justice, through the
Attorney General and the Director of the FBI, took the unusual
step of publicly and explicitly denouncing this step by the
Government of Scotland, and furthermore made clear their
disappointment and distress, disappointment and distress that
continues to this day.
Let me turn to my first point. The Department of Justice
has been involved in this matter from the day of the bombing,
itself. The Federal Bureau of Investigation, via its legal
attache in London on the day of the bombing, quickly
established contact with the Scottish police. And on the next
day, an FBI team was dispatched to Scotland. As Senator
Lautenberg has eloquently noted today, the Scottish police
engaged in a enormous investigation, which we were proud to be
part of. And we closely collaborated to ensure that justice was
secured in this matter.
After many months of relentless effort on both sides of the
Atlantic, prosecutors in the criminal division of the
Department of Justice and the U.S. Attorney's Office, here in
the District of Columbia, presented a case to a grand jury,
here in Washington. On November 14, 1991, an indictment was
unsealed charging Megrahi and his codefendant, Lamin Fhimah,
with the bombing of Pan Am Flight 103. That same day, as you
know, the Lord Advocate of Scotland announced the filing of
parallel charges in Scotland.
Mr. Chairman, with your permission, I'd like, today, to
recognize the commitment of the career prosecutors and agents,
some of whom are here today, the victim witness advocates who
have dedicated their careers to ensuring that justice is done
in this matter.
My second point, Mr. Chairman and members of this
committee, is that, as part of this commitment to justice, the
Department of Justice, at the highest levels and in every
communication, has made clear our unwavering position that,
once the conviction was obtained, Megrahi should serve the
entirety of his life sentence in Scotland and not be
transferred or released to return to Libya before the
conclusion of his sentence.
Indeed, the potential place of imprisonment was one of the
earliest issues raised by the United States in connections with
the negotiations for a trial before a Scottish court in the
Netherlands. As Ambassador McEldowney has noted in her
testimony, the August 24, 1998, United States-United Kingdom
letter to the U.N. Secretary General affirmed that, if found
guilty, the two accused will serve their sentence in the United
Kingdom. And while there was not an internationally binding
agreement to this effect, the then-British Government, in 1998,
assured us of their political commitment that, if convicted,
Megrahi would remain in Scotland until the completion of his
sentence. And the Department of Justice actively participated
in the negotiations that led to that understanding.
In 2007, however, as you know, the United Kingdom entered
into a memorandum of understanding with Libya on negotiations
for a Prisoner Transfer Agreement, and it signed such an
agreement in November 2008. The Prisoner Transfer Agreement
entered into force on November 29, 2009; and only a few days
thereafter, Libya applied for the transfer of Megrahi. Under
devolution of course, the decision on the prisoner transfer of
Megrahi rested with the Scottish executive. Accordingly, the
United States, consistently and at the highest levels,
communicated our vehement objection to any transfer by the
Scottish authorities of Megrahi to Libya.
In a personal phone call to Scottish Justice Minister Kenny
MacAskill, Attorney General Holder was adamant that assurances
had been given to the United States Government that any person
convicted would serve his sentence in Scotland. This clear
understanding was also reiterated in the call by Secretary of
State Clinton to Minister MacAskill, and Mr. MacAskill
recognized and noted both of these calls in his decision on
prisoner transfer.
But, subsequently to the prisoner transfer application, as
you also know, on July 24, 2009, Megrahi submitted an
application to the Scottish authorities for compassionate
release on the grounds he had prostate cancer. Mr. Chairman, as
you recognized, compassionate release is a different matter
from prisoner transfer, and the United States had previously
acknowledged that compassionate release was provided for under
Scottish law, and presented different issues than prisoner
transfer that could be discussed at the time such an
application was made. But, once the application was made, the
United States Government made explicit our opposition, as
Ambassador McEldowney has made clear, to any such release, and
took the position that if our opposition were overruled,
release should come only under two conditions: first, that
there be independent and comprehensive medical exams
establishing he had less than 3 months to live; and second,
that he remain in Scotland under supervision. As you know,
sadly, neither condition was met.
That brings me to our third point: the Department of
Justice's unusual, immediate, and unequivocal public
denunciation of the decision to release Megrahi. After his
release, Attorney General Holder immediately condemned the
decision as unjustified, and publicly reiterated that it
continued to be the Justice Department's position that Megrahi
should have been required to serve the entire sentence handed
down on him for his crimes. Similar views were stated by FBI
Director Robert Mueller, who, in his former position as
Assistant Attorney General for the Criminal Division, had led
the investigation that led to Megrahi's indictment in 1991.
On August 21, 2009, the day after Megrahi was released,
Director Mueller wrote a letter to Scottish Justice Secretary
Kenny MacAskill, stating that the release was, ``as
inexplicable as it is detrimental to the cause of justice,''
and, ``makes a mockery of the rule of law.'' ``Most
importantly,'' Director Mueller continued in the letter, ``your
action makes a mockery of the grief of the families who lost
their own on December 21, 1998.''
In closing, Mr. Chairman, members of the committee, let me
say that the sentiments expressed a year ago by Attorney
General Holder and Director Mueller remain those of the
Department today.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Swartz follows:]
Prepared Statement of Hon. Bruce Swartz, Deputy Assistant Attorney
General, Criminal Division, U.S. Department of Justice, Washington, DC
Mr. Chairman, Ranking Member Lugar, members of the committee, and
family members of the victims of Pan Am Flight 103, thank you for
inviting me to testify on behalf of the Department of Justice about the
Scottish Cabinet Secretary for Justice's release on compassionate
grounds of Abdel Basset Ali Mohmed al-Megrahi.
I would like today to make three points. First, the Justice
Department has relentlessly pursued justice for the victims and
families of Pan Am Flight 103 for over two decades. Second, throughout
that time, the U.S. Government--through the Department of State and the
Department of Justice--consistently took the position that Megrahi, if
tried before a Scottish court, should serve his sentence in Scotland
and under no circumstance be transferred to, or allowed to, return to
Libya prior to the conclusion of any such sentence. And third, when
Megrahi was released from a Scottish prison on compassionate grounds
and allowed to return to Libya, the Attorney General and the Director
of the FBI immediately and publicly expressed their profound
disagreement with, and distress over, the decision by the Scottish
Cabinet Secretary for Justice--disagreement and distress that continues
to this day.
background
Before turning to these three points, I would like to provide some
background to this matter. On January 31, 2001, following an 8-month
trial before the Scottish Court in the Netherlands, Megrahi was
convicted by a unanimous panel of judges of the murder of the 259
passengers and crew on Pan Am Flight 103, and of the 11 residents of
the Scottish town of Lockerbie, Scotland. Megrahi was immediately
sentenced to life imprisonment by the Scottish Court, with the minimum
period that he was required to serve before becoming eligible to apply
for parole set at 27 years. The following year, an appeal by Megrahi
was rejected as not well-founded by the Lord Justice General of
Scotland, who presided over a unanimous appellate panel of five
Scottish High Court of Justiciary judges. Pursuant to the terms of
arrangements jointly proposed by the United States and the United
Kingdom--also incorporated into United Nations Security Council
Resolution 1192--Megrahi was immediately removed from Kamp van Zeist in
the Netherlands to a prison in Scotland to serve his life sentence.
the department's pursuit of justice
The Department of Justice has actively pursued justice in this
matter for over 20 years. The Justice Department became involved in the
investigation of the bombing of Pan Am Flight 103, and ultimately in
Megrahi's prosecution, on December 21, 1988--the very day of the
bombing. The Federal Bureau of Investigation (FBI), via its legal
attache in London, quickly established contact with the Scottish
Police, and the following day--December 22--dispatched a team of U.S.
agents to Lockerbie to begin what rapidly evolved into a joint
investigation conducted by the Scottish police assigned to the
Lockerbie Incident Control Center and FBI agents stationed in Lockerbie
and Washington, DC.
The Scottish Police combed a crime scene that spanned 845 square
miles and collected every possible item that might have come from the
aircraft. The Scottish Police then sifted through this mass of debris
for items of forensic significance. During this difficult time, the
Scottish Police, and the residents of the town of Lockerbie, were also
gracious hosts to the numerous American relatives of the victims who
came to Lockerbie in the bombing's immediate aftermath.
For our part, in addition to the extensive investigation being
conducted by the FBI in the United States in response to Scottish
requests, the U.S. Attorney's Office for the District of Columbia and
the Criminal Division of the Department of Justice each assigned
experienced attorneys to provide legal guidance to the FBI, and to
coordinate with their Scottish counterparts.
After many months of relentless, tireless effort by the FBI, DOJ
prosecutors, and their Scottish counterparts, prosecutors in the
Criminal Division and the D.C. U.S. Attorney's Office presented the
case to a grand jury enpaneled in the U.S. District Court. On November
14, 1991, an indictment was unsealed charging Libyan Intelligence
Service member Megrahi and Libyan national, Lamin Khalifah Fhimah, with
the bombing of Pan Am Flight 103. That same day, the Lord Advocate of
Scotland announced the filing of parallel charges in Scotland. The
personal involvement, dedication, and compassion for the victims of the
many career employees within the Justice Department who labored to hold
to account all those who participated in this horrendous act has
informed each action the Justice Department has taken in investigating
and prosecuting this case and continues to the present day.
nonrepatriation to libya
Throughout this 20-plus year period, both the Department of Justice
and the Department of State have consistently taken the position that
Megrahi should serve the entirety of his life sentence in Scotland and
not be transferred or allowed to return to Libya before its conclusion.
This was one of the earliest issues raised by the United States in
connection with the negotiations for a trial before a Scottish court in
the Netherlands, and the United States continued to raise it following
Megrahi's conviction and incarceration.
Mr. Chairman, in your letters of July 29, and September 22, 2010,
you have asked that I discuss the 1998 agreement reached between the
United States, the United Kingdom, and Libya that required individuals
convicted in the Pan Am 103 bombing to serve their sentence in
Scotland, and DOJ's communication with the Scottish Government about
this agreement. As Principal Deputy Assistant Secretary McEldowney has
testified, there was no binding agreement under international law that
would have required Megrahi to serve his entire sentence in Scotland.
Nonetheless, the Justice Department participated in extensive
negotiations between the U.S. Department of State and the U.K. Foreign
Office, which led to the joint United States-United Kingdom proposal
for a trial under Scottish law and before a Scottish court sitting in
the Netherlands. Following these negotiations, the United States took
the position that there was a political understanding between the
United States and the United Kingdom that Megrahi would serve the
entirety of his sentence in Scotland, and would not be transferred, or
allowed to return, to Libya before its conclusion.
Because the trial of Megrahi in a third country outside of the
United States raised numerous questions, further negotiations between
Justice Department representatives and the British Government were held
in London in 1998 on matters such as the location of any convicted
individual's service of sentence and the potential for future prisoner
transfer agreements with Libya. With respect to service of sentence,
the Department of Justice representatives maintained that any sentence
must be served in Scotland. With respect to a prisoner transfer
agreement, the Department's representatives learned that no prisoner
transfer agreement then existed in 1998 between the United Kingdom and
Libya, but that Prime Minister Tony Blair's incumbent government would
not bind successor governments by giving the United States a commitment
that the U.K. would not enter into a prisoner transfer agreement with
Libya. Our representatives also learned that the Secretary of State for
Scotland had the statutory power to release terminally ill prisoners on
compassionate grounds (a power which would later transfer to the
Scottish Executive under devolution) and that this discretion could not
be fettered in advance by agreement. Nonetheless, the Department's
representatives made it clear that we were unalterably opposed to the
accused being returned to Libya, prior to the conclusion of his
sentence, under any circumstances.
megrahi's release on compassionate grounds
Seven years after Megrahi's 2001 conviction, in October of 2008,
the Department of State was informed that Megrahi had been diagnosed
with stage four prostate cancer. The Department of Justice also learned
at that time that the Scottish administrative practice was to consider
the release of terminally ill prisoners who have a prognosis of three
months or less to live. In addition, the United Kingdom signed a
Prisoner Transfer Agreement (PTA) with Libya in November 2008,
negotiation of which had begun in 2007. This agreement was anticipated
to come into effect sometime in 2009. The power to grant or deny an
application under either the Prisoner Transfer Agreement, or for
compassionate release, rested with the Scottish Executive. Although the
United States had no say in actions undertaken by the Scottish
Government in compliance with their own regulations in governing
authorities regarding prisoner transfer or granting of compassionate
release, the Department of Justice and the Department of State were
once again adamant that Megrahi not be allowed to return to Libya.
In 2009, both Secretary of State Hillary Clinton and Attorney
General Eric Holder personally conveyed to the Scottish Executive the
U.S. Government's vehement opposition to Megrahi's transfer or release
to Libya. To be sure, the Scottish Executive's discretion to release
terminally ill prisoners on compassionate grounds was statutory and
could therefore not be limited in advance by agreement. Nonetheless,
the United States was equally adamant that if any such compassionate
release took place, Megrahi must remain in Scotland, as the Department
of State made clear in a demarche on the issue.
reaction to megrahi's release
As I have described today, the Department of Justice, at every
opportunity, restated its opposition to Megrahi's release and return to
Libya. After Megrahi was in fact released in August 2009, Attorney
General Eric Holder condemned the decision as unjustified and publicly
reiterated that it continued to be the Justice Department's position
that Megrahi should have been required to serve the entire sentence
handed down on him for his heinous crimes.
Similar views were stated bythe FBI Director, Robert Mueller, who,
in his former position as Assistant Attorney General for the Criminal
Division, had led the investigation that resulted in Megrahi's U.S.
indictment in 1991. On August 21, 2009--the day after Megrahi was
released--Director Mueller wrote a letter to Scottish Justice Secretary
Kenny MacAskill stating that the release is ``as inexplicable as it is
detrimental to the cause of justice'' and ``makes a mockery of the rule
of law.'' ``[M]ost importantly,'' Director Mueller poignantly continued
in the letter, ``your action makes a mockery of the grief of the
families who lost their own on December 21, 1988.''
The sentiments expressed a year ago by Attorney General Holder and
Director Mueller remain those of the Department today: The dedicated
men and women at the Justice Department understand that it is
impossible to measure what was lost when the lives of these 270 people
were taken by this act of state-sponsored terrorism or the traumatic
and sometimes debilitating grief of the families left behind. We know
that this grief continues to this day and appreciate the outrage and
anguish over Megrahi's release and return to Libya that the families
continue to share with the Justice Department through our Office of
Justice for Victims of Overseas Terrorism and the FBI's Office for
Victim Assistance, among others. Please be assured that since that
tragic day in December 1988, all of the FBI agents, victim-witness
counselors, and prosecutors who have observed this grief have done
everything in their power to provide whatever relief possible.
This concludes my prepared remarks, and I will try to answer any
questions that the committee has for the Department of Justice.
Senator Menendez. Thank you both very much for your
testimony.
And let me join you, Mr. Swartz, in thanking all of the
career members of the Justice Department and the victims'
advocates who worked so diligently to bring the murderer to
justice. So, we thank them and I'm sure all Americans thank
them.
We'll do 8-minute rounds based on the number of members who
are here at this point--and then we'll go to a second round, if
we need it. The Chair will start with himself.
I want to get to something that I think you've both made
rather clear, but I just want to not even allow a scintilla of
doubt here. It has been suggested abroad, and some
domestically, that there was some equivocation by the
Government of the United States as to the release of al-
Megrahi, even in the context of compassionate release. You both
have testified that the United States opposed the release. Was
there any equivocation of that position in any of the
correspondence and communiques going back and forth?
Ambassador.
Ambassador McEldowney. Thank you for asking that question,
because I appreciate the opportunity to correct the record.
There was no equivocation in any U.S. Government communication
to any entity about our views that Megrahi should not, should
never, be transferred to Libya, and that he should serve his
full sentence to its entirety in Scotland. We stated that
privately to government officials. We have stated that on
numerous occasions publicly in press statements and in media
interviews. So, I am troubled to hear that there are
suggestions that there was anything less than absolute clarity
about the U.S. Government position. And, as I say, I'm pleased
to have the opportunity to clarify the record.
Senator Menendez. Would that also be true for the Justice
Department?
Mr. Swartz. Yes. Senator, let me also address this issue,
because I think it is important to clarify the record.
As you noted at the outset, and as I mentioned in my
opening statement, the United States Government always
recognized that compassionate release was a possibility under
Scottish law. We knew that from the original negotiations in
1988. And I believe that some of the confusion that may arise
here--some of the incorrect implications arise from the fact
that discussions prior to Megrahi's actual application for
compassionate release, the United States Government, in
communications, acknowledged that Scottish law did provide for
this and that it could be considered by the Scots authorities
at the appropriate time. That includes in communications from
the State Department, in the Attorney General's conversation
with MacAskill. But, notwithstanding that, the issue always
remained one of what would be done when he made his application
for compassionate release and, beyond that, what compassionate
release would mean. The understanding of the United States
Government was that compassionate release, while unfortunate,
would mean that he would essentially--Megrahi would essentially
serve the remainder of his time in a hospice in Scotland--or a
hospital--and would die outside of the prison, inside Scotland.
Obviously, it was never contemplated that compassionate
release would be used as a vehicle to transfer Megrahi to
Scotland. In fact, that would be nonsensical. The United
States, having been adamant that Megrahi not be returned to
Scotland as a prisoner, would hardly have signaled that it
would be acceptable for him to be returned as a free----
Senator Menendez. So, you acknowledged Scottish law, but
also made it very clear that it was your expectation that al-
Megrahi would not be allowed to be released outside of
Scotland.
Mr. Swartz. Absolutely. I think that the record is clear in
this regard. One need only look at Kenny MacAskill's--Justice
Minister MacAskill's statement about the release itself, in
which he points out that the United States, through Attorney
General Holder and through Secretary Clinton, was adamant that
he not be returned to Libya.
Senator Menendez. In fact, Mr. Swartz, isn't it the
understanding of the United States that, if found guilty, the
individuals would serve the entirety of their sentences inside
of Scotland?
Mr. Swartz. Yes, Mr. Chairman, that was our understanding.
We believed that we had an understanding that the individual
would serve the entirety of his sentence. I should say that the
United Kingdom was unwilling to commit to ``the entirety of the
sentence'' being the explicit language, but we believe we had a
political understanding that Megrahi would serve his sentence
in Scotland.
Senator Menendez. So, do you believe that al-Megrahi's
release on compassionate grounds breached the verbal
commitments by the United Kingdom and the political
understanding set forth in the 1998 Lockerbie justice
agreement, that the suspects, if convicted, would serve their
sentences fully?
Mr. Swartz. We believe that the understanding that we had,
the political understanding, was breached by the return of
Megrahi to Libya.
Senator Menendez. Madam Ambassador, are you aware of
Qaddafi's August 2009 comments to the Herald Scotland that
stated that the primary reason for concluding a Prisoner
Transfer Agreement was to secure of the return of al-Megrahi to
Libya? Specifically, he said that, ``For the past 7 to 8 years,
we have been trying very hard to transfer Mr. Megrahi to Libya
to serve his sentence here. And we have tried many times to
sign the Prisoner Transfer Agreement without mentioning Mr.
Megrahi. But, it is obvious we were targeting him.'' Are you
familiar with that?
Ambassador McEldowney. I am, Senator. I'm familiar with
that. I am also familiar with the desire and the efforts of the
Scottish authorities to have Megrahi specifically mentioned in
that Prisoner Transfer Agreement so that the potential for his
transfer would have been excluded. There was also discussion
between the Scottish and the U.K. authorities about the
Scottish desire to have all future individuals associated with
the Lockerbie bombing excluded from that agreement. In the
course of the negotiations between the U.K. and Libya, as U.K.
authorities have subsequently acknowledged, they were unable to
secure that agreement, and so, they concluded the Prisoner
Transfer Agreement in what they called the ``standard form,''
which makes reference to no one.
Senator Menendez. In your testimony, you cite the letter
from British Foreign Secretary William Hague to Chairman Kerry
in which he acknowledges that the Libyan regime had linked the
conclusion of a broad Prisoner Transfer Agreement to
ratification of the BP exploration agreement. It states,
``During the several months of discussion in 2007 about Libyan
opposition to the possible exclusion clause in the PTA,'' the
Prisoner Transfer Agreement, ``there were a number of
conversations between BP and the then-United Kingdom
Government. There were three discussions between BP and Mr.
Jack Straw, or his office, between October and November 2007,
and at least two contacts in the same period between BP and the
Prime Minister Foreign Policy Advisor, and contacts with Her
Majesty's Ambassador in Tripoli.'' The letter further recalls,
``BP has been made aware, by the Libyans, that failure to agree
to the Prisoner Transfer Agreement could have an impact on U.K.
commercial interests, including the Libyan ratification of the
BP exploration agreement.''
Based on that statement alone, is there not reasonable
suspicion that the United Kingdom's decision to conclude a
Prisoner Transfer Agreement that did not explicitly exclude al-
Megrahi was based primarily on the U.K.'s concern about its
relations with Libya, commercial and otherwise?
Ambassador McEldowney. I think there a basis to assume
that, and I think the statement by then-Foreign Minister
Miliband also notes that there were political, security, and
economic considerations that were involved in the U.K.
decisionmaking.
Senator Menendez. Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman, for your
questions.
And thank you for your testimony.
I'd like to talk a little bit about the communications
between the U.S. Government and the Scottish Government around
the time that discussions were being made. You both testified
that we had DOJ to Scottish Justice Minister MacAskill, and
Secretary Clinton spoke. What were the responses received by
both the DOJ and the State Department, verbally, on the issue?
Ambassador McEldowney. As you've stated, we were very clear
and very categorical about our position, which has not changed,
that Megrahi should serve out his complete sentence in
Scotland. It had been our understanding, throughout this
period, that the Scottish Government agreed with us. Scottish
First Minister Salmond has gone on record publicly, stating
that he was opposed to the Prisoner Transfer Agreement, that he
wanted an exclusion for Megrahi. And so, it was our expectation
then, and through the course of the discussions that we held in
the early part of the year, that that would continue to hold.
It became clear to us over the course of the summer, and
particularly in late summer, following the submission of
Megrahi's request for compassionate transfer, that the Scottish
authorities were considering that option. And that is why we
reached out and again reiterated our opposition, but also, as
my colleague has noted--also clarified, if they were determined
to go forward despite our opposition, that they should, at a
minimum, undertake the kind of comprehensive medical exam that
I believe this committee is asking for, and ensure that Megrahi
stayed within Scotland.
Mr. Swartz. Senator, if I may add to that, from the
Department of Justice's perspective. As the Ambassador has
noted, through the first half of 2009, the issue was one of
prisoner transfer, since that--the agreement had been
concluded, the Prisoner Transfer Agreement entered into force,
and an application had been made by Libya for prisoner transfer
at the beginning of May. The calls made by Attorney General
Holder and by Secretary Clinton were part of a series of
communications to the Scottish authorities, at all levels, on
this issue. The Attorney General's call took place in June 26,
following the application for prisoner transfer. He had a
conversation with Justice Minister MacAskill, and that
conversation, as reflected in Justice Minister MacAskill's own
statement at the time of deciding the prisoner transfer issue,
was clear, as he said that--Justice Minister MacAskill said
that Attorney General Holder, ``was adamant that assurance has
been given to the United States Government that any person
convicted would serve his sentence in Scotland. Many of the
American families spoke of the comfort that they had placed
upon these assurances over the past 10 years. That clear
understanding was reiterated to me by the U.S. Secretary of
State, Hillary Clinton.''
So, the conversation was then a direct and forceful one in
which the Attorney General put forward the position that
Megrahi should not be transferred back, under any
circumstances. At that time, no application had been made by
Megrahi for compassionate release. When that issue came up, the
decision was that any discussions about that could be taking
place--take place at a later time, when Scotland considered
that issue under its own law.
Senator Gillibrand. One letter I'm looking at, that I want
to discuss further, because it brings into question the content
of the conversations and what assurances were made and whether
they were provided in a way that I think was appropriate.
There's a letter here, dated 3 July 2009, to Mr. Burgess--
George Burgess, deputy director, Criminal Justice Directorate,
the Scottish Government. It's from the English--Middle East and
North African Directorate, King Charles Street, London. And the
author is not noted in a legible way, so I can't tell you who
wrote the letter. But, it's a letter specifically--it says,
``In your letter of 22 June, requesting information on the
purpose and potential continuing effect of the agreements
between the U.K., the United Nations, and other governments
prior to the surrender of al-Megrahi for trial in relation to
the '98 Lockerbie bombing, specifically asked for advice on the
extent to which the 1998 U.K.-U.S. letter to the United Nations
Secretary General on the initiative for the trial''--blah,
blah, blah--``creates a commitment in relation to the place of
future imprisonment of the prisoner, al-Megrahi. You asked
whether there are any additional commitments given to the
United States Government in this regard.''
And then, this author goes on to analyze what commitments
were given to the U.S. Government. And the author concludes
that our position, which you've both articulated, was very
specifically given, ``We have concluded that during discussions
with the United States, both prior to and following the joint
U.S.-U.K. letter to the U.N., the U.K. Government was committed
to ensuring that the Lockerbie accused were tried before a
Scottish court in the Netherlands and, if convicted, that they
would serve out their sentences in Scotland, in accordance with
Scots law. We stood by this line fully in our dealings with the
United Nations, acting as intermediate to Libya. While at the
time, we considered the Prisoner Transfer Agreement with Libya
most likely, in view of our relations with Libya, the
government of the day, in conjunction with the then-Lord
Advocate, was keen to ensure that any political assurances
given to the U.S. would not bind the hands of successor
governments, we could not, at the time, rule out the
possibility that our relations with Libya might one day change.
The U.K. Government, consequently, did not give the U.S. an
absolute commitment in relation to the future imprisonment of
the Lockerbie accused.''
So, that was his assessment. Is that consistent with the
conversations that you're aware of, that no real commitment was
given at the time?
And this letter goes on to say that, ``Finally, you
undertook to hold in confidence any information that we passed
to you. I'm grateful for this assurance.''
So, this letter was not intended to be made public. But, I
would like to delve into, a little more, if the U.K.
Government, indeed, was not specific in its assurances to us,
or if they were, and they went back on their word. Because this
really goes to the heart of our question: What happened between
these conversations with the United States Government and when
a decision was later made for compassionate release based on
changes with the relationship with Libya? Because if it is
based on changes with the relationship with Libya, I want to
know if that change is economic in nature and based solely on
the interest of drilling.
Mr. Swartz. Senator, I'll have the Ambassador address the
latter part of that question.
But, yes, it is the case that, in the discussions that took
place regarding the place of trial and how long the prisoner
would serve, that the United Kingdom was unwilling to bind
future governments, with regard to the possibility that there
might a Prisoner Transfer Agreement. At the time, of course,
that the discussions took place, in 1998, there was no Prisoner
Transfer Agreement with Libya. And, as a result, there is no,
as we've mentioned, internationally binding agreement in this
regard, with regard to the service of the sentence.
Nonetheless, as was also made clear, and as we have
reiterated on numerous occasions, there was a political
understanding that Megrahi would serve his time in Scotland,
the entirety of his sentence. And again, referring to Justice
Minister MacAskill's statement--as he points out in that
statement, while the U.K. had declined to provide a full
explanation of the discussions, it, ``appears to me that the
American families and government either had an expectation or
were led to believe that there would be no prisoner transfer
and the sentence would be served in Scotland.''
Senator Gillibrand. Right.
Mr. Swartz. Thank you.
Senator Gillibrand. Well, this--the last letter I want to
cite, to inform this discussion, is written 2 weeks later--July
17, 2009--from Lord Trefgarne, if that's how you pronounce it
properly, to Kenny MacAskill. And he does raise the issue that
this is going to create issues with regard to a relationship
with U.K.-Libya relations. He says, ``May I end by emphasizing
that speed is of the essence; principally, of course, for
humanitarian reasons, but also because of the shadow which may
otherwise fall over the U.K.-Libya relations, and especially
the interests of the LBB Scottish members and indeed others.''
LBBC Scottish members, which is the--Libyan economic
relationship working group, I think is--what does it stand for?
LBB--the LBBC members. I'll get you the--what that stands for,
but I think it's a economic group.
Ambassador McEldowney. Thank you very much for making
reference to both those letters.
Let me first, and very briefly, touch on the July 3 letter
and the caliber of the commitment between the United States and
the United Kingdom--and just to reinforce.
There was--we sought, but did not conclude, a legally
binding agreement in 1998. So, there was no legal impediment on
the basis of a legally concluded agreement between us. But, it
was our very clear understanding that we had a political
commitment that Megrahi's transfer to Libya would not happen.
We proceeded on the basis of the understanding that, while at
some point in the future it might be a theoretical possibility,
in practice it would never happen. And I think that is our
understanding. That is what is clear in the 1998 documents.
That is what is made clear in the 2009 letter that you made
reference to from July 3, 2009.
And also, in the argumentation that we made over the course
of these many years, we pointed out that it was not simply the
commitment that we felt we had, the shared understanding that
we felt we had, but also the gravity of the crime. Whether the
commitment were there or not, the judgment about whether it was
right to release him, given the circumstances of the crime, we
argued, it was not.
Now, second, on the letter from--and I also apologize if I
mispronounce the name--an individual, Trefgarne--the letter of
July 17, 2009, which, I understand, is from a member of the
British Parliament who is also the president of a business
council that exists between Libya and the United Kingdom. I
have seen that letter. I have also seen MacAskill's response to
that letter in which Justice Minister MacAskill says the
decision rests with the Scottish authorities and the decision
will be made solely on the basis of judicial concerns, without
economic or political considerations.
Senator Gillibrand. Thank you, Mr. Chairman.
Senator Menendez. Let me go for a second round of questions
and pick up right where you just finished.
It is clear that while that statement was made, the
Scottish officials who have stated that they opposed a broad
Prisoner Transfer Agreement that would apply to al-Megrahi, at
the same time made a decision to release him on compassionate
grounds, essentially accomplishing the same goal. Is that not
true?
Ambassador McEldowney. That is----
Senator Menendez. They knew that the Libyans wanted
al-Megrahi. They knew about this whole debate upon how the
Prisoner Transfer Agreement would be constructed. And they also
knew they had the opportunity to release him on the
compassionate grounds. So, there were clearly parallel tracks
here.
Ambassador McEldowney. Senator, I would go further and say
that, instead of achieving the same goal, it's even worse. Had
Megrahi been transferred under the terms of the Prisoner
Transfer Agreement, theoretically he would have been placed in
a Libyan jail. Because he was granted compassionate release, he
is a free man today.
Senator Menendez. Now, did----
Ambassador McEldowney. And--please----
Senator Menendez. I'm sorry. Please go. Go ahead.
Ambassador McEldowney. No, no.
Senator Menendez. Finish your sentence.
Ambassador McEldowney. No, no. Please.
Senator Menendez. In that respect, then, I look at the
Scotland Act of 1998, which has been introduced into the
record. Scotland, as a result of that act, has jurisdiction
over matters involving criminal justice. However, the United
Kingdom retains powers under foreign policy, immigration, and
national security. Despite this legal fact, both the United
Kingdom and Scotland publicly maintain that the decision to
release al-Megrahi was solely in the hands of Scottish
authorities.
However, if you look at the Scotland Act, the United
Kingdom reserves the power, as I said, under foreign policy,
national security, and even air travel.
So, let me refer specifically to part 2 of the act,
entitled ``Specific Reservations,'' Section Head B--Home
Affairs, subsection B6, entitled ``Immigration and
Nationality.'' In it, the Scotland Act of 1998 notes that the
United Kingdom retains authority over matters dealing with,
``immigration, including asylum, and the status and capacity of
persons in the United Kingdom who are not British citizens.''
Later, in this same section, the act refers to reserve
United Kingdom powers over ``travel documents.''
So, given the fact that al-Megrahi is not a British
citizen, doesn't that mean that, even if the Scots decided to
release him from a Scottish jail on compassionate release, that
the United Kingdom retained power over his travel from Scotland
to Libya?
Ambassador McEldowney. Senator, I am not an expert in U.K.
constitutional law, and so, I believe the only people who could
answer that question definitively are U.K. and Scottish
attorneys.
It is my understanding--and this has been stated publicly
by both Scottish and British authorities--that the authority
for taking the decision on Megrahi's compassionate release
rested with the Scottish authorities, based on devolution--the
devolution arrangements that you've explained. It is also my
understanding, as you've noted, that the United Kingdom--the
government in London--retains responsibility for foreign
policy. I could speculate about whether the United Kingdom
could have closed the border or somehow prevented Megrahi's
physical return to Libya, had they chosen to do so at the time.
But, the government in London, the then-U.K. Government, said,
``This is a decision that rests with the Scottish authorities.
We will respect and observe their decision.''
Senator Menendez. Mr. Swartz, did the Justice Department
note any of this, under the Scotland Act of 1998?
Mr. Swartz. Mr. Chairman, I, too, would have to say that
the complexities of the devolution are ones that we are perhaps
not expert to comment on, but would note, in addition to the
Ambassador's point, of course, that the Prisoner Transfer
Agreement, which was the impetus for the first consideration of
Megrahi's transfer, was, of course, negotiated by the United
Kingdom, under its foreign authorities--foreign policy
authorities. The decision, as the Ambassador has pointed out,
on compassionate release was, under devolution, one for the
Scottish minister to make in the first instance, but, again,
one that we believed would involve release within Scotland and,
therefore, not pose the issues that you've raised regarding
transfer of the individual after the release on compassionate
release.
Senator Menendez. Well, seems to me that unless somebody
reads the act in a different way--it was a foreign policy
decision, after the compassionate release, to allow al-Megrahi
to physically leave Scotland. Certainly, travel circumstances
are reserved to the United Kingdom. It seems to me that they
could have respected the Scottish Government's decision to
allow compassionate release, flawed as it may have been, and
then, ultimately, still retained him by virtue of their powers.
I don't think it takes a rocket scientist to figure it out.
Let me ask two final questions. You've said that you were
not able to get a legally binding agreement, but had political
understandings that were rather significant to our government
at the time. Explain for the record why we could not conclude a
legally binding agreement. Was our concern about how
prosecution would take place, and the inability to come to an
understanding?
Mr. Swartz. Mr. Chairman, the position taken by the United
Kingdom was one that the current government could not bind
future governments on these issues and, therefore, was not
prepared to enter into a legally binding agreement, as opposed
to an understanding that Megrahi would serve his sentence. Of
course, at the time, the 1998 initiative of the United States
and the United Kingdom was an attempt, as the Ambassador has
pointed out, to overcome the intransigence of Libya, with
regard to the trials of the two accused in connection with the
Pan Am 103 bombing. And we believed, at the Department of
Justice, with our colleagues at the Department of State, the
best way forward to secure justice in these circumstances. And
again, as the Ambassador has noted, we believed that the nature
and gravity of the crime would add to that political
understanding, and would lead to the service of the entire
sentence in Scotland, in accordance with Scottish law.
Senator Menendez. So, in essence, it was our desire to seek
a prosecution that had us make the determination, based on what
the British were telling us, that this was the best way to move
forward, in order to try to seek a prosecution. Is that a fair
statement?
Mr. Swartz. Yes, Mr. Chairman, we believed that this was
the best, most efficacious way of moving forward in obtaining
U.N. support for this approach.
Senator Menendez. And the final question, Ambassador. You
both have said that it was a very strong, unequivocal position
of the United States that al-Megrahi should not be released,
certainly not be allowed to return to Libya. You both have said
that in the absence of an absolutely legally binding
commitment, there was a very clear political commitment and
understanding between our respective countries that was further
strengthened by the gravity of the crime committed here.
However, that understanding didn't materialize as we thought--
so, what political recourse do we have? Or, what does this
teach us, in terms of a breach of trust, for the future?
Ambassador McEldowney. Senator, as you know, this
administration expressed its deep regret and its outrage about
the decision. Following the decision, we have called for
Megrahi to be returned to Scotland to serve out his full
sentence there. And we continue to do that.
We have also called on both the U.K. and the Scottish
authorities to make all information available to ensure that we
have full clarity about the circumstances that led up to this
decision.
Those are efforts that we are committed to continuing, as
we have been committed to continuing to ensure that justice is
brought in this case, for over two decades.
Senator Menendez. And finally, does the State Department
believe that the desire for an independent inquiry conducted by
the British Government, as Prime Minister Cameron suggested
when he was the opposition leader, is something that would be
desirable?
Ambassador McEldowney. As you know, President Obama has
said he wants all relevant information brought to light. Prime
Minister Cameron has committed to you, and has committed to the
President, that he will undertake an additional examination of
U.K. Government documents to see if such an inquiry is
justified and should be conducted. We are waiting to hear from
the U.K. about the results of that examination.
Senator Menendez. Thank you both very much for your
testimony--we appreciate it--and your time.
Mr. Swartz. Thank you, Senator.
Ambassador McEldowney. Thank you, Mr. Chairman.
Senator Menendez. We'll excuse you.
Now let me now introduce our second panel of experts, who
will be addressing the medical issues, as well as interaction
between Libya and the United Kingdom.
I'd ask them to step forward as we introduce them. First,
we have Dr. James L. Mohler. Currently, Dr. Mohler is the
associate director and senior vice president for translational
research at Roswell Park Cancer Institute in Buffalo, NY. Dr.
Mohler is a highly accomplished, respected urologist who will
provide insights into diagnosis and treatment options. He is
chair of the National Comprehensive Cancer Network Guidelines
Panel for Prostate Cancer. These guidelines are the gold
standard for prostate cancer diagnosis and treatment. He has
also taught and written extensively on the subject, and we want
to thank him very much for being with us this morning.
Dr. Oliver Sartor is the second member of our panel, and a
respected authority on issues surrounding the treatment of
prostate cancer. He is Piltz professor of cancer research and
the medical director of the departments of medicine and urology
at Tulane Medical University--the Medical Center. For the last
20 years, Dr. Sartor's research and clinical interests have
focused primarily on prostate cancer. He has published
extensively on the subject, ranging from genetic studies on
prostate cancer to clinical trials of experimental agents. He
is past chairman of the Integration Panel for the Department of
Defense's Medical Research Program in Prostate Cancer.
We thank you for coming today to the committee.
Our third panelist is Jeff D. Porter. Dr. Porter is a
consultant on the Middle East and Africa, and has spent his
career as an analyst with extensive experience in the
international investigative community. He has lived and worked
in the Middle East and in North Africa. He is an authority on
Middle Eastern history and on Libya. He holds a B.A. in Islamic
studies, an M.A. in Arabic, and a Ph.D. in Middle Eastern
studies from New York University.
Dr. Porter, thank very much for joining us, as well.
As with the previous panel, I'd urge you all to summarize
your statement to 5 minutes. Your full statements will be
included in the record.
And with that, we'll start with Dr. Mohler.
STATEMENT OF DR. JAMES MOHLER, SENIOR VICE PRESIDENT FOR
TRANSLATION RESEARCH, CHAIR, DEPARTMENT OF UROLOGY, ROSWELL
PARK CANCER CENTER, BUFFALO, NY
Dr. Mohler. Thank you, Mr. Chairman. I'm honored to come
before you today to provide my expert opinion about the
compassionate release granted to Mr. al-Megrahi in August 2005.
I believe at the time of his release he had not received
proper treatment, nor did he have less than 3 months to live.
In fact, I am not at all surprised that he appears alive and
well today, almost 14 months later.
I'm qualified to offer these opinions because I'm a
professor at three institutions. I'm a board-certified
urologist. I have 23 years of experience and have treated over
2,000 men with prostate cancer. I've published over 200 peer-
reviewed articles and a book on prostate cancer.
I'm chair of the Department of Urology at Roswell, which is
one of our Nation's 40 NCI-designated comprehensive cancer
centers. My particular expertise in the proper treatment of
prostate cancer is reflected by my chairmanship of the National
Comprehensive Cancer Network that you referred to.
What was Mr. al-Megrahi's status at the time of his release
from prison? To understand this, we must review his prostate
cancer diagnosis and treatment. According to the medical report
released by Scottish authorities, Mr. al-Megrahi was diagnosed,
September 2008, with prostate cancer that was incurable because
it had spread to his bones. Fortunately for him, advanced
prostate cancer can be put into remission in almost all men by
starving the cancer of the male hormones it needs to grow and
spread.
He responded to hormone treatment, but his response was
short-lived, and he had a rapidly growing prostate cancer, and
had some bone pain in July 2009. Up until that point, Mr. al-
Megrahi's treatment was standard of care. But, then things
became very confusing.
Scottish officials released him for compassionate reasons
because he was believed to have 3 months or less to live. In my
23 years of experience caring for more than 2,000 prostate
cancer patients and reading clinical studies that evaluated
thousands of patients in similar conditions, there is no
conceivable way a cancer specialist, or anyone familiar with
the treatment of prostate cancer, could have given Mr. al-
Megrahi a 3-month survival prognosis. Let me explain why.
A patient with prostate cancer with an accurate 3-month
prognosis would have to be almost bedridden. But, Dr. Fraser's
final medical report said that Mr. al-Megrahi's cancer did not
restrict or remove his ability to carry out any particular
task; and he walked down the stairs from his airplane, upon his
arrival in Libya, as you saw in the video.
A patient with prostate cancer with an accurate 3-month
prognosis would be given palliative or end-of-life care focused
on pain management and making the patient as comfortable as
possible. However, Scottish officials, doctors, and Mr. al-
Megrahi himself reported, in July 2009, that, and I quote,
``Different treatment options had been discussed and a new
treatment had been embarked upon.'' This new treatment may have
been a new hormone treatment or chemotherapy, but the
effectiveness of either requires at least 6 weeks to evaluate,
an evaluation that would not have been possible prior to his
release.
So, if Mr. al-Megrahi had 3 months to live, why is he alive
today? In order to understand why he's alive, we must learn
what happens to men like him who receive chemotherapy.
Docetaxel, an every-3-week outpatient chemotherapy treatment
program, was shown to reduce pain and extend survival in two
well-done studies reported in the New England Journal of
Medicine in 2004. In fact, men just like Mr. al-Megrahi
survived an average of 17 and 19.2 months from the start of
chemotherapy in those two studies.
Today, and 1 year ago, when Mr. al-Megrahi was released,
men have many other options, even if they fail hormone
treatment and fail chemotherapy. Their prostate cancer can be
managed with three other forms of hormone treatment, another
kind of chemotherapy, or radiation. Finally, he could benefit
from any of three new classes of drugs, which include
immunotherapy with Provenge, which has been in the news
recently, better drugs that prevent the production of male
hormones from weak hormones made from the adrenal glands, such
as abiraterone, or a new small molecule that works better than
the antiandrogen drug Mr. al-Megrahi received. In fact,
abiraterone was discovered in London. And new evidence from a
large trial in the United States suggests that it extends life
in men like Mr. al-Megrahi.
So, if his cancer didn't respond well to hormone treatment,
why is he alive today? Mr. al-Megrahi's failure of hormone
treatment meant that his cancer was aggressive. As such, his
prognosis was worse than others who responded more favorably to
hormone treatment. However, his prostate cancer's rapid growth
actually made a response to chemotherapy all the more likely,
since chemotherapy works best against rapidly dividing cells.
Therefore, I'm not at all surprised that he may be alive, and
even well, more than 14 months after beginning chemotherapy or
other treatments, such abiraterone, for his rapidly growing
prostate cancer.
I also believe that any physician with training and
experience in prostate cancer would find a 3-month prognosis
for a patient in
Mr. al-Megrahi's condition difficult to believe and possibly
even ridiculous.
In short, ladies and gentlemen, I am not the least bit
surprised that Mr. al-Megrahi is alive today. And it should
come as absolutely no surprise to the cancer specialists who
cared for Mr.
al-Megrahi, either.
I sincerely thank the committee for the opportunity to
provide this statement.
[The prepared statement of Dr. Mohler follows:]
Prepared Statement of James L. Mohler, M.D., Sr. Vice President for
Translation Research & Chair, Department of Urology, Roswell Park
Cancer Center, Buffalo, NY
Mr. Chairman, distinguished members of the Foreign Relations
Committee, it is my privilege to come before you today to provide my
expert opinion about the ``three months to live'' prognosis Scottish
physicians gave Abdelbaset Ali Mohmed al-Megrahi in August 2009.
Based on the medical report issued by the Scottish authorities, I
believe that
3-month prognosis was medically unjustifiable. Any physician with any
training or experience in treating prostate cancer would have known
that a 3-month prognosis simply could not be made based on Mr. al-
Megrahi's clinical situation at the time of diagnosis, the treatment
received and the response to that treatment. Moreover, medical
anomalies regarding his care--especially the use of chemotherapy--call
into question how the 3-month prognosis was determined.
qualifications
I base my assessment today on a long history of training, practical
experience, and in-depth research in the field of prostate cancer. I
earned my medical degree from the Medical College of Georgia and
competed residency training in Surgery and Urology at the University of
Kentucky Medical Center and a research fellowship in Urologic Oncology
at the Johns Hopkins University School of Medicine. I am licensed by
New York and North Carolina, a Diplomat of the National Board of
Medical Examiners and the American Board of Urology, and a Fellow of
the American College of Surgeons.
My clinical practice focuses upon prostate cancer and robot-
assisted laparoscopic surgery. My laboratory research focuses upon the
role of the androgen receptor (the protein that binds male hormones to
activate growth) in racial differences in prostate cancer
aggressiveness and prostate cancer recurrence during androgen
deprivation therapy, hereafter called hormone treatment. I have
authored or coauthored 206 publications and book chapters and a book
``Androgen Action in Prostate Cancer.'' I serve on the editorial boards
of The Prostate, Journal of the National Comprehensive Cancer Network,
Therapeutic Advances in Urology, and Hormones and Cancer, and I review
for several journals including Cancer, Cancer Research, Clinical Cancer
Research, Journal of Clinical Oncology, Journal of Urology, and
Urology.
I also am the Associate Director and Senior Vice President for
Translational Research, Chair of the Department of Urology, Founder of
the Prostate Program, and Professor of Oncology, at Roswell Park Cancer
Institute, Professor of Urology at the University at Buffalo School of
Medicine and Biomedical Sciences, and Adjunct Professor of Surgery
and Member, UNC-Lineberger Comprehensive Cancer Center at University of
North Carolina.
I also bring to your attention that I am Chair of the National
Comprehensive Cancer Network (NCCN) Guidelines Panel for Prostate
Cancer, Vice-Chair of the Genito-Urinary Committee and Chair of the
Genito-Urinary Surgery Subcommittee, Cancer and Leukemia Group B
(CALGB), and Past-President of the Society for Basic Urologic Research.
I am a member of the American Medical Association, American Association
for the Advancement of Science, American Association for Cancer
Research, American Urological Association and American College of
Surgeons.
the prognosis of mr. al-megrahi
According to the medical report released by Scottish authorities,
Mr. al-Megrahi was diagnosed September 2008 with poorly differentiated
(Gleason grade 4+5=9 on a scale of 2 [best] to 10 [worst]), bone
metastatic prostate cancer and he had a PSA of 363 ng/ml (normal < 2.5
ng/ml). In layman's terms, this means he was diagnosed with an
incurable prostate cancer that was so advanced it had spread to his
bones.
Fortunately for Mr. al-Megrahi, advanced prostate cancer can be put
into remission in almost all men by starving the cancer of the male
hormones it needs to grow and spread. He began hormone treatment, which
is the standard treatment for advanced prostate cancer, in September or
October 2008.
Mr. al-Megrahi had an initial response to this treatment, and his
PSA dropped to 12.0 ng/ml. In other words, he responded but the failure
of his PSA to fall to normal (<2.5 ng/ml) or undetectable (<0.2 ng/ml)
predicted a remission that would be shorter than average .
Unfortunately for Mr. al-Megrahi, his cancer recurred in spite of
hormone treatment in April 2009 when his PSA rose to 22.1 ng/ml and
then 45.1 ng/ml. In short, the hormone treatment was failing and his
PSA continued to rise, eventually reaching 208.8 July 2009. This
sequence of PSA test values follows a PSA doubling time of
approximately 2 months, which is consistent with a very rapidly growing
prostate cancer. Up until this point, Mr. al-Megrahi's treatment was
standard care.
Mr. al-Megrahi was released August 20, 2009, based on a medical
prognosis that was determined on or before August 10, 2009. We know
this because that was the date of the medical report, prepared by a
Scottish physician named Dr. Andrew Fraser, which was the medical basis
for Mr. al-Megrahi's release. Scottish officials based his
compassionate release on the fact that, according to this report, he
was believed to have 3 months or less to live. In my 23 years of
experience caring for more than 2,000 prostate cancer patients and
reading clinical studies that evaluated thousands of patients in
similar conditions, there is no conceivable way a cancer specialist or
anyone familiar with the treatment of prostate cancer could have given
a 3-month prognosis based on the clinical situation and treatment
described above. Let me explain why:
A patient with prostate cancer with an accurate 3-month
prognosis would have to be almost bedridden. Dr. Fraser noted
in his final medical report that Mr. al-Megrahi's cancer ``did
not restrict or remove (his) ability to carry out any
particular tasks.'' That is not the definition of a patient
with prostate cancer who will die within 3 months. Also, as
could be seen by the footage of his reception in Libya, he was
ambulatory upon his arrival in Libya.
We know that Scottish Government authorities, doctors, and
Mr. al-Megrahi himself all claimed that Mr. al-Megrahi planned
on taking courses of chemotherapy. However, a patient with
prostate cancer with an accurate 3-month prognosis would have
to be so ill that he would have been unable to receive a
regimen of chemotherapy. A patient with prostate cancer with an
accurate 3-month prognosis would instead be given palliative or
end-of-life care focused on pain management and making the
patient as comfortable as possible.
Building on the two previous points, a prognosis of 3-months
survival cannot be made until either all standard treatment
options like chemotherapy have been attempted and evaluated or
the patient has clear symptoms--like an inability to walk--that
make it medically unreasonable to explore further treatment. In
Mr. al-Megrahi's case, they hadn't even begun chemotherapy but
intended to do so, which clearly indicates that he was
physically able to undergo the next course of treatment and was
not within 3 months of dying.
Contrary to documents published by the Scottish Government, I now
understand that Mr. al-Megrahi received chemotherapy in Scotland just
prior to his release. In July 2009, Dr. Andrew Fraser said that
``different treatment options had been discussed, and a new treatment
had been embarked upon.'' This new treatment apparently was
chemotherapy, as stated by George Burgess, the Scottish former Deputy
Director for Criminal Law and Licensing, in a meeting with Senator
Menendez's staff. I'll explore what that would mean for Mr. al-
Megrahi's life expectancy, but first I note that it takes at least 6
weeks to evaluate the effectiveness of chemotherapy after starting the
treatment. If Mr. al-Megrahi began his chemotherapy in July 2009 after
his hormone treatment failed, 6 weeks would not have passed prior to
the final prognosis issued on or before August 10, 2009.
Still, let us explore what happens when patients just like Mr. al-
Megrahi--a patient who had failed hormone treatments and who had
similar symptoms--receive chemotherapy. There are published and readily
known studies from 2004 that enrolled men with recurrent prostate
cancer that proved that using the chemotherapy drug, docetaxel
(TaxotereT), an every 3-week outpatient regimen, reduced pain and
extended survival. These were men who had failed hormone treatment but
were well enough to undergo chemotherapy, just like Mr. al-Megrahi.
These men survived an average of 17 or 19.2 months from the start of
chemotherapy. Another study of 1,296 men on seven different studies, of
whom some received chemotherapy and others received less effective
treatment, showed their average lifespan was 13.3 months. Today, men
have many other options even after they fail hormone treatment and
chemotherapy. Their recurrent prostate cancer can be managed with other
forms of hormone treatment, such as ketaconazole, prednisone, or DES
patches. Mitoxantrone, a weaker chemotherapy, can reduce symptoms but,
unlike docetaxel, does not extend survival, or painful bone metastases
can be treated with radiation.
Finally, Mr. al-Megrahi may benefit from any of three classes of
new drugs, (1) immunotherapy with sipuleucel-T (ProvengeT); (2) better
drugs that block production of strong male hormones from weak male
hormones, such as abiraterone, TAK-700, or VN124-1; or (3) a new small
molecule, MDV3100, which blocks the androgen receptor better than the
antiandrogen Mr. al-Megrahi received. Abiraterone was discovered in
London and new evidence from a large trial in the United States
suggests that it extends life in men like Mr. al-Megrahi.
In other words, Mr. al-Megrahi had many treatment options available
to him in August 2009 that would have extended his life, on average, at
least another year, and more likely 2 years or more.
In short, ladies and gentlemen, I am not the least bit surprised
that Mr. al-Megrahi is alive. And it should come as absolutely no
surprise to the cancer specialists who cared for Mr. al-Megrahi either.
conclusions
Mr. al-Megrahi's release on compassionate grounds appears to have
erred in two fundamental ways. First, we now know that Mr. al-Megrahi
received chemotherapy in Scotland, which Scottish cancer specialists
would have known was going to extend his life on average 17 or 19.2
months, depending on which of these well done, large, well-known
studies you wish to consider. Even if Mr. al-Megrahi didn't receive
chemotherapy in Scotland and he was just planning on receiving such, he
would still live on average 17 or 19.2 months beyond the starting date
when he did receive chemotherapy upon his return to Libya. Again,
Scottish cancer specialists would have known this from medical research
dating from 2004.
The second reason his release appears to have erred was because his
health was inconsistent with a patient with an accurate prognosis of 3-
months survival. For instance, he was not bed-ridden.
Some may speculate that Mr. al-Megrahi's failure of hormone
treatment meant that his cancer was particularly aggressive and
therefore his prognosis was worse than others who responded more
favorably to hormone treatment. That is true; many men have long
remissions from hormone treatment but he didn't. However, his prostate
cancer's rapid growth rate during hormone treatment paradoxically made
a response to chemotherapy all the more likely, since chemotherapy
works best against rapidly dividing cells. In short, patients with
aggressive prostate cancer like Mr. al-Megrahi respond better to
chemotherapy than those patients with a less aggressive prostate
cancer.
Therefore, I am not at all surprised that he may be alive more than
14 months after beginning chemotherapy and/or other treatments (such as
abiraterone) for his rapidly growing, recurrent prostate cancer. I also
believe that any physician with training and experience in prostate
cancer would find a three-month prognosis for a patient in Mr. al-
Megrahi's condition difficult to believe and possibly even ridiculous.
Thank you for this opportunity to address the inconsistencies
apparent in Mr. al-Megrahi's compassionate release from prison.
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10. Standard of care for recurrent prostate cancer--chemotherapy--
can be found in the NCCN Prostate Cancer Guidelines (www.nccn.org/
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11. The survival of men with recurrent prostate cancer can be
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using 7 variables, which include presence of visceral disease, Gleason
score, performance status, PSA at diagnosis, LDH, alkaline phosphatase
and hemoglobin.
Senator Menendez. Thank you very much, Doctor.
Dr. Sartor.
STATEMENT OF DR. OLIVER SARTOR, PILTZ PROFESSOR OF CANCER
RESEARCH, DEPARTMENTS OF MEDICINE AND UROLOGY, TULANE MEDICAL
SCHOOL, TULANE, LA
Dr. Sartor. Thank you, Mr. Chairman, ladies and gentlemen.
I'm pleased today to offer my clinical opinion regarding
the medical prognosis of Mr. al-Megrahi. And I think we really
need to go back to July 2009 and look no further than a report
issued by the Scottish Government. They actually did bring in
some specialists. What the specialists were not able to
conclude is that he had a prognosis of 3 months or less. And
the fact is, they were not willing to say that. And I believe,
based on my many years of clinical experience and expertise,
that medical science would not support a prognosis of 3 months
or less.
Mr. name is Dr. Oliver Sartor. I have a long list of
qualifications, some of which you read. I'm the medical
director and the head of the Prostate Cancer Program at Tulane
University Medical Center. And I've focused on patients with
advanced prostate cancer for over 20 years. I've treated
thousands of patients, and I've published over 100 peer-
reviewed articles, as well as many book chapters, as well.
As you are well aware, when he was released for his,
``compassionate reasons,'' in August 2009, it was stated his
life expectancy was less than 3 months. He was subsequently
seen on international television. And you showed that video
today. And I'll say, based on those videos alone, I would
conclude that the prognosis of less than 3 months was
inaccurate.
For patients who are going to die within 3 months, they're
typically bed-bound. Prostate cancer is a tough disease when it
spreads to the bone and causes weight loss. It causes severe
problems with nutrition and causes inanition, causes pain. This
individual walked down, was greeted in the crowds. I saw the
original video--just to let you know--when I saw it I was a bit
befuddled. Back when he was released--yes, I saw it on
television, not just in the video here--and I was thinking,
``Why is this man being released?'' It was not at all clear to
me then, nor now, why he was given a prognosis of 3 months or
less.
When we go back to part of the medical report released by
the Scottish Government, Dr. Andrew Fraser noted, in August 10,
2009, just 10 days before his release, Mr. al-Megrahi's
condition did not restrict or remove his ability to carry out
any particular task. This is very important, because we look at
prognosis, in part, based on performance status; and given his
lack of restrictions, I simply don't understand the ``3 months
or less.''
Beyond the images that I've alluded to, I also had a chance
to review some of his medical data. When he was diagnosed, he
was treated appropriately. He was given hormonal therapy and
given standard therapy. But, after initially responding to that
treatment, it subsequently began to grow. That's not
unexpected. Hormonal therapy does not cure these type of
patients. But, at the time that his hormonal therapy was
beginning to fail--and Dr. Mohler referred to this--the variety
of known effective therapies--approved by the FDA, I might add,
and approved in treatment in various European countries, as
well--about using chemotherapy for these patients--and it's
known to prolong survival. And if we quote the original data--
and I'll go back to the FDA for a second--it was either 18.9 or
19.2 months of expected survival using chemotherapy for
patients such as Mr. al-Megrahi. And clearly, if he was a
candidate for getting chemotherapy at that time--and there were
discussions that that was the case--we would not even
anticipate a less-than-3-month prognosis, and, fact is, we
would have anticipated much more.
Now, based on this information, it just becomes very
difficult for me to understand why he was given that 3-month-
or-less prognosis. He was considered to be a candidate for
chemotherapy, chemotherapy showed to lead to a 19-month
survival. By the way, a more recent study suggests even longer.
And why they were saying the 3 months, again, befuddles me.
So, in summarizing, I just don't think that this was a
reasonable prognosis. I think that the cancer specialist who
evaluated his case actually recognized that, because they would
not state that he had 3 months or less in his prognosis. And
furthermore--I take this position independently, based on my
experience through treating thousands of prostate cancer
patients--the fact that he remains alive today is not at all
unexpected and leads me, quite frankly, to be very skeptical of
the process whereby he was determined to have this prognosis.
Thank you very much, Mr. Chairman.
[The prepared statement of Dr. Sartor follows:]
Prepared Statement of Dr. Oliver Sartor, Plitz Professor of Cancer
Research, Departments of Medicine and Urology, Tulane Medical School,
Tulane, LA
Mr. Chairman, ladies and gentlemen, I am pleased to be here today
to offer my clinical opinion regarding the medical prognosis given to
Mr. Abdelbasset al-Megrahi. When considering whether a 3-month
prognosis was a reasonable estimate for Mr. al-Megrahi in of July 2009,
I look no further than the medical report issued by the Scottish
Government. In this report it is explicitly stated that no specialist
was willing to say whether or not the prognosis was more or less than 3
months. I believe that they knew--as I know from my many years of
clinical practice and knowledge of research--that medical science would
not support a prognosis of less than 3 months to live.
My name is Dr. Oliver Sartor and I am the Medical Director of the
Tulane Cancer Center in New Orleans, LA. I have focused my career on
patients with advanced prostate cancer for over 20 years and have
published over 100 articles on prostate cancer in the scientific
literature.
In 1990, I was appointed to a Senior Investigator position at the
National Cancer Institute in Bethesda, MD, and became an integral part
of the team focusing on advanced prostate cancer. Since that time I
have been on faculty at various medical schools where I have lectured
about and continue to research prostate cancer. During my career, I
have seen literally thousands of patients with prostate cancer.
As you are aware, Mr. al-Megrahi was released from a Scottish
prison, supposedly for compassionate reasons, in August 2009. At that
time, it was publically stated that his life expectancy was less than 3
months and that then justified his release. Mr. al-Megrahi was
subsequently seen on international television being greeted as a hero
on his return to Libya. I personally watched those television
broadcasts and, based on that alone, I knew that he was not near death.
Let me explain.
Patients who have less than 3 months to live, as Mr. al-Megrahi was
said to be by the Scottish Government, are typically unable to walk
without assistance. Indeed, they are often bed-ridden or close to bed-
ridden because of the pain, weakness, and weight loss that occurs as
consequence of advanced cancer. A man who walks down a steep flight of
stairs off a plane on his own accord, then mingles and greets a crowd,
certainly does not fit the description of someone on the verge of death
from prostate cancer.
I want to emphasize the point by highlighting a part of the medical
report released by the Scottish Government. Dr. Andrew Fraser noted
that, as of August 10, 2009, just 10 days before he was released, that
Mr. al-Megrahi's condition did not restrict or remove his ability to
carry out any particular tasks. This is a very important piece of
medical data to consider. It implies that he had a reasonable
performance status which is an important prognostic factor. Thus it is
clear based on this statement that Mr. al-Megrahi's prostate cancer had
not advanced to the terminal stages that require true palliative care,
that is to say, he was not at the stage where he would best be served
by receiving only pain management in a hospice setting to provide
comfort during his final few months of life.
Beyond the images of Mr. al-Megrahi walking down a staircase, I
have had the chance to review the patient's available medical data and
consider the research available to the specialists treating Mr. al-
Megrahi. Here are the highlights of what I think you should know:
Mr. al-Megrahi had advanced prostate cancer. When he was
diagnosed in September 2008, the patient had a highly elevated
PSA, which stands for ``prostate-specific antigen.'' A high
reading often means prostate cancer but additional tests must
be conducted. Those tests were done in Mr. al-Megrahi's case
and they confirmed cancer was present.
Next, Mr. al-Megrahi received ``hormone therapy,'' which is
standard first-line care for patients with his condition.
Prostate cancer typically regresses when testosterone lowering
therapies are administered.
After initially responding to the treatment, Mr. al-
Megrahi's cancer later began to fail ``hormone treatment.''
This failure was initially manifested only by a rising PSA.
While this is unfortunate, it is to be expected.
In July 2009, Mr. al-Megrahi, Scottish officials, and
doctors rightly began discussing chemotherapy. This is a
standard, ``next step'' treatment after hormone failure. Though
the patient had failed hormonal therapy, and the cancer had
spread to his lymph nodes and bone, he had not yet been treated
with therapies that are established in the field of prostate
cancer. Specifically, he had yet to undergo chemotherapy with
docetaxel, which has been shown in large trials to be able to
extend life in patients such as Mr. al-Megrahi with advanced
cancers that have failed initial hormonal therapy.
Over the past 10 years, various therapies have been shown to
prolong survival. In patients similar to Mr. al-Megrahi, treated with
modern chemotherapy, the median survival is either 18.9 or 19.2 months
(depending on whether the initial or final study report is cited).
Based on the information available to me concerning Mr. al-
Megrahi's condition, there is little doubt that in July and August
2009, he would have been a candidate for chemotherapy. That is why
Scottish officials, doctors, and Mr. al-Megrahi himself were not only
aware of but actively exploring chemotherapy for the patient. They
would have known that it would have the potential capacity to extend
his life.
Let me then emphasize the point: patients like Mr. al-Megrahi who
failed hormone treatment and started chemotherapy have a median
survival time of either 18.9 to 19.2 months. This is quite distinct
from the three months that was cited prior to his release.
To summarize, Mr. Chairman, I again come back to not my words or
clinical assessment but to those of the Scottish cancer experts who
oversaw the treatment of Mr. al-Megrahi. They were not willing to say
that a 3-month prognosis was reasonable. I have shared with you today
the reasons why I believe in July 2009--just weeks before the release
of Mr. al-Megrahi--the cancer specialists held that view. I believe
that they knew that medical science would not support such a prognosis.
I take this position based on my experience in treating advanced
prostate cancer over the past two decades, and based on published data
on patients treated for advanced prostate cancer. data that was well
published in the medical literature and available to be referenced by
those treating Mr. al-Megrahi.
The fact that he remains alive today is not at all unexpected to me
and leads me to be very skeptical of the process whereby his prognosis
was determined at the time of his release from prison.
I am happy to answer any questions at this time.
Senator Menendez. Thank you very much, Doctor.
Dr. Porter.
STATEMENT OF DR. GEOFF PORTER, CONSULTANT,
NEW YORK, NY
Dr. Porter. Mr. Chairman and distinguished members of the
Senate Foreign Relations Committee, I'd like to thank you for
the opportunity to testify today regarding Libya, its energy
sector, its relations with the U.K. and with Scotland.
The release of Abdelbasset al-Megrahi was obviously an
important foreign policy goal for the Libyan Government and is
something that they had pursued for quite some time. And
obviously, the issue of Megrahi's incarceration in Scotland
colored relations between London and Tripoli.
For the last decade, I've been studying North Africa; and
for the last 6 years, I've been a specialist focusing on
political risks in North Africa and the Middle East, with a
focus on Libya. More recently, I've begun working with an
investigative firm that deals with fraud and corruption
investigations overseas.
My analysis is objective, it's agnostic, it's factual-
based, and is impartial.
Thank you.
It's clear, from the very outset, that al-Megrahi's release
was important--an important foreign policy goal for the Libyan
Government.
First, the Libyan Government never recognized the
legitimacy of The Hague ruling, which led to al-Megrahi's
incarceration, nor did it recognize the ongoing Scottish
incarceration of al-Megrahi.
Second, Libyan leader Col. Muammar Qaddafi felt as if he
hadn't been duly compensated for his renunciation of weapons of
mass destruction in 2004, and he felt as if perhaps of his
renunciation of weapons of mass destruction should have wiped
his checkered history of international affairs clean.
Third, al-Megrahi comes from an important tribe, the
Megarha. One of the ways in which Colonel Qaddafi retains power
in Libya is through the management of tribal politics. Securing
al-Megrahi's release was critical for Qaddafi's ability to
maintain the Megarha's tribal--the Megarha tribe's support for
his leadership. And having secured his release guaranteed that
the Megarha would continue to support al-Qaddafi.
And last, 2009 was the 40th anniversary of Qaddafi's
revolution in Libya, and Megrahi's release guaranteed a
celebratory and symbolic event suitable for marking the
occasion.
Libya has a long history of pressuring foreign firms in
order to achieve its foreign policy objectives. I'll just limit
myself to a couple of examples here, for the sake of time. But,
what's clear is that foreign companies doing business in Libya
are very exposed to political risks.
For example, in 2008, two employees of the Swiss EP&C firm
ABB were detained and arrested in retaliation for the arrest in
Geneva of one of Qaddafi's sons, Hannibal Qaddafi. Hannibal
Qaddafi returned to Tripoli and the Swiss employees remained in
custody in Tripoli.
In 2009, the Canadian firm Petro-Canada saw its Libyan oil
production cut in half following criticism from the Canadian
Prime Minister of the celebration that marked al-Megrahi's
return to Tripoli.
In 2010, representatives of the United States oil firms
doing business in Tripoli were brought in before the Libyan
Government and chastised, following comments from the U.S.
State Department criticizing Qaddafi's call for jihad against
Switzerland.
So, it's clear from these limited examples--and there are
many more--that doing business in Libya is fraught with
political risks, and that Libya uses the presence of foreign
firms in order to achieve its foreign policy objectives.
So, given the government's willingness to squeeze foreign
firms in order to achieve its foreign policy goals, and the
importance of securing al-Megrahi's release, his release from
Scottish incarceration removed one element of political risk
for U.K. firms doing business in Libya. That said, Libya is a
sovereign state and the U.K. is a sovereign state, and each
determines its own foreign policy, and each tries to secure its
own security interests, as well as its own economic interests.
While U.K. firms may have benefited from al-Megrahi's release,
there is no evidence that they caused his release, to the best
of my knowledge.
U.K. companies do not represent the largest block of
foreign firms operating in Libya. There are also French,
Italian, and German firms that have extensive presences there.
But, U.K. firms and U.K. investments in Libya are very high-
profile, including very large and costly oil and gas
exploration commitments. It's important to note that these
investments from U.K. firms in the Libyan oil and gas sector
predated al-Megrahi's release by at least 2 years. It's likely
that al-Megrahi's ongoing incarceration in Scotland could have
jeopardized U.K. businesses in Tripoli and, at the very least,
his ongoing incarceration would have posed a threat to their
continuing ability to do business there. His release reduced
that risk, but I have not seen evidence that proves that the
risk posed to U.K. firms caused his release.
Thank you very much, and I look forward to your questions.
[The prepared statement of Dr. Porter follows:]
Prepared Statement of Geoff D. Porter, Ph.D., New York, NY
Mr. Chairman, distinguished members of the Foreign Relations
Committee, I would like to thank you for the opportunity to testify
about Libya, its government, its energy sector, and its relationship
with the United Kingdom and Scotland. The release of Abdelbaset al-
Megrahi was an important foreign policy goal of the Libyan Government
and, as such, there is little doubt that this issue had a broader
impact on the relationship between Libya and the United Kingdom.
qualifications
For the last decade I have been studying North African political
developments. I have a Ph.D. in Middle Eastern Studies, with a primary
focus on North Africa. After leaving academia I worked in a consultant
capacity for 6 years analyzing political risk for companies doing
business in Middle Eastern and African countries, including Libya. My
assessment of political risks in Libya is apolitical and based entirely
on analysis of factual evidence.
the foreign policy relationship between the u.k. and libya revolves
around oil and gas exploration
The U.K.'s relationship with Libya is predominantly related to
commercial interests, and oil and gas exploration in particular.
Beginning in 2003, and perhaps earlier, British officials began a
series of meetings with Libyan officials to discuss how Libya might
reestablish its relationship with the international community. These
discussions revolved around Libya giving up its Weapons of Mass
Destruction Program and from the Libyan perspective, how Libya might
again attract European and U.S. investment to revive its declining oil
production. Representatives of the U.S. Government have been reported
to be in some of these meetings.
In March 2004 Prime Minister Tony Blair arrived in Libya to discuss
a ``new relationship'' with Libyan leader Col. Muammar Qadhafi after it
was announced that Libya would abandon its WMD program and would commit
to further compensation for the families of the victims of the Pan Am
103 Lockerbie bombing. The same day, Prime Minister Blair announced
that Royal Dutch Shell, a publically traded company that is 60 percent
Dutch and 40 percent British, would sign a $513 million gas exploration
contract with Libya. Later in May 2007, Tony Blair visited Tripoli and
announced a $900 million oil and gas exploration contract for BP.
These public appearances of the British Prime Minister to announce
oil and gas exploration deals underscore the role that hydrocarbon
sector plays in U.K.-Libyan relations.
bp and shell oil deals in libya
Libyan oil reserves were critically important for global oil and
gas companies during the period 2004-08. Global oil demand was rising,
as were prices, which rose from below $30/barrel in September 2003 to
more than $147/barrel in July 2008. At the same time access to oil
reserves had become severely constrained and Libya stood out as a
potentially very profitable oil play. Libya had abundant reserves of
high quality crude that was both cheap to extract and close to global
markets. When international sanctions were dropped in 2004,
international oil companies including those from the United States, the
European Union, Russia, China, Japan, and India jockeyed to gain access
to the Libyan oil patch.
International oil companies that signed oil and gas exploration
deals in Libya can be put into three categories. The first group is
comprised of those companies that reclaimed dormant leases that they
had been forced to abandon because of U.S. and international sanctions
in the 1980s. The Oasis group (Amerada Hess, ConocoPhillips, and
Marathon Oil) falls into this category. The second group consists of
companies that participated in four open bid rounds to lease tracts of
previously unexplored areas. In this process, companies submitted bids
and those with the bids most favorable to Libya won the right to
explore the area on those terms. Winning bids were based on percentage
of oil allocated to the Libyan National Oil Corporation (NOC), signing
bonus, and development program. Bid rounds generally lead to terms that
are favorable to the states that are organizing them, which is why they
are a popular method of leasing oil and gas acreage to foreign firms,
but the terms that the first three of Libya's four rounds produced were
exceptionally onerous for foreign firms.
The third category is comprised of companies that negotiated
bilateral deals with Libya to explore new areas for development. Many
in the industry felt that while the bid rounds offered the advantage of
a clear timetable for awarding acreage, bilateral negotiations with the
NOC would yield better terms, even if discussions took longer. For its
part, the NOC made clear from 2004 onward that it prioritized the bid
round framework, but was also open to direct negotiations with oil and
gas companies.
Only three companies in this time period negotiated bilateral
exploration deals with Libya: BP, Royal Dutch Shell, and ExxonMobil. In
2005, Royal Dutch Shell struck a deal valued at approximately $513
million to explore oil and natural gas in an area spanning 7,000 square
miles. In 2007, BP signed a deal in Libya valued at $900 million for
access to offshore acreage. BP heralded its deal as the largest single
exploration commitment ever signed by the company. BP was awarded
18.955 percent production share, with the NOC taking 77.7 percent and
the Libyan Investment Authority (LIA) taking the remaining 3.345
percent.\1\ While some companies that won acreage through the bid round
framework received less that 10 percent production shares, the average
production share in the first bid round was 14.5 percent. ExxonMobil's
production share for its acreage was 22.3 percent, whereas India's ONGC
won a 28 percent production share. Although ExxonMobil's production
share from its bilateral negotiations was not made public, the company
committed to a 5-year work program of 4,000km of 2D and 2,000km of 3D
seismic analysis and at least one deep water well. ExxonMobil also
committed to a training program for Libyan petroleum sector workers and
broader support for Libyan education. Many factors influence how
production shares are divided among a project's stakeholders, including
the scope of the project, capital expenditures, the prospectivity of
the acreage, and the complexity of the overall project. Nonetheless, BP
and Shell, both countries with close ties to the British Government,
were able to secure large deals for unexplored areas outside the bid
round process.
---------------------------------------------------------------------------
\1\ ``BP Libya Deal Details Set,'' International Oil Daily, May 31,
2007.
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the importance of abdelbaset al-megrahi to libya
Gaining the release of Abdelbasset al-Megrahi was a central foreign
policy goal of the Libyan Government for multiple reasons. First, Libya
had consistently asserted that al-Megrahi was innocent of the crimes of
which he was accused. Given numerous public statements from Libyan
officials declaring al-Megrahi's innocence, it was politically
impossible for the government to reverse its position and acknowledge
the legitimacy of his conviction at The Hague or his incarceration in
Scottish prison.
Second, al-Megrahi's tribal ties made his release important for the
political viability of Qadhafi's continued leadership in Libya. One of
the ways in which Qadhafi has managed to maintain support in Libya for
40 years is through tribal alliances. Qadhafi himself comes from the
Qadhadfa tribe, whereas al-Megrahi comes from the al-Megarha tribe,
which has historically played an important political role in Libya.
Securing al-Megrahi's release was critical for ensuring the Megarha's
continued support of Qadhafi's leadership.
In addition, Qadhafi has expressed on numerous occasions that his
country made tremendous sacrifices when it abandoned its WMD programs
in 2003, but those sacrifices had not be sufficiently recognized by the
international community, nor had Libya be duly compensated for them. It
is possible that Qadhafi expected Libya's checkered record in
international affairs to be wiped clean after renouncing WMD and he
thought that al-Megrahi's conviction for his role in the Lockerbie
bombing should be part of that.
Last, Libya was marking the 40th year of Qadhafi's revolution in
2009 and the government wanted politically potent symbols to
distinguish the event. Al-Megrahi's release would symbolize the Qadhafi
family's enduring commitment to Libya's citizens and the restoration of
Libya's role on the international stage.
libya uses commercial ties to achieve foreign policy aims
It is clear that Libya does not maintain a clear distinction
between the government and the marketplace and the state often uses
access to Libyan markets and natural resources in order to achieve
foreign policy objectives. In other words it is willing to put pressure
on oil companies in order to achieve its political aims.
BP indicated to the U.K. Government that al-Megrahi's ongoing
incarceration would pose challenges to BP's ability to continue to do
business in Libya after it was awarded acreage. Like every company that
does business in Libya, BP was well aware of the country's political
risks. Al-Megrahi's release would reduce BP's exposure to political
risk.
BP, perhaps more than other companies, was aware of the risks of
doing business in Libya. After all, in 1971, Libya nationalized BP's
assets in the country in response to developments in U.K. foreign
policy. A diplomatic row between Britain and Libya occurred on November
29 and 30 of 1971, when the U.K. was set to withdraw its forces and
grant independence to the sparsely inhabited Persian Gulf islands of
Abu Musa, Greater Tunb, and Lesser Tunb. Then U.K.-friendly Iran, which
had agreed to jointly administer Abu Musa with Sharjah (now a part of
the UAE) unexpectedly seized and occupied Greater and Lesser Tunb.\2\
Shortly after, on December 7, 1971, the Libyan Government nationalized
``all the interests and properties of BP in the Hunt/BP deed of
concession'' \3\ announcing that, ``it had nationalized the assets of
the British Petroleum Exploration (Libya) Ltd. in retaliation for Great
Britain's failure to prevent Iranian occupation of Arab islands in the
Persian Gulf.'' \4\
---------------------------------------------------------------------------
\2\ ``UAE renews calls for talks on disputed islands,'' Arabian
Business, May 23, 2009.
\3\ Robert B. von Mehren and P. Nicholas Kourides, ``International
Arbitrations between States and Foreign Private Parties: The Libyan
Nationalization Cases,'' The American Society of International Law,
July, 1981, 483.
\4\ Winthrop G. Haight, ``Libyan Nationalization of British
Petroleum Company Assets,'' International Lawyer, Vol. 6, No. 3, 1972,
541.
---------------------------------------------------------------------------
Other foreign oil companies, including Occidental Petroleum, Exxon,
Mobil, Shell, and Texaco \5\ were able to broker deals with Libya that
kept them operational during a period of nationalizations and pullouts
between 1973 and 1986, when all American oil interests were finally
prevented from doing business in Libya.\6\
---------------------------------------------------------------------------
\5\ Andrew Carvely, ``Libya: International Relations and Political
Purposes,'' International Journal Vol. 28, No. 4, Autumn, 1973, 711.
\6\ Library of Congress, http://countrystudies.us/libya/
60.htm(August, 2009).
---------------------------------------------------------------------------
Libya's nationalization of BP's assets was not done out of economic
interest for Libya, but was clearly a punitive measure directed toward
the Government of Britain and its greatest financial asset, British
Petroleum. In 1973, Libya nationalized the assets of a further nine
foreign companies in order to express its opposition to U.S. foreign
policy positions at the time.
This approach has resumed since sanctions against Libya were
dropped in 2004 and international oil companies returned. In 2009,
Petro-Canada's Suncor lost 50 percent of its oil production in
retaliation for Canada's criticism of al-Megrahi's release and the
celebratory reception he received upon returning to Tripoli. Canadian
Prime Minister Stephen Harper made public comments that he was
displeased with the triumphant return that al-Megrahi received in
Libya. Petro-Canada promptly saw its daily production halved, from
90,000bpd to 45,000bpd, at the order of the Libyan Government,
according to Petro-Canada. Qadhafi also cancelled plans to visit Canada
after the Prime Minister made his remarks. Libya said that Petro-
Canada's production was halved to meet OPEC quotas, but no other oil
company had its production disrupted.\7\
---------------------------------------------------------------------------
\7\ http://www.allbusiness.com/company-activities-management/
company-structures/13233739-1.html.
---------------------------------------------------------------------------
More recently, in 2010, representatives of U.S. oil companies
operating in Libya were chastised by the Libyan Government after
Qadhafi objected to comments from the U.S. State Department. A State
Department spokesman commented on Qadhafi's call for jihad against
Switzerland for arresting his son Hannibal. Qadhafi viewed these
comments as personally offensive and summoned the executives of U.S.
oil companies doing business in Libya to warn them that their
businesses were in jeopardy over this row.
In other instances, the punitive aspect of Libya's manipulation of
the commercial environment is starker. In 2008, Libya detained Swiss
businessmen in Libya, including the employees of Nestle and ABB, in
retaliation for the arrest of Hannibal Qadhafi, one of Colonel
Qadhafi's sons, in Geneva. Libya ultimately arrested and detained two
ABB employees for almost 2 years--even after Hannibal Qadhafi had
returned to Tripoli.
Based upon these and other instances, it is clear that Libya is
willing to pressure companies doing business in Libya to attempt to
achieve foreign policy aims.
Given these incidents, BP would clearly want to minimize its
exposure to political risk in Libya and its vulnerability to Qadhafi's
mercurial decisionmaking. One of the ways to do so was to urge the U.K.
Government to ratify a pending Prisoner Transfer Agreement between
Libya and the United Kingdom. Al-Megrahi was the only prisoner that was
contemplated to be transferred under the agreement. Al-Megrahi's
transfer would remove one thorn in the side of U.K.-Libya relations and
reduce the likelihood that BP would fall victim to Qadhafi's history of
strong-arming foreign firms.
Other U.K. interests may have been wary of the political risks that
al-Megrahi's ongoing incarceration posed and would have benefited
either directly or indirectly from his release. Following the
dismantling of the international sanctions regime against Libya in
2004, many European countries, including Italy, France, and Russia,
were competing to sell Libya new arms and defense technology. Al-
Megrahi's release lowered one obstacle for U.K. arms manufacturers
interested in competing with their European counterparts for their
share of the Libyan market. In 2008, the U.K. Government approved arms
sales to Libya worth $18 million.\8\ In May 2010, Britain's General
Dynamics U.K. announced a $165 million deal to supply a tactical
communications system to elite units of the Libyan army.\9\
---------------------------------------------------------------------------
\8\ ``Freeing Libyan bomber `boosted arms talks'.'' UPI, July 16,
2010 http://www.upi.com/Business_News/Security-Industry/2010/07/16/
Freeing-Libyan-bomber-boosted-arms-talks/UPI-24251279298306/.
\9\ ``Libya Purchases Gear from General Dynamics U.K.'' Andrew
Chuter, DefenseNews, May 8, 2010 http://www.defensenews.com/
story.php?i=3518749.
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The U.K. may have also have been interested in attracting
investments from Libya's sovereign wealth fund, the Libyan Investment
Authority, which at the time had a market cap of US$60mn. (The fund now
has approximately US$80mn to invest.) Were al-Megrahi to have remained
in prison, it is unlikely that the LIA would have pursued U.K.
investments.
Libya also made clear to Scottish authorities that bilateral trade
and Mr. al-Megrahi's release were linked. In October 2008, the Libyan
Charge d'Affaires Omar Jelban wrote to Scottish First Minister Alex
Salmond and said that he wanted to discuss two issues: the medical
condition of Mr. al-Megrahi and enhancing current trade links between
Libya and Scotland.
In short, Libya is a country where diplomatic relations
disproportionately impact foreign direct investment. Where relations
are favorable, companies reap the benefits. When relations sour,
companies bear the brunt of retaliatory measures.
qatari investment in scotland and the al-megrahi connection
Not only was Libya interested in al-Megrahi's return--Qatar was as
well. According to publicly released documents by Scotland, in June
2009, Scottish First Minister Alex Salmond received a delegation of
Qatari officials. The meeting was focused on discussing Qatari interest
in investing in Scotland and, notably, the Scottish banking system.
Also expressed at the meeting was Qatar's interest in al-Megrahi's
release. The Qatari delegation explained that Qatar currently held the
chair of the Arab League, and that Libya had raised the issue of al-
Megrahi's release during the League's last summit.
conclusion
To conclude, the return of al-Megrahi was of great importance to
Libya, and like it has in the past, it was willing to use its
commercial leverage with the U.K. to ensure his release.
Senator Menendez. Well, thank you all for your testimony.
We'll start a first round of 7 minutes, and then we'll have
another round, if necessary.
In my first round, I'm going to focus on our two medical
experts, and then I'll come back to you, Dr. Porter, in our
second round.
Dr. Mohler, I think you've made it rather clear that it was
not medically possible for a 3-months-to-live prognosis, in
August 2009, to be given to Mr. al-Megrahi. Is that fair to
say?
Dr. Mohler. Yes.
Senator Menendez. You saw the video earlier in the
presentation and alluded to it. The fact that Mr. al-Megrahi
could walk down a flight of stairs unassisted, does that tell
you anything about his medical condition or the accuracy of a
3-month prognosis?
Dr. Mohler. I want everyone here to understand that
prostate cancer is a very slow-growing disease, and so we talk,
in prognosis, in terms of months and often even years. It would
be very difficult to give a prognosis of 3 months to a prostate
cancer patient who was able to negotiate a flight of stairs.
Not knowing what his laboratory situation or organ status was,
you don't know if there was any silent threat to his life
posed, except that you can presume, by his still being alive 14
months later, that there was not.
The biggest problem here is that the Scottish authorities
in the prisons were still exploring treatments and, in fact,
indicate in their records that in July they added a new hormone
treatment, and in July they considered chemotherapy. And
according to George Burgess, he received a first dose of
chemotherapy.
So, one would never give a 3-month prognosis to anyone
where you were still trying new active treatments that are
likely to extend survival by 18 months or more.
Senator Menendez. So, if someone were to be considered for,
or in receipt of, chemotherapy treatment, it wouldn't be
administered in the last 3 months of their lives.
Dr. Mohler. Right. Chemotherapy is still rather toxic. And
to withstand a full regimen of Taxotere, which usually consists
of every-3-week treatments for a minimum of six treatments, one
does have to have a good, what we call, ``performance status.''
And the patient clearly had that, as evidenced by his ability
to negotiate stairs, which is one of the many criteria we use,
but is a very good indicator of ability to withstand a regimen
of chemotherapy. He appeared to be a candidate for
chemotherapy.
Senator Menendez. Doctor, what physical condition would be
expected of a patient with advanced prostate cancer and an
accurate 3-months prognosis?
Dr. Mohler. They would usually be unable to walk
unassisted. They certainly wouldn't be able to climb stairs.
They would most often be bedridden. They could be suffering
renal failure from obstruction of the kidneys by the cancer.
They definitely would have lost their appetite and be losing
weight. They would look like a prison camp survivor. They would
be anemic. They could have liver failure. They would have had
to have decided that they would not seek any more active life-
prolonging treatment. They would be someone who is in pain, and
their physicians would be seeking to alleviate that pain and
would not be exploring any other types of active treatment.
Senator Menendez. And finally, based upon your review of
the medical records that the Scottish Government released, did
his physical condition match that of someone with an accurate
3-months prognosis?
Dr. Mohler. No. As a matter of fact, the final report, by
Andrew Fraser, that led to his release actually indicates that
he shouldn't have been released. And I quote, ``Concluding
specialist's view is that, in the absence of a good response to
treatment, survival could be in the order of months, and no
longer many months.'' So, Dr. Fraser said that, without any
additional treatment, survival could be months, but they were
pursuing active treatment, therefore negating the possibility
of a 3-month prognosis.
Senator Menendez. Thank you.
Dr. Sartor, according to the Scottish Government's own
medical report, the four cancer and urology specialists that
the Scottish consulted did not agree with the 3-month
prognosis. Is that correct?
Dr. Sartor. That's correct.
Senator Menendez. And why do you believe that none of the
specialists who were consulted would offer a 3-month prognosis,
based on the information you have?
Dr. Sartor. Well, certainly, first of all, they probably
had a little more information than we do today, because I've
not had his full medical records to review, including
laboratories that could be important. But, some of these
specialists, I know, are extremely well qualified, particularly
the one from Royal Marston in London, and I think that he knew
that this was not a patient with a 3-month prognosis, and he
would not agree. So, when we get this panel of experts--not the
prison doctors, but the real experts in the disease--they did
not agree with the less-than-3-month prognosis.
[An additional written clarification to Senator Menendez's
question follows:]
Cancer specialists usually seek to determine when a terminally ill
patient has 6 months to live because this is a well accepted criteria
for hospice care. The focus upon a 3-month prognosis appears to derive
from a desire to establish grounds for ``compassionate release'' under
Scottish penal law. In order to achieve ``compassionate release,''
Andrew Fraser, Director of Healthcare for the Scottish Prison Service,
could have reconsulted the specialists who saw Mr. al-Megrahi in August
2008, who included Dr. Zak Latif, a urologist from Paisley, Dr. Richard
Jones, a medical oncologist from Glasgow, Dr. Geoffrey Orr, the
diagnosing urologist and Dr. Graham Howard, a medical oncologist from
Edinborough. He appears instead to have relied upon a family
practitioner and two of three physicians who were hired by the
government of Libya. He disregarded one of the paid consultants and an
unnamed urologist who examined Mr. al-Megrahi. Dr. Jonathon Waxman
(paid by Libya), a professor from London, felt that Mr. al-Megrahi
``did not have long to live'' but he was unwilling to provide a 3-month
prognosis. An additional opinion from an unnamed consulting urologist
was referenced in Mr. al-Megrahi's personal application for
compassionate release dated July 2009. The urologist examined Mr. al-
Megrahi June 25, 2009, and determined Mr. al-Megrahi's demise would
occur ``before the end of the year'' (prognosis 6 months). A prognosis
of 3 months was provided by Mr. al-Megrahi's prison physician and two
physicians paid by the Libyan government. A 3-month prognosis was
provided by Dr. Ibrahim Sharif, a medical oncologist at Tripoli Medical
Center, who has assumed Mr. al-Megrahi's care in Libya. A 3-month
prognosis was also assigned by Dr. Karol Sikora, Professor, Medical
Director of Cancer Partners U.K. and Dean of the Buckingham Business
School, in London. Finally, a 3-month prognosis was provided by Dr.
Peter Kay, Mr. al-Megrahi's personal physician while imprisoned. Dr.
Kay is a part-time prison doctor and part-time family practitioner who
had been in family practice since 2006. He had no special training in
oncology, in general or prostate cancer, specifically. In conclusion,
``compassionate release'' required the unusual medical designation of a
3-month prognosis that was obtained from 3 physicians who include a
young family practitioner with no prostate cancer experience, the Dean
of the Buckingham Business School, and Mr. al-Megrahi's medical
oncologist from Libya.
Senator Menendez. Now, it seems, based upon the medical
report and from the discussions that my staff has had with the
Scottish Government--it appears that the 3-month prognosis came
down to a doctor, Peter Kay, who is a general practitioner. Dr.
Fraser, who you referred to, is also a general practitioner.
While I have great respect for general practitioners, we'll
enter into the record a description of Dr. Kay and Dr. Fraser's
medical qualifications from the British National Health
Service.
Without objection, it is so ordered.
[Editor's note.--The information referred to can be found,
and will be maintained, in the permanent record of the
committee.]
Senator Menendez. In your experience, would one rely on a
general practitioner to provide a prognosis for a patient with
advanced prostate cancer like Mr. al-Megrahi?
Dr. Sartor. No. It's a rapidly evolving field. There are
new therapies, which Dr. Mohler alluded to. There's a science
behind it. There's nomograms that we can utilize. It's not
really within the purview of the general practitioner. This is
a specialist's decision.
Senator Menendez. Does it sound sensible to you that after
having four cancer specialists say that a 3-month prognosis for
Mr.
al-Megrahi was not something that they could agree to, the
Scottish authorities relied on the opinion of two general
practitioners?
Dr. Sartor. No, you know, I concluded my statement by
saying I was skeptical of the process. And that's one of the
reasons why. It's just not a process that I think that we would
endorse here today.
Senator Menendez. Thank you very much.
Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
I have a full statement. And, with permission, I'd like to
have it included in the record.
Senator Menendez. Without objection.
Senator Barrasso. Thank you.
[The prepared statement of Senator Barrasso follows:]
Prepared Statement of John Barrasso, U.S. Senator From Wyoming
On December 21, 1988, Pan Am Flight 103 exploded over Lockerbie,
Scotland killing 270 individuals.
In January 2001, al-Megrahi was convicted for his role in the
bombing Pan Am Flight 103.
In August of last year, Americans were shocked and outraged over
the release of al-Megrahi by the Scottish Government.
Al-Megrahi is a convicted terrorist who took the lives of 189
American citizens. At a minimum, he deserves to spend the rest of his
life behind bars. But instead of justice, this terrorist was released
and received a hero's welcome upon his return home to Libya.
The world was told that he was released on compassionate grounds
because he had terminal cancer giving him only 3 months to live. Over a
year has passed since his release. It is clear that something went
seriously wrong. He is still alive and living a life of luxury with his
family in Libya.
The American people, especially families of those who lost loved
ones in Pan Am Flight 103, deserve answers and the real facts.
I am pleased that the committee is holding this hearing today and I
look forward to the testimony of the witnesses.
Senator Barrasso. For the physicians, the urologists, is
there any area in which you disagree?
Dr. Sartor. I'm not aware.
Senator Barrasso. Do you have way to--with what you know
now--and I don't know if you've seen an recent videos of this
man--do you have any idea or any thoughts on what his potential
lifespan is at this time?
Dr. Sartor. I don't really have very much information, but
I understand that he is actually still able to walk. And, you
know, the fact that he's alive today, 13 months after he was
given this, ``3-month prognosis,'' you know, clearly indicates
that that initial prognosis was wrong. But, today he might even
be living more than 3 months. It's hard for me to evaluate, in
all honesty.
Senator Barrasso. Dr. Mohler, any idea.
Dr. Mohler. I would agree with that. I think, now that we
know that patients getting chemotherapy for symptomatic
advanced prostate cancer live beyond the 17- to 19.2-month
survivals that were used for FDA approval of Taxotere--probably
closer to 2 years. So, if I were going to make a wager, I'd
wager on another year.
But, I have to remind everyone that, contrary to what many
believe about physicians, we cannot predict the future. And I
think, here, that we have a couple of family practitioners who
were guilty of predicting the future.
Senator Barrasso. Yes.
Well, Mr. Chairman, I just want to concur. You know, I'd--
we all have a great respect for family physicians that--you
know, I practiced medicine for 25 years. I actually have a
letter from Tulane, accepting me into the urology program in
1977, so I have great respect for that institution and where
you train. And I looked at this, like you did, and said,
``There's something very wrong with this whole thing.''
So, I guess the question to Mr. Porter--you know, from a
historical--what really happened here? Are we looking at a
``Mission Impossible'' script, where they said, ``Hey, how do
we get this guy, you know, out of Scotland and back to his
home? And if we can--let's get him out on a medical and try to
fool some folks''? What do you think happened here?
Dr. Porter. At the risk of speculating--I don't have any
direct insight into what really took place between the U.K.
Government, the Scottish Government, and the Libyan
Government--but, as I said in my opening comments, it's clear
that securing al-Megrahi's release was a top priority for the
government in Tripoli. And it's also clear that they were
going--they were willing to go to great lengths, including
potentially strong-arming U.K. firms in Libya in order to
secure his release. And that appears to be what has transpired.
Now, I certainly don't have any of the expertise that my
copanelists have regarding his health or his life expectancy at
this point, but, as you've rightfully point out, he is alive
and well--or, he is alive; I'm not sure how well he is--and it
appears as if Libya has achieved one of its fundamental foreign
policy objectives in this instance.
Senator Barrasso. Thank you.
And, Mr. Chairman, I just wanted to commend you for your
efforts to continue focusing on this. And we wanted to have
hearings during the summer--weren't able to do that--and then
you had additional research done, folks on your team going out
to make sure that we would get this additional information. And
I want to thank you for bringing these medical experts and
specialists here today.
Thank you, Mr. Chairman.
Senator Menendez. Thank you, Senator Barrasso. And thank
you for attending, and your insights, as well.
I have a set of questions I'd like to ask Dr. Porter. And I
appreciate you being here, as well, in your own right.
You said that--in your testimony--and I just want to make
sure I have the highlights here; and correct me if any of this
is wrong--that Mr. al-Megrahi was important to Qaddafi because
of a series of issues. No. 1, that Mr. al-Megrahi's family
tribe was politically important, for domestic purposes, to
Qaddafi. Is that correct?
Dr. Porter. That's correct.
Senator Menendez. And that that would placate hard-liners
who might challenge Qaddafi.
Dr. Porter. That's correct.
Senator Menendez. And that they also believe that al-
Megrahi was innocent.
Dr. Porter. Yes.
Senator Menendez. And that he felt that he gave up too--
this is Qaddafi, now--gave up too much in the 2003 weapons of
mass destruction deal, and he wanted something more for what he
gave up. Is that a fair statement?
Dr. Porter. That's exactly right. He stated so, himself.
Senator Menendez. Now, when Libya gave up its weapons of
mass destruction program and attempted to normalize
relationships with the rest, what role did the British
Government play?
Dr. Porter. When Libya began to search for ways to return
to the international community and come out of international
isolation, one of the first governments that the Libyan
Government approached was the U.K. Government. And I believe
that Tripoli saw London as a fair and potentially beneficial
interlocutor for Libya on the international stage. And so, the
initial discussions for Libya's return to the international
community began between London and Tripoli, and then
incorporated the broader international community.
Senator Menendez. And didn't the British accelerate their
normalization with Libya at a much faster rate, particularly in
commercial ties?
Dr. Porter. At that--at what time?
Senator Menendez. At--when they were beginning to--when the
Libyans went to them to say, you know, ``We want to stop our
isolation, we want to be integrated,'' didn't the British, at
the beginning of that process, move, for example, much quicker
than the United States and other governments did?
Dr. Porter. What--while Libya was returning to the
international community, the world was experiencing a spike in
oil demand and in oil prices. And one of the things that Libya
presents to the global community is abundant high-quality,
cheap oil. And so, as the U.K. was beginning to enter into
negotiations and discussions with the Libyan Government, many
countries, the U.K. included, were also interested in trying to
get into Libya in order to secure those oil assets.
Senator Menendez. And, Dr. Porter, as the United Kingdom
was playing an important role in normalizing Libyan relations
with the West, this also allowed them to establish trade
relations with Libya quickly and pretty aggressively. It
resulted in two lucrative deals for oil companies with close
ties to the United Kingdom, a $513 million oil and gas
exploration deal for Shell, and a $900 million oil and gas deal
for BP. Both of these deals were announced by the British Prime
Minister in Tripoli. Besides being quite large deals, were they
different from other deals struck by Western oil companies in
Libya?
Dr. Porter. Yes, sir.
Senator Menendez. How so?
Dr. Porter. Since 2004, Libya had conducted four open bid
rounds for oil and gas acreage. Normally what happens, an oil
company assesses the acreage that they would like to acquire in
a given country, they prepare a bid, those bids are submitted
and then opened publicly, and the awards are allocated, and
then signed some time after the awards have been allocated.
Neither BP nor Shell participated in bid rounds or--I
should restate that--neither BP nor Shell acquired acreage
through bid rounds. Instead, they acquired their acreage
through direct bilateral negotiations with the Libyan National
Oil Corporation, the NOC. One of the things that distinguishes
the bilateral negotiations from bid-round format is, bilateral
negotiations tend to result in better terms for the
international oil company--in this case, BP and Shell--than the
terms that would have resulted from participating in the bid
rounds.
Now, one of the things that also distinguishes bilateral
negotiations is, the types of acreage or projects that BP and
Shell were pursuing were big, they were complex, they were
technically difficult, they were very capital-intensive. One of
the things that allowed BP and Shell to pursue these
negotiations was that they had the expertise and they also had
the capital in order to guarantee or convince the Libyan
National Oil Corporation that they would be able to manage the
projects that they had undertaken.
It's also worth noting that all of the only other types of
companies that had the capital to be able to pursue these
projects, or had the technical expertise to pursue the projects
that BP and Shell were ultimately awarded, were already in
Libya. These tend to be referred to as the ``super majors.''
The last two super majors to enter Libya were BP and Shell.
Senator Menendez. And didn't--isn't it also true that the--
their negotiations allowed for a greater company share?
Dr. Porter. The negotiations allowed for a company share of
the production of oil that was about 4 percentage points higher
than the average production share award to IOCs that had won
acreage through the bid-round format.
Senator Menendez. OK. Let me--so, you cited a couple of
examples. In--isn't--going back in a earlier example, in 1971,
Libya nationalized all of BP's assets over a foreign policy
dispute. Isn't that true?
Dr. Porter. That's correct.
Senator Menendez. It was a dispute involving the United
Kingdom supporting Iran taking control of several islands, as a
matter of fact. Should, then--BP clearly would have known full
well that Libya uses its assets, its natural resources in oil,
in the pursuit of foreign policy.
Dr. Porter. That's entirely true. BP, as well as any other
foreign firm that does business in Libya, is well aware of the
political risks. But, as you rightfully point out, BP itself
had been the subject of a particular political grievance that
the Libyans had with the U.K. Government in 1971 with the
Iranian occupation of several islands in the Persian Gulf.
Senator Menendez. So, it's fair to say that the Libyans
have a modus operandi of using commercial rewards or
recriminations in order to achieve their foreign policy goals.
Dr. Porter. Yes. I don't think that requires any further
elaboration.
Senator Menendez. Yes. And given the fact that al-Megrahi's
release was such a high priority for Libya, and the fact that
the Libyan Government routinely leans on oil companies to
either reward and/or seek recrimination to achieve its foreign
policy aims, would it be surprising if BP did not feel
pressured to help Libya gain al-Megrahi's release?
Dr. Porter. I can't comment on that, because I don't know
what the BP executives were feeling or thinking. But, what you
can say is that I'm sure that BP was well aware of the risks
that
al-Megrahi's ongoing incarceration in Scotland posed to the
viability of BP's business opportunities in Libya.
Senator Menendez. Well, it certainly would have been in the
pattern, at least from the Libyan Government's actions up to
and including that date, that they were not reticent to go
ahead and use their economic power through their resource to
oil to try to make companies make an argument back in their
country in support of their ultimate view.
Dr. Porter. Yes.
Senator Menendez. Yes. Finally, there are commercial
connections of significance between the United Kingdom and
Libya that goes beyond energy. Do you have any sense of that
from your studies about some--for example, the recent arms
deals between the United Kingdom and Libya?
Dr. Porter. Yes, you're entirely right, that the U.K.
commercial interests in Tripoli expand well beyond oil and gas,
including arms deals and infrastructure. I think one
illustrative statistic is that the volume--or, the dollar
amount of arms deals between the United Kingdom and Tripoli
increased tenfold from 2008 to 2010. So, there's clearly a
dramatic increase in the dollar amount of arms that the U.K.
sold to Tripoli after--or, in the runup to, and then after al-
Megrahi's release.
Senator Menendez. Thank you.
Thank you all for your testimony and your insights from
your respective expertise. The committee appreciates it.
We are going to leave the record open for 10 days to give
members of the committee an opportunity to submit additional
questions. And so, if you receive any, we'd ask your
cooperation in submitting your answers in writing as soon as
possible.
And, with that, we'll excuse the three of you. Thank you
very much. Your testimony's been very helpful.
Let me close--and seeing no other members at this time--in
summary, I think what we've learned in this hearing only raises
additional questions. Frankly, as I said at the outset, I am
deeply troubled by the lack of cooperation we've received in
getting to all of the facts. I'm also incredibly troubled that
the executives at BP chose not to send a single witness to
appear before this committee or answer any of our questions.
Seems to me that you would want to do so in the interests of
transparency, of making your case, whatever that case might be.
And so, the absence speaks loudly.
But, what we have learned today is that there were clear
anomalies in Mr. al-Megrahi's care, starting with my staff's
interviews in Scotland. We heard a contradiction to the
previously released medical reports that al-Megrahi did
actually receive chemotherapy. And today we've heard testimony
that medical professionals familiar with cancer diagnosis and
treatment would not give chemotherapy to a dying man.
And even if we settled for the story that the Scottish
Government told in their public documents, that he did not
receive chemotherapy, the medical experts again said that,
giving the medical record and the video we all saw today of him
walking up and down the stairs to catch his victory flight
home, was not a video of a dying man. Given the flawed process
used to certify his release, I guess there shouldn't be much
surprise that he is still alive today. What is a surprise is
that he is free and living in Libya.
We've learned that the diagnosing physician was Dr. Peter
Kay, a general practitioner, not an oncologist, or, as the
Scottish Government now maintains, it was Dr. Andrew Fraser.
Neither doctor has any specialization in cancer diagnosis or
treatment.
I have to say, I'm very disappointed that we cannot get the
Scottish Government to answer questions about the issue of
chemotherapy or provide any more detailed medical information
to clarify a series of discrepancies in their medical-release
decision. Based on what we have learned today and in our
research leading up to this hearing, my view is that the
Scottish Government's 3-month release process was, in this
case, incredibly flawed, if not purposely manipulated.
We've learned, as I said in my opening statement, that the
terms of the 1998 Lockerbie justice agreement have clearly been
violated. That agreement specifically states that any prison
sentences were to be served in the United Kingdom. It clearly
states, ``For the purpose of the trial, we shall not seek their
transfer to any jurisdiction other than the Scottish court
sitting in the Netherlands. If found guilty, the two accused
will serve their sentence in the United Kingdom.'' The language
of the agreement could not be any clearer. And I think that the
testimony of both the State Department and the Department of
Justice could not be any clearer, as well, in terms of what
that understanding meant.
And finally, we heard from an expert today who testified
about commercial concerns that could have influenced Scottish
and U.K. thinking on the merits of Mr. al-Megrahi's release.
The United Kingdom had significant commercial interests at
stake in their relationship with Libya--oil and gas
exploration, in particular--and Libya does not always maintain
a clear distinction between the government and the marketplace.
We heard that BP was well aware of the political risks of
doing business with Libya and that the return of Mr. al-Megrahi
was of great importance to the Libyan Government, which was
more than willing to use its commercial leverage with the
United Kingdom to ensure his release.
And we heard the reasons why both Scotland and the United
Kingdom Governments could have wanted Mr. al-Megrahi removed
from U.K. soil.
We also heard that there are a variety of other commercial
motivations, and were reminded of how the Libyan Government
uses commercial interests to either penalize or reward
companies and nations, based on its foreign policy goals.
The unanswered questions we are left with are deeply
troubling. Why was the 1998 Lockerbie justice agreement broken?
How does the Scottish Government explain the chemotherapy
issue? And why was the advice of four of their own cancer
specialists ignored? Why was Mr. al-Megrahi released at all,
given what we do know? And, most troubling of all, who, if
anyone, stood to benefit from his release?
I'm disappointed, as I've said, that we have not heard from
any officials at BP as to their involvement in their case.
Public reports clearly have. Sir Mark Allen, a former MI6
British intelligence officer being hired by BP to make the case
to the United Kingdom of the importance of the Prisoner
Transfer Agreement, and we would have heard what else in those
conversations took place. In my view, if BP is not willing to
cooperate with this committee to get to the bottom of why a
convicted terrorist was prematurely released, in violation of
our agreement with the British and Scottish Governments, then
perhaps we should make BP pay all claims owed to families,
fishermen, and everyone affected by the gulf disaster, before
any new drilling permits are issued to them. It's certainly an
option that I'll be exploring.
There are simply too many unanswered questions. I fear that
we have not heard the truth about Mr. al-Megrahi's clinical
care. And we call, once again, for the full release of his
medical file.
We also believe that the absence of truth leads to
uncertainty, and this uncertainty only creates more and more
questions and a darker and darker cloud. Given what we have
heard today, given the facts that have come out, I would hope
that the British Government will open their own investigations
into what led to the release of a terrorist who killed 270
innocent people.
Prime Minister David Cameron said, then, as a opposition
leader, before he was Prime Minister, very clearly, something
that I fully agree with him. He said, ``I don't think we can
now trust the government to get to the bottom of this, so I
think the time has come for an independent inquiry, led by a
former permanent secretary or former judge, to find out what
more papers need to be released so we can see what the British
Government was doing in our name.'' I believe he was right
then, and I believe it would be right now.
So, our efforts here have come not quite to a full close. I
can assure the families that we will be issuing a report that
will include many other facts, based on our findings, and I
hope that that report will put this gross miscarriage of
justice in perspective for the world to see. I hope it will
clearly send a message that we do not expect convicted
terrorists to be set free. It not only undermines our very
efforts in terms of national security and our collective fight
against global terrorism, but sends all the wrong messages to
those who would be terrorists. And I think it is incredibly
important for us, in issuing that report, to create a greater
opportunity for public pressure in support of an independent
inquiry by the British Government to mount. As we made clear to
the Prime Minister in a meeting with him when he last visited
the United States, we want to get to the truth. And getting to
the truth will set us free.
With that, seeing no other members, this hearing is
adjourned.
[Whereupon, at 12:25 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
List of ``Victims of Pan Am 103 Bombing'' Submitted by
Senator Frank R. Lautenberg
Pan Am Flight 103 Crew
Avonye, Nichole Elizabeth, flight attendant, 44 years, born 05.05.44,
Croissy-Sur-Seine, France, French
Avritt, Jerry Don, flight engineer, 46 years, born 30.07.42,
Westminster, California, American
Berti, Noelle Lydie, flight attendant, 40 years, born 24.12.47, Paris,
France, American
Engstrom, Siv Ulla, flight attendant, 51 years, born 21.09.37,
Berkshire, England, Swedish
Franklin, Stacie Denise, flight attendant, 20 years, born 16.02.68, San
Diego, California, American
Garrett, Paul Isaac, flight attendant, 41 years, born 16.11.47, Napa,
California, American
Kuehne, Elke Etha, flight attendant, 43 years, born 17.03.45, Hanover,
Germany, German
Larracoechea, Maria Nieves, flight attendant, 39 years, born 03.03.49,
Madrid, Spain, Spanish
MacQuarrie, James Bruce, captain, 55 years, born 30.09.33, Kensington,
New Hampshire, American
McAlolooy, Lilibeth Tobila, flight attendant, 27 years, born 02.11.61,
Kelsterback, Germany, American
Murphy, Mary Geraldine, purser, 51 years, born 14.05.37, Middlesex,
England, British
Reina, Jocelyn, flight attendant, 26 years, born 26.05.62, Isleworth,
England, American
Royal, Myra Josephine, flight attendant, 30 years, born 20.12.58,
London, England, American
Skabo, Irja Syhnove, flight attendant, 38 years, born 03.07.50, Oslo,
Norway, American
Velimirovich, Milutin, chief purser, 35 years, born 14.10.53,
Middlesex, England, American
Wagner, Raymond Ronald, first officer, 52 years, born 18.01.36,
Pennington, New Jersey, American
Pan Am Flight 103 Passengers
Ahern, John Michael Gerard, bond broker, 26 years, born 16.04.62,
Rockville Center, New York, American, Seat Number 30C
Aicher, Sarah Margaret, playwright, 29 years, born 09.02.59, London,
England, American, Seat Number 46C
Akerstrom, John David, 34 years, born 20.05.54, Medina, Ohio, American,
Seat Number 25A
Alexander, Ronald Ely, businessman, 46 years, born 15.07.42, New York,
New York, Swiss, seat number 42C
Ammerman, Thomas Joseph, marketing manager, 36 years, born 06.08.52,
Old Tappan, New Jersey, American, seat number 16E
Apfelbaum, Martin Lewis, stamp dealer, 59 years, born 16.08.29,
Philadelphia, Pennsylvania, American, seat number 15H
Asrelsky, Rachel Marie, student, 21 years, born 26.11.67, New York, New
York, American, seat number 38D
Atkinson, William Garretson III, engineer, 33 years, born 18.08.55,
London, England, American, seat number 15A
Atkinson, Judith Ellen, art historian and consultant, 37 years, born
18.01.51, London, England, American, seat number 15B
Bacciochi, Clare Louise, hair stylist, 19 years, born 15.03.69,
Warwickshire, England, British, seat number 50K
Bainbridge, Harry Michael, attorney, 34 years, born 16.11.54, Montrose,
New York, American, seat number 4B
Barclay, Stuart Murray, businessman, 29 years, born 28.11.59, Farm
Barnard, Vermont, Canadian, seat number 18G
Bell, Jean Mary, 44 years, born 16.03.44, Berkshire, England, British,
seat number 5A
Benello, Julian MacBain, student, 25 years, born 28.12.62, Brookline,
Massachusetts, American, seat number 23H
Bennett, Lawrence Ray, pharmaceutical chemist, 41 years, born 05.11.47,
Chelsea, Michigan, American, seat number 15J
Bergstrom, Philip Vernon, army sergeant, 22 years, born 21.12.66,
Forest Lake, Minnesota, American, seat number 46A
Berkley, Alistair David, professor of law, 29 years, born 11.04.59,
London, England, American
Bernstein, Michael Stuart, lawyer, U.S. Dept. of Justice, Office of
Special Investigation, 36 years, born 03.07.52, Bethesda,
Maryland, American, seat number 47D
Berrell, Steven Russell, student, 20 years, born 19.06.68, Fargo, North
Dakota, American, seat number 46F
Bhatia, Surinder Mohan, businessman, 51 years, born 21.05.37, Los
Angeles, California, American, seat number 34D
Bissett, Kenneth John, student, 21 years, born 19.12.67, Hartsdale, New
York, American, seat number 31J
Boatman-Fuller, Diane Anne, playwright, 37 years, born 08.01.53,
London, England, American, seat number 22H
Boland, Stephen John, student, 20 years, born 28.09.68, Nashua, New
Hampshire, American, seat number 46 G
Bouckley, Glen John, sales, 27 years, born 24.02.61, Liverpool, New
York, British, seat number 39K
Bouckley, Paula Marie, sales, 29 years, born 14.10.59, Liverpool, New
York, American, seat number 39J
Boulanger, Nicole Elise, student, 21 years, born 28.10.67, Shrewsbury,
Massachusetts, American, seat number 28B
Boyer, Francis, 43 years, born 22.06.45, Toulosane, France, French,
seat number 9A
Bright, Nicholas, businessman, 32 years, born 29.08.56, Brookline,
Massachusetts, American, seat number 13A
Browner (Bier), Daniel Solomon, 23 years, born 20.08.65, Parod, Israel,
Israeli, seat number 21A
Brunner, Colleen Renee, student, 20 years, born 01.04.68, Hamburg, New
York, American, seat number 44C
Burman, Timothy Guy, banker, 24 years, born 09.10.64, London, England,
British, seat number 38G
Buser, Michael Warren, advertising executive, 34 years, born 08.08.54,
Ridgefield Park, New Jersey, American, seat number 35B
Buser, Warren Max, civil engineer, 62 years, born 22.09.26, Glen Rock,
New Jersey, American, seat number 35A
Butler, Steven Lee, teacher, 35 years, born 30.08.53, Denver, Colorado,
American, seat number 36G
Cadman, William Martin, musician, 32 years, born 10.09.56, London,
England, British, seat number 29J
Caffarone, Fabiana, 28 years, born 30.09.60, London, England, British,
seat number 7B
Caffarone, Hernan, 28 years, born 14.12.60, London, England,
Argentinean, seat number 7A
Canady, Valerie, auditor, 25 years, born 29.06.63, Morgantown, West
Virginia, American, seat number 24K
Capasso, Gregory, student, 21 years, born 12.12.67, Brooklyn, New York,
American, seat number 48H
Cardwell, Timothy Michael, student, 21 years, born 05.07.67, Cresco,
Pennsylvania, American, seat number 37D
Carlsson, Bernt Wilmar, diplomat, 50 years, born 21.11.38, New York,
New York, Swedish, seat number 17H
Cawley, Richard Anthony, businessman, 43 years, born 09.07.45, New
York, New York, American, seat number 16J
Ciulla, Frank, banker, 45 years, born 06.08.43, Park Ridge, New Jersey,
American, seat number 11B
Cohen, Theodora Eugenia, student, 20 years, born 10.09.68, Port Jervis,
New York, American, seat number 21H
Coker, Eric Michael, student, 20 years, born 23.04.68, Mendham, New
Jersey, American, seat number 43B
Coker, Jason Michael, student, 20 years, born 23.04.68, Mendham, New
Jersey, American, seat number 43A
Colasanti, Gary Leonard, student, 20 years, born 01.08.68, Melrose,
Massachusetts, American, seat number 43C
Concannon, Bridget, 53 years, born 13.07.35, Oxfordshire, England,
Irish, seat number 33H
Concannon, Sean, 16 years, born 18.02.72, Oxfordshire, England,
British, seat number 33J
Concannon, Thomas, 51 years, born 21.11.37, Oxfordshire, England,
Irish, seat number 33G
Corner, Tracey Jane, 17 years, born 04.05.71, Sheffield, England,
British, seat number 33A
Cory, Scott, student, 20 years, born 27.09.68, Old Lyme Court,
Connecticut, American, seat number 46D
Coursey, Willis Larry, military, 40 years, born 25.08.48, San Antonio,
Texas, American, seat number 36K
Coyle, Patricia Mary, student, 20 years, born 04.06.68, Wallingford,
Connecticut, American, seat number 20B
Cummock, John Binning, 38 years, born 31.05.50, Coral Gables, Florida,
American, seat number 3A
Curry, Joseph Patrick, army captain, 31 years, born 21.03.57, Fort
Devens, Massachusetts, American, seat number 44K
Daniels, William, Alan, research chemist, 40 years, born 28.03.48,
Belle Mead, New Jersey, American, seat number 9H
Dater, Gretchen Joyce, student, 20 years, born 17.05.68, Ramsey, New
Jersey, American, seat number 52J
Davis, Shannon, student, 19 years, born 19.02.69, Shelton, Connecticut,
American, seat number 31A
Della-Ripa, Gabriel, Pan Am Airlines employee, 46 years, born 03.04.42,
Floral Park, New York, Italian, seat number 2B
DiMauro, Joyce Christine, marketing director, 32 years, born 09.05.56,
New York, New York, American, seat number 11J
DiNardo, Gianfranca, 26 years, born 14.10.62, London, England, Italian,
seat number 20C
Dix, Peter Thomas Stanley, management consultant, 35 years, born
06.05.53, London, England, Irish, seat number 14B
Dixit, Om, college professor, 54 years, born 29.12.33, Fairborn, Ohio,
Indian, seat number 24A
Dixit, Shanti, 54 years, born 14.12.34, Fairborn, Ohio, American, seat
number 24B
Dornstein, David Scott, student, 25 years, born 03.04.63, Philadelphia,
Pennsylvania, American, seat number 40K
Doyle, Michael Joseph, accountant, 30 years, born 21.05.58, Voorhees,
New Jersey, American, seat number 9B
Eggleston, Edgar Howard III, air force sergeant, 24 years, born
13.10.64, Glens Falls, New York, American, seat number 32D
Ergin, Turhan, student, 22 years, born 14.05.66, West Hartford,
Connecticut, American, seat number 28C
Fisher, Charles Thomas IV, banker, 34 years, born 24.12.53, London,
England, American, seat number 25K
Flick, Clayton Lee, businessman, 25 years, born 23.02.63, Coventry,
England, British, seat number 50J
Flynn, John Patrick, student, 21 years, born 24.11.67, Montville, New
Jersey, American, seat number 45A
Fondiler, Arthur, attorney, 33 years, born 12.12.55, West Armonk, New
York, American, seat number 47C
Fortune, Robert Gerard, insurance executive, 40 years, born 24.07.48,
Jackson Heights, New York, American, seat number 1A
Freeman, Paul Matthew Stephen, 25 years, born 02.04.63, London,
England, Canadian, Seat Number 46B
Fuller, James Ralph, corporate vice president, 50 years, born 17.09.38,
Bloomfield Hills, Michigan, America, seat number 3H
Gabor, Ibolya Robertine, 79 years, born 14.06.09, Budapest, Hungary,
Hungarian, seat number 26F
Gallagher, Amy Beth, student, 22 years, born 30.08.66, Pointe Claire,
Quebec, Canada, American, seat number 23G
Gannon, Matthew Kevin, foreign service officer, 34 years, born
11.08.54, Los Angeles, California, American, seat number 14J
Garczynski, Kenneth Raymond, industrial engineer, 37 years, born
17.10.51, North Brunswick, New Jersey, American, seat number
47K
Gibson, Kenneth James, army specialist four, 20 years, born 16.02.68,
Romulus, Michigan, American, seat number 48K
Giebler, William David, bond broker, 29 years, born 08.07.59, London,
England, American, seat number 30B
Gordon, Olive Leonora, 25 years, born 09.03.63, London, England,
British, seat number 45G
Gordon-Gorgacz, Linda Susan, 39 years, born 15.09.49, London, England,
American, seat number 37A
Gorgacz, Anne Madelene, 76 years, born 27.09.12, Newcastle,
Pennsylvania, American, seat number 38A
Gorgacz, Loretta Anne, 47 years, born 15.03.41, Newcastle,
Pennsylvania, American, seat number 37B
Gould, David, college professor, 45 years, born 03.01.43, Pittsburgh,
Pennsylvania, American, seat number 22C
Guevorgian, Andre Nikolai, businessman, 32 years, born 11.11.56, Sea
Cliff, New York, American, seat number 11A
Hall, Nicola Jane, 23 years, born 03.02.65, Sandton, South Africa,
South African, seat number 23K
Halsch, Lorraine Frances, special education teacher, 31 years, born
06.11.57, Fairport, New York, American, seat number 35C
Hartunian, Lynne Carol, student, 21 years, born 13.03.67, Schenectady,
New York, American, seat number 44A
Hawkins, Anthony Lacey, businessman, 57 years, born 13.11.31, Brooklyn,
New York, British, seat number 28K
Herbert, Pamela Elaine, student, 19 years, born 27.03.69, Battle Creek,
Michigan, American, seat number 37J
Hilbert, Rodney Peter, 40 years, born 19.07.48, Newton, Pennsylvania,
American, seat number 16H
Hill, Alfred, 29 years, born 29.06.59, Sonthofen, Germany, German, seat
number 14A
Hollister, Katherine Augusta, student, 20 years, born 26.08.68, Rego
Park, New York, American, seat number 54C
Hudson, Josephine Lisa, nurse, 22 years, born 14.05.66, London,
England, British, seat number 50D
Hudson, Melina Kristina, student, 16 years, born 25.01.72, Albany, New
York, seat number American 29A
Hudson, Sophie Ailette Miriam, 26 years, born 22.09.62, Paris, France,
French, seat number 29H
Hunt, Karen Lee, student, 20 years, born 07.01.68, Webster, New York,
American, seat number 31K
Hurst, Roger Elwood, marketing manager, 38 years, born 12.07.50,
Ringwood, New Jersey, American, seat number 2H
Ivell, Elizabeth Sophie, dog handler, 19 years, born 21.04.69, East
Sussex, England, British, seat number 19C
Jaafar, Khalid Nazir, student, 20 years, born 01.05.68, Dearborn,
Michigan, American, seat number 53K
Jeck, Robert van Houten, 57 years, born 08.10.31, Mountain Lakes, New
Jersey, American, seat number 4J
Jeffreys, Paul Avron, musician, 36 years, born 13.02.52, Surrey,
England, British, seat number 38J
Jeffreys, Rachel, advertising executive, 23, years, born 29.04.65,
Surrey, England, British, seat number 38H
Jermyn, Kathleen Mary, student, 20 years, born 27.12.67, Staten Island,
New York, American, seat number 49A
Johnson, Beth Ann, student, 21 years, born 24.03.67, Greensburg,
Pennsylvania, American, seat number 36B
Johnson, Mary Alice Lincoln, student, 25 years, born 14.06.63, Wayland,
Massachusetts, American, seat number 33D
Johnson, Timothy Baron, student, 21 years, born 30.11.67, Neptune, New
Jersey, American, seat number 26A
Jones, Christopher Andrew, student, 20 years, born 04.03.68, Claverack,
New York, American, seat number 52K
Kelly, Julianne Frances, student, 20 years, born 27.06.68, Dedham,
Massachusetts, American, seat number 21E
Kingham, Jay Joseph, pharmaceuticals executive, 44 years, born
03.03.44, Potomac, Maryland, American, seat number 5B
Klein, Patricia Ann, social worker, 35 years, born 16.06.53, Trenton,
New Jersey, American, seat number 28A
Kosmowski, Gregory, marketing executive, 40 years, born 08.10.48,
MiIford, Michigan, American, seat number 8H
Kulukundis, Minas Christopher, ship brokerage director, 38 years, born
17.12.50, London, England, British, seat number 51K
LaRiviere, Ronald Albert, 33 years, born 19.11.55, Alexandria,
Virginia, American, seat number 20H
Leckburg, Robert Milton, engineer, 30 years, born 12.10.58, Piscataway,
New Jersey, American, seat number 34C
Leyrer, William Chase, businessman, 46 years, born 24.08.42, Bay Shore,
New York, American, seat number 2J
Lincoln, Wendy Anne, student, 23 years, born 21.01.65, North Adams,
Massachusetts, American, seat number 28D
Lowenstein, Alexander Silas, student, 21 years, born 25.02.67,
Morristown, New Jersey, American, seat number 20D
Ludlow, Lloyd David, army sergeant first class, 41 years, born
06.02.47, Macksville, Kansas, American, seat number 51A
Lurbke, Maria Theresia, 25 years, born 26.11.63, Balve Beckum, Germany,
German, seat number 52A
Mack, William Edward, puppeteer, 30 years, born 24.04.58, New York, New
York, American, seat number 36B
Malicote, Douglas Eugene, army specialist four, 22 years, born
31.08.66, Lebanon, Ohio, American, seat number 48B
Malicote, Wendy Gay, 21 years, born 31.07.67, Lebanon, Ohio, American,
seat number 48A
Marek, Elizabeth Lillian, actress and peace activist, 30 years, born
17.02.58, New York, New York, American, seat number 36C
Marengo, Louis Anthony, marketing director, 33 years, born 09.02.55,
Rochester, Michigan, American, seat number 3J
Martin, Noel George, 27 years, born 31.05.61, Clapton, England,
Jamaican, seat number 53A
Maslowski, Diane Marie, currency trader, 30 years, born 10.08.58, New
York, American, seat number 8B
McAllister, William John, 26 years, born 18.10.62 in the Isle of Mull,
Argyll, Scotland , Scottish, seat number 14E
McCarthy, Daniel Emmet, banker, 31 years, born 02.11.57, Brooklyn, New
York, American, seat number 6B
McCollum, Robert Eugene, university professor, 61 years, born 12.05.27,
Wayne, Pennsylvania, American, seat number 7J
McKee, Charles Dennis, army major, 40 years, born 03.12.48 , Arlington,
Virginia, American, seat number 15F
McLaughlin, Bernard Joseph, marketing manager, 30 years, born 12.12.58,
Cranston, Rhode Island, American, seat number 36A
Melber, Jane Susan, musician and teacher, 27 years, born 01.01.61,
Middlesex, England, American, seat number 27H
Merrill, John, seaman, 35 years, born 11.07.53, Hertfordshire, England,
British, seat number 37K
Miazga, Suzanne Marie, student, 22 years, born 31.07.66, Marcy, New
York, American, seat number 23A
Miller, Joseph Kenneth, accounting firm executive, 56 years, born
27.05.32, Woodmere, New York, American, seat number 10B
Mitchell, Jewel Courtney, army second lieutenant, 32 years, born
14.06.56, Brooklyn, New York, American, seat number 27A
Monetti, Richard Paul, student, 20 years, born 11.09.68, Cherry Hill,
New Jersey, American, seat number 20E
Morgan, Jane Ann, attorney, 37 years, born 19.03.51, London, England,
American, seat number 42A
Morson, Eva Ingeborg, 48 years, born 29.04.40, New, York, New York,
American, seat number 19G
Mosey, Helga Rachael, student, 19 years, born 21.09.69, West Midlands,
England, British, seat number 22K
Mulroy, Ingrid Elizabeth, 25 years, born 22.04.63, Lund, Sweden,
Swedish, seat number 34J
Mulroy, John, journalist, 59 years, born 01.04.29, East Northport, New
York, American, seat number 34G
Mulroy, Sean Kevin, 25 years, born 03.05.63, Lund, Sweden, American,
seat number 34H
Noonan, Karen Elizabeth, student, 20 years, born 26.12.67, Potomac,
Maryland, American, seat number 20A
O'Connor, Daniel Emmett, U.S. diplomatic service, 31 years, born
22.09.57, Dorchester, Massachusetts, American, seat number 25H
O'Neil, Mary Denice, student, 21 years, born 02.04.67, Bronx, New York,
American, seat number 38K
Otenasek, Anne Lindsey, student, 21 years, born 31.01.67, Baltimore,
Maryland, American, seat number 45K
Owen, Bryony Elise, 1 year, born 29.04.87, Bristol, England, British,
seat number 19D
Owen, Gwyneth Yvonne Margaret, student, 29 years, born 03.05.59,
Bristol, England, British, seat number 19D
Owens, Laura Abigail, 8 years, born 01.01.80, Cherry Hill, New Jersey,
American, seat number 35K
Owens, Martha, 44 years, born 02.06.44, Cherry Hill, New Jersey,
American, seat number 35H
Owens, Robert Plack, 45 years, born 05.03.43, Cherry Hill, New Jersey,
American, seat number 35G
Owens, Sarah Rebecca, 14 years, born 09.12.74, Cherry Hill, New Jersey,
American, seat number 35J
Pagnucco, Robert Italo, attorney, 51 years, born 20.10.37, South Salem,
New York, American, seat number 4A
Papadopoulos, Christos Michael, 45 years, born 11.11.43, North
Lawrence, New York, American, seat number 17A
Peirce, Peter Raymond, architect and student, 40 years, born 28.09.48,
Perrysburg, Ohio, American, seat number 47G
Pescatore, Michael, businessman, 33 years, born 06.09.55, Solon, Ohio,
American, seat number 17J
Philipps, Sarah Susannah Buchanan, student, 20 years, born 15.08.68,
Newtonville, Massachusetts, American, seat number 49C
Phillips, Frederick Sandford, student, 27 years, born 08.05.61, Little
Rock, Arkansas, American, seat number 21F
Pitt, James Andrew Campbell, student, 24 years, born 06.11.64, South
Hadley, Massachusetts, American, seat number 29K
Platt, David, architect, 33 years, born 13.12.55, Staten Island, New
York, American, seat number 8A
Porter, Walter Leonard, musician, 35 years, born 10.03.53, Brooklyn,
New York, American, seat number 25C
Posen, Pamela Lynn, student, 20 years, born 30.01.68, Harrison, New
York, American, seat number 26K
Pugh, William, businessman, 56 years, born 29.02.32, Margate, New
Jersey, American, seat number 21D
Quiguyan, Crisostomo Estrella, hotel cashier, 43 years, born 16.03.45,
London, England, Filipino, seat number 30A
Ramses, Rajesh Tarsis Priskel, 35 years, born 26.05.53, Leicester,
England, Indian, seat number 22A
Rattan, Anmol, 2 years, born 24.09.86, Warren, Michigan. American, seat
number 24C
Rattan, Garima, computer programmer, 29 years, born 15.07.59, Warren,
Michigan, American, seat number 23D
Rattan, Suruchi, 3 years, born 20.06.85, Warren, Michigan. American,
seat number 23E
Reeves, Anita Lynn, 24 years, born 03.09.64, Laurel, Maryland,
American, seat number 45D
Rein, Mark Alan, businessman, 44 years, born 12.02.44, New York, New
York, American, seat number 2A
Rencevicz, Diane Marie, student, 21 years, born 13.07.67, Burlington,
New Jersey, American, seat number 29G
Rogers, Louise Ann, student, 20 years, born 13.02.67, Olney, Maryland,
American, seat number 29D
Roller, Edina, 5 years, born 24.11.83, Hungary, Hungarian, seat number
26D
Roller, Janos Gabor, 29 years, born 26.03.59, Hungary, Hungarian, seat
number 26E
Roller, Zsuzsana, 27 years, born 21.12.61, Hungary, Hungarian, seat
number 26G
Root, Hanne Maria, management consultant, 26 years, born 15.12.62,
Toronto, Canada, Canadian, seat number 34K
Rosen, Saul Mark, businessman, 35 years, born 24.11.53, Morris Plains,
New Jersey, American, seat number 32A
Rosenthal, Andrea Victoria, student, 22 years, born 05.02.66, New York,
New York, American, seat number 35D
Rosenthal, Daniel Peter, student, 20 years, born 02.06.68, Staten
Island, New York, American, seat number 21J
Rubin, Arnaud David, 28 years, born 18.05.60, Waterloo, Belgium,
Belgian, seat number 39G
Saraceni, Elyse Jeanne, student, 20 years, born 01.06.68, East London,
England, American, seat number 36D
Saunders, Scott Christopher, student, 21 years, born 20.05.67,
Macungie, Pennsylvania, American, seat number 24D
Saunders, Theresa Elizabeth Jane, marketing, 28 years, born 24.10.60,
Sunbury-on-Thames, England, British, seat number 14F
Schauble, Johannes Otto, 41 years, born 08.08.47, Kappellenweg,
Germany, German, seat number 49K
Schlageter, Robert Thomas, student, 20 years, born 12.08.68, Warwick,
Rhode Island, American, seat number 28G
Schultz, Thomas Britton, student, 20, years, born 05.01.68, Ridgefield,
Connecticut, American, seat number 45C
Scott, Sally Elizabeth, chef, 22 years, born 17.01.66, Huntington, New
York, British, seat number 56G
Shapiro, Amy Elizabeth, student, 21 years, born 28.10.67, Stamford,
Connecticut, American, seat number 37G
Shastri, Mridula, 24 years, born 12.02.64, Oxford, England, Indian,
seat number 24H
Sheanshang, Joan, 46 years, born 16.12.42, New York, New York,
American, seat number 41C
Sigal, Irving Stanley, research biologist, 35 years, born 23.05.53,
Pennington, New Jersey, American, seat number 13B
Simpson, Martin Bernard Christopher, financier, 52 years, born
25.10.36, Brooklyn, New York, American, seat number 27K
Smith, Cynthia Joan, student, 21 years, born 06.10.67, Milton,
Massachusetts, American, seat number 41A
Smith, Ingrid Anita, chiropodist, 31 years, born 12.11.57, Berkshire,
England, British, seat number 4H
Smith, James Alvin, 55 years, born 11.03.33, New York, New York,
American, seat number 27G
Smith, Mary Edna, army sergeant, 34 years, born 14.07.54, Kalamazoo,
Michigan, American, seat number 34A
Stevenson, Geraldine Anne, 37 years, born 31.03.51, Surrey, England,
British, seat number 22E
Stevenson, Hannah Louise, 10 years, born 23.09.78, Surrey, England,
British, seat number 22F
Stevenson, John Charles, 38 years, born 13.09.50, Surrey, England,
British, seat number 22D
Stevenson, Rachael, 8 years, born 01.09.80, Surrey, England, British,
seat number 22G
Stinnett, Charlotte Ann, 36 years, born 07.02.52, Duncanville, Texas,
American, seat number 19J
Stinnett, Michael Gary, army specialist, 26 years, born 27.05.62,
Duncanville, Texas, American, seat number 19H
Stinnett, Stacey Leanne, 9 years, born 30.07.79, Duncanville, Texas,
American, seat number 19K
Stow, James Ralph, businessman, 49 years, born 18.07.39, New York, New
York, American, seat number 15E
Stratis, Elia G., accountant, 43 years, born 17.06.45, Montvale, New
Jersey, American, seat number 1B
Swan, Anthony Selwyn, 29 years, born 15.05.59, Brooklyn, New York,
Trinidadian, seat number 41K
Swire, Flora MacDonald Margaret, medical student and researcher, 24
years, born 22.12.64, London, England, British, seat number 39D
Tager, Marc Alex, 22 years, born 03.08.66, London, England, British,
seat number 26H
Tanaka, Hidekazu, 26 years, born 13.05.62, London, England, Japanese,
seat number 24G
Teran, Andrew Alexander, student, 20 years, born 31.08.68, New Haven,
Connecticut, Bolivian, seat number 27D
Thomas, Arva Anthony, student, 17 years, born 26.04.71, Detroit,
Michigan, American, seat number 19A
Thomas, Jonathan Ryan, 2 months, born 29.09.88, Southfield, Michigan,
American, seat number 32K
Thomas, Lawanda, air force sergeant, 21 years, born 17.02.67,
Southfield, Michigan, American, seat number 32K
Tobin, Mark Lawrence, student, 21 years, born 04.04.67, North
Hempstead, New York, American, seat number 32G
Trimmer-Smith, David William, publishing executive, 51 years, born
26.04.37, New York, New York, American, seat number 12A
Tsairis, Alexia Kathryn, student, 20 years, born 06.07.68, Franklin
Lakes, New Jersey, American, seat number 21G
Valentino, Barry Joseph, exhibit designer, 28 years, born 25.02.60, San
Francisco, California, American, seat number 20G
Van-Tienhoven, Thomas Floro, 45 years, born 30.05.43, Buenos Aires,
Argentina, Argentinean, seat number 2B
Vejdany, Asaad Eidi, 46 years, born 24.02.42, South Great Neck, New
York, American, seat number 20C
Vrenios, Nicholas Andreas, student, 20 years, born 20.08.68,
Washington, DC, American, seat number 46E
Vulcu, Peter, stockbroker and student, 21 years, born 01.08.67,
Alliance, Ohio, American, seat number 20K
Waido, Janina Jozefa, 61 years, born 19.03.27, Chicago, Illinois,
American, seat number 50A
Walker, Thomas Edwin, electronics specialist, 47 years, born 11.12.41,
Quincy, Massachusetts, American, seat number 16A
Weedon, Kesha, student, 20 years, born 02.10.68, Bronx, New York,
American, seat number 37H
Weston, Jerome Lee, engineer, 45 years, born 11.11.43, Baldwin, New
York, American, seat number 10A
White, Jonathan, accountant, 33 years, born 14.07.55, North Hollywood,
California, American, seat number 55J
Williams, Bonnie Leigh, military, 21 years, born 12.01.67, Crown Point,
New York, American, seat number 46K
Williams, Brittany Leigh, 2 months, born 13.10.88, Crown Point, New
York, American, seat number 46J
Williams, Eric Jon, army sergeant, 24 years, born 15.08.64, Crown
Point, New York, American, seat number 46J
Williams, George Waterson, army first lieutenant, 24 years, born
17.05.64, Joppa, Maryland, American, seat number 33K
Williams, Stephanie Leigh, 1 year, born 23.05.87, Crown Point, New
York, American, seat number 46K
Wolfe, Miriam Luby, student, 20 years, born 26.09.68, Severna Park,
Maryland, American, seat number 21K
Woods, Chelsea Marie, 10 months, born 06.02.88, Willingboro, New
Jersey, American, seat number 25F
Woods, Dedera Lynn, air force sergeant, 27 years, born 04.02.61,
Willingboro, New Jersey, American, seat number 25G
Woods, Joe Nathan, civilian military worker, 28 years, born 05.03.60,
Willingboro, New Jersey, American, seat number 25D
Woods, Joe Nathan, Jr., 2 years, born 24.09.86, Willingboro, New
Jersey, American, seat number 25E
Wright, Andrew Christopher Gillies, site agent, 24 years, born
02.05.64, Surrey, England, British, seat number 55G
Zwynenburg, Mark James, investment banker, 29 years, born 14.10.59,
West Nyack, New York, American, seat number 12B
Lockerbie Residents
Flannigan, Kathleen Mary, 41 years, born 26.01.47, 16 Sherwood Crescent
Flannigan, Thomas Brown, 44 years, born 20.12.44, 16 Sherwood Crescent
Flannigan, Joanne, 10 years, born 13.06.78, 16 Sherwood Crescent
Henry, Dora Henrietta, 56 years, born 27.03.32, 13 Sherwood Crescent
Henry, Maurice Peter, 63 years, born 18.07.25, 13 Sherwood Crescent
Lancaster, Mary, 81 years, born 12.01.07, 11 Sherwood Crescent
Murray, Jean Aitkin, 82 years, born 29.11.06, 14 Sherwood Crescent
Somerville, John, 40 years, born 31.05.48, 15 Sherwood Crescent
Somerville, Rosaleen Later, affectionately know as `Rosalind', 40
years, born 31.05.48, 15 Sherwood Crescent
Somerville, Paul, 13 years, born 21.01.75, 15 Sherwood Crescent
Somerville, Lyndsey Ann, 10 years, 13.07.78, 15 Sherwood Crescent
______
Responses of Ambassador Nancy McEldowney to Questions Submitted by
Senator Robert Menendez
Question #1. Was the Department aware of and did the Department
explore any possible connection between U.K. commercial interests in
Libya and the decision to release Mr. al-Megrahi? In particular, did
the Department explore the possible commercial influences of arms sales
from the U.K. to Libya or Qatari loans to Scotland at the time of Mr.
al-Megrahi's release? If not, why not?
Answer. During the months preceding Megrahi's release, the
Department sought to dissuade Scottish authorities from permitting his
transfer or release to Libya. While the U.K. Government has since
acknowledged its 2007 communication with BP regarding the negotiation
of the Prisoner Transfer Agreement (PTA) with Libya, the Scottish
Government has released memos, correspondence, and meeting notes
related to the matter and has asserted that economic considerations
played no part in its decision to release Megrahi. As Ambassador
McEldowney stated in her testimony, we have no evidence to dispute or
disprove these assertions, nor are we in a position to verify these
claims. Whatever the Scottish Government's rationale for releasing
Megrahi, our position remains that the decision was categorically wrong
and undermined the shared international understanding on Megrahi's
imprisonment.
Question #2. Was the Department aware of and did the Department
explore any possible connection between the two energy deals for U.K.
oil companies that were announced by Former Prime Minister Blair during
his visits to Libya and the decision to sign a Prisoner Transfer
Agreement between the U.K. and Libya? If not, why not?
Answer. The Department was aware that the United Kingdom was
reengaging with Libya and seeking to improve bilateral relations after
the Libyan Government's 2003 decision to dismantle its WMD and missile
programs. It was public information as far back as 2004 that,
consistent with this reengagement, British energy companies were
entering the Libyan market. To the best of our knowledge, the
Department learned of the memorandum of understanding between the U.K.
and Libya on judicial cooperation, in which the parties agreed to
commence negotiations on a PTA, at the time of Prime Minister Blair's
May 2007 visit to Libya.
The U.K. subsequently sought to negotiate a clause that would
exclude Megrahi from a PTA, a position vocally supported by the
Scottish Government. Prior to Megrahi's release, the Department was not
aware of the conversations in late 2007 between the British Government
and BP regarding the slow progress on PTA negotiations. We learned of
these conversations later, after they had been acknowledged publicly by
the parties involved. Then, as now, the United States was unequivocal
in conveying to both British and Scottish authorities our resolute
belief that Megrahi should serve out his full sentence in Scotland.
Question #3. Were any Foreign Service officers present when Sir
Mark Allen spoke with U.K. Government officials regarding the Prisoner
Transfer Agreement? Have any such officers reviewed unreleased
documents by the U.K. Government regarding its dialogue with BP and the
PTA?
Answer. We are not aware of any State Department personnel being
present for private conversations between Sir Mark Allen (or other BP
officials) and the British Government. To the best of our knowledge,
Department personnel also have not reviewed unreleased British
Government documents concerning the U.K.'s dialogue with BP on the PTA.
Question #4. When U.K. Foreign Secretary Hague admitted multiple
communications between BP and the U.K. Government, did the Department
take any steps to investigate any possible connection between Mr. al-
Megrahi's release and BP? If not, why not?
Answer. According to Foreign Secretary Hague's July 22 letter to
Senator Kerry, BP told the British Government in October and November
2007 that failure to conclude the PTA could negatively impact British
commercial interests, including its own. Foreign Secretary Hague's
predecessor, David Miliband, acknowledged publicly last year that
commercial considerations, along with other U.K. strategic interests,
were taken into account in the U.K.'s decision to conclude negotiations
and sign an overarching PTA with Libya in November 2008. Miliband told
the House of Commons in October 2009 that abandonment of PTA
negotiations with Libya ``would have set back [Britain's] wider
national and commercial interests that flowed from normalized
relations.'' During his July 2010 visit to Washington, Prime Minister
Cameron committed to a Cabinet review of British documents to determine
whether further information can be brought to light.
Consideration of Megrahi's applications for prisoner transfer and
``compassionate'' release was a separate process from the U.K.'s
decision to sign the PTA, exclusively within the purview of the
devolved Scottish Government. We have called upon the Scottish
Government to be as transparent as possible in illuminating the
circumstances surrounding Megrahi's release. Scottish authorities
assert they were neither pressured by the British Government nor
influenced by commercial interests, and First Minister Alex Salmond and
Justice Minister Kenny MacAskill have stated there was no contact
between BP and Scottish authorities regarding Megrahi's case. The
Department has no evidence to either affirm or dispute these
assertions. Whatever Scottish authorities' rationale for releasing
Megrahi, the U.S. position remains that he should serve out his full
sentence in a Scottish prison.
Question #5. When the Department was asked to provide the committee
all records it had associated with the release of Mr. al-Megrahi, it
only provided 10, 6 of which were already available in the public
domain. Is it the Department's position that there are only four
additional documents that it holds associated with Mr. al-Megrahi's
release?
Answer. On September 24, Chairman Kerry requested that the
committee be granted access to certain categories of State Department
documents related to the September 29 hearing on the circumstances
surrounding Megrahi's release. Upon receiving the chairman's letter,
the Department granted the committee access within 1 working day to
responsive documents in its possession that could be shared without
consent from third parties. Some of these--including historic documents
provided to Scottish authorities last year to demonstrate the shared
international understanding that, if convicted, Megrahi would serve his
sentence in Scotland--were already in the public domain.
Since the hearing, the Department has obtained third-party
permission to share five more responsive documents with the committee.
These documents are available for review at the State Department at the
convenience of committee staff. The Department also requested from the
U.K. permission to provide the committee access to additional British
historic documents related to the 1998 arrangements. These are being
assessed for release as part of the ongoing review of materials being
conducted by the U.K. Cabinet Secretary; therefore, the U.K. is unable
to provide consent for the sharing of those documents at this time. We
will inform the committee promptly if and when we receive consent to
share further responsive materials.
Question #6. Does the Department have any intention of
investigating the early release of Mr. al-Megrahi or urging the U.K.
and Scottish Governments to conduct their own investigations into the
early release of Mr. al-Megrahi?
Answer. The Department shares the desire for a clear understanding
of the circumstances surrounding Megrahi's release. Ultimately, it is
the responsibility of the British and Scottish Governments to shed
light on this issue and on their actions. To this end, President Obama
has called for all of the relevant facts to be made available, and
Secretary Clinton has encouraged the involved governments to review
again the underlying facts and circumstances leading to Megrahi's
release and to consider any new information that has come to light.
Prime Minister Cameron has responded by committing to provide the
fullest possible explanation of the circumstances surrounding this
decision and has directed the British Cabinet Secretary to undertake a
review of documents to consider whether further information can be
released. We are currently awaiting the outcome of that process.
Question #7. Does the Department agree with the committee's
interpretation of the Scotland Act of 1998 that any decision to release
Mr. al-Megrahi from prison was a decision for Scottish authorities to
make but that any decision to send Mr. al-Megrahi back to Libya was a
reserved power decision for the U.K. Government to make?
Answer. The complexities and political sensitivities of devolution
in the United Kingdom are extensive, and the Department is not in a
position to authoritatively assess devolution arrangements and
precedents in U.K. law. Prior to the Scottish decision, both the
Scottish Government and the U.K. Government agreed that it was for
Scottish authorities alone to decide on Megrahi's applications for
prisoner transfer and for release on compassionate grounds. While it
hypothetically may have been possible for the British Government to
obstruct Megrahi's physical departure from Britain, in practice, given
the domestic political and constitutional considerations in the U.K.,
our understanding was that the British Government would not take steps
that would undermine its devolution arrangements with Scotland or its
prior commitment to respecting whatever decision was ultimately made by
Scottish officials.
Question #8. During your testimony at the hearing, the Department
said that it had not seen any specific evidence that BP played a role
in Mr. al-Megrahi's release. But given all that we know about
commercial interests lobbying for Mr. al-Megrahi's release, and reports
that meetings were occurring and correspondence transmitted between BP
and the U.K. regarding Libya between 2007 and Mr. al-Megrahi's release,
does the Department believe it is fair to say that commercial interests
influenced the decision to release Mr. al-Megrahi? If not, why not?
Answer. In her testimony, Ambassador McEldowney stated that beyond
publicly available statements and correspondence, the State Department
has not identified any other materials concerning attempts by BP or
other companies to influence matters related to Megrahi's transfer
under the PTA or his release by Scottish authorities. As noted in the
response to question #4, the British Government has acknowledged that
commercial interests were taken into account, alongside political and
national security considerations, in its decision to conclude and sign
the PTA in November 2008. Ambassador McEldowney referenced British
statements on this matter both in her testimony and during the question
and answer portion of the hearing.
The question of whether commercial interests influenced the
Scottish decision to release Megrahi is a separate matter, which is
also addressed in responses to questions #1 and #4. Scottish
authorities have said they had no contact with BP on this issue, and
the Department has no evidence to either confirm or refute their
statements. We have seen the letter sent by the chairman of the Libyan
British Business Council, Lord Trefgarne, to Kenny MacAskill, as well
as Mr. MacAskill's response in which he states the decision would ``be
based on judicial grounds alone and that economic and political
considerations have no place in the process.'' We do not possess
information which would contradict Mr. MacAskill's assertion.
______
Letter From Hon. Alex Salmond MSP, First Minister of Scotland,
St. Andrew's House, Edinburgh
5 October 2010.
Senator John Kerry,
Chairman, U.S. Senate Committee on Foreign Relations,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Kerry: It is with regret that I find it necessary to
write to you again in connection with the hearing of the U.S. Senate
Foreign Relations Committee on the al-Megrahi case on 29 September
2010. I understand that you were not present at the hearing, but there
is a matter of concern that I would wish to raise with you as Chairman
of the Committee.
On 28 September, the Scottish Government was approached by a
journalist representing the Wall Street Journal seeking clarification
about certain allegations that had been made about the case. These
allegations concerned comments said to have been made by an official of
the Scottish Government at the meeting offered by the Scottish
Government as a courtesy to a representative of Senator Menendez. They
were completely without foundation.
In order to ensure that the Committee was in possession of correct
information in advance of its hearing, the Scottish Government's
representative in Washington wrote to your office on 28 September to
set the record straight. I understand that a copy of his letter, which
I attach for your information, was passed to the office of Senator
Menendez, who was chairing the hearing.
It was therefore with intense disappointment that I noted that the
same misinformation was presented to the hearing, unsupported by any
evidence whatsoever, and no reference was made to the correction
provided well in advance by the Scottish Government. The Scottish
Government has made every effort to provide members of the U.S. Senate
and their staff with information to assist their understanding of the
matter, and it is extremely unfortunate that the concerns that I
expressed in my letter of 10 September 2010 to Senators Menendez,
Gillibrand, Lautenberg and Schumer about the prospects for a credible
and impartial investigation have been realised.
I should therefore be grateful if you would investigate, as a
matter of urgency, how the Committee came to be misled in this manner
at its hearing. I would also request that you arrange for the letter of
correction from the Scottish Government to be entered into the official
record of the Committee.
Alex Salmond.
Attachment.
Scottish Affairs Office,
British Embassy,
Washington, DC, 28 September 2010.
Doug Frantz,
Deputy Staff Director,
Senate Foreign Relations Committee.
Dear Doug: In advance of the Senate Foreign Relations Committee's
hearing tomorrow on the Al-Megrahi case, the Scottish Government has
been approached by a journalist representing the Wall Street Journal
for comment on the issue. Specifically, the journalist has asked about
statements that are alleged to have been made by Scottish Government
officials in a meeting with a Senate representative. Presumably he is
referring to the meeting with officials that the Scottish Government
offered as a courtesy to a staffer of Senator Menendez's office during
his recent visit to Edinburgh.
It is a cause of deep disappointment to the Scottish Government
that points discussed at the meeting have been passed to the Wall
Street Journal in a totally inaccurate manner and in breach of the
terms on which the request for a meeting with Scottish Government
representatives was made by Senator Menendez's office. This clearly
raises a question about the objectivity of Senator Menendez's
investigation.
Of greater concern, however, is that the information passed to the
Wall Street Journal is simply wrong. May I set the record straight on
the two points we have been asked about today?
First, as has been stated many times, and was said several times at
the meeting between Scottish Government officials and Senator
Menendez's staffer, the medical report to the Justice Secretary came
from Dr. Andrew Fraser, Director of Health and Care of the Scottish
Prison Service, and the prognosis was his. It was Dr. Fraser's
responsibility to prepare the medical report for Mr. MacAskill, and Dr.
Fraser who concluded that his clinical assessment was that a three
month prognosis was a reasonable estimate, drawing on the work of a
range of specialists and other Scottish Health Service professionals
involved in Al-Megrahi's care from when he was first diagnosed with
cancer in 2008.
Given the importance of this case, it was appropriate that the most
senior health professional in the Scottish Prison Service, Dr. Fraser,
was responsible for providing the medical report which formed part of
the consideration of the application for compassionate release. With
the exception of this point, ie the most senior SPS health professional
providing the report, this is exactly the same process which has been
followed in the over 60 cases considered under the relevant legislation
which was passed in 1993.
Second,it is a matter of public record that Al-Megrahi was not on
chemotherapy treatment in Scotland at any point, and it is also a
matter of record that his hormone treatment had failed as the firm
consensus of specialists was that his condition had become ``hormone
resistant.''
I should be grateful if you would draw this clarification to the
attention of the Committee in advance of its hearing tomorrow, which I
understand may include consideration of these points.
Yours,
Robin Naysmith,
Scottish Government Counsellor,
North America.
______
Statements Submitted From Families of Victims of Pam Am Flight 103
To the Committee:
My name is Susan Cohen. I am the mother of Theodora Cohen who died
in the Pan Am 103 bombing when she was twenty years old. I welcome
these hearings. I have never believed that Megrahi's release had
anything to do with compassion. Compassion is a saintly virtue.
Megrahi's release can be traced to far more devilish motives. Greed,
chiefly. A corrupt British government, fueled by British Petroleum's
eagerness for oil profits decided to get Megrahi out of prison one way
or another. If not a prison transfer, then compassionate release. If
they could have gotten away with it they would have put Megrahi in a
box tied with ribbons and hand-delivered him to Ghadafi. The price of
bringing Ghadafi into the so-called community of nations has been a
collapse of any policy that isn't total appeasement. Ghadafi has done
horrible things, and to this day his regime's human rights record is
one of the worse in the world. But governments bow and scape to him,
flatter him, give him what he wants. And he wanted Megrahi. Never mind
that Megrahi was a convicted mass murderer, that Lockerbie was the
worst mass murder in British history, in Scottish history, and until
911 the worst act of terror against civilians in United States history.
Megrahi was released, presumably to die within three months. He
received a hero's welcome in Libya, is alive today and lives in luxury
in Tripoli. Why did we ever both with the trial in the first place?
This situation is absolutely appalling. A cynical move; government
at its worst. Two hundred seventy people died gruesome deaths when Pan
Am 103 was bombed. My daughter's body landed in a sheep meadow miles
from the plane. All her bright promise gone in an instant. and my life
ruined. I blame Bush and Cheney for initiating the policy of
appeasement towards Ghadafi. I blame Tony Blair, now so cozy with
Ghadafi that he stays in Ghadafi's palace and advises companies on how
to do business with Libya; for a price, of course. And this from a
Britain which was remarkably brave in World War II. As for my own
government, Obama has continued the Bush policy. We were lied to when
we were told our government was taken by surprise at Megrahi's release.
The Le Baron letter makes clear our government knew in advance, and
though we would have preferred Megrahi to remain in jail our weak tepid
response showed the Brits they had nothing to fear from us if he was
released. From the time Obama (and I supported him and donated to his
campaign) became president, several of the families tried to get a
meeting with Secretary of State Clinton to enourage our government to
work hard to keep Megrahi in prison. A tough America might have been
able to force the British to keep Megrahi in prison. We never got our
meeting. We were not even given a contact person high in the
Administration to talk to. The Obama Administration claims it's in
touch with the families. Not so. It is only in touch with some of the
families. it should be in touch with the rest of us.
Megrahi in prison was merely a sliver of justice. Now we don't even
have that. And nothing was ever really done to punish Ghadafi. And how
could the bombing have taken place without his approval? So what have
we become, we Americans? Would we stand up to Hitler? Would we stand up
to the Soviet Union or China? I am not at all sure. If we are willing
to kiss the feet of a tinpot tyrant like Ghadafi because all we care
about is money, we'll cave in to more powerful nations when the
moment's right. That's what happens to nations who make money their
God.
Susan Cohen.
______
Columbia, SC, September 28, 2010.
Dear Senator Menendez: My first husband Bill Daniels was killed on
board Pan Am 103 December 21, 1988. I followed the Scottish trial in
the Netherlands very closely. I was living in NJ at that time and could
get to the closed circuit tv's set up by the Scots for us to view the
trial in NYC. Four times I flew over to the Netherlands and was there
in person when the first Scottish panel of judges found Mr. Megrahi
guilty of mass murder. Later, he appealed his conviction and I was
there for much of that appeal, and likewise was present in Zeist,
Holland, when he was AGAIN found guilty by another panel of Scottish
judges, and lost his first appeal. I have followed this story very
closely over the years. He is a convicted mass murderer, whose
conviction remains on the books.
I went with my younger daughter last year to testify via video
conference in front of Kenny MacAskill in Washington, DC. We begged him
not to let Megrahi go free. At that time, we thought he was only
considering the Prisoner Transfer Agreement, not this ``compassionate
release'' that he later used. Unfortunately Mr. MacAskill did let Mr.
Megrahi go because he had cancer. This was such a travesty that he
should do so when all of us were begging him to keep him in jail. Mr.
Megrahi showed no compassion to our loved ones on Pan Am Flight 103.
Mr. Megrahi, of course, went home to a hero's welcome in his native
Libya. Mr. Megrahi, of course, has lived MUCH longer than his three
month life expectancy that Mr. MacAskill told the world that he had
left--in fact, thirteen months later he is still alive. Now we have
found out that the doctors who SUPPOSEDLY had been consulted about his
life expectancy, of course, hadn't been consulted! Now we find out that
BP oil has a big new contract to dig off the coast of Libya, of course,
a coincidence, too.
Senator Menendez, I write you as a private citizen, but also as the
VP of the Victims of Pan Am Flight 103. We on the board of VPAF103
applaud you for taking these steps to try to get some answers to this
and to show the world that the Scottish government acted too hastily at
the very least. Prostate cancer is a very treatable disease and Mr.
Megrahi's cancer should have been treated IN JAIL IN SCOTLAND instead
of letting him free to go back to his homeland. What kind of message
does this send to the terrorists of the world?
Thank you and good luck on this hearing. I wish that I could be
there in person tomorrow to tell you how grateful I am for your
support!
Sincerely,
Kathy (Daniels) Tedeschi.
______
Elizabeth Delude-Dix and
Dermot Delude-Dix,
Jamestown, RI.
Senator Menendez and other members of the Committee, on learning of
Mr. al-Megrahi's imminent release, I went straight to my laptop and
googled: Libya + oil fields. It was then that I learned Libya has an
undeveloped oil field the size of Belgium. At first I was startled but
quickly experienced what can be described as a clarifying moment. Since
then it has become public knowledge that BP actively lobbied for Mr.
al-Megrahi's release to secure an oil deal in Libya. Once again the
almighty profit motive has trammeled the rule of law.
My name is Elizabeth Delude-Dix. My husband Peter Dix (aged 35) was
a passenger aboard Pan Am flight 103 which was destroyed over
Lockerbie, Scotland. Peter was on his way to a one day business trip in
NYC. At the time we were living in London and Peter planned a quick
turn-around so that he would be home to celebrate Christmas with his 22
month old son, Dermot. Dermot, now aged 23, is with me here today. We
have prepared this statement together.
The long saga of Lockerbie has been filled with half truths, heart
break and crushing political cynicism. Our family believes that we have
never learned the full truth of what happened on December 21, 1988.
That the U.K. and Scottish authorities colluded to release Mr. al-
Megrahi is clear. What is less clear is: Why?
U.K. oil companies certainly stand to reap enormous profit from the
development of Libyan oil. But what has also occurred is the quiet
subversion of the legal process. How convenient that any potential
irregularities in Mr. al-Megrahi's conviction will now never be
examined.
Indeed there have been many questions surrounding Mr. al-Megrahi's
conviction. The legal community suggested several different reasons to
support his appeal. However, in requiring Mr. al-Megrahi to drop his
appeal, the Scottish authorities effectively foreclosed the possibility
of a more complete disclosure of the truth surrounding the bombing of
PanAm flight 103. Who other than the corporation BP stood to benefit
from the discontinuation of this legal inquiry? Once again any
information held by U.K. or the U.S. governments which may have
clarified the events leading to the bombing is now beyond the reach of
the families and the public.
Mr. al-Megrahi's release was clearly motivated by more than
compassion for his poor health. His return to Libya not only advanced
U.K. commercial interests, it subverted the judicial process. How can
there be justice without accountability? This is not an act of judicial
compassion but an exploitation and manipulation of the rule of law.
As the wife and son of Peter Dix, what matters most to us is not
whether one man dies in prison. We know that the available intelligence
was not acted upon by those whose job it is to protect us. Lockerbie
could have been prevented. Today, twenty-one years later, we ask that
all those who carried out this crime be held responsible, and we also
demand a full disclosure of the circumstances leading up to this event.
______
FROM Helen Engelhardt, widow of Anthony Lacey Hawkins, one of the
270 people murdered when a semtex bomb in a Toshiba RT-SF 16 stereo
radio cassette recorder model Bombeat, wrapped in a random assortment
of clothing purchased in a clothing shop in Malta, all of it hidden
inside of a copper colored 26-inch Samsonite Silhoutte 4000 hardshell
suitcase, exploded in the baggage container AVE4041 of the Boeing 747
Maid of the Seas on its evening flight Pan Am #103 out of London,
31,000 feet over the town of Lockerbie, Scotland at 7:03 pm on December
21, 1988.
Al-Megrahi, a Major in the Libyan Intelligence Service, the man
accused of having organized the assembly of the bomb, of having bought
the clothing that filled the unaccompanied suitcase case, was
unanimously found guilty in the Lockerbie Trial held at Camp Zeist in
the Scottish Court in the Netherlands on January 31, 2001. His appeal
was unanimously denied a year later and Al-Megrahi was flown to
Scotland on March 14, 2002, where he was supposed to begin serving a
life sentence. He served seven years, five months and five days before
being released on August 20, 2009.
Here we are again. The case that will not die. That refuses to
close. The lid of the coffin that keeps being pried open.
Through all the upheavals and reversals, the legal battles and
victories and set-backs of the past 21 years, there was one reliable
rock we thought we could rely on: the integrity of the Scots. They
would never betray us. And then, they did.
Megrahi appealed the guilty verdict again. While it crept its way
forward during the past winter and spring of 2008/2009, we paid more
attention to the Prisoner Transfer Agreement. (The curious history of
the PTA: Jack Straw, The British Secretary of State for Justice, had
negotiated with Libya in the summer of 2007, a new Agreement which
would allow prisoners to be returned to their respective nations. The
original formulation specifically excluded al-Megrahi by name until
suddenly in December 2007, Straw withdrew Megrahi's name, making him
eligible for exchange since ``The wider negotiations with the Libyans
are reaching a critical state, and in view of the overwhelming
interests for the United Kingdom, I have agreed that in this instance
the PTA should not mention any individual.
``Saif Gaddafi, son of the Libyan leader, has said that
negotiations on the PTA intersected with the commercial discussions
between the two countries. A $900 million oil and gas exploration
agreement between the British energy giant BP and Libya's National Oil
Company was reached in May 2007. BUT IT WAS NOT RATIFIED UNTIL AFTER
THE PTA WAS AGREED UPON'' (my emphasis) (quoted from Time September 14,
2009 page 30).
On August 20, 2009, the Scottish Cabinet Minister of Justice,
Kenny MacAskill, denied Libya's application for Megrahi's release under
the PTA. But then MacAskill went on to declare that he was releasing
Megrahi on ``Compassionate Grounds'' because he ``might die within
three months from terminal prostate cancer,'' and refused to consider
transferring him elsewhere in Scotland because security would be too
difficult. While announcing his decision to the press, Megrahi was on
his way home to a hero's welcome in Saif Qadaffi's private plane. If
Al-Megrahi had indeed died within three months--which had to be
reasonably certain for the Grounds of Compassion to be legally
applied--it wouldn't have made the decision just or appropriate. It
still was stained by the oil deal. But at least, it wouldn't have been
a public embarrassment to the Scottish government, and a continuing
outrage to the American families. (Why the English and Scottish
families are divided on this issue is too complicated to discuss in
this statement. I don't know how the other families in some twenty
other nations feel, having not heard any opinion from them.).
For twenty one years, the families took comfort in the meticulous
dedication of the Scottish Police, the dog handlers who located the
bodies and the women who washed the clothing of our loved ones. Debris
from the crash had spread over more than 800 square miles--from
Lockerbie to the North Sea. The searchers were told: ``If it's not a
rock and it's not growing, pick it up and put it in a bag.'' By
Christmas Day, a piece of metal was found that FAA senior explosives
expert, Walter Korsgaard, identified as the first proof a bomb had
caused the explosion.
Because of the thorough, dedicated work of hundreds of men and
women, several critical pieces of evidence were retrieved from the tons
of debris: the blast damaged fragments of that Samsonite suitcase, the
blast damaged fragment of an instruction manual for the Toshiba RT-SF16
recorder, the blast damaged fragment of a printed circuit board from a
MEBO MST 13 timer, the blast damaged label from a ``Yorkie'' brand pair
of trousers.
And the significance of these discoveries? ``A summary of the
world-wide sales figures for Toshiba RTSF16 stereo radio cassette
recorders from October 1985 to March 1989 . . . shows that Libya
(purchased) almost 76 percent of that model from Toshiba between
October 1988 and March 1989.
Mr. Bollier (the ``Bo'' in MEBO) in his testimony for the
prosecution at the Lockerbie Trial in June of 2000, stated in 1991 to
Scottish and American detectives, that he only sold this model timer to
Libya (in 1993 after Libya offered him a loan of 1.8 million dollars,
he suddenly recalled he had sold MST 13 timers to the Stasi as well);
he delivered radio devices and 20 timers to Libya in 1986 into the
hands of Abdelbaset Megrahi, a man Bollier believed to be a Major in
the Libyan Intelligence Services.
Bollier taught Libyan military people in the autumn of 1987 in
Libya, how to prevent bombs from exploding prematurely. In December of
1988 he tried to deliver and collect payment on 40 more MST 13 timers.
He flew to Tripoli on December 18 and booked a return flight on
December 20 from Tripoli to Malta on the very same flight that al-
Megrahi and al-Fhimah were on. Bollier changed his plans and returned
to Zurich on a direct flight. He claims that he did not meet with
Abdelbaset. He claims that no one paid him for his timers.
The ``Yorkie'' brand label on a pair of trousers, led detectives to
the factory which led them to Mary's House, in the town of Slima on the
island of Malta. Mary's House was the clothing shop where the clothing
surrounding the Toshiba stereo recorder bomb had been purchased. The
shopkeeper, Anthony Gauci, told the police who came to see him in
September 1989, that he had sold two pairs of Yorkie trousers--one
bearing the identical order number to the fragment found in Lockerbie--
to a Libyan man a fortnight before Christmas, in December 1988. The man
also bought a random assortment of clothing, obviously not for any
particular person. Anthony Gauci found that peculiar, and therefore,
memorable. He assisted in an artist's rendering of what the Libyan had
looked like in September 1989, picked out the face of al-Megrahi among
a group of photographs in February of 1991, picked him out in an
identification parade of persons in April 1999, and then, ultimately
pointed him out in the dock during the trial in Kamp Zeist in 2000. The
judges wrote: ``he was entirely credible . . . doing his best to tell
the truth to the best of his recollection We are satisfied that his
identification of the first accused as the purchaser was reliable and
should be treated as highly important evidence in this case.''
In an extraordinary coincidence, one of the policemen who followed
the clothing clue from Lockerbie to Malta was the very man who found
the body of my husband lying on a field in Halldykes Farm in the
outskirts of Lockerbie, Detective John Crawford. My son Alan and I, met
Detective Crawford in New York City in September 2000. We were also in
the courtroom at Camp Zeist when Mr. Gauci identified Mr. Al-Megrahi.
You are not retrying the evidence that sent Mr. Al-Megrahi to
prison with a life sentence. If you were, there is even more damning
and convincing evidence that sent Al-Megrahi to prison that I could
outline. Even Kenny MacAskill went out of his way to reiterate Al-
Megrahi's guilt before he sent him home to Libya. He also stated that
``This is a global issue and international in its nature. The questions
to be asked and answered are beyond the jurisdiction of Scots law and
the restricted remit of the Scottish government. If a further inquiry
were felt to be appropriate then it should be initiated by those with
the required power and authority. The Scottish Government would be
happy to fully cooperate in such and inquiry.''
There have been, in my opinion, some half hearted investigations by
the Scottish government looking into Mr. MacAskill's reasoning. With
all the evidence revealed a year ago in the British press of the oil
deal brokered between BP and Libya, with BP lobbying on behalf of
Libya's obsessive interest in obtaining the release of Al-Megrahi, the
British government has not and has no intention of opening an
investigation of its own. Prime Minister Cameron called the release
``completely and utterly'' wrong and refuses to call for his government
to look into BP's role.
We had a measure of justice--and then it was snatched away from us.
We all know that Megrahi was acting under orders from his government.
Unnamed coconspirators were indicted along with Al-Megrahi and Fhimah.
The criminal case is still open.
Through all the upheavals and reversals, the legal battles and
victories and set-backs of the past 21 years, there was another
reliable rock we thought we could rely on: the integrity of the men and
women in our government. They would never betray us. And they haven't.
From day one, Congressmen and women, Senators, people who work in the
FBI and CIA and the Justice Department, have done everything they could
to see that the evidence was gathered thoroughly and accurately and
that justice would be done. Bills and amendments to bills were crafted
and passed in order to keep the unresolved case in the forefront of our
collective attention.
Five years ago this month, the Senators and Congressmen from New
York and New Jersey, stood with us when we gave a press conference
calling for our government not to give diplomatic recognition to Libya
until it fulfilled the last provision of the legal agreement it had
signed with the families. And now this summer, Senators Schumer and
Menendez called for investigating BP under the Foreign Corrupt
Practices Act.
I support you wholeheartedly in this endeavor. I have never felt
helpless in the face of this tragedy, but I have recognized the reality
that the mass murder that occurred over Lockerbie Scotland twenty two
years ago is international in scope and involves several governments
and their agencies--and now it seems, the biggest company in Britain
and the fifth biggest on Earth: British Petroleum. Sir Mark Allen,
former head of the counterterrorism department of Britain's M16
intelligence service, retired from that post to become a senior
executive in British Petroleum. It is a difficult investigation to
conduct. But it needs to be done--to honor the two hundred and seventy
souls who were murdered because they flew in a plane that carried the
American flag as a logo.
Sincerely,
Helen Engelhardt Hawkins.
______
It is with the deepest pain and anguish that I submit this
testimony 21\1/2\ years after the premeditated destruction of Pan Am
Flight 103 over Lockerbie, Scotland. Throughout this time, the families
have advocated, at great personal cost, for truth and justice in the
resolution of this case of mass murder. At no time did we request or
expect any monetary compensation for this grave injustice but rather,
we simply, wanted the answers to the questions, who, why, where and
how. It took years of lobbying to effect U.N. sanctions which,
ultimately, resulted in a trial and conviction. I remember sitting with
the U.S. Ambassador to the U.N., when we insisted that no money be
demanded as part of the sanction regimen. His reply was that it was
absolutely necessary, as money is the currency of diplomacy. In the
end, we got one conviction and 10 million dollars per family (less one-
third plus expenses for the lawyers). Even our small modicum of justice
was tinged with blood money and greed.
One year ago, that small token of justice was snatched from us as
Megrahi was released to go back to Libya on compassionate grounds. All
the reasons why this was a gross miscarriage of justice have been
eloquently reiterated in the interviews and letters from the Senators
from NJ, Menendez and Lautenberg, and from NY, Schumer and Gillibrand,
Secretary of State Clinton, President Obama and U.K. Prime Minister
Cameron. The flim-flam medical opinion that precipitated the release
was transparently laughable and the lobbying influence of BP and other
oil interests clamoring for Libyan oil contracts was patently
despicable.
So what happens now? One year later, you are holding hearings to do
what? The oil contracts have been awarded, Colonel Kaddafi has recouped
his $270 million in compensation fourfold and Megrahi is ensconced in
luxury in the bosom of his family for the next ten years or more. Tell
me, Senators, how do I explain this to my grandchildren?
There is no political, economic or diplomatic will to force Kaddafi
to give up Megrahi again. The families are powerless as they prostrate
themselves before you in grief and desperation. I, for one, after 21
years, am tired of taking the high road to truth and justice to no
avail.
So, I propose the following:
(1) The U.S. must convince the U.N. to reimpose sanctions against
Libya which demand that Megrahi be incarcerated in Libya under the
watchful eye of a Scottish security detail 24-7. That is the very least
the Scots can do after they abandoned the families.
(2) Kaddafi must pay $20 million more to each family from the oil
enrichment funds that have been pouring into his coffers since last
August. No lawyer's fees or expenses.
Sounds greedy and opportunistic, doesn't it? Sounds un-American,
doesn't it? It comes from sheer desperation and futility from this
mockery of justice. The families have spent the last 20 plus years
working to protect the American people from suffering the same horrors
we face everyday. We have altruistically turned our grief into positive
actions for the common good. Senators, you have to walk in my shoes to
know how victimized, abandoned and abused I feel.
I can assure you that I can do more in one week with that blood
money in The Alexia Foundation for World Peace and Cultural
Understanding (www.alexia
foundation.org) than Khaddafi can do in two lifetimes with his ill-
gotten gains from the oil contracts.
Aphrodite Thevos Tsairis,
Mother of Alexia Tsairis,
Victim Pan Am Flight 103.
______
Statement from the Victims Pan Am Flight 103:
On December 21, 1988, Pam Am Flight 103 exploded over Lockerbie,
Scotland, murdering all 259 people on the plane and 11 citizens in
Lockerbie. All of these victims were innocents. As the Lord Advocate of
Scotland, Colin Boyd, later summarized: ``400 parents lost a son or a
daughter, 46 parents lost their only child, 65 women were widowed, 11
men lost their wives, 140 children lost a parent, and 7 children lost
both parents.''
After an exhaustive investigation by U.S. and Scottish authorities,
Libyan agent Abdel Basset Ali al-Megrahi was convicted. He appealed
this conviction but it stood. It still stands, even though Scottish
Minister of Justice Kenny MacAskill released Megrahi on August 20,
2009, on ``compassionate grounds'' based on the claim that he had only
3 months to live.
The Scottish government has shown compassion to this convicted mass
murderer of 270 innocent souls. The convicted mass murderer never
showed compassion for any of his victims.
On behalf of VPAF103,
Judy O'Rourke,
Recording Secretary, VPAF 103,
Syracuse University Alumnae.
______
As America witnessed the release and subsequent hero's welcome
granted Abdel-Basset Al Megrahi upon his return to Libya, our
collective sense of outrage at this miscarriage of justice was
palpable. It was a sad moment for the American people. But for the
families of the victims of Pan Am 103, it was something worse. It was
not merely an act that reopened old wounds and raised troubling new
questions. As one of those family members shared with me, it was as if
their loved one had been murdered all over again.
Our concern has only deepened now that as this convicted terrorist,
granted compassionate release because he supposedly had only months to
live, remains alive and healthy over one year later.
This is a man convicted of ending 270 innocent lives by turning an
airplane full of college students coming home for Christmas into a
deadly fireball. As I said at the time, he did not deserve the supposed
``compassion'' he failed to show others, and he does not deserve his
freedom today.
Releasing Megrahi was the opposite of ``compassionate.'' Speak with
the mothers, sons, friends, neighbors and classmates who lost a loved
one on Pan Am Flight 103 and you will get a gut-wrenching reminder that
this has torn open wounds that will never fully heal.
Lisa Jones, who lost her husband, Charles, said that Megrahi's
``early release continues to add to the emotional toll on all our
families.''
Doris Cory lost her twenty-year-old son, Scott. ``When your
children are murdered,'' she said. ``You don't let that go.''
Nicholas Bright was just sixteen months old when his father was
murdered. Even before Megrahi outlived his medical prognosis, Nicholas
was pained that Megrahi should have the family time he denied to the
Brights.
Jeannine Boulanger lost her daughter Nicole, a talented acting
student at Syracuse coming home from her study abroad. As Jeannine
said, ``We feel our children were ripped from our bodies and spirits,
and we feel we can do no less than to see this to a justifiable
conclusion.
They--and not Mr. Megrahi--are the ones who deserve our compassion.
I welcome U.K. Prime Minister David Cameron's frank acknowledgment
that Megrahi's release was ``wrong.'' We will continue to express our
outrage at the release of this convicted terrorist. And we will
continue to investigate how justice could have been so ill-served.
______
My name is Ioana Alimanestianu, a U.S. citizen for 56 years and New
York resident for nearly 60 years. I submit this statement on behalf of
my family and my deceased husband Mihai. We are victims of Libyan
terrorism. On September 19, 1989, UTA Flight 772 was forty minutes into
its flight from Chad to Paris, cruising at 35,000 feet, when a bomb
exploded causing the plane to break up and crash into the Sahara
Desert, killing all 170 people on board, seven of whom were Americans.
Our beloved husband, father and brother, Mihai Alimanestianu, was a
passenger on Flight 772. Mr. Al-Megrahi was ultimately convicted for
involvement in the bombing of Pam Am Flight 103 over Lockerbie in 1988,
but his position as a Libyan intelligence officer provides reason to
believe that he was involved in the bombing of UTA 772 which killed my
husband one year later.
I am compelled to submit this statement because I share many of the
same sentiments, and questions, that have been expressed by a number of
Senators, including my own Senators Schumer and Gillibrand, about the
circumstances surrounding the release of Mr. Al-Megrahi. I don't know
whether there is anything the United States government can do to
correct the apparent injustice of his premature release from prison by
another sovereign government. But shining a light on this situation
hopefully will cause others in the future to think more carefully about
the need to respect the victims of terrorism. That said, I am also
compelled to use the occasion to call the Committee's attention to a
perhaps little known situation that has resulted in an injustice
totally within the control of our own government that continues to
haunt American victims more than 20 years after the UTA Flight 772
bombing.
First, and most importantly, I want you to know my husband Mihai,
who was an amazing man.
Mihai was born in Bucharest, Romania in 1919. In Romania, we met
and married in 1947. Shortly thereafter, we escaped from communist
Romania and made our way to New York via Texas where we became U.S.
citizens. We were married for 42 wonderful years, and had five
children. Mihai was a caring and engaged father who encouraged his
children to excel in their chosen careers. He created a home life for
his children that included constant learning and art. Mihai diligently
taught his children to be mindful of how their conduct would affect the
world. His loss deprived them of a strong and loving father figure.
Mihai's murder affected not only his immediate family, but also his
brothers and their families.
In addition to a loving family, Mihai also left behind a legacy of
great achievement. He was a mechanical engineer by training and an
amazing inventor. He held several patents on his inventions including
one for an automatic parking garage system and another for an automated
people mover. At the time of the bombing, he was returning from Africa
where he had just concluded a contract with the United States Agency
for International Development to help build Africa's infrastructure,
and was on his way to see his daughter, Joanna, and her five-month-old
twins. In Africa he was first in Gabon where he was assisting the
country in its efforts to build a national railroad system, he then
moved on to Chad where he was assisting that country in its efforts to
rebuild a crumbling infrastructure. Working was one of his great
passions.
Upon Mihai's return to New York, he was planning to continue to
engage in some freelance work, redevelop his patents and develop a
parcel of land he owned along the Hudson River in New York. It was a
long-time dream of his to build the perfect house along the Hudson
River. He spent many days along the river with his children planting
trees and further beautifying the land. The land was his refuge. To
honor Mihai's memory, our family conveyed his beloved land to the Trust
for Public Land so that it would be preserved for future generations to
enjoy.
Although nothing will ever make our pain go away, we wanted to
ensure that justice was served. To that end, our family and other
families of the U.S. victims of UTA Flight 772 pursued the remedies
made available to us by Congress under the Foreign Sovereign Immunities
Act (``FSIA''), commenced litigation in 2002, and successfully obtained
judgments in U.S. courts. We and other family members testified, and
ultimately we were able to prove that Libya was guilty of murdering our
loved ones. The hearing record describes in great detail the evidence
supporting the horrendous and painful manner in which the passengers of
UTA 772 died: ``In addition to the initial shock of explosive
decompression . . . the disorienting experience of feeling the
temperature instantly drop 129 degrees . . . shards of metal . . .
embedding themselves into people badly enough to cause pain but not
badly enough to kill. Some passengers caught on fire from the
explosion. As a result, many of the passengers burned alive as they
plummeted [39,000 feet] to earth.'' As you can only imagine, the trial
was a difficult and painful process that required us to relive our
worst nightmare.
In January 2008, the United States District Court for the District
of Columbia entered judgment against Libya and awarded approximately
$1.6 billion to the estates of the deceased and 44 immediate family
members to compensate for wrongful death, emotional distress and loss
of solatium injuries. With this decision by a federal court came some
closure to our long ordeal with Libya being held responsible for the
heinous crime that was committed against our beloved husband, father
and brother.
When S. 3370, the Libyan Claims Resolution Act, was introduced, we
were shocked that Congress was considering invalidating our verdict.
Without consulting the victims' families, Congress unanimously passed
S. 3370 the day the bill was introduced. No hearing was ever held or
debate undertaken on the legislation. Although we raised strong
objection to the legislation itself and the process, our pleas were
ignored. When we inquired into the need for government intervention, we
were told that legislation was necessary so that all the claims against
Libya could be resolved quickly. In addition, we received assurances
that our court judgment would be honored and respected.
We were skeptical of these claims, and unfortunately our worst
fears have come true. The State Department has delegated much of the
implementation of S. 3370 to the Foreign Claims Settlement Commission
(``FCSC''). Once again, we strongly objected to this action by the
State Department because we believe that the FCSC is not well suited to
take on this unique responsibility, and the process would be further
delayed. The federal courts have already made a determination about the
damages that are due to our family, and thus, we believe that the State
Department is in a position to resolve this issue expeditiously.
Furthermore, it has now been nearly two years since the U.S.
government received a settlement from Libya and the issue is still not
resolved, and there is no end in sight. The FCSC has been without a
quorum since February so their proceedings have come to a standstill
until a new Commissioner can be nominated and confirmed by the Senate.
A name has not even been sent to the Senate for consideration, so it is
highly unlikely that we will see closure by the end of this year. Given
the broken process, the State Department should take responsibility and
award funding for claims such as ours that take no significant fact
finding. For claims that are more complicated, the State Department
could appoint a special master to resolve the outstanding issues in a
timely manner.
As the Foreign Relations Committee considers the Al-Megrahi
release, we beg you to consider other victims of Libyan terrorism and
their families. All too often our pleas for fairness and assistance
have gone unanswered. It has now been twenty-one years since our family
lost Mihai, and it so important that you do what you can so that we can
reach closure. This has gone on too long.
Thank you.
______
Truth and justice do not simply demand an investigation of the role
BP played in the release of Megrahi last August. The interplay of the
British with Scottish and U.S. officials and business interests must be
uncovered and made public. Megrahi's release was inevitable--a decision
of governments, years long in the making. The decision was handed over
to the Scots but was one for which the British and U.S. governments
bear a heavy burden of responsibility.
Megrahi's release was a devastating blow to the families of the Pan
Am 103 victims. However shameful and appalling, the release was not
surprising. In fact, the expectation of some families was that he would
be released--the question was when and how.
The stage was set for Megrahi's release the day the United States
relinquished control over his prosecution and detention. The United
States surrendered its jurisdiction to pressures driven by oil and big
business and politics to try Megrahi internationally instead of in the
United States. Gadhafi spent years seeking a compromise to a trial in
the United States--the only way he could get Libya out from under the
sanctions the United Nations and the United States had imposed. This
was also the only way oil and big business interests could get back
into Libya.
During the span of years between the indictment of Megrahi in 1991
and the imposition of U.N. sanctions to the trial of Megrahi in 1999,
the U.S. attitude toward his prosecution changed. The families knew the
end of U.S. control was in sight. The British had been pressuring the
U.S. for an international solution. The dialogue was no longer about
U.S. objection to an international trial but what kind of international
trial could be acceptable. In 1999, the day U.S. officials told some of
us that they were getting daily calls from oil interests to reach a
solution, we knew Gadhafi had won. Two of us knew an international
trial was imminent when the Ambassador from one of the large moderate
Middle East countries asked us to come to the Embassy in DC for a
meeting. He said Gadhafi would agree to families demands to Gadhafi to
turn Megrahi over--with one ``little bitty change''--an international
trial.
The British had gone so far as promise then-President Clinton that
if either or both of the indicted defendants were convicted they would
remain imprisoned in the United Kingdom. Clinton was so assured that he
conveyed this to the families at the ceremony in Arlington in 1998
marking the 10th anniversary of the bombing--a ceremony at which
Hillary Clinton, then first lady was present.
Yet, the promise lacked the status of a formal written agreement
and did not take into account any future changes in British or Scottish
law--changes which were significant to Megrahi's future release. When
Megrahi began serving his term in Scotland, there was no Prisoner
Transfer Agreement and the Scots did not have independent authority
over their prison system which they did have when they released
Megrahi.
The trial of Megrahi at Camp Zeist in the spring of 2000 began the
progression that led to Gadhafi's rehabilitation. After Megrahi's
conviction, the rest is the history of that rehabilitation and how
Gadhafi succeeded in getting Megrahi released.
Looking back on events, Gadhafi had barely mouthed acceptance of
responsibility for the bombing (the first condition imposed by the U.N.
for ending sanctions) when he renounced that acceptance. Gadhafi and
Libyan officials proceeded over the years to issue statements saying
that Megrahi was innocent. They never stopped trying to get Megrahi
released--through their spokesmen to the families and their business
and political supporters. Gadhafi took all the necessary steps to get
the U.N. and U.S. sanctions removed. And, the greatest travesty of
all--the removal of Libya from the U.S. list of terrorist nations.
With the ending of economic, airline, travel, and diplomatic
sanctions, Libya once again opened its doors to western trade. However,
Libya withheld lucrative trade and oil contracts, using them as
bargaining chips for Megrahi's release. By May 2007, the same month
that Britain and Libya signed a memorandum of understanding that would
lead to a Prisoner Transfer Agreement, BP reportedly signed a $900
million oil exploration agreement with Libya.
When the negotiations of former British Prime Minister Tony Blair
for this future Prisoner Transfer Agreement with Libya were revealed
publicly some months after they occurred, the families sprang into
action. Our concerns were quickly brushed aside by U.S. officials. The
Bush administration and the Congress should have gone public then.
Instead, the families were told that nothing had happened yet and there
was nothing they could do until something happened. Repeated requests
by the families to meet with Secretary of State Rice in 2008 went
unanswered. Obama became President and families' requests to meet with
Secretary of State Clinton went unanswered.
This let-it-go mentality permeated the progression of events--from
the finalization of the Prisoner Transfer Agreement which would allow
Britain and Libya to exchange prisoners to the Agreement's ratification
by the British parliament to the consideration of Megrahi's release
either through the British transfer agreement or by Scottish
compassionate release.
As the decision drew closer, the United States still did not go
public with objections to the release. Secretary of State Clinton did
meet with Scottish First Minister Alex Salmond when he visited
Washington in the spring of last year. Along the way, the Scots
transferred the decisionmaking to Justice Minister MacAskill. In the
final days before the decision, both the Secretary of State and
Attorney General telephoned objections to Megrahi's release to
MacAskill. NSC's John Brennan telephoned MacAskill on behalf of Obama.
A concerned few in the Congress wrote a powerful letter to the
administration. However, it was too late. The U.S. response had not
been visible or forceful enough all along or at the 11th hour.
The press reported a few days ago that the deputy head of London's
U.S. Embassy, Richard LeBaron, sent a letter to First Scottish Minister
Alex Salmond a week before the release stating that compassionate
release of Megrahi would be a preferable alternative to his release
under the Prisoner Transfer Agreement. He, in effect, said we prefer
you don't release him but, if you must, do it on compassionate grounds.
What was clear from his letter was that fighting Megrahi's release
wasn't an important enough issue for the United States--that the United
States was not going to demand that Megrahi be kept in prison in
Scotland--that the United States was being careful not to anger the
Scots and tread on their jurisdiction--the very reason U.S. officials
told the families all along that they could not intervene. Megrahi's
release was inevitable by now and doing it under compassionate grounds
was the lesser of two evils, the one that would avoid taking on the
British and rattling key alliances with them.
Almost a year later, Megrahi is still alive and home in Libya--he
has lived nine months beyond medical projections. At no time during the
Scots' consideration of his release did the United States strongly and
publicly demand that direct medical evidence be produced or decry the
insignificance of the evidence produced or further urge that an
international team of doctors review the evidence and be identified
(families did ask U.S. officials to make this request). Full disclosure
of the medical evidence that was used to release Megrahi is still as
important now, if not more important, than at the time of his release.
The Scottish people and the police and prosecutors who carry the scars
of this decision should demand this and if not, call on Justice
Minister MacAskill and First Minister Salmond to resign.
Regardless of the medical evidence, the release of Megrahi under
any circumstances was a blow not only to justice for the families but
future international efforts to prosecute and contain terrorism. The
Scottish government's release of Megrahi was a betrayal not only to the
U.S. families and government but the entire Scottish nation.
Ultimately, the international trial to prosecute Megrahi and the
decision to release him was more about the rehabilitation of Gadhafi
and access to rich Libyan crude than about justice for the convicted
murderer of 270 innocent victims, 189 of them Americans. My 20-year-old
step-daughter, Miriam Luby Wolfe, was one of them.
Rosemary Wolfe,
Former President,
Pan Am 103 Family Groups.