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Monday 21 May 2012

What If Megrahi Didn't Have Cancer?

Wednesday, 2nd September 2009

There's still plenty, I'm afraid, that needs to be said about the decision to send the Lockerie bomber back to Libya. But, since many people think that there was a determination, come what may and regardless of circumstances, to free him let's begin by asking how matters might have unfolded if Abdelbaset Ali al-Megrahi had not contracted terminal prostate cancer. Would he now be in Scotland or in Libya?

Granted, this is a hypothetical but it may not be unreasonable to hazard that it might have gone like this:

1. The UK government and Libya would still have negotiated a Prisoner Transfer Agreement.

2. The Scottish government would still have sought to exclude Megrahi, or, specifically, anyone connected to the Lockerbie bombing from that agreement.

3. The wider interests of the UK-Libyan (and US-Libyan) relationship would have remained the same. Yes, there are some business concerns. More importantly, persuading Libya to abandon its WMD programme and become, however much we might find the notion grisly, a "partner" in anti-terrorism efforts, would have remained a) a considerable foreign policy success and b) remained a matter of some pressing interest.

4. No matter how much Downing Street or the FCO might have wanted to do Libya a favour, the decision on whether to accept the Libyan application for Megrahi's transfer would still have been taken in Edinburgh, not London.

5. The United States would have remained opposed, publicly at least, to any transfer.

6. So would the Scottish government.

7. Megrahi would not have dropped his appeal.

8. Even if he had, the Crown would not have dropped its own appeal.

9. That would have precluded his transfer under the PTA.

10. He would still be in Greenock Prison, pending the eventual - distant - outcome of that appeal.

11. Even if both appeals had been dropped he'd still be in Greenock jail.

Why? Well, this is what Kenny MacAskill said in his statement last week:

It was clear that both the United States Government and the American families objected to a prisoner transfer. They did so on the basis of agreements they said had been made, prior to trial, regarding the place of imprisonment of anyone convicted.
The United States Attorney General, Eric Holder, was in fact deputy Attorney General to Janet Reno at the time of the pre-trial negotiations. He was adamant that assurances had 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 placed upon these assurances over the past ten years. That clear understanding was reiterated to me, by the US Secretary of State Hillary Clinton.

I sought the views of the United Kingdom Government. I offered them the right to make representations or provide information. They declined to do so. They simply informed me that they saw no legal barrier to transfer and that they gave no assurances to the US Government at the time. They have declined to offer a full explanation as to what was discussed during this time, or to provide any information to substantiate their view. I find that highly regrettable.

I therefore do not know what the exact nature of those discussions was, nor what may have been agreed between Governments. However, I am certain of the clear understanding of the American families and the American Government.

Therefore 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.

It is for that reason that the Libyan Government's application for prisoner transfer for Abdelbasit Ali Mohmed Al-Megrahi I accordingly reject.

indeed, far from the act of an upstart ministry hellbent upon flexing its muscles on the international stage, the impression one gets from the released documents is of an SNP administration that desperately wants to take - and, in the end, be seen to be taking - this decision in a sober, rational fashion. That's as you might expect: the Nats may be provincial, strictly speaking, but they're not hicks.

So it went something like this: All parties are invited to make their representations; Edinburgh is desperately keen to discover what assurances were given to the Americans; the Americans themselves - both relatives and the administration - are consulted on at least half a dozen occasion. So too, naturally, are the Libyans. In the end, it does suit everyone that he go home - for reasons of realpolitik and, perhaps - here one can only speculate - because he might, had his appeal continued, have been freed.

Alas there's been an awful lot of confusing reporting on this. Matters weren't helped by a startlingly ignorant report from Nick Robinson on the BBC last night. Apart from anything else Robinson appeared to be under the misapprehension that the PTA had something to do with Megrahi's release. Not so. The PTA is about arrangements, subject to all parties agreeing, for transferring a prisoner to a jail in his home country. This ought not to be a difficult point to grasp. So even if the FCO was of the view that they'd prefer Megrahi to die somewhere other than Greenock prison, this does not mean that even the FCO necessarily wanted him released.

Robinson concluded his report by frothing that:

One thing we have learned from looking through these papers, is that at no stage did government ministers ever seriously consider saying no.

But this too is simplistic. The UK government eventually acceded to Libya's demand that Megrahi not be specifically excluded from the PTA. That's all. That does not mean that Megrahi was bound to be transferred to Libya, far less released on compassionate grounds. There were, however and no mater how distasteful you find it, perfectly good reasons for wanting to bring Libya back into the international fold. (Something the Americans also wanted.) The terms of a PTA - and by terms, I mean actually making the UK-Libyan PTA the same as those we have with 98 other countries - are a pretty tiny price to pay for that.

And, as observed above, Robinson's report is factually inaccurate too since, of course, Edinburgh did say "no" to transferring Megrahi to Libya. There's absolutely no reason to suppose they'd have said "yes" if circumstances had been different and if Megrahi did not have terminal cancer.

So it's not terribly helpful for Iain Dale to write stuff like this:

In some ways it does not surprise me that the SNP Justice Minister Kenny MacAskill acceded to the constant arguments coming from London. He could hide behind the cloak of so-called 'compassion' and hope for the best.

This, I'm afraid, is palpable tripe. Apart from anything else it misjudges the psychology of the individuals concerned. The notion that an SNP ministry would roll over and accept London interference in a matter reserved to Edinburgh is absurd. The idea that any Scottish government would accept London meddling in matters of Scots Law is only marginally less ridiculous than imagining that they would accept such meddling and say nothing about it publicly.

Believe me, if London had been lobbying for Megrahi to go home, Alex Salmond would have told us.That would have been gold for the SNP. Standing up for Scotland! There's nothing they like more than that, no matter how flimsy the excuse for their flag-waving may often be. In this instance, of course, it would have been a sturdy, justified case for wrapping themselves in the Saltire and defending the independence of the Scots system.

Bizarrely, Dale asks "why were there so many letters?" But that's because Edinburgh kept asking for clarification on the PTA and on the nature of any assurances that might have been given to the Americans. The letters, those that have been released anyway, are responses to Edinburgh, not correspondence that began in London.

Then Iain says:

The UK government has been caught tacitly encouraging the release of a convicted terrorist - not any old terrorist, but the one who was convicted of the worst terrorist atrocity in our history.

But this isn't true either. The most one can say, on the evidence in the public domain, at this point is that the FCO and, perhaps, Downing Street would have been quite happy for Megrahi to have been transferred to a Libyan prison. There's a difference between that, however, and releasing him.

As I say, absent his cancer there's every reason for supposing that Megrahi would still be in a Scottish prison, no matter what Labour ministers in London would have liked.

And, despite what David Cameron says, I doubt that a Conservative government would have acted very differently.

Filed under: Brown (180 more articles) , Libya (295 more articles) , Lockerbie (27 more articles) , Scotland (499 more articles) , SNP (218 more articles) , Terrorism (298 more articles)

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SNP Tactical Voter

September 2nd, 2009 2:49pm Report this comment

Sorry Alex, I don't get the reason for the headline or the hypothesising. Megrahi has cancer. Why imagine otherwise?

Surely there's enough nonsense out there on this matter without going down the useless path of 'what if?'.

Is this a sign that there is finally nothing left to say on the topic that is of any tangible benefit?

Craig Strachan

September 2nd, 2009 3:44pm Report this comment

What if Scotland didn't have devolution?

Antonia H

September 2nd, 2009 3:48pm Report this comment

Do you live on the other side of the universe? What is the point of you blog?

"London meddling in matters of Scots Law" and "London interference in a matter reserved to Edinburgh is absurd". So what would you do? Invade us?

Counting the days to Scottish independence: saving a lot of money and the labour party is finished in England.

The Daily NK??

Kennybhoy

September 2nd, 2009 3:50pm Report this comment

Och here you are Mr Massie!

There is a nasty wee part of me that really hates to have to type this. If I find myself in agreement with anything Alex Massie writes I immediately check my premises and carry out a rigorous self-examination of my reasoning and my motivations.

With regard to this specific issue Alex Massie is one hundred percent correct. His extended post immediately above is the single most rational analysis of this issue that I have read since about the second day after the story broke. It is magisterial.

The most telling paragraphs are the two consecutive ones which begin

"This, I'm afraid, is palpable tripe. Apart from anything else it misjudges the psychology of the individuals concerned."

Indeed.

And the third from last which begins

"But this isn't true either. The most one can say, on the evidence in the public domain, at this point...."

Indeed.

To all of my fellow Wingnuts hereabout. Particularly those south of the border and overseas who may perhaps be excused for not entirely grasping the Scottish dimension to this affair. Some day soon this government and all it's foul works will be consigned to the flames. When it is , reason and honour dictate that it should be so for it’s multitudinous and actual sins, not for some imaginary ones.

PS To Alex Massie.
http://p3.focus.de/img/gen/l/7/HBl77POK_Pxgen_r_467xA.jpg

JS

September 2nd, 2009 3:52pm Report this comment

The question nobody asks is this:
There must be many prisoners who have cancer or some other terminal illness. Are THEY shown "compassion" and sent home to die? Not if there isn't a political (i.e., self-serving) interest, they aren't. This is not a government widely known for its compassion (cf. the treatment of the aged, both in an out of the NHS, among many other examples) - so it is completely obvious that the only reason the terrorist was let out of prison was to further a political end. End of.

The Oncoming Storm

September 2nd, 2009 4:54pm Report this comment

Craig, more realistically; What if Flight 103 had been delayed by another 10-15 minutes leaving Heathrow, (it was already an hour late and the bombers would have wanted it to come down over the Atlantic to make forensic investigations much harder), meaning that it would have crashed on Cumbria, Megrahi would have been in an English prison and the decision to release him would have been Jack Straw's?!

Can you imagine the political firestorm we would be in now?!

Iain Dale

September 2nd, 2009 5:32pm Report this comment

Utter rubbish. How you can say those letters pointed to anything but a desire for him to be released from Greenock is quite beyond me.

Any you are wrong about Cameron too.

Craig Strachan

September 2nd, 2009 5:32pm Report this comment

Antonia H: "So what would you do? Invade us?"

No we'd plot to install true Scotsmen in the highest offices of the British state, who would always place the highest priority on the interests of Scotland...sounds unlikely, doesn't it?

Beefeater

September 2nd, 2009 5:33pm Report this comment

Once you're doing hypotheticals:
What if Megrahi didn't really have cancer? The medical records false, and recent news video of him in hospital a hoax to prove the skeptics wrong?
How would Scotland emerge then? Independently compassionate, just duped. Or if it didn't look to closely at the medical evidence, a fraud.
Tough to find a glorious image for Scotland in all this. You'll have to make do with "Scotland the bravely compassionate", as the alternatives are worse. 'Tis a poor thing, but your own.

ndm

September 2nd, 2009 5:35pm Report this comment

Another great post from Alex Massie.

He writes:

-- In the end, it does suit everyone that he go home - for reasons of realpolitik and, perhaps - here one can only speculate - because he might, had his appeal continued, have been freed.

We can speculate but we can quantify the likelihood of Al-Megrahi being released. When the Scottish Criminal Cases Review Commission referred his case for appeal it stated:

-- As at 31 March 2007, the Commission had referred a total of 67 cases to the High Court, 39 of which have so far been determined. Of these, 25 appeals have been granted, 11 rejected and 3 abandoned.

In other words, almost two-thirds of referred cases had been successfully appealed. Given that, I think Al-Megrahi had an extremely good chance of winning his appeal.

In a releated quantification of this issue, the BBC reported at the time of the Ronnie Biggs release that:

-- However, it is not a power that either of them use very often. Only 48 people were granted permanent early release in England and Wales over the last five years, with no figures available for the number of applications rejected.

-- In Scotland, only 23 prisoners have been released on medical grounds in the last nine years, with seven requests denied.

Scotland has a certain notoriety regarding the health of its citizens but even so it is pretty clear that the Scottish criminal justice system allows compassionate release more freely than does England.

A final quantification is that the volume of frothiness in articles about the Al-Megrahi release increases inversely proportionally to understanding of the issue.

Craig Strachan

September 2nd, 2009 5:49pm Report this comment

The Oncoming Storm: "Megrahi would have been in an English prison and the decision to release him would have been Jack Straw's?!"

And do we doubt he would have done a Pinochet?

(I think the first time I heard this weird expression "quasi-judicial" was from Straw during the sorry Pinochet affair).

Antonia H

September 2nd, 2009 6:06pm Report this comment

Ouch, the cost of Scottish values: £22 billion/year, your great banks excluded, courtesy of the English taxpayers, here:

http://www.telegraph.co.uk/comment/columnists/simonheffer/6123095/England-pays-through-the-nose-for-the-luxury-of-Scottish-values.html

blogging @ The Daily NK, yet?

Skip

September 2nd, 2009 8:06pm Report this comment

Either way, Megrahi's continued presence on earth poses some awkward problems for both Libya and its would-be business partners in the UK. I think that at this point cancer might well be the least of his problems.

Scott

September 2nd, 2009 9:30pm Report this comment

Perhaps those who believe there is something in the soncpiracy theories should read a calm legal analysis of the position regarding compassionate release by a senior Scottish QC, Jonathan Mitchell. http://www.jonathanmitchell.info/2009/09/02/compassionate-release-in-scotland-the-actual-policy-and-the-law/

The point that some applications for compassionate release have been rejected in Scotland is easily dealt with. These people weren't terminally ill with medical evidence supportinga prognosis that the prisoner had less than 3 months to live. The policy has always been implemented when the applicant prisoner is terminally ill with 3 months to live.

However, it is not convenient for the conspriacy theorists that see Westminster or Holyrood deals. MacAskill followed the legal precedents here.

As for Mr Dale's comment. First, it indicates you don't get Scottish politics. And second it indicates you don't get Scottish law,

As this was the first PTA application since devolution the Scottish government legal directorate was attempting to clarify the legal position. That's good practice. Letters to the FCO and to the Justice Secretary were there to clarify the legal backdrop.

And whatever the London preference on the PTA London could not interfere - meaning that if they had entered a deal to ensure the implementation of the PTA then it's the worst negotiated and drafted deal in legal history - because all of the powers to transfer lay in the hands of third parties over whom they had no power: (a) the Scottish government to make the decision; (b) the prisoner if there was an outstanding appeal (where Art 3 of the PTA precluded transfer); and (c) the Crown office in Scotland whose own appeal was outstanding meaning the PTA could not operate in relation to Megrahi (and Crown Office only dropped the appeal against an unduly lenient sentence following the release of Megrahi on compassionate grouonds because such an appeal is pointless if the prisoners is going to die). If Cameron and the Conservatives are suggesting that the Crown Office could be pressured by the Westminster government to facilitate the PTA (which is the implication of their comments) that is a very serious allegation. Would they ever dream of making a similar allegation about the DPP? Of course not, because for the Conservative party at Westminster Scotland is a far away country of which they know little. (but as Mr Massie has demonstrated the same goes for most of the London based hacks that have pontificated on this).

Mr Massie's piece is one of the most perceptive written on this. And if Megrahi was not terminally ill - he would still be in prison and his appeal would still be progressing.

Tony Pandy

September 2nd, 2009 11:27pm Report this comment

The missing info is the extent of Megrahi's cancer. I don't want to intrude on personal suffering, but there's an old saying: men don't die OF prostate cancer, they die of old age WITH prostate cancer. Prostate cancer is very slow growing and not very invasive. It's intriguing that the only doctor to say Megrahi has 3 months to live was not not a cancer specialist, that some of his healthcare supervision came from Libyan consultants, and that other doctors remarked that he appears to be relatively asymptomatic for someone apparently at death's door. The Libyans now claim he is now in a hospice in the final stages, but does he have metastases in more lethal places, like liver, bone or brain? It may sound insensitive, but without metastases he could have years to live. What are the facts?

Scott

September 3rd, 2009 9:06am Report this comment

The medical report published was provided by a central doctor who collated the information from the specialists who had been treating Megrahi. That is the way these things are usually handled - what is unusual is actually publishing the report. We have far more information available to the public than would be ordinarily.

IRONSIDE

September 3rd, 2009 12:33pm Report this comment

There is something interesting in the Daily Mail today with regards Megrahi's health.Apologise it will not allow me to copy and paste. His health is failing fast reports the mail, his defences are low even family and friends are not allowed to be with him.
He cannot speak today.

Speaking as a cancer patient I know for a fact when your defences are down it is true you are placed in an isolated room. Doctors and nurses wear masks and so do family and friends. You can also talk.

It would not surprise me if Megrahi is not "killed" off in the very near future to silence this bad feeling. Those that think Cameron would not have done the same, will have to wait and see. He may well be a different Broom but the Brush is just the same.

By the way your defences go down after chemotherapy, if Megrahi was this ill as has been portrayed he would not be having chemo at this late stage. He would be on morphine for the pain.

joker

September 23rd, 2009 2:30pm Report this comment

Most of scotland were apposed to that man being released, but we have the understanding that most americans fail to grasp, the fact that we have shown compassion to a person thats dying..... personally speaking, i would ahve like to have seen him die in the scottish jail, but te media and hypocritical goverments, both U.S and U.K thought that trade would be best for one life, as i write this letter, ghaddafi is being accepted to the united nations building in new york to discuss the possibilities of trade and compensaton claims for people that have lost loved ones by his terrorist funding

scotland is disgusted and appauled by it, and like some americans find it hard to work out, why he was allowed into the united states in th first place....

mr ghadaffi showed be on trial for the lockerbie bombing, along side hs aides that have used merghi

joker

September 23rd, 2009 2:54pm Report this comment

Most of scotland is appauled by the fact that mr megrahi was released from prison, we thought that he should spend his life in greenock prison.....with an cell right next to his for mr ghadaffi, whom should have been brought to rights as co-accused

we shown the world that its time to move foward and yet because we showed compassion for a dyng man to return home has sparked outrage and hatred towards my fellow scots from the media such as the wall street journal.....i understand that everone is entitled to free speech....but at what cost?????

maybe mr megrahi will be silenced by an assassins gun, or maybe he will make a full recovery...stranger things have happened, but whilst this debate rages on and the goverments, both U.S and U.K,are sitting with mr ghadaffi in the united nations building in new york city.....disussing trade and how to compensate victims of the I.R.A, due to his goverments willingness to supply arms to kill and maim innocent people...

If scotland was to re-introduce the death penalty, would justice have been done???? i dont think so, mr megrahi is a pasty, like lee harvey oswald, a scape goat, so who really is to blame

is there a conspiricy going on??? or is it time that we all decide that enough is enough towards terror and try to build a better wold for the next few generations....too many people have died in needless conflicts....and people will never find out the real truth, wether it be the kennedy shooting or the lockerbie bombing.....

one thing is for sure, if this seems to be a hoax and megrahi makes a full recovery, our goverments should be held responsible, as everyone knows, that gordon brown do not have the back bone to lead this country....he is mearly a puppet, american lead puppet at that.....

i hope one day that we will find out the truth and that way all the conspiricy theories will be pushed aside, but lay off scotland...

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