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TRAIL OF THE OCTOPUS -- FROM BEIRUT TO LOCKERBIE -- INSIDE THE DIA

Chapter 18:

Meanwhile, the families of the Flight 103 victims had won their suit against Pan Am.

On 11 July 1992, a New York jury found that the airline and two of its subsidiary companies, Pan American World Services and Alert Management, Inc., had been guilty of 'wilful misconduct' in failing to observe required security procedures at Frankfurt airport, thereby permitting the terrorists to smuggle a bomb aboard.

In Britain, the judgment was hailed by Peter Watson, lawyer for the British families, as 'a warning to the airline industry that, if their security is as lax, poor and haphazard as Pan Am's was on this occasion, then they face fearful damages. That is the only way a court can bring this home to an airline.'

As there is little doubt that Pan Am's security arrangements at Frankfurt on 21 December 1988, were as 'lax, poor and haphazard' as Watson maintained, his strictures were justified. But there remained a serious doubt that Pan Am's security arrangements were even relevant to the fate of Flight 103.

The plaintiffs' suit had rested squarely on the government's case against the Libyans. If the Libyans were guilty as charged, then so was Pan Am. If they were not, then the plaintiffs' suit was without foundation.

Lee Kreindler, lead counsel for the families, had been required to prove that the bomb, disguised as a Toshiba radio-cassette player, was packed in a suitcase and shipped from Malta to Frankfurt, where it slipped through Pan Am's security and was loaded aboard Flight 103. That could only have happened, he argued, because Pan Am had failed to observe the security rules which required unaccompanied baggage to be hand-searched.

In effect, Kreindler had been required to test part of the case against the Libyans before he could win the suit. If he failed to convince the jury that the bomb had originated in Malta, then Pan Am was off the hook. With no proof of how or where the bomb had been introduced into the baggage-handling system, how could anyone say the airline should have prevented the disaster?

For the defence, Pan Am's trial counsel, Clinton Coddington, admitted that as far as security at Frankfurt was concerned, 'there is no question we made slip-ups and goofs, but,' he insisted, 'they did not cause the tragedy.' Although he argued that the airline's security system had been approved by the FAA, the crux of his strategy was to show 'that the bomb could not have been from Malta'.

The task proved beyond him. Barred from suggesting that the bag had gone aboard at Frankfurt in a way that Pan Am could not have been expected to prevent and even from calling expert witnesses to challenge the validity of the plaintiffs' Libyan theory, he failed to persuade the jurors -- but only just. After a trial lasting 11 weeks, they twice reported themselves deadlocked and twice Chief Judge Platt had to send them back to resume their discussions. In the end, it took the jury three days to arrive at a finding of wilful misconduct, which Pan Am immediately announced it would appeal.

'Much of what we do know with certainty about Lockerbie,' said Thomas G. Plaskett, the airline's former chairman, 'was not shared with this jury, and so today's verdict, much like the whole affair, remains clouded by uncertainty. We shall endeavour through the appeals process to shed some light on this uncertainty.'

This was not what the US government wished to hear. For one thing, it meant that the appeals court would review the Libyan theory, and if, as seemed likely, the judgment against Pan Am was reversed, the whole can of worms would be tipped over in full public view.

If the appeals court ordered a new trial, perhaps on the grounds that evidence for the plaintiffs had been improperly admitted while evidence for the defence had been improperly excluded, then Pan Am's counsel would be free to attack the plaintiffs' case with testimony they had not been allowed to present in the first trial -- and it seemed unlikely that the Libyan theory could stand up to a battering by expert witnesses.

If Pan Am eventually succeeded in defending the liability suit, therefore, the government's case against Libya would be in shreds and its five-year cover-up left plain for all to see.

With Plaskett's announcement that Pan Am and its insurers intended to appeal, Washington went after James Shaughnessy with a vindictiveness without parallel in legal history. Whether as a last-ditch, all-out attempt to shake him off or simply to punish him for daring to challenge the official version of events, the Justice Department filed its long-threatened motion for punitive sanctions against him and his law firm in the amount of $6 million.

Referring to the civil action just ended, the preamble left the court in no doubt about the government's furious embarrassment:

This litigation arose from the wilful misconduct of Pan American World Airways (Pan Am) which allowed a terrorist bomb to be placed aboard its Flight 103 which was destroyed over Lockerbie, Scotland, on December 21, 1988. Subsequently, this court, the families of the victims and the United States Government have been subjected to a calculated and callous litigation strategy intended to avoid liability for the carrier's misconduct.

This strategy, initiated in mid-1989, has been followed to this very day by Pan Am's counsel and their client. Until the United States was finally dismissed in April 1992 [a reference to the dropping of the third-party suit on the eve of the civil action] these litigants, relying upon and wilfully implementing this strategy, successfully generated inflammatory but false allegations in the media and before this court which were intended, and did, in fact, divert attention from the legitimate focus of this litigation, Pan Am's own wilful misconduct.

The resulting waste of time, effort and financial resources and, indeed, attempted misdirection of the criminal investigation itself, more than warrant the substantial sanctions sought by this motion.

More specifically, the government sought to punish Shaughnessy for:

(1) Pan Am's initial subpoenas to the intelligence, military and law enforcement agencies which were based upon the false allegations in the Aviv Report;

(2) the filing of the third-party complaint which was based upon those same false allegations and the equally false allegations directed against the Drug Enforcement Administration (DEA);

(3) the opposition to the motion of the United States to dismiss the third-party complaint which was based upon further false representations that the Pan Am litigants possessed a basis for the claims in the third-party complaint;

(4) the post-filing discovery requests directed at the intelligence, military and law-enforcement agencies for classified and privileged information which is completely protected by statute and under existing precedent, as to which no legitimate argument for change could reasonably be made;

(5) the submission of Freedom of Information Act (FOIA) requests to various agencies which were identical to Pan Am's civil discovery requests, and

(6) the continuous opposition to all reasonable attempts to terminate the litigation activity against the United States which was based upon the false allegations which were repeatedly reasserted without any evidence to support them.

Taken at face value, the motion seemed to argue that nobody, not even in his own defence in a court of law, was entitled to question the government's good faith, its conduct, the truth of its assertions or its judgment in deciding matters of fact. It also seemed to insist that its files were sacrosanct, that they were not open to inspection even in matters as grave as determining who was responsible for the mass murder of 270 innocent people. Even the use of FOIA requests in this context was deemed an underhanded and therefore sanctionable act.

But the motion was not to be taken lightly. Unless the government's arguments were met and answered to the satisfaction of the court, Shaughnessy and his law firm faced bankruptcy and worse. Disciplinary proceedings, perhaps even disbarment and criminal charges, might follow if the government's position were upheld. The choice, therefore, was either to seek an accommodation with the Justice Department, which, as a minimum, would have meant abandoning the case, or to fight.

On 25 September 1992, Shaughnessy met the government head-on with a 73-page affidavit reviewing the entire sweep of his investigation from the moment it began ten days after the Flight 103 disaster.

On the 'false allegations in the Aviv report', Shaughnessy described what happened when he discussed its conclusions with his colleagues.

'Plaintiffs' case depended on their contention that the bomb had penetrated Pan Am's security,' he wrote. 'Mr. Aviv's report indicated that the bomb had circumvented Pan Am's security. Thus, in order to properly defend our clients, we decided that we should serve subpoenas on a number of Federal agencies in an effort to determine whether the government had any documentation which would either confirm or dispute what Mr. Aviv had reported.'

Partial corroboration of Aviv's thesis 'that a Turkish Pan Am baggage handler, following his usual practice with respect to narcotics shipments, switched the suitcase containing the bomb for an "innocent" suitcase had been provided by two conversations between Michael Jones of Pan Am and Phillip Connelly of H.M. Customs and Excise in London. But when the subpoenas were served, 'it was obvious that there were very few sources of evidence ...other than the governments allegedly involved and the terrorists themselves. The best, if not the only source of information that was accessible and was within the subpoena power of the United States courts was the government.'

After tracing the course of the government's stubborn refusal to disclose what it had on file, Shaughnessy reminded the court that his discovery subpoenas had finally been quashed on the strength of a briefing 'on undisclosed matters on unspecified dates by unidentified agents of the government'.

Whatever Chief Judge Platt was told, he later expressed the opinion that 'the key liability issue in this litigation was whether defendants [Pan Am] had met the applicable standard of care with respect to the security applied to interline baggage in Frankfurt.' (Given the determination with which the government had resisted producing the relevant documents, it is hardly likely that its agents would have told the court anything that pointed to a different conclusion.)

Shaughnessy then turned to the government's almost total lack of interest in the results of the polygraph tests he had arranged for the three Pan Am baggage handlers on duty in Frankfurt on the day of the disaster.

In the opinion of the examiner, James Keefe, who had conducted polygraph examinations for over 30 years for the US Army's Criminal Investigations Division, Tiling Kuzcu 'did not tell the truth when he stated that he did not know who switched the suitcases on Flight 103, and further when he stated that he did not switch those suitcases himself. Further, it was the opinion of the examiner that Tuzcu did not tell the truth when he stated that he was not told by Roland O'Neill, loadmaster, to switch the suitcases. Further, it was the opinion of the examiner that Tuzcu had a suspicion that the suitcase placed on Flight 103 contained a bomb.' (The significance of these results, like the significance of the Aviv report, had been largely obscured by the uproar that followed their leakage to the press. As with the report, the polygraph results were invariably described after that as 'discredited'.)

After running through a long list of sources tracked down after Aviv resigned as Pan Am's investigator in June 1990, Shaughnessy described his first meeting in London with Lester Coleman, who had gone there to meet Pierre Salinger of ABC News. Both NBC and ABC, he said, had told Gregory W. Buhler, deputy general counsel of Pan Am, who was also in London, that they 'had evidence that a DEA undercover operation was involved in the crash of Flight 103'. They had also assured Buhler 'that they had obtained their evidence from sources within the United States government and that they were merely using Mr. Coleman to confirm certain details'.

At subsequent meetings in London, Coleman gave Shaughnessy 'detailed information concerning the DIA, the DEA and particularly the Cyprus office of the DEA. This information included code names of operations, file numbers of operations, names of confidential informants and names of subsources. Mr. Coleman also provided me with copies of a number of documents, including an internal DEA memorandum and a passport of a man he said was a DEA confidential informant.' (This was the passport of Syrian George, for whom Coleman had organized a student visa, and who was as familiar with the DEA's couriers and its programme of controlled heroin deliveries from the Bekaa as Coleman himself. Syrian George was last heard of in the Seattle area, to which Micheal Hurley had been assigned after his recall from Cyprus.)

'Finally,' said Shaughnessy, 'he gave me a photograph which he said he had obtained from a contact in Athens which he said was a photograph of David Lovejoy who, at the time the photograph was taken in Beirut in 1985, was using the name Michael Franks.'

Besides newspaper reports about the interception of Lovejoy's calls to the Iranian Embassy in Beirut, Shaughnessy said that he 'had also been advised separately by four investigative journalists' that they had 'evidence' of these intercepts, one having claimed to have actually heard the tapes. 'Finally, I was told that Mr. Lovejoy used a number of aliases, including Michael Franks.'

Turning next to the government's charge that there was no basis for the third-party complaint, Shaughnessy reminded the court that the government had been advised in advance of his intentions to file suit in order to protect the rights of Pan Am and their insurers before the two-year time period ran out. Plaintiffs in the civil suit against Pan Am had done the same thing, for the same reason.

However [he went on], the government claims that it was 'clear' even in December 1990 that there was nothing to defendants' claims. The government bases this claim on the following:

(i) the conclusions of the President's Commission, which was not tasked to investigate, and thus never addressed, the issue of government complicity, except in the broadest terms;

(ii) the determinations of Sheriff Principal Mowat at the [Scottish] Fatal Accident Inquiry, a proceeding which never investigated any facts in Frankfurt and never heard any evidence of, or addressed the issue of, government complicity; and those determinations were not issued until months after the filing of the third-party complaint;

(iii) a press release issued by the Department of Justice supposedly summarizing the results of an internal investigation following the NBC and ABC news reports which revealed that the FBI's investigation was continuing;

(iv) the declarations of government employees in response to government counsel's 'distillation' of Mr. Aviv's 'accusations' ...;

(v) Magistrate Judge Ross report ... and

(vi) the testimony of Scottish Detective Constable Derrick Henderson at the Fatal Accident Inquiry [who] had no personal knowledge of any facts. ..

'I believed at the time we filed the third-party complaint, and still believe,' said Shaughnessy, 'that none of the sources cited by the government demonstrates that the allegations of the third-party complaint were not well grounded in fact.'

This brought him to the third charge, which was that he had opposed the government's motion to dismiss the third-party suit with 'further false representations', in particular the affidavit sworn out by Lester Coleman in Brussels on 17 April 1991. In reply, the government had filed declarations from Lt-Col. Terry Bathen of the DIA and Micheal Hurley of the DEA, and 'significantly', Shaughnessy went on, 'Colonel Bathen admitted that Mr. Coleman had worked for the DIA and Mr. Hurley admitted that Mr. Coleman had worked in Cyprus for the DEA.

'Of even more significance, while Colonel Bathen and Mr. Hurley went to some length to discredit Mr. Coleman, neither of them, particularly Mr. Hurley, attempted to address, much less rebut, the substantive statements made by Mr. Coleman. This failure to deny the substance of Mr. Coleman's statements sharpened our suspicions.' (As a footnote, he added: 'In light of certain allegations that have been made in the media, let me address one important point. Mr. Coleman was never paid any amount except for his expenses in meeting first with me and then with [my colleague] Mr. Prugh.')

Shaughnessy next described his attempts to secure depositions from Dalkamoni and Ghadanfar in Frankfurt, from Pinsdorf and Mayer of the BKA, from Talb and Moghrabi in Sweden, from the two principals of the Swiss firm that manufactured the batch of timers sold to the Libyans, and, in London, from Phillip Connelly, Dr. Thomas Hayes, and David Leppard, to whom Dr. Hayes had expressed the view that the bomb had most likely been triggered by a combined barometric switch and timer, rather than the simple timer supposedly employed under the Libyan theory. As the government had elected to have an attorney present on all these occasions, it was now trying to recover the costs it had incurred as a result.

Summing up, he declared that

"what the government calls a 'callous litigation strategy intended to avoid liability' is what others call defending against unproven charges ... The initial subpoenas and the subsequent two discovery requests served upon the government, not to mention this court's July 19, 1991 order compelling the government to make discovery, were efforts to obtain information and evidence in this litigation. The third-party complaint was the result of information derived from our investigation ...

"The government has fought strenuously and successfully for three years to prevent any discovery of it. Its success is the reason that defendants' third-party claims were dismissed, as a result of which those claims have never been adjudicated. Now, the government seeks millions of dollars of sanctions to punish and bankrupt my firm and me for having had the temerity not only to assert claims against the government but also for even seeking discovery from the government ...

"The government condemns as sanctionable any view of the facts that differs from its own. In effect, what the government condemns is defendants' refusal to blindly adopt its version of the facts despite the government's refusal to produce the evidence from which defendants could have determined whether the government's version of the facts was correct ...

"The government expects this blind trust even though we had information from multiple sources that conflicted with the government's sweeping assertions and that suggested the government was responsible for the failure to prevent the bombing. I note that the government was never able to persuade the court, on the basis of [its] public statements and other facts that were publicly available, that the litigation against the government should cease ...

"Given the information in my possession, I believed that, in the exercise of my duties to my clients, I could not properly advise them simply to trust the government, to shut down discovery against the government, and to abandon the third-party claims without convincing proof that the government's self-serving statements of non-involvement and lack of knowledge were well-founded and our own information to the contrary was erroneous ..."

Not until the end of his long affidavit did Shaughnessy at last give vent to his anger at the attack on his character and professional conduct.

"In closing, I want to say that I am outraged that the government ... has accused me of deliberately making false allegations. This charge is wholly untrue and plainly unfair. The opening pages of government's memorandum graphically demonstrate that a major purpose of the motion is to smear me. The remainder of the memorandum, which ostensibly is offered to prove up the extraordinary allegations in the beginning, is based largely on innuendo and other unsworn speculation of government counsel; it misstates many facts, as I have shown in this affidavit, and it distorts legal precedents to such a degree as to make the memorandum unworthy of the Department of Justice."

Chief Judge Platt was inclined to agree.

In delivering a written judgment on 27 October 1992, he found that

"... succinctly stated, this is an extraordinary motion in what has proved to be an extraordinary case.

"In the first place ... the government's motion is unquestionably premature [and] quite apart from the prematurity of the motion, there are substantial questions whether any sanctions may properly be imposed ... for any of the alleged 'misconduct' on the part of Pan Am and/or its counsel ...

"Viewing the case at bar as a whole ... this court may not say that there has been a clear showing of bad faith ... nor may it say that the persons sought to be sanctioned ... have served any papers with an improper purpose or without a reasonable belief that the paper was well grounded in fact ...

"Parties and their attorneys, including those involved here, are entitled to base their complaints and their requests for discovery on statements of witnesses, reports of their investigators and hearsay reports and statements of others until such time, if ever, as they are satisfied that the statements and other evidence are not competent or are otherwise untrustworthy.

"Thus, in the case at bar, the defendants and their attorneys were during most of the discovery period entitled to pursue their own discovery requests on the basis of the reports and testimony of Messrs. Juval Aviv and Lester Coleman and also to formulate and serve their third-party action against the United States of America in reliance on these two witnesses and the other related information which they had obtained from other sources.

"By the admission of its own lawyers and other agents, the government has in its files substantial evidence which it claims proves the statements of Messrs. Aviv and Coleman to be false, but in order to protect its ongoing criminal investigations and cases, the government refused during all of the pre-trial period in question herein to disclose such evidence.

"It ill behooves the government now to claim that defendants and their lawyers knew or should have known that the Aviv Report and Coleman affidavit were false when they have concededly withheld information from them which prove that their report and affidavit were in fact false ...

"Nor is there truth to the government's assertion that defendants or that their lawyers fully conceded 'that there was no basis' for the third-party complaint or the allegations which were the purported basis for the discovery requests ... All that the defendants did concede at the outset of the trial, in this case, was that they had been unable to discover sufficient corroboration for the Aviv Report and the Coleman affidavit to withstand the government's motion for summary judgment dismissing their third-party complaint, particularly since the government was unwilling to disclose evidence in its own possession.

"On the contrary, if anything, defense counsel James M. Shaughnessy should be commended for the concession which he did make at the start of the trial and for not attempting to espouse directly or indirectly during the trial the uncorroborated versions put forth by Messrs. Aviv and Coleman."

The government's motion for punitive sanctions was denied.

It was the last best shot of the Justice Department under President (and former CIA director) George Bush, who had gone to the White House a month after Flight 103 went down.

The stage was now set for the final act of the drama, in which a Democratic Administration will have to decide 'in the national interest' whether to open the Flight 103 files or, if its predecessor has not already done so, to shred them.

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