Weekly Standard

Without doubt, the center ring under the big top in Libya is the act of deposing a brutal dictator, Muammar Qaddafi, whose long record of depredation includes the deaths of hundreds of Americans in acts of terrorism great and small. There is a sideshow not to be missed, however. It concerns the fate of Abdel Basset Ali al-Megrahi, the convicted terrorist released to Libya from a Scottish prison two years ago supposedly on the “compassionate” grounds that his terminal prostate cancer left him with less than three months to live.

At this writing, Megrahi’s whereabouts are unknown. But he was last seen in public on Libyan state television at the end of July, at a rally in Tripoli in support of Qaddafi. That’s fitting. The Libyan government lobbied the U.K. government of Gordon Brown hard and heavy for his release. He received a hero’s welcome at the airport upon his return to Libya in August 2009. And Qaddafi himself purportedly bought him the two-story Tripoli villa in which he has been living since then.

When Pan Am Flight 103 took off from London’s Heathrow airport on December 21, 1988, there was a bomb on board. It detonated over Scotland, killing all 259 passengers and crew as well as 11 people on the ground in the village of Lockerbie. Of the dead, 189 were Americans. Physical evidence pointed to Megrahi, a Libyan intelligence officer and head of security for Libyan Arab Airlines. After much negotiation, Qaddafi agreed to hand him over for a trial before Scottish magistrates in the Netherlands. He was convicted (a second suspect was acquitted) and sentenced to life in prison in 2001. At the time, London had made a political commitment to the U.S. government that Megrahi would serve out his sentence in Scotland.

But that was then. Fast-forward to 2007-08 and the government of Prime Minister Gordon Brown, which was hot to go in pursuit of business deals with Qaddafi—including an especially big BP oil venture. Qaddafi had conditions, however. One of them was completion of a Prisoner Transfer Agreement between Libya and the U.K., whose main purpose was to secure Megrahi’s release. The Brown government and Secretary of State for Justice Jack Straw at first held out for a provision that would preclude letting Megrahi out. But that was a deal-breaker for Qaddafi (whose son Saif, now wanted by the International Criminal Court along with Dad for crimes against humanity, was leading the campaign from his mansion in London’s rich Hampstead Garden).

The commercial interests were clear and overpowering. Straw eventually caved on the Megrahi transfer provision, clearing the way for Libya to sign off on the BP deal. Straw was also at great pains to make clear his view that under the 1998 home-rule Scotland Act, any decision to release Megrahi belonged entirely to the local authorities. Since the Scotland Act specifically reserves control over international relations for the government of the U.K., and Whitehall was well aware of the potential for international repercussions over the decision to release Megrahi either way, Straw’s insistence that the real power behind the throne was the hitherto obscure cabinet secretary for justice in Scotland, Kenny MacAskill, offered a disconcerting view of the Brown government’s grasp of its own foreign policy.

Meanwhile, however, a whole new vista on appeasing Qaddafi opened up with Megrahi’s prostate cancer diagnosis in the summer of 2009. Qaddafi’s minions—the details are in an excellent February 2011 report on a review of government papers on the Megrahi release conducted by cabinet secretary Sir Gus O’Donnell—immediately escalated their rhetoric, informing Her Majesty’s Government that if Megrahi died in prison, Libya would consider it a “death sentence.” Grave damage to U.K.-Libya relations would result, they warned.

So the internal debate shifted from the release of Megrahi under a Prisoner Transfer Agreement to release on “compassionate” grounds: Scottish law allows prisoners to go home if they have less than three months to live. Press reports at the time referred to Megrahi’s “terminal” illness. But as to whether that meant anything more than that it was incurable, there were few details; prostate cancer can take a long time to do you in past the point at which it is incurable. And as to the seriousness of the medical evaluation, let’s just say the answer, less than three months to live, had a number of eager constituencies.

Qaddafi and Co. first of all. It’s unclear why the colonel is so attached to Megrahi. Libya maintains his innocence, but a reasonable supposition is that a Megrahi back in Libya and under the control of the Qaddafi government would be less dangerous to the regime than a Megrahi in prison in Scotland who has reached the conclusion that Qaddafi doesn’t care about him anymore. Who knows what stories he might tell?

The Brown government clearly saw Megrahi as an obstacle to the cultivation of further lucrative business deals with Qaddafi. As the O’Donnell report concludes:

It is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on U.K. commercial interests in Libya and removal of any clause in the PTA [Prisoner Transfer Agreement] whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree to the PTA could have an impact on U.K. commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former U.K. Government’s decision to reverse its position and agree to the removal of this exclusion clause.

Straw et al. also saw clear advantage in a Megrahi release with no finger-prints of theirs on it. An internal Whitehall memo released alongside the O’Donnell report notes,

The risks to the U.K.-Libya relationship are substantial, but we carry none of the tools to resolve the matter. The best strategy we have for insulating the relationship and mitigating those risks is reiterating that all decisions on Megrahi’s possible compassionate release or transfer under the PTA are exclusively for Scottish Ministers. .  .  . The U.S. position is still crystallising. .  .  . As with the Libya track, our best line is to stress that decisions on possible release or transfer are for the Scottish Executive. We should also reiterate that in the context of the ongoing [legal] appeal [of his conviction] that HMG’s principal objective remains to uphold Megrahi’s conviction and that if released or transferred that he would be so as a guilty man.

Thanks a lot.

Scotland’s MacAskill, meanwhile, was well aware of the Brown government’s press to improve U.K.-Libya relations and the billions of pounds at stake. He found himself in the enviable position of furthering those interests while striking a pose as a world-class humanitarian.

Of course two years later, Megrahi’s survival, let alone his appearance at a Qaddafi rally, does pose a problem for the pretext for the whole sorry episode (in which the Obama administration, “crystallizing” its position rather than telling Her Majesty’s Government that its foreign policy ought not to be devolved to provincial justice ministers, was hardly blameless).

But the conclusion that MacAskill got played, though true, entirely misses the point. All parties worked diligently to overcome the inconvenience to the march of commerce of a mass murderer serving out his sentence. The Brown government got exactly what it wanted.

Scottish authorities reported last week that they had lost contact with Megrahi in Libya, apparently a violation of his conditions of release. Tsk. Unfortunately, the successor Cameron government is of the view that whether Megrahi should be returned to Scotland, were that possible, remains a matter for Scottish authorities. But then, the Cameron government has found other ways to express itself on the Qaddafi regime tout court—as a leader of the international effort to topple him.

Maybe somebody will indeed grab Megrahi in Libya and ship him back to Scotland for violating his parole agreement. On the other hand, reports of his demise are greatly overdue.