Pan Am Flight 103: Trial Aftermath
With Mark Zaid
Plaintiffs Lawyer
Wednesday, Jan. 31, 2001; 3 p.m. EST
THE WASHINGTON POST

Nine months of hearings at a special court in The Netherlands have yielded a verdict in the bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988. More than 270 people were killed in the December 21 disaster. Today the Scottish court convicted and sentenced Libyan intelligence officer Abdel Basset Ali al-Megrahi, 48, to life in prison with the possibility of parole after 20 years. The second defendant, Lamen Khalifa Fhimah was discharged and set free to go by Judge Lord Ranald Sutherland.

Mark Zaid, plaintiffs lawyer for 40 family members of the airline explosion, is online today, Wednesday, Jan. 31, at 3 p.m. EST, to discuss the trial, the verdict, the lawsuits, terrorism and national security. Zaid is Of Counsel to the Washington, D.C. firm of Lobel, Novins and Lamont. He has been involved in the case from the beginning.

A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Mark Zaid: I am happy to be here today answering questions for the Washington Post.com's readership. Today was a very important day in the 12 year crusade by the families of the victims of Pan Am 103 to attain justice for the murders of their loved ones.

Pembroke Pines, Fla.: Why was this a murder trial and not a trial for terrorist acts?

What concessions did the U.S. have to make in order for the two defendants to be tried? If I recall correctly, there were some before they were extradited from Libya.

Where will the convicted defendant be jailed?

Finally, were any U.S. lawyers part of the prosecution team?

Mark Zaid: Originally, there were three charges filed against the two Libyan defendants: (1) conspiracy to commit murder; (2) murder; and (3) violation of various aircraft safety regulations. Terrorism, of course, takes many forms. In its simplest form, this particular act of terrorism constituted murder. Thus, it was prosecuted as a straight murder case, though with terrorism overtones. An amended indictment was filed in the final week of the trial and the prosecution dropped charges (1) and (3), which were really lesser charges anyway.

Only once concession was made by the US to secure the trial that just took place. The US promised not to snatch and grab the two individuals. Thus, as Fhimah travels home as a free man, the US will not intercept his plane. Other than that, the trial was held in a Scottish court, with Scottish judges, Scottish prosecutors and defense counsel, and utilized Scottish rules of evidence and procedure. It was entirely acceptable to the US.

No US attorneys participated in the actual prosecution because, as I just mentioned, it was a Scottish proceeding. However, of course, US prosecutors from the Department of Justice's Criminal Division worked closely with the Scottish prosecutors to prepare the case.

Al Megrahi will be imprisoned in Barlinnie Prison in Glasgow, Scotland.

San Francisco, Calif.: What is the appeal process likely, and do you think there is any chance that the conviction will be overturn?

Mark Zaid: Al Megrahi can petition for an appeal, which he has already indicated he will do, and a 5 member panel will hear that appeal at Camp Zeist. Should the appeal be denied, Al Megrahi can then take one final appeal to the European Court of Human Rights.

The Court's decision is a meticulous one. Indeed, the fact that Fhimah was acquitted, I believe, demonstrates the fairness that pervaded the proceedings. I do not believe there is any likelihood of a successful appeal.

D.C.: Mr. Zaid, in what capacity do you represent these families? Is there another law suit?

Mark Zaid: I have been representing family members of the victims since 1993, when I was retained by Bruce Smith, who lost his wife onboard Flight 103. My colleague, Allan Gerson, and I filed the first U.S. civil lawsuit against Libya in December 1993 (we filed a similar case in Scotland in October 1993). Since then I have been retained by dozens of other family members to pursue civil justice against Libya. I should note that I came to this case with a personal agenda. Two of my schoolmates from the University of Rochester died aboard the plane. I spent my law school years researching ways in which to sue terrorists for civil damages, and I was elated to finally be able to take the opportunity to represent these wonderful families in this effort. That is why I became an attorney.

Washington, D.C.: Will the victims' families be able to pursue any kind of civil case where they could get financial redress? Would the U.S. have to pursue it diplomatically, or is there a court they could go through? In short, what would the process be?

Mark Zaid: There are now numerous civil lawsuits that have been filed since we originally pursued the case back in 1993. All of the cases have been consolidated before the U.S. District Court for the District of New York. The original case actually was dismissed in 1995 due to Libya possessing sovereign immunity. This means that Libya, as a foreign state, was immune from jurisdiction in the U.S. We appealed this decision all the way to the Supreme Court, but ultimately lost. However, along the way, we worked to amend the law, and in 1996 we successfulmodifiedfed the relevant statute to strip Libya and other terrorist states of this protective shield (You might recall that recent lawsuits against Iran and Cuba used this statute). We then reinstituted the lawsuits and defeated Libya's renewed procedural motions to dismiss. After Allan Gerson and I (as well as the law firm of Sonnenschein Nath & Rosenthal, which was our litigation partner), spent three years lobbying for the legislative change, other attorneys took advantage of the new law and filed additional lawsuits. These, as I mentioned, were then consolidated with ours and the attorneys now work as a team.

Palo Alto, Calif.: Mark,

Why the different verdicts for Megrahi and Fhimah? Intelligence reports point to the involvement of both while working at the airport in Malta, where the plane was docked and where they planted the bomb. Couldn't they prove the Fhimah case just as easily?

Mark Zaid: The case has always been circumstantial. This was even admitted by the Scottish prosecutors in open court. However, the evidence, in my mind, was extremely potent when you reviewed it in toto. However, the Court felt that while there was direct evidence indicating that Fhimah was cooperating with Al Megrahi, there was no evidence indicating he knew what he was actually participating in.

For example, Fhimah was alleged to have obtained the Air Malta luggage tags that were eventually placed on the suitcase containing the bomb. His datebook has a reference to "Get Taggs" [sic] and notes Al Megrahi's travel schedule. These tags were instrumental in allowing the accused to circumvent airport security. However, although there was evidence Fhimah was told to and indeed obtained the tags, there was apparently a reasonable doubt within the Court's minds that he knew why he was asked to obtain the tags. Thus, he did not have the culpable mindset to commit murder.

Now, keep in mind that this is the criminal case where the burden is extremely high - beyond a reasonable doubt. Fhimah is a defendant in the civil case, where the burden is simply "more likely than not", i.e., 50.01%. We fully believe we will prove Fhimah's complicity in the civil case.

Chicago, Ill.: What is your educational background, if you don't mind my asking.

Did you handle or were you involved in any other cases in the Scottish Courts or is your knowledge of an appeal process based on your working on this case?

Mark Zaid: I obtained BAs in History and Political Science at the University of Rochester, and my JD at Albany Law School of Union University (NY). I helped prepare and advise the filing of a similar civil lawsuit against Libya in Scotland back in 1993. We eventually dismissed the case to pursue the US civil actions. Of course, we had local counsel in Edinborough. I have no specialized expertise in Scottish law, but obviously have researched the issue so that I am well versed enough to answer my clients' questions about matters exactly like this.

New York City: Do you serve the Libyan Ambassador with the lawsuit? Who represents Libya's interests? Is it an American law firm?

Mark Zaid: No, actually the law precludes service on diplomatic personnel. There is a set procedure within the Foreign Sovereign Immunity Act that governs service. Essentially, we must translate the Summons and Complaint into the relevant language and then attempt one of several methods of service. We actually simply mailed the documents return-receipt requested, and the Libyan government actually responded a few times! I think then they realized that was not in their bests interests and began to ignore the mailings. So, we asked the State Department to deliver the documents to our diplomatic representatives, which was the Belgians. The Belgians then served the documents on the Libyan government.
In our civil lawsuit, the Libyan government is represented by American counsel. Of course, it has every right to receive fair counsel just like any other defendant. Indeed, it is to Libya's credit that the country has actually defended itself in our court system. No other "terrorist" state has ever done so. Typically, they just default.

Arlington, Va.: Did the investigation of the crash result in pinpointing the bomb to a specific piece of luggage? Were there ever allegations that a bomb was accidentally--or purposely--carried on by one of the passengers?

Mark Zaid: Yes, the forensic evidence in this case was astounding. The investigators identified the specific suitcase and its location within the plane. In fact, they identified the clothing that was contained in the bag, as well the radio cassette player that held the bomb. This suitcase was never reconciled with a passenger, meaning it was travelling alone.
There were indeed allegations of the nature you reference. Several terrorist groups had their modus operandi of befriending young women and then giving them "presents" to bring back to purported family members. The "presents", of course, contained explosive devices. This was a theory investigated by the governmental authorities. There was also a theory that a passenger carried the bomb on board because he thought he was carrying drugs, but terrorists had switched the contents. These theories were proven to be untrue.

Chantilly, Va.: Have any of the families from the SwissAir 111 plane crash contacted you to represent them?

Mark Zaid: None, which is not surprising. I am not an aviation tort lawyer, or a personal injury lawyer. I handle sensitive cases against governments, whether it be the US or foreign governments. Sometimes those cases involve torts, such as in Pan Am 103 or the case I handled for the family of the teenage girl killed in the drunk driving accident by a diplomat of the Republic of Georgia.

D.C.: How does the Scotland conviction affect the families' civil suit?

Mark Zaid: It clearly helps. For one thing, it may reduce our need to submit a significant amount of evidence beyond that which has already been publicly revealed in the criminal trial. Perhaps more importantly, now that the end of the criminal case has been reached, the United States government (and the UK) is in a position to share its evidence with us to facilitate the common objective of imputing culpability to the government of Libya. Our government can no longer reasonably claim to withhold the evidence due to a "pending" prosecution.
Finally, in order for the UN sanctions to be permanently lifted, Libya is required to pay "appropriate compensation" to the families. This requirement is obviously strengthened by the existence of a conviction. Our civil lawsuit can serve as the impetus for the payment of "appropriate compensation".

Green Bay, Wis.: If you were to win a civil lawsuit against Libya, how would you collect? Does Libya have any frozen assets in the U.S. and are those reachable?

Mark Zaid: Several readers have posed this question. Libya has approximately $1 billion dollars in assets frozen in the United States. Some of this is cash in various banks (and its interest), or real property. All of it was frozen years before Pan Am 103 was bombed. We can, and will, take the appropriate steps to seize these assets once we have a judgment. There is also the possibility of seeking to execute a judgment internationally. Finally, as I mentioned earlier, the UN sanctions require compensation to be paid.

Washington, D.C.: Mark, congratulations on your hard work and determination in this difficult case. A former colleague of mine and I used to work for former Congressman Jon Fox from Pennsylvania who helped with the amendment of the law. Are there any remaining policy issues that could pose future obstacles?

Mark Zaid: Thank you. I remember fondly working closely with Congressman Fox and his staff to achieve the legislative change. It was very helpful. There are, unfortunately, always policy issues that could prove to be obstacles. Despite the 1996 amendments, not one plaintiff who successfully sued a terrorist state (Iran, Cuba, Iraq) and obtained a judgment has collected any money. The Executive Branch has fought tooth and nail to prevent execution of these judgments for a variety of policy reasons, some good, some bad, some understandable, some deplorable. Recently, additional legislation was enacted to allow certain claims to be paid and I hope that it will happen soon. Time will tell with our claims. Of course, we need to obtain a judgment first.

Washington, D.C.: Mr. Zaid, you seem to have a very unique field of practice, how did you get involved in the law of national security, government misconduct, and the like?

Mark Zaid: Quite frankly, I created it myself. I specialize in matters involving national security, intelligence, First Amendment access issues and other related areas. Essentially, I handle a practice that seeks government accountability. I find it very interesting and rewarding. In addition to my law practice, I also serve as the Executive Director of The James Madison Project, a non-profit organization that seeks to reduce secrecy and promote government accountability. You can find more information about JMP and myself (as well as how to contact me) at www.jamesmadisonproject.org.

Reno, Nev.: Will this conviction have any impact on how the world thinks of/treats Libya and any sanctions against Libya? I had heard if there had been two acquittals, the U.S. would be out there on its own as the World would not have tolerated continuing sanctions against Libya. Any truth?

Mark Zaid: Hard to tell. I can say that the US government is fairly isolated in its hardline position towards Libya. Even the UK and France, which were our cosponsors of the UN sanctions, have re-established diplomatic and economic ties. The majority of the world has turned against the sanction regime. It would have been very difficult to continue that regime had the US/UK lost both cases. Nevertheless, this conviction was a real honor victory for the US. The bombing of Pan Am 103 was an attack against the US. And the US has vindicated its allegations of Libyan involvement through this conviction. I imagine the world will accept the verdict, but nonetheless seek to move forward. Time will tell what the US does. Ties will not be re-established anytime soon. I am very assured of that.

Rockville, Md.: Mr. Zaid,
This morning on the news programs, many of the victims' families said they wouldn't rest until Qadaffi was brought to justice. What, realistically, is the possiblity of that? Do you think the World Court would ever be able to do such a thing?

Mark Zaid: The US criminal indictment refers to unindictco-conspiratorsors. One of them is certainly Qadaffi. We are all quite curious to see what steps the US will or will not take to pursue justice further. Al Megrahi did not mastermind the bombing. He carried it out as a member of the Libyan intelligence service. The order came from above. The International Court of Justice, often referred to as the World Court, is not a criminal forum so no case would be heard there (although there is a pending case between the US/UK and Libya over the Pan Am 103 bombing). The recently created International Criminal Court (ICC), unfortunately, will not have jurisdiction over terrorist crimes such as aircraft sabotage. Furthermore, it will not address crimes that occurred prior to its time creation.

San Francisco, Calif.: Hello,

I am a Syracuse alum; as you know 35 Syracuse University students were aboard the doomed flight. Like many, I have been watching the case for long time. Is there the sense that this is a victory, or the best we could have hoped for? The media coverage of the trial lead me to believe both defendants would be acquitted.

Mark Zaid: Absolutely, it was a terrible day for Syracuse University (although I always feel compelled to make one clarification - it was 35 students on a SU study-abroad program, not all of them were SU students). SU has played a very important role for the families ever since. They routinely hold memorial services and, in fact, hosted the web site for the families that allowed them to monitor what was occurring at the criminal trial in the Netherlands. There will always be a special bond between SU and the families.
Today was certainly a victory. Yes, it could have been better. There could have been two convictions. But as you note, there were serious concerns that there would be NO convictions. The primary defendant was convicted. Al Megrahi was directly linked to the government of Libya. Thus, Libya was responsible for the bombing. Is this sufficient to serve as closure for the families? Obviously, that is something that each and every one of the family members of the 270 people whose lives were stolen must decide on their own. I truly hope that today's event, coupled with the success we ultimately believe we will achieve in the civil litigation, will at least give the families comfort, if not closure.

Mark Zaid: I appreciate all the questions, and hope that each of you felt I was able to provide the answers you sought. For more information about Pan Am Flight 103, and my other cases, please do take time to check out www,jamesmadisonproject.org.

Additionally, you might want to access thweb sitesites, which contain a vast amount of information (dealing with all sides) concerning the bombing:

http://www.law.gla.ac.uk/lockerbie/index.cfm
http://www.geocities.com/CapitolHill/5260/headpage.html
http://syracuse.miningco.com/msubpanam.htm
http://www.thelockerbietrial.com/
http://web.syr.edu/~vpaf103/

Thank you for your time and interest. The fight for justice has truly just begun.