Trail of the Octopus: From Beirut To Lockerbie

"Science," the Greek word for knowledge, when appended to the word "political," creates what seems like an oxymoron. For who could claim to know politics? More complicated than any game, most people who play it become addicts and die without understanding what they were addicted to. The rest of us suffer under their malpractice as our "leaders." A truer case of the blind leading the blind could not be found. Plumb the depths of confusion here.

Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:25 pm

Chapter 16

The government's attempt to silence Coleman coincided with an attempt to intimidate Pan Am's counsel, by now almost the only serious challenger left to the official version of events before and after Lockerbie.

On 20 March 1991, three months after James Shaughnessy had filed suit against the US government, claiming it was culpable in the Flight 103 disaster, the Justice Department responded with a motion seeking either dismissal of the third-party action or summary judgment on the claim.

The sting was in an accompanying memorandum which recommended darkly that 'substantial' financial sanctions should be imposed on Shaughnessy and his law firm for daring to suggest the government was in any way at fault, and for what it alleged was a deliberate abuse of court procedures.

At this point, after successfully stone-walling all attempts to get at the evidence and saddling the airline's insurers with legal and investigation costs running into many millions of dollars, the government probably expected Pan Am to cut its losses: to abandon its own inquiries into the disaster and meet whatever level of compensation was awarded to the victims' families, rather than risk further millions of dollars in costs and sanctions, only to have to pay up in the end anyway.

And no doubt, if Pan Am, its underwriters and attorneys had mounted the third-party suit as a diversionary move, the calculation would have proved correct: for a commercial enterprise, however well funded, to have knowingly persevered with a lost cause against the Federal government, with its virtually limitless financial and legal resources, would have been, not just irrational, but in the insurance business, inconceivable. (It was even less likely in this case because, on 8 January 1991, Pan Am had finally crash-landed into bankruptcy.)

But the suit was neither a diversion nor a lost cause. It was based on the conviction that everybody but the guilty had something to gain from getting at the truth. On 22 April 1991, Shaughnessy went to the barricades with Lester Coleman's affidavit to oppose the government's motion.

The stakes were now very high. Shaughnessy had to satisfy the court that Pan Am's third-party suit had been filed, not just in good faith but on sufficient grounds to justify a reasonable expectation that the case could be won if the government were ordered to open its files.

He began his written argument by pointing out that 'the crash of Flight 103 was caused by a dastardly and cowardly criminal act of mass murder. That criminal act was not targeted at Pan Am, but at the United States.'

The reminder was necessary because, in that sense, Pan Am was also a victim of the attack and therefore entitled to whatever assistance the authorities could provide. As Shaughnessy observed, 'virtually all relevant discovery concerning prior threats to Pan Am Flight 103 and the methods by which the bomb was placed on that flight are in the exclusive custody of the government.' Besides controlling most of the witnesses, the government also held all the documents necessary to establish the facts, and 'for this reason alone', he argued, 'the government's motion should be denied until third-party plaintiffs obtain complete discovery.'

Shaughnessy's affidavit went on to review Pan Am's unavailing attempts to subpoena the records it needed, first, to prepare a defence against the negligence suits filed by the victims' families, and then to pursue its own claims against the government. Blocked for 18 months by the government's refusal to open its files and the court's refusal to compel discovery, Shaughnessy described how he had attempted to secure the documents by another route, by asking for them under the Freedom of Information Act.

In its reply, the National Security Agency had supplied copies of previous requests for the same documents, notably from Tom Foster of the Syracuse Post Standard and Emma Gilbey of the American Broadcasting Company, and copies of its response in each case. As these requests had employed virtually the same language as Shaughnessy had used in his original subpoenas, filed in September 1989, they added nothing to the pool, but the NSA's response to them was revealing.

In its reply to Foster and Gilbey, the agency stated that 'documents responsive to items 1, 3 and 4 of your request were located in our search for records.'

These items had to do, respectively, with prior warnings of terrorist attacks against American airliners at Frankfurt airport; with who put the bomb aboard the aircraft and how and when they did it, and with contraband shipments through Frankfurt airport, including Pan Am's baggage area.

Copies of the documents located by the NSA were not supplied, however, for reasons of 'statutory privilege' and 'state secrets'.

They were not supplied to Pan Am either, although included in the NSA's response to Shaughnessy's request was an internal NSA memorandum which read: 'These FOIA requests for documents related to the bombing of Pan Am Flight 103 include the specific items requested in the subpoena by Pan Am in connection with a civil suit against the airline by the families of victims of the bombing ... Documents related to items 1, 3 and 4 of the request were located.'

As Shaughnessy pointed out in his affidavit, this admission conflicted sharply with the government's denial that it had any knowledge or evidence of prior threats or warnings of terrorist attack.

'Once again,' he declared, 'one is led to the question: what is going on here? I respectfully submit that the answer lies in the documents -- documents which the government has told this court do not exist but which the NSA, in response to the Foster and Gilbey FOIA requests, admitted do exist, and which the government has steadfastly refused to produce.'

The affidavit then addressed itself to the role of Juval Aviv, whose Interfor Report had inspired Pan Am's original subpoenas but who later proved an embarrassment when Magistrate Judge Allyne Ross found that his denial of having leaked its findings was 'not credible'.

'The principal result of the report,' complained Shaughnessy, 'has been that plaintiffs' counsel [acting for the families] and the government have consistently characterized everything that third-party plaintiffs have done since September 15, 1989 [the date of the original subpoenas] as being based on the "discredited" Aviv report. Indeed, the government has sought, both in open court and on this motion, to tar third-party plaintiffs with basing their third-party complaint exclusively on the Aviv report. However, Mr. Aviv and his company resigned as investigators for me in June, 1990, and stopped doing any investigative work long before then.'

After touching on the Lockerbie investigators' curious lack of interest in the results of the polygraph examination of the three Pan Am baggage handlers in Frankfurt, the Shaughnessy affidavit turned next to a review of the information Pan Am had obtained from other sources in support of its claims.

"The information third-party plaintiffs have been able to gather, despite the government's stone-walling [he wrote] 'indicates that the government knew of plans to bomb a Pan Am flight out of Frankfurt during December, 1988, and even may have known that Flight 103 was the target. In addition, the information indicates that the terrorists used a government undercover heroin operation to place the bomb on Flight 103 ...

"While general warnings of the risk of terrorist attacks on American targets in reprisal for the shootdown of the Iranian airliner were passed on to United States flag carriers by the FAA, the government was in possession of far more specific information than the FAA disclosed. In early December, 1988, the Israeli Defense Forces (the IDF) raided a base used by Palestinian terrorist forces in Lebanon and captured documents which disclosed plans to attack and bomb a Pan Am flight in December, 1988 ... I have been told by four separate sources that this information was passed to the government."

His affidavit also cited the telephone intercepts of calls made by David Lovejoy to the Iranian Embassy in Beirut about the movements of the American agents who died in the crash as a further indication that the government knew from more than one source that Flight 103 would be the target of a terrorist attack 'yet failed to disclose this information to Pan Am'.

This brought him to Pan Am's claim for relief on the grounds that the government had also been negligent in supervising DEA's controlled deliveries of heroin through Frankfurt airport, an operation 'utilizing known criminals, terrorists and terrorist sympathizers'.

After the NBC and ABC broadcasts of 30 and 31 October 1990, Stephen H. Greene, the DEA's assistant administrator, operations division, had appeared before a congressional subcommittee to make a statement about the agency's activities in Cyprus. Having explained how controlled deliveries work, he stated, on oath, that the DEA had no ongoing operation in Europe 'during or immediately before December 1988' that 'even remotely resembled the one described in the media reports'.

Noting this denial, the Shaughnessy affidavit went on to list four cases involving Lebanese drug traffickers that the government had prosecuted in the Eastern District of Virginia before Greene's subcommittee appearance. In each case, the evidence had been obtained as a result of controlled deliveries 'using commercial airline facilities and connections in Frankfurt'. One of those convicted had been charged with running 'a heroin laboratory and trafficking operation in the Bekaa Valley' and 'had often shipped heroin to the United States using a shipping company in Cyprus'.

In all four cases, a key element in the prosecution had been a sworn affidavit by DEA Special Agent Hollis Williams, who described how checked baggage containing narcotics was shipped through Frankfurt airport en route from Lebanon to Detroit, where the defendants 'were major sources of supply for heroin'.

In short, Shaughnessy went on, the DEA admitted it had run controlled deliveries through Frankfurt prior to 21 December 1988, and had continued to do so during 1989, but supposedly not 'during or immediately before December 1988'.

'I respectfully submit,' he wrote, 'that the DEA's denial is incredulous [sic]. Moreover, I further respectfully submit that, based upon the other information contained below, it is simply false.'

The 'other information' included reports about the involvement of Turkish workers in placing the bomb aboard Flight 103, and the deposition of Michael F. Jones, of Pan Am Corporate Security in London, describing his conversation with Phillip Connelly, assistant chief investigation officer of H.M. Customs and Excise, eight days after the crash. (Pan Am had sought to obtain a deposition from Connelly himself but the British government had advised the court that, under UK law, government employees could not be compelled to testify. Later on, Connelly would dispute Jones's account of their conversation, but by then the Flight 103 investigation had become a political football.)

Shaughnessy's hammer in nailing the DEA's denial was the affidavit of Lester K. Coleman, sworn to on 17 April 1991. Here was direct, first-hand testimony about the DEA's activities in the Middle East that flatly contradicted the agency's public statements in almost every particular, and which drew attention to its glaring lapses in security while dealing with informants; and others known to be associated with terrorist groups.

"I respectfully submit [concluded Shaughnessy] that the information disclosed above and in the accompanying Coleman affidavit amply demonstrates that third-party plaintiffs have a valid basis for each of their claims against the government. I also respectfully submit, that information demonstrates that the government has, at the very least, been less than candid ... If the government wants this court, third-party plaintiffs and the public to believe that there is no basis for third-party plaintiffs' claims, then it should open itself up to complete and candid discovery.

"If the government has nothing to hide, then why is it hiding?

I respectfully submit that, despite the various grounds asserted by the government thus far, the government is hiding because there was a foul-up within the government. The government knows that it, and only it, could have prevented the murder of 270 people, but it is politically impossible for the government ever to admit that fact or to produce evidence from which that fact could be proven or inferred.

Strong stuff. Which evoked a strong -- and unexpected -- response.

The Coleman affidavit, describing what he had seen and done while seconded to DEA Nicosia, was precisely what the government had feared and tried so ineptly to avoid. Having failed to silence him, it could now either acknowledge the truth or redouble its efforts to discredit him, a choice that detained the DEA as briefly as it did Coleman. Knowing the government's overwhelming priority would be to brand him a liar, he had not expected the DIA to be of much help.

'I thought there was no way in hell I would ever be able to verify the fact that I was a Defense Intelligence agent,' he recalls. 'Standard operating practice is complete disavowal -- that had been made clear from the start. No record would be held of my name and affiliation with the agency. I was Benjamin B -- and all the subpoenas in the world would find no trace of any Lester K. Coleman. I remember telling Shaughnessy I would never be able to prove I had worked for them, but then they did it for me.'

On 7 June 1991, in response to Shaughnessy's affidavit, the government produced two significant declarations attacking Coleman's testimony. The first was sworn to by Micheal Hurley, former DEA attache to the American Embassy in Cyprus, and the other by Lieutenant-Colonel Terry E. Bathen, assistant general counsel to the Defense Intelligence Agency.

Predictably, in the light of the DEA-inspired broadcast on CNN, Hurley's declaration made as little as possible of Coleman's association with DEA Nicosia. The gist of it was that he had been taken on as a DEA 'cooperating individual' on 31 January 1986, after he claimed he could establish a network of subsources to collect data on opium production in Lebanon. According to Hurley, Coleman received the standard admonitions given to all DEA CIs and 'was further advised that he had no official status, implied or otherwise, as agent or employee of DEA'.

Between then and 9 Apri1 1986, he was paid $4000 for information and expenses, after which Hurley received a postcard from Coleman in Switzerland, dated 19 April, which 'indicated that his DEA CI number was retired.' Nevertheless, he was not 'deactivated' until 1 November, when Hurley learned he had returned to the United States.

Though denying that the DEA asked the DIA for Coleman's help during the 1987 opium-growing season, Hurley admitted Coleman was 'reactivated' as a 'cooperating individual' on 20 February 1987, to carry on as before, providing strategic intelligence information and videotape coverage of Lebanese narcotics trafficking. From then until 11 August 1987, he was paid $53,070 for information and expenses, most of which 'was to be paid to Coleman's subsources for the information which they provided ...'

According to Hurley, he made a final payment of $6900 to Coleman on that date in the presence of a 'cameraman/subsource' who was owed $5500 for his work. Instead of giving him cash, Coleman paid him by cheque. 'In my presence,' stated Hurley, 'Coleman told the cameraman/subsource that they would go to his bank upon returning to the United States later that month, where he could get the cheque cashed.'

But the following spring, the declaration went on, Hurley heard from the cameraman/subsource that the cheque had been returned for 'not sufficient funds'. He also 'received information that Coleman may have approached the Soldier of Fortune magazine, trying to sell information which he had specifically collected for DEA'.

Nevertheless, after Hurley 'received assurances from Coleman that he did not provide any DEA information to any person/group outside the DEA,' he was reactivated for the new opium-growing season in February 1988, at which time he 'was representing himself a Director of International Studies at the University of Alabama ... directed Coleman to travel alone, without his wife and child, and to stay in a furnished apartment which had been specifically designated for Coleman's use.'

Later on, according to the declaration, Hurley discovered that Coleman had not only brought Mary-Claude and Sarah but had 'represented himself as a DEA/US Embassy employee in order to secure an outside apartment for himself and his family'. In the period from his arrival until 11 May, he was paid a further $4500 for information and expenses, but 'in May 1988, Coleman was deactivated as a cooperating individual by DEA for unsatisfactory behavior ...

'The incidents which led to Coleman's deactivation included his illegal and less than forthright behavior with one of his cameramen/sub-sources, his outstanding arrest warrant that the Cyprus Police had issued for him and the articles that appeared in Soldier of Fortune magazine which contained information which Coleman had obtained for DEA.'

The arrest warrant 'stemmed from Coleman's failure to reimburse his landlord in Cyprus for the international telephone calls which he incurred while living in the apartment with his wife and child. The bills were for several thousand dollars.' As a result of these charges he said, Coleman was declared an undesirable and banned from entry into Cyprus.

Turning then to the substance of Coleman's affidavit, Hurley declared, on oath, that

"... during the period of time that I was the DEA country attache in Cyprus [1984 to 1990], the DEA Nicosia Country Office was not involved in any controlled deliveries of heroin either originating in or transiting Cyprus wherein Frankfurt was utilized as a European transit point for a controlled delivery to Detroit.

"I do not know nor am I familiar with the word or name 'Khorah' in connection with any activity undertaken by DEA during my tenure as DEA country attache in Nicosia.

"Khaled Nazir Jafaar was never a DEA cooperating individual nor was he known to be a 'mule' (drug courier) for DEA. To my knowledge he was never a CI for any other agency during my tenure as DEA country attache in Nicosia ...

"I hereby declare under penalty of perjury that the foregoing is true and correct.

"Signed this 31st day of May, 1991, Micheal T. Hurley, Special Agent, Drug Enforcement Administration."

As Coleman explained to James Shaughnessy, after going over Hurley's declaration and correcting its deficiencies, this was no more than he had expected. The astonishing thing was that in the other declaration, by Colonel Terry Bathen, the DIA actually acknowledged that Coleman had been working for them -- and at a time when Hurley had declared that Coleman was working for him.

"I was very surprised they did that (Coleman says). It was the first admission that the DIA had been running intelligence operations that monitored and duplicated CIA operations and that there was hostility and suspicion between them. In fact, by acknowledging my existence, I think the DIA acknowledged its own existence for the first time in public.

"I also think it was a back-handed way of having a swat at the DEA for putting the skids under me with that phony passport rap. In making this disclosure, the DIA was sending them a message: 'Hey, one of our guys was watching what you did. We know what was really going on there, so watch your step.' The thing they were concerned about was the barter of drugs for arms. Narco-terrorism was a fact. The DEA and the CIA were involved in highly questionable relationships that could -- and did -- explode in their faces."

Apart from the key admission that 'Mr. Coleman was formerly associated with a Department of Defense intelligence activity', Colonel Bathen's declaration, like Hurley's, was concerned to minimize the nature and significance of that association. Appointed to the post of assistant general counsel long after the events in question, he numbered among his responsibilities 'the processing of litigation requests for classified national security information'.

'In response to the criminal and civil matters involving Mr. Coleman,' he declared, 'I personally reviewed the automated and documentary files of the Defense Intelligence Agency ... My review of Department of Defense HUMINT records reveals that ... on or about October 25, 1985, Mr. Coleman contacted Defense Intelligence Agency personnel by telephone and volunteered to provide information concerning the Middle East. Mr. Coleman's offer to provide videotapes associated with his travels in that part of the world was favorably evaluated, and he became affiliated with a classified Department of Defense Intelligence activity during December 1985.'

According to Colonel Bathen's review of the records, Coleman did not operate a network of intelligence agents, nor was he instructed to apply for a passport in the name of Thomas Leavy.

'Mr. Coleman received limited monthly compensation for his activities from July 16, 1986, until November 1986,' Bathen went on, 'when he was placed in a dormant status pending resolution of various actions by him which were inconsistent with any continuation of his intelligence-related activities. While Mr. Coleman's status was periodically reevaluated during 1987 and 1988, he performed no services for Department of Defense intelligence activities after 30 November 1986.'

This gobbledegook was followed by a denial that the DEA had ever asked the DIA for Coleman's help in the Middle East or that the DIA had ever directed him to break off his relationship with that agency. Colonel Bathen also denied that the DIA had reactivated Coleman in November 1989 or ordered him to proceed to the Middle East under the name of Thomas Leavy.

Content that the agency had acknowledged him, Coleman and Shaughnessy found the rest of the Bathen declaration more interesting for what it did not say. From the Hurley affidavit, the stamps in Coleman's passport and other documents and witnesses, it was clear that the operational arm of the DIA had not been entirely frank with its assistant general counsel.

"I'm supposed to have contacted the DIA by telephone to volunteer my services? [Coleman scoffs]. Where did I get the number from? The Yellow Pages? And why drop eleven months from the record? So as not to hurt Pat Robertson's feelings? I was recruited in December 1984, not '85.

"My passport shows I arrived in Lebanon in February 1985. I was under cover as an employee of the Christian Broadcasting Network. After that assignment, I came home in October '85 and met Control in McCloskey's home to set up Condor Television Ltd. And I'm not surprised the DIA described that as a classified intelligence activity because the agency had no Congressional authority at that time to set up front companies. What they did instead was use 'cut-outs' -- companies set up by individual agents or third parties but funded and operated by the agency. The DIA was the acknowledged master of the cut-out and the CIA had copied them. It was a great way of getting out from under Congressional oversight, raising plausible deniability to the level of an art form.

"But the interesting thing is that Bathen puts me with the DIA in December 1985 and Hurley says I went to work for the DEA in January '86. So according to their declarations, for four months, until I was pulled out to go to Libya in April, the government acknowledges I was working for both agencies at the same time -- without Hurley knowing it, of course.

"It's also interesting that DIA says I received limited monthly compensation from July until November 1986, while I was still on Hurley's books. In July, I was issued with a Sony camcorder. Bathen doesn't mention this but the DIA eventually admitted it to my attorney in Chicago. In September, I used the camcorder in Lebanon and brought it back to the States. On Control's instructions, I took it out again when I was assigned to DEA Cyprus in February '87 and left it behind with Tony Asmar's people in Beirut when I came home that August. The following spring, after Tony was killed, I retrieved it from Lebanon and returned with it.

"So there I was, working with the DIA's equipment all through '87 and the early part of '88, and guess what? The camcorder was still signed out to me when I was arrested in May 1990. Now they say I performed no services for them after November 1986? I was debriefed by Donleavy on each of those operations -- which I guess is what Bathen meant when he said I was 'periodically reevaluated' during '87 and '88. Plus there are all the back-channel reports I filed twice a week.

"It's obvious to me that the office of general counsel, for its own protection, is out of the loop as far as classified HUMINT operations are concerned. Like he says, Bathen's declaration was based on information made available to him. But I'm still grateful the DIA owned up to the fact that I worked for them. They didn't have to do that. It's what's known in the trade as a 'limited hang-out' -- admitting just enough of the truth to create an impression of candour without giving the game away."

Meanwhile, James Shaughnessy had been doing his best to get around the government's stonewall defence of its files by seeking Hague Convention letters of request to depose witnesses and suspects turned up by the Flight 103 investigation. In Frankfurt, on 6 May 1991, a series of written questions were put to PFLP-GC members Dalkamoni and Ghadanfar, who had been arrested in Germany in October 1988, and who were then on trial for a series of terrorist acts. Not unexpectedly, they refused to testify.

On 8 and 10 May, Shaughnessy attempted to depose Bert Pinsdorf and Hartmut Mayer of the BKA, with whom Coleman had discussed the Lockerbie disaster on the telephone. Under instructions from the German Ministry of the Interior, Pinsdorf refused to answer most of the questions put to him, while Mayer, who had originally referred Coleman to Pinsdorf, merely confirmed that he was the BKA's narcotics agent on Cyprus and that he knew Coleman had worked for the DEA there with Hurley and Ganem.

On 10 and 12 June, Shaughnessy went to Sweden to depose PFLP-GC members Abu Talb and Mahmoud Moghrabi, who were both serving prison terms for terrorist offences. They, too, declined to answer almost all the questions put to them.

Refusing to give up, Shaughnessy would later try, with no greater success, to depose Phillip Connelly of H.M. Customs and Excise; Dr Thomas Hayes, the scientist responsible for most of the hard forensic evidence in the Flight 103 investigation; and the two principals of the Swiss firm who made the timers sold to the Libyans; but meanwhile, on 7 June 1991, argument was heard in New York's Eastern District Court on the government's motion to dismiss Pan Am's third-party complaint.

After hearing both sides, Chief Judge Platt evidently shared Shaughnessy's view that the motion was premature for he declared that Pan Am was entitled to discovery from the government before the court ruled on the matter. Six weeks later, on 19 July, he went further and entered an order requiring the government to respond to Pan Am's subpoenas, for he had taken the point that, while the government continued to sit on all the evidence, Shaughnessy could neither proceed with his clients' claim nor prepare a proper defence to the civil suits.

For a while it looked as if the truth might finally come out, but by a series of manoeuvres the government now asserted the state secrets privilege. In Shaughnessy's absence --indeed, without his knowledge -- government counsel made a selective showing of documents to the court in camera, and at a conference called on 20 September, Chief Judge Platt reversed himself. Without identifying the documents he had seen, he told Shaughnessy that the government had validly asserted the state secrets privilege, that there was nothing in the documents to support third-party claims, and that he was therefore denying Pan Am discovery.

Whereupon, Shaughnessy asked if this meant that the court was dismissing Pan Am's third-party claims, as he had made it clear that he could not proceed without discovery. To his surprise, Chief Judge Platt declared that, to the contrary, he was denying the government's motion to dismiss the suit, that the government would be kept in the litigation until the conclusion of the liability trial, and that he was putting the government under the continuing duty to produce any evidence it developed bearing on the third-party claim. When Shaughnessy asked for leave to appeal this decision to the Second Circuit, the request was denied.

That was on 20 September 1991. After that, he concentrated on preparing for the civil liability trial and, to all intents and purposes, the case against the government was abandoned. Nevertheless, the ground had to be cleared, for the court now set provisional trial dates in April 1992, for both the passenger liability suits and the third-party claims.

On 20 March, Shaughnessy again applied to the court for an order either granting discovery and severing the third-party suit for trial later or dismissing the suit altogether. There was no way, he said, that Pan Am, with or without discovery, could prove its claim with admissible evidence at a trial scheduled to start in one month. Opposing the motion, government counsel demanded for the second time that the court impose punitive sanctions on Shaughnessy and his law firm.

Chief Judge Platt again declined to do this, but on 16 April, denied Pan Am's motion in its entirety, neither granting discovery nor dismissing the suit. As this was clearly unacceptable to both sides, a further conference was called on 24 April, three days before the trial date set for both actions, at which the government once again asked for Pan Am's suit to be dismissed.

In reply, Shaughnessy once again reminded the court that the government had never answered the complaint, and that, as discovery had been denied, Pan Am's claims could not be proved by admissible evidence. With this, Chief Judge Platt finally dismissed the third-party action, but with the proviso that he would reinstate the suit if evidence was developed to support it.

And there matters rested until 27 April 1992, when the trial at last began of the Lockerbie families' liability suit against Pan Am -- and when that week's edition of Time magazine promised its readers 'The Untold Story of Pan Am 103 '.

The response to Time's cover article, researched for five months by Roy Rowan, a veteran reporter and editor with 44 years' experience, ranged from the hysterical to the vindictive, with some of its more extravagant critics suggesting that Pan Am had somehow arranged for its publication on that date in order to influence the liability trial. Besides the timing of its appearance, Rowan's reliance on Juval Aviv and Lester Coleman as two of his sources was clearly the reason for all the excitement.

Lee Kreindler, lead counsel for the victims' families, immediately filed a motion for the discharge of the jury because of the unexpected publication of 'the most shocking and most prejudicial false information about the Lockerbie story'. This 'false information', he said, 'bears directly on the trial and it appears to have been given to Time by the defendants'. He asked for a judicial inquiry into the circumstances of its publication as, in his view, it was 'bound to poison the mind of every juror picked'.

Chief Judge Platt did not agree, and ordered the trial to proceed. He also banned all the attorneys in the case from speaking to the media, which had immediately pounced on the Time story and relayed its conclusions around the world.

In essence, Rowan's article had suggested that Flight 103 might have been targeted by Ahmed Jibril's PFLP-GC because of the American intelligence team on board, led by Major Charles Dennis McKee of the DIA. Still further undermining the official Libyan theory, Rowan also quoted at length from the FBI field report that cast doubt on the reliability of Frankfurt's baggage computer records, leaving open the possibility that a 'rogue' bag containing the bomb had been 'inserted in the baggage system'.

This rogue bag, he suggested, 'may have been placed on board the plane by Jibril's group with the help of Monzer al-Kassar, a Syrian drug dealer who was cooperating with the US's Drug Enforcement Administration in a drug sting operation. Al-Kassar thus may have been playing both sides of the fence.'

Much of the information about al-Kassar was provided by Juval Aviv, who still stood by his original assertion that a 'freewheeling CIA unit codenamed COREA was instrumental in allowing the PFLP-GC to engineer the baggage-switch. But Rowan had also unearthed a fresh piece of verifiable evidence which supported the FBI field report and showed how a rogue bag could have been exchanged for an innocent one and loaded aboard Flight 103.

Two identical Samsonite suitcases full of Christmas presents were among 11 bags belonging to passengers on a delayed Berlin-Frankfurt feeder flight that were left behind when their owners caught an earlier connection to London. These unaccompanied bags were entered into Frankfurt airport's computer system and sent on via Flight 103. But only one suitcase of Christmas presents was recovered at Lockerbie. 'The other was mysteriously left behind in Frankfurt, and arrived safely in Seattle a day later.'

Further undermining the government's contention that the bomb was contained in an unaccompanied suitcase from Malta was Rowan's revelation that James Shaughnessy had taken depositions from 20 officials who had been on duty at Luqa airport on 21 December 1988, 'including the airport security commander, the bomb-disposal engineer who inspected all the baggage, the general manager of ground operations of Air Malta, the head loader of Flight 180 and the three check-in agents. Their records showed that no unaccompanied suitcases were put aboard the flight, and some of the staff Shaughnessy interviewed are prepared to testify under oath that there was no bag that day destined for Pan Am Flight 103.'

Rowan next turned to what he had learned from Lester Coleman while researching the article, most of it echoing what Coleman had set out in his affidavit, and then came back to Juval Aviv's theory that Major McKee's intelligence team, learning of al-Kassar's connection with the CIA COREA unit, had decided to fly back unannounced to Washington to expose the secret deal between them.

'Apparently the team's movements were being tracked by the Iranians,' he wrote, citing the David Lovejoy calls to the Iranian Embassy in Beirut. 'Lovejoy's last call came on 20 December, allegedly informing the Iranians that the team would be on Pan Am Flight 103 the following day.' The result, Rowan suggested, was that the terrorists set out to kill them because of their planned hostage-rescue mission, although, he added, 'the FBI says it investigated the theory that McKee's team was targeted, and found no evidence to support it.'

Coleman does not believe it either, nor does he believe there was any freewheeling CIA unit codenamed COREA. From his personal observations, he believes that local CIA agents, working with local DEA agents, kept the khouriah pipeline open long after its security had been breached, and that the terrorists, who had been tracking the Jafaars, took advantage of one controlled delivery too many to switch a suitcase containing heroin for another containing a bomb. The deaths of five American intelligence agents, in Coleman's opinion, was an unexpected bonus.

But a contribution from another of Rowan's sources struck an eerie chord in his memory. The Time article described how Richard Gazarik, a reporter for the Tribune-Review, of Greensburg, Pennsylvania, had found in the lining of Major McKee's wallet, after it was returned to his mother, what Gazarik had assumed were the codenames of McKee's intelligence team: Chuck Capone (presumably McKee himself), Nelson, Dillinger, Bonnie (although there was no woman in the group) and Clyde.

During his first DIA assignment in Beirut, Coleman had serviced a dead drop for the Green Berets at Juicy-Burger, a hamburger stand in East Beirut. The owners were an American couple codenamed Bonnie and Clyde.

In London, the Observer greeted the Time cover story with barely concealed disgust. Two years earlier, its reporter John Merritt had interviewed Juval Aviv in New York and found him wanting, and Time had not mellowed his opinion.

'By Time's own admission,' he wrote, 'the article makes much use of the Aviv information. But it is not just its timing that raises questions. It is clear that Mr. Aviv's strange concoction remains the central plank of the insurers' defence. And therefore, as well as obscuring the issue of Pan Am's negligence with bizarre and unsubstantiated claims, it enables the defendants to claim an unfair hearing because the US government is "covering up" vital evidence.'

As Shaughnessy had been at pains to show that Aviv's connection with Pan Am had ended two years previously and that since then much other information had been assembled from many other sources, Merritt's strictures seemed unwarranted. Referring to the Interfor Report, he again insisted that 'both it and Mr. Aviv were discredited by an Observer investigation more than two years ago. The Observer subsequently gave evidence on Mr. Aviv in a New York hearing related to Lockerbie which led to him being "deemed not to be a credible witness".'

This could well serve as a textbook example of obfuscation. The Observer investigation had identified some minor flaws in the peripheral detail of Aviv's report and, on the strength of this, had simply poured scorn on the rest.

The purpose of the New York hearing 'related to Lockerbie' had been to determine whether or not Aviv's Interfor Report could be treated as a privileged work document after its findings had been leaked to the press. Merritt gave evidence which showed that Aviv had leaked at least some of its findings to him, and it was Aviv's denial that he had done so which Magistrate Judge Ross deemed not to be credible. The substance of the Interfor Report was not discussed.

On the other side of the Atlantic, the Washington Post on 26 April 1992, carried a more measured, though still hostile, response to the Time article by David Leppard, of The Sunday Times. Though also committed to the official version of events, Leppard at least acknowledged that a few other people had contributed to Rowan's article besides Juval Aviv. Not that he set much store by what they had to say.

'The Time story, which laid out little new evidence, draws heavily on the case assembled by Pan Am's lawyers,' he wrote dismissively, before proceeding in his own article to draw heavily on the case prepared for the victims' families by 'veteran air-crash lawyer Lee Kreindler'.

'A review of the case files, evidence and other materials,' Leppard declared, 'shows that Kreindler's case is built on the premise that the bomb suitcase reached Frankfurt via Air Malta Flight 180 from the Mediterranean island and was transferred -- unaccompanied by any passenger -- to Pan Am 103 at Frankfurt. He will try to prove Pan Am committed the cardinal sin of airline security: allowing an unaccompanied, unaccounted-for bag into an airliner cargo hold. Kreindler's theory parallels the criminal conspiracy case assembled by the FBI and Scottish police ...'

Leppard then turned to the alternative theory that the bomb bag had been switched for another in the airport's baggage-handling area and duly noted, without comment, the 'previously undisclosed FBI memo' which concluded, after a review of the airport's baggage-handling records, that 'the possibility' remained that no luggage had been transferred from Flight 180 to Flight 103.

This reminded him of the polygraph tests that two of Pan Am's Frankfurt baggage-handlers flunked when questioned about a possible suitcase switch. 'When the airline later flew the two men to London on a pretext,' he went on, 'British authorities refused to interrogate the pair. Time's unstated implication: The British were cooperating with US intelligence to protect any covert links to the bomb plotters.'

Well? If Time had got it wrong, what did Leppard read into the British authorities' refusal? He did not say. Nor was he inclined to speculate about the conclusion drawn by the FBI memo which indicated a 'possibility' that the entire Libyan theory was wrong, if not a deliberate fabrication.

Demonstrating the 'unusual and controversial lengths' to which Pan Am's lawyers were prepared to go, he wrote, they had even tried through the London courts to 'force' him to divulge some of his own 'sources and materials'. As this was an attempt by Pan Am to clarify an opinion expressed to Leppard by Dr. Thomas Hayes, the lead forensic scientist in the Flight 103 investigation, and already published in Leppard's book, it is not clear why he would have wished to withhold this source material in the first place. Nor did he explain why he thought it 'unusual and controversial' for Pan Am to want to know more about Dr. Hayes's reported belief that the Lockerbie bomb was a dual device, incorporating both a barometric switch and a timer, when the Libyan/Air Malta theory rested in part on the bomb-maker's use of a Swiss timer alone.

As in any attempt to establish the truth, until the facts come out, who can say whose cause they will favour?

Certainly, Leppard appeared to favour the official line, for he went on to remind his Washington Post readers that a shopkeeper in Malta had identified one of the two Libyans indicted for the bombing as the purchaser of the clothing wrapped around the bomb (without mentioning that the shopkeeper had previously identified somebody else), and that a Libyan defector 'with detailed inside knowledge of the plot' was standing by to testify against his former colleagues (without referring to the reported $4 million reward for his testimony).

Leppard also subscribed to the government view that Juval Aviv was 'a primary source for Pan Am's lawyers'. While conceding that Time had not mentioned Khalid Nazir Jafaar in its article, he used Aviv's finding that Jafaar had been the unwitting instrument in getting the bomb aboard to link Aviv with Lester Coleman, whose affidavit supported that conclusion.

'Coleman in an interview told me he has no first-hand knowledge of the circumstances of Flight 103,' wrote Leppard. 'Moreover, if Aviv's bag-switch thesis is true, one of Jafaar's checked-in bags would have been left behind at Frankfurt and therefore unaccounted for in the Lockerbie debris. But both of Jafaar's checked-in bags were recovered undamaged from the crash scene. Scottish investigators who interviewed Frankfurt airport staff found no one who could recall him with a bronze Samsonite suitcase.'

When Coleman spoke to Leppard on the telephone, he certainly agreed he had no first-hand knowledge of the circumstances of Flight 103 -- he had been back in the United States for seven months when the attack occurred. But that was not all that he told him. He also said that he did have first-hand knowledge that Jafaar was a DEA courier making controlled deliveries of heroin to the United States in 1988 -- which was, after all, the point of his affidavit.

As for Jafaar's baggage, his father was reported to have said that Khalid had travelled with two soft holdalls that he would normally have taken with him into the cabin -- and Khalid's two soft holdalls were, as Leppard said, 'recovered undamaged from the crash scene'.

Given the inadequacy of Pan Am's baggage records -- a central plank in the plaintiffs' liability suit -- there is nothing to indicate that he did not also check in a Samsonite suitcase. And given that the terrorists did not expect him or the aircraft to survive the flight, there was no reason why they should have left a suitcase behind at Frankfurt. They would simply have added the bomb bag to the rest of the Flight 103 passenger luggage, relying on the explosion to destroy all the evidence, including any discrepancies in the loading list.

As the government's attorneys had insisted before Chief Judge Platt, just ten days before Leppard's article appeared: 'Pan Am's own records and procedures are in such disarray that the only thing they prove is that Pan Am had no idea what baggage was on the aircraft.'

Further evidence of this disarray, as Leppard noted, was the story Time had unearthed of the two unaccompanied suitcases full of Christmas presents that had been routed on from Frankfurt to the US via Flight 103. Unimpressed by the fact that one had unaccountably been left behind, he wrote: 'Time offers no evidence of how a quick-moving bomb plot could have hinged on the chance availability of an appropriate bag for the necessary switch.'

This was either disingenuous or he had missed the point. Time had not suggested any such connection. Rowan's article was concerned only with showing that a rogue bag could have been 'inserted into the automated baggage-control system, as the secret FBI report indicates was possible'.

And not just 'possible'. The report described how, in September 1989, Detective Inspector Watson McAteer and Special Agent Lawrence G. Whitaker actually witnessed a baggage-handler bring in a piece of luggage, encode a destination for it into the computer, and toss it on to the 'secure' conveyor without making any notation on the worksheet.

The procedure for bag-switching was in place, and had been used many times by narcotics smugglers and DEA couriers. But in this instance, as the terrorists expected Flight 103 to crash into the Atlantic, there was no reason for them to substitute one suitcase for another, let alone to leave anything behind that might give the game away. The only requirement was to get the bomb bag aboard.

Leppard concluded his article for the Washington Post with a dutiful nod to the Libyan theory by suggesting that the bombing of Flight 103 could as readily have been a revenge attack for the American air raids on Tripoli 1986 as an Iranian-inspired revenge for the downing of its Airbus.

'The assertions supplied by Aviv and Coleman,' he wrote, 'require a different explanation, one which Time relates to its readers.'

This is not so. As Coleman had been at pains to point out in his telephone interview with Leppard, he had always believed that the attack on Flight 103 was inspired and financed by the Iranians, and carried out by Syrian-backed terrorists using bomb components in all probability supplied by the Libyans. He had never subscribed to the Time/Aviv theory that the flight was deliberately targeted by Monzer al-Kassar because an American intelligence team was aboard, although he has no doubt that al-Kassar's drug-smuggling arrangements at Frankfurt were employed to put the bomb in the cargo hold.

'There is not a scrap of evidence that Kassar was anywhere near Frankfurt at the time of the attack,' Leppard concluded, 'nor is there a witness who will say that he conspired in the bombing.' (That is certainly true. No professional criminal would risk being caught at the scene of a crime if his presence was not required, least of all a CIA asset. And the only possible witnesses against al-Kassar are either his co-conspirators or his CIA control, none of whom seem likely to come forward voluntarily.)

'No other witness can testify to the real motives behind the attack.' (That, too, is true -- unless or until Ali Akbar Mohtashemi, Iran's former Minister of the Interior, or Ahmed Jibril, head of the PFLP-GC, decide to publish their memoirs.)

'Such are the Byzantine tales that await the jury in the case of Pan Am 103,' concluded Leppard, having himself contributed to some of them.

On the next day, 27 April 1992, jury selection began in the civil liability case before Chief Judge Thomas C. Platt, United States District Court, Eastern District of New York.
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Re: Trail of the Octopus: From Beirut To Lockerbie

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Chapter 17

Lester Coleman's day in court had been scheduled for 17 June 1991, in Chicago, but having just found sanctuary for himself and his family in Sweden, he was not disposed to gamble with it.

Even if he had wished to run the risk of answering the government's trumped-up charge, he was neither fit enough nor solvent enough for any more travel. Acute lumbago, coupled with a kidney infection, had confined him to bed soon after his arrival, and he was down to less than $150. Except for their clothes, the family had nothing left to sell.

On 11 June, his Chicago public defender, Michael Deutsch, advised the court that Coleman was ill in Sweden, and Chief Judge James B. Moran rescheduled the trial for 22 July, ordering Coleman to produce proof of his illness and to appear at a pre-trial hearing set for 16 July.

It was impossible.

'We are disillusioned and exhausted, homeless and broke -- and there seems to be no end in sight,' Coleman wrote to Deutsch. 'I suggest you ask the court to fund a trip for you to consult with your client, whom you have never met, since I am unable to consult with you in Chicago for health and financial reasons.'

Not unexpectedly, the court rejected the suggestion. On 16 July, Deutsch reported that his client was still unable to travel and produced medical certificates to that effect from Coleman's Swedish doctors. Chief Judge Moran then postponed the trial indefinitely and asked the assistant US attorney in charge of the case to arrange for an independent physician to examine Coleman to determine the nature and extent of his illness.

The responsibility for this, and also for bringing Coleman back within the orbit of the Justice Department, was assigned to the FBI, which seems to have concluded, rightly, that he was unlikely to return of his own accord. A pretext was therefore required to have him declared a fugitive. The Bureau could then ask Interpol to have him picked up when Coleman next presented his passport for inspection.

On 24 September, having been advised that a Dr. Hakan Hallberg was prepared to examine Coleman in Sweden on the court's behalf, Chief Judge Moran ordered that unless Coleman submitted to an examination by Dr. Hallberg within ten days, a bench warrant would be issued for his arrest.

Still ready to comply with the court's order (if not to surrender himself to its jurisdiction), Coleman duly telephoned Dr. Hallberg for an appointment -- and was astonished to learn that Dr. Hallberg knew nothing whatever about the matter. He had never been approached by the American authorities, he said, and had certainly never agreed to carry out an independent examination for them.

At Coleman's request, Dr. Hallberg provided a written statement to that effect. In English. Dated 27 September, it read simply: 'Coleman, Lester, has contacted this office, and we have no knowledge of any request from American authority to examine Mr. Coleman.'

Guessing what lay behind the manoeuvre, Coleman immediately forwarded Dr. Hallberg's letter to Micheal Deutsch in Chicago, but it was either too late or ignored. On 7 October 1991, a bench warrant was issued 'for failure to appear', and Coleman was duly reclassified as an international fugitive.

That meant he was no longer free to travel, if he wished to, beyond the frontiers of Sweden, whose government had taken the Colemans in as refugees while their petition for asylum was considered. To get him back, the US Justice Department was now in a position to sue for Coleman's extradition, if it was ready to risk a public hearing in Sweden, or, if it wasn't, either to press through diplomatic channels for his deportation, or to sanction his kidnapping and forcible return to the United States.

A further bonus from Washington's point of view was that the fugitive warrant dealt another body blow to Coleman's credibility as a witness. The assault on his character begun by Steven Emerson in the CNN newscast had become a priority after James Shaughnessy filed Coleman's affidavit in Pan Am's third-party suit.

On 30 May, a few days before the Colemans crossed into Sweden, John J. Connors, the attorney heading the government team, joined Colonel Bathen of the DIA and Micheal Hurley of the DEA in filing declarations directed, not so much at what Coleman had to say, but at the man himself. Most of it had to do with the phony passport charge. As in Pan Am's case, the government was in sole possession of the evidence Coleman needed to prove that he had been acting under orders when he applied for a Thomas Leavy passport, and, again as in Pan Am's case, the government had refused to produce that evidence, claiming the state secrets privilege.

Still following the Pan Am tactics, the Justice Department chose instead to make an in camera, ex parte showing of classified documents to Chief Judge Moran, who, on the strength of what he was shown, ruled that those documents did not support Coleman's defence and denied his motion for discovery. Exactly what he did see, however, is known only to the court and the government prosecutors. As they had charged Coleman in a criminal matter, they were unlikely to have produced documents that undermined their own case, so the value of the exercise was questionable. But it at least enabled Connors to imply in his declaration that Coleman's story was unsupported by the evidence.

'In an apparent attempt to bolster the credibility of Coleman and otherwise support their allegations against the DEA,' Connors went on, 'third-party plaintiffs requested ... depositions of two German BKA agents, Bert Pinsdorf and Hartmut Mayer.'

Holding a watching brief for the government, Connors had attended those depositions in Germany and confirmed that both men had been instructed by their superiors not to discuss the Flight 103 investigation, although Pinsdorf did at one point deny that the BKA had received any advance warning of the bombing. Mayer, Connors went on, knew no more about it than he had read in the newspapers, but he confirmed that he had worked closely with DEA agents in Cyprus and that he knew Lester Coleman.

'The Coleman declaration specifically alleges that Mr. Mayer was somehow involved in or knowledgeable about the DEA 'controlled delivery' which Pan Am alleges was subverted by the terrorists in order to put the bomb on the aircraft in Frankfurt,' declared Connors. 'However, he [Mayer] specifically confirmed [that] controlled deliveries are escorted through and do not bypass security, and specifically denied Coleman's allegation that the BKA or DEA train anyone to circumvent security at any airport.'

Connors evidently misread Coleman's affidavit, for nowhere did he 'specifically' allege that Mayer was involved in the particular controlled delivery that was subverted by the terrorists. What he did say was that Mayer was the BKA's liaison officer for the controlled deliveries mounted by the DEA through Frankfurt -- a statement which Mayer confirmed, and that did little to support the DEA's contention that no controlled deliveries were being carried out in Europe at the time.

Nor did Coleman anywhere 'specifically' allege in his affidavit that the BKA or DEA trained anyone to circumvent airport security or, indeed, failed in this instance to 'escort' the controlled delivery through. What he did say was that 'baggage containing the narcotics used in the operation would be placed on flights to the United States through agents [author's italics], informants and/or sources ... so as to avoid the possible interdiction of the shipments by airport and/or airline security.' In the Frankfurt context, this meant following the established routine of supervising a suitcase switch in the airport's baggage-handling area.

Contrary to Connors's suggestion, there is no discernible conflict between Coleman's statement and Mayer's -- unless by 'escort' Mayer meant a group of DEA and BKA agents solemnly marching a courier through a crowded airport without allowing anyone to touch his bags. And when Mayer went on to say that Khalid Jafaar was not working for the DEA, as Connors reported in his declaration, what did he mean? On that particular occasion? That, as a subsource, he worked for a CI who was paid by the DEA? That he was working for some other agency? And in any case, how would Mayer know?

But for Coleman there were more important things to worry about. His first priority was to satisfy the Swedish authorities of the truth of his story and consequently of his need for their protection.

The family had entered the country legally, on valid American passports, making for Trollhattan, a small town of about 60,000 inhabitants, to which one of Mary-Claude's sisters and her husband had emigrated from Lebanon some five years earlier. Perhaps naively, Coleman had thought they might stay there on a temporary basis until the matter of the phony passport charge was cleared up, but he felt it wise to be frank with the Swedish authorities from the start, and a week after their arrival, he went with his brother-in-law to the local police station to explain his situation.

For one thing, they were broke and needed whatever help they could get.

"The police were very nice to us [he recalled]. Very understanding. They passed us on for a second interview to an officer in charge of refugees, and in July, she arranged for us to move out of my brother-in-law's apartment into a refugee compound on the edge of town. There we found ourselves living with Lebanese, Syrians, Iraqis and, later on, Bulgarians, Albanians, Croatians, Serbians, gypsies -- all manner of people seeking sanctuary. And still I told myself it was just temporary, while I got things cleared up. But then came the business with the fugitive warrant and I knew finally I could never go back."

In support of his formal petition for political asylum, Coleman supplied references from a number of witnesses prepared to testify on his behalf, including the Most Reverend Mother Teresa, of the Sisters of Charity; Conrad Martin, executive director of The Fund for Constitutional Government, Washington, D.C.; A. Ernest Fitzgerald, United States Department of Defense, and Elliot L. Richardson, former United States Attorney-General, who met over lunch with the Swedish ambassador to the United States on Coleman's behalf.

His connection with Richardson stemmed from an affidavit Coleman had sworn to about the bootleg PROMIS software he had seen at Cypriot Police headquarters and in the offices of the DEA's Eurame Trading Company in Nicosia. As attorney for William and Nancy Hamilton, the owners of Inslaw, Inc., Richardson had successfully sued the Justice Department in Federal Bankruptcy Court for forcing the company out of business and stealing its software, securing over $7 million in compensation for the department's 'trickery, fraud and deceit'.

This judgment was subsequently affirmed in Federal District Court, which found it just 'under any standard of review', and although the US Court of Appeals later set the decision aside on jurisdictional grounds, it did not disturb the conclusion that 'the government acted wilfully and fraudulently to obtain property it was not entitled to ...'

On 3 August 1991, not long after the family had moved into the refugee compound on the outskirts of Trollhattan, Coleman took a telephone call from Danny Casolaro, an American freelance journalist in Washington, who had tracked him down after reading his affidavit in the Inslaw case.

He was working on a complex story about the octopus, Casolaro explained, linking the theft and unauthorized sale of PROMIS software to foreign governments with the BCCI scandal, the Iran/Contra affair and other questionable activities, including the so-called 'October Surprise'. Could Coleman perhaps help him with any of this? Did he know of anyone who might have further information?

Though disturbed that Casolaro should have traced him so easily, Coleman saw the chance of a trade-off. He had been trying to find James McCloskey, the quickie divorce lawyer who had recruited him into the DIA and who might again be prepared to speak up for him, but his amiable guru had apparently abandoned his practice and moved away from Timonium, Maryland, without leaving a forwarding address. When Coleman explained this to his caller, touching on McCloskey's links with the BCCI and the intelligence community, Casolaro thanked him for the tip and promised in return to let Coleman know as soon as he ran McCloskey to earth.

Nine days later, Ernest Fitzgerald, Coleman's friend at the Pentagon, called to say that Danny Casolaro had been found dead in a blood-boltered hotel bathroom in Martinsburg, West Virginia, both arms slashed open 12 times with a DIY knife blade. His briefcase was missing, and among other suspicious circumstances, the Martinsburg police, declaring Casolaro a suicide, had allowed the body to be embalmed before his family was even notified of his death. A firm of contract cleaners had also been called in to scour the room from top to bottom, so that any meaningful forensic investigation was impossible.

According to relatives and friends, Casolaro had gone to West Virginia, despite recent death threats, to see somebody he had met there who, he thought, could supply the missing links in the story he was working on. Everybody who knew Casolaro, including the Hamiltons and their counsel, Elliot Richardson, were convinced he had been murdered to shut him up.

Coleman was chilled by the news. If the person Casolaro had gone to see was McCloskey, then Coleman had sent Casolaro to his death. And if Casolaro had been killed because of what he knew, then Coleman's own chances of survival, if he fell into the same hands, looked slim. Thankful that he and Mary-Claude had decided to get out when they did, he prevailed on Fitzgerald to make further inquiries, although he found it hard to believe that the McCloskey he remembered could be involved in the murder.

The result was even more unsettling. The likelihood that Casolaro had gone to meet McCloskey increased when investigators established that, after leaving Timonium, McCloskey had bought a horse farm at Shepardstown, about fifteen minutes down the road from where Casolaro was murdered. As against that, McCloskey had not been seen in the area for two years, although there was a working telephone number listed in his name.

When Coleman dialed that number from Sweden, he got through to the Shenandoah Women's Center in Martinsburg, which claimed never to have heard of McCloskey. Efforts to trace him were then redoubled, but without result, and, as far as Coleman knows, McCloskey is still missing to this day.

On 16 October 1991, Coleman telephoned Elliot Richardson to pass on the results of these inquiries, but, as Richardson was out of the country, he spoke instead to William Hamilton, president of Inslaw, Inc., in Washington, D.C.

His revelations came as no great surprise. Hamilton himself had received 'threats of bodily harm from former US and Israeli covert intelligence operatives' embarrassed by his efforts to unmask the government's theft of Inslaw's software.

In a letter supporting Coleman's application for asylum in Sweden, Hamilton wrote:

"We believe that Mr. Casolaro was murdered to prevent the disclosure of evidence about this malfeasance. We also believe that some of the proceeds from the illegal sale of our PROMIS software to foreign governments have made their way into a political and intelligence slush fund in the United States and that this has seriously compromised the integrity of both our political system and our US Department of Justice ...

"I am inclined to credit as serious expressions of concern about personal safety by anyone such as Mr. Coleman who may have pieces to the puzzle of this widely ramified criminal conspiracy that permeates US intelligence and law enforcement agencies."

Ernest Fitzgerald, doyen of Washington's whistle-blowers, went a good deal further in urging the Swedish government to act on Coleman's petition. Drawing on 25 years' experience of official persecution and harassment, much of it described in his book The Pentagonists, he wrote:

"A live, talking and unfettered Lester Coleman represents an enormous potential embarrassment to powerful forces in our government and business establishment. Dead, silent or incarcerated, Les Coleman disappears as a problem. Other people in Mr. Coleman's situation have met untimely ends with distressing frequency.

"Without being able to predict Mr. Coleman's future in our country with certainty, I can tell you the views of other United States intelligence operatives I've dealt with in similar situations. Rightly or wrongly, these people believe that they cannot survive imprisonment in one of our penitentiaries. Conditions in these prisons are very harsh, and little inducement is required for long-term inmates to do deeds that would be unthinkable to the rest of us.

"This fear is so real and pervasive among our intelligence operatives that they are often silenced without imprisonment. A tactic I have noted is to induce a guilty plea through plea bargaining, then impose suspended sentences for a list of offences which the charged agent claimed were perpetrated as official acts. Agents thus pled and sentenced are silenced out of fear that if they talk or write about government-sponsored misdeeds, the suspension of their sentences will be set aside and they will be forced to serve their sentences in prison with consequent exposure to violence, and perhaps subjected to further prosecution.

"I should point out to you that it would not be necessary for Mr. Coleman to be convicted of anything in order to subject him to a US prison environment. At this stage of his dispute with the federal government, our courts would be unlikely to approve bail for him, so he would most likely be incarcerated pending trial."

After his arrest by the FBI on so transparent a trumped-up charge, such fears had never been far from Coleman's mind, and certainly nothing had happened since then to dispel them, neither his deliberate exposure by Steven Emerson on Cable News Network nor the government's latest cynical ploy in having him declared a fugitive. Any lingering hope that he might one day clear his name through the courts had been snuffed out, as he explained in a further submission to the Swedish authorities.

"Elements within the United States government, bizarre as this may seem, have both a motive and a capability to conduct covert 'sanctions', such as the death of Mr. Casalaro and the disappearance of Mr. McCloskey (he wrote). I had first-hand knowledge of these capabilities in Lebanon, where I gathered intelligence that was used to target individuals perceived to be enemies of US interests.

"I have no doubt that I am now a target, considering those former associates who are dead, and the death of Mr. Casolaro. If I return to the United States, I will be jailed and almost certainly killed. The DEA has publicly labelled me a narcotics informant, and there are close on a million and a half people behind bars in the United States serving time for drug offences. I am therefore in genuine fear for my life. In 1990, 243 prisoners were murdered in American prisons."

With plenty of time to worry about such things, Coleman could not decide if he and the family were safer trying to keep out of sight or trying to keep in the public eye. No longer a moving target or, as Casolaro had demonstrated, particularly hard to find, he was inclined to favour a higher profile, if only because an 'accident' or unexplained disappearance would then be more noticeable, but against that, the Swedish police and immigration authorities were clearly not keen on his drawing attention to his situation. In the end, he tried to compromise by making himself available to the media but without encouraging their interest.

Not that the media needed much encouragement, particularly after an interview he had given to Michael Evans of The Times resulted in a pithy restatement of what he knew in its issue of 22 July 1991. Several journalists flew to Sweden to follow up on that story, including Roy Rowan of Time magazine, accompanied by Juval Aviv.

It was Coleman's first meeting with Aviv, and the first time he had seen the Interfor Report. Confining himself for the most part to what he had said in his affidavit, Coleman enjoyed talking to Rowan, a widely respected figure in his former profession, and tried to be as helpful as his circumstances would allow -- without the faintest inkling of the furore that would follow Time's cover article about Flight 103 a few months later.

Some warning of the depths to which the octopus would sink, however, came Coleman's way in December 1991. In the October/November issue of Unclassified, the bimonthly newspaper of the Association of National Security Alumni, its editor, David Mac Michael, had run a piece about the spreading influence of the Defense Department over the US intelligence community, citing Coleman's experiences with the DIA.

This attracted the attention of Ron Martz, of the Atlanta Journal-Constitution, who, with Lloyd Burchette, had been placed in Coleman's charge by Micheal Hurley when they visited Cyprus in 1988 as guests of the DEA. Clearly not a subscriber to Unclassified's credo that 'covert actions are counterproductive and damaging to the national interest of the United States ... corruptive of civil liberties ... and a free press', Martz addressed MacMichael as follows:

"Dear David,

"This letter is not for publication but please use the information in it as you see fit."

How Martz would have reacted if Mac Michael had prefaced a letter to him in those terms is a matter for speculation, but he went on to claim that Coleman had contacted his (unnamed) 'primary assistant' in 1987 to offer his services 'for a relatively small amount of money' as a 'contact/fixer' on Cyprus during a visit they planned there to look into Lebanese drug trafficking.

As 'Les was living in Cyprus at the time' and 'passed himself off ... as a CI for DEA" Martz agreed to his proposition, but arriving in Cyprus found that 'Les Coleman was little more than a freelance journalist hustling money wherever and from whomever he could, including me. He had no connections with the Cypriot police or anti-drug squads, no connections with BKA and one minor connection with DEA as an 'unofficial consultant ... on non-secure communications.'

Several months later, Martz went on, he discovered Coleman had 'stolen some photographs I had taken of a terrorist car-bombing incident in Nicosia' and had sold them to Soldier of Fortune magazine under the name of Collin (sic) Knox. 'Then I learned the Cypriot police were looking for Les, who had departed Cyprus about the same time I did and left behind huge telephone bills and unpaid rent on his apartment in Nicosia.'

'Since then,' Martz continued, getting to the heart of the matter,

"Les has tried to put himself in the middle of several international events, most noticeably the Pan Am 103 bombing over Lockerbie. Les, who has had a long-running feud with DEA in Cyprus, managed to convince ABC News and Pierre Salinger that DEA in Cyprus was responsible for the Pan Am 103 bombing because it was working a sting operation and allowed certain luggage to go on the plane unchecked. ABC went with the story, apparently largely on Les's information, but that story has since been thoroughly discredited.

"I later checked out Les to see if he had any DIA connections as he claimed and found it had never heard of him or Collin Knox. This information comes from a high-ranking officer still on active duty who has served in a number of DIA positions in more than 25 years in the military, a man I trust implicitly and who gave me the information as an off-the-record favor ...

"The story he gave you concerning being in exile because of a DIA-DEA feud is a lot of crap. They may be feuding, but it's certainly not over Les Coleman. Les is in Sweden because the FBI was after him for filing a false passport application and impersonating a federal agent. If you're interested in more information about Les, I suggest you call Mike Hurley at DEA in Seattle (206-553-5443) ...

"From my experiences with him he very seldom, if ever, is what he claims to be.


"Ron Martz"

Taking Martz at his word, Mac Michael did not publish the letter, and all he saw fit to do with 'the information' it contained was pass it on to Coleman in Sweden.

Against his better judgment, although it turned out to be good practice for dealing with what was to come, Coleman took the time to prepare a point by point reply for Mac Michael to forward to Martz. Though it seemed unlikely that Martz had gone to the trouble of writing a two-page, single-spaced letter simply out of a public-spirited desire to protect a fellow journalist, he had clearly not been very well briefed.

Hurley's own declaration, for instance, had established Coleman's DEA connection, describing him (incorrectly) as a CI, and Martz's 'high-ranking' source who told him the DIA had never heard of Coleman should perhaps have checked first with Colonel Bathen.

But the pattern of attack was clear, and soon to be repeated. First, the systematic reduction of his character to that of minor con man on the fringe of events, and then the accusations of petty dishonesty.

Coleman told Mac Michael:

"I don't know where to start. I didn't contact them. They came to me, looking for help with their Cyprus trip. I'd never met Martz before he came to see me in my private office at the University of Alabama. The DIA had parked me there for the winter as Director of Visiting International Scholars. So I certainly wasn't living in Cyprus at the time -- I was living in Birmingham, Alabama.

"The suggestion that he paid me is also a bit comical. The only money that changed hands was payment for the phone calls he made from my government apartment while they were out there in the spring of '88, and I turned this over to the DIA in accordance with standing orders. He didn't know that, of course, and I suppose I should take it as a compliment that he swallowed my cover so completely that he saw me as a hustling freelance journalist, although how he squares that with what I was doing for the DEA and with the Fulbright Commission as UA's Director of Visiting International Scholars, I don't know.

"As for stealing his photographs, Lloyd Burchette gave me a set of five prints from a film he had developed in Larnaca while Martz was off on a cruise to Cairo with his wife. And Lloyd needn't have bothered because the lab he used handled all of DEA's film work on Cyprus and they always ran off an extra set of anything interesting for Mike Hurley anyway.

"Nor did I sell them to Soldier of Fortune. The article that appeared with the Colin Knox byline was written by Mike Theodolus, a close friend of Hurley's and a writer for Cyprus Life magazine, which also ran the piece. The only contribution I made to Soldier of Fortune was in 1987, and that was a rehash I did on Hurley's instructions of an article called 'The Lebanese Connection' that appeared in the Observer in December 1986. Almost word for word, I'm ashamed to say.

"And so it goes on. I left behind no unpaid telephone bills or unpaid rent. We were living in government accommodation, so the embassy picked up the tab. And if the Cypriot police were looking for me, I shouldn't have been hard to find because I was back in Nicosia, under my own name, in May 1991, en route to Sweden, and nobody bothered me. So I don't know where Martz got that from. And what's this about impersonating a Federal agent? That's a new one.

"Before writing this, Martz obviously didn't read any of the court documents in the Pan Am case or in the passport frame-up, otherwise he would have known that the DEA had admitted I was a contract consultant and that the DIA had acknowledged I was working for them at the same time. If he honestly thinks I put myself in the middle of the Flight 103 case in the hope of gaining something by it then one of us belongs in a padded room.

"No wonder his letter was not for publication. Like a few other reporters I know who make a business out of chasing dope stories around the world in their quiche-stained safari suits, Martz is no dope himself. If he wants a good scoop now and then, he knows he better play ball with the DEA."

It may just have been a coincidence that this attempt to discredit Coleman within the intelligence community came soon after Chief Judge Platt had declined to dismiss Pan Am's third-party suit in New York; soon after the government's deception of Chief Judge Moran in Chicago had resulted in the issue of a fugitive warrant, and soon after Danny Casolaro had been murdered while running down a Coleman lead, but there was no doubting the connection between Time magazine's cover article of 27 April 1992, and the vicious attack on Coleman launched as soon as the civil suit against Pan Am was over.

Christopher Byron teed off for the government in the 31 August issue of New York magazine.

A former employee of Forbes magazine, Byron found Roy Rowan's story about Flight 103 'a tangle of assertions and equivocations' based on Coleman's skill in 'conning the media'. Having bamboozled Brian Ross of NBC and Pierre Salinger of ABC, wrote Byron, 'Coleman finally found his loudest sounding board of all -- the cover of Time magazine.'

One might have expected that anyone with such a phenomenal gift for deception would be living in luxury in the south of France rather than subsisting on the goodwill of the Swedish government, but Byron was clearly made of sterner stuff than his media colleagues.

'Beguiled by his astounding claim that the DEA was implicated in the Pan Am 103 disaster,' he went on, 'Time made this the central thesis -- with Coleman as the corroborating source -- of its cover story entitled "The Untold Story of Pan Am 103".'

Byron did not feel it necessary to explain why he was not taken in as others were, nor did he suggest why, failing a financial motive, Coleman should have set out to deceive anybody, but it hardly mattered. Byron had already given most of the game away by describing him as a 'corroborating source', in effect accepting that the story had originated elsewhere as Ross, Salinger and Rowan had each insisted.

Byron next accused Coleman and Juval Aviv of collusion in selling Aviv's 'discredited' Interfor Report to Time, and, even more whimsically, of conspiring with Pan Am's lawyers to influence the civil liability trial. They 'all seem to have worked together -- or at least in parallel -- to get their story into Time,' is how he put it, falling just short of imputing libelous motives to an attorney of James Shaughnessy's calibre.

In fact, as Pan Am had dropped Aviv almost two years before the story appeared, and as Coleman had met Aviv for the first time some six months after he had sworn out his affidavit, their scope for collusion was limited. In any case, Coleman did not, and does not, accept Aviv's and Rowan's conclusion that a rogue CIA unit was instrumental in allowing a bomb aboard Flight 103.

'Just how badly did Time get snookered in all this?' asked Byron. 'For an answer, one need look no further than Michael Schafer, a young Christian Broadcasting Network cameraman who had worked for Coleman for six months in Beirut in 1985 and became the best man at his wedding.'

Schafer, known at the time as Michael Franks, had been sent to Beirut by Overseas Press Services Inc., a firm of 'consultants' with close ties to Oliver North, CIA director William Casey and the Nicaraguan Contras. The 'young cameraman' had spent most of his time in Beirut fighting with the right-wing Christian militias and, as best man, signed Coleman's marriage certificate as Michael Franks.

When Coleman later learned from Pan Am's lawyers that the mysterious David Lovejoy, who had told the Iranians about the American intelligence agents on Flight 103, was also known as Michael Franks, he gave Shaughnessy a photograph of his best man, and it was this picture that eventually appeared in Time magazine as a picture of David Lovejoy, 'a reported double agent for the US and Iran'.

(The same picture was also used on the forged CBN 'press credentials' that Schafer later produced in an attempt to cover up his lapse in signing Coleman's marriage certificate as Franks, the name he used in Lebanon in 1985 before it became generally known as a Lovejoy alias.)
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:29 pm

PART 2 OF 2 (CH. 17 CONT'D.)

'This whole thing is a disgrace,' Byron went on, quoting CNN investigative reporter Steven Emerson.

'I have reviewed the DEA file on Coleman,' Emerson had told him (perhaps unaware that this was not only prima facie evidence of a Federal crime but something which Coleman and the Pan Am legal team had conspicuously failed to accomplish by subpoena). 'The overwhelming evidence is that this man has invented his involvement in and knowledge of covert operations that never occurred.'

As the only 'evidence' this provided was of Emerson's inability to express himself clearly, Byron proceeded to enlarge on his remarks with a sceptical account of Coleman's career as an intelligence agent, ostensibly based on Coleman's own claims and assertions, but in reality cobbled together to fit the Byron/Emerson/DEA thesis that the Time/Aviv/Coleman story was a put-up job to get Pam Am off the hook.

'That's what Coleman says,' concluded Byron. 'Here's what others say about him.'

Eight loaded quotations followed from a list of 'character witnesses' headed by Lloyd Burchette Jr., a friend of Michael Franks/Schafer and 'primary assistant' to Ron Martz, who was apparently still too shy to come forward in person.

Billed now as a reporter for the Atlanta Journal-Constitution, Burchette declared: 'Les Coleman is the greatest bullshit artist I've ever met in my life. He ripped us off for $2000 and absolutely nothing he promised to do for us ever panned out. He also stole some photographs from me and my partner and sold them to Soldier of Fortune magazine. The man's a phony, and I wouldn't believe a word he says about anything.'

Burchette evidently has a forgiving nature, however. Later in his article, Byron says 'he [Burchette] stayed in touch with him [Coleman] thereafter' -- and clearly on friendly terms, because in June 1990, according to Byron, Coleman called Burchette 'in hysterics' to say he had just been busted for a passport violation and that he was sure Hurley 'was behind the whole thing'. (Hardly the reaction of a guilty man, in any case.)

Next up in the firing line was Tom Slizewski, managing editor of Soldier of Fortune who said Coleman had written two stories for him under the pen name of Colin Knox and owed the magazine $1000 for a third, which he had failed to deliver.

Coleman had already answered this charge, and Burchette's, when it was first made by Martz, but his response had evidently failed to register. Coleman prepared the first article to appear, bylined Colin Knox, in 1987 and then surrendered the pen-name to a journalist friend of Hurley's.

Number three was Hurley himself, who departed from the text of his sworn declaration to describe Coleman as 'a part-time confidential informant' who 'stole $5500 from one of his own subinformants. Then he got in trouble with the Cypriot police for stealing from his landlord. He stole DEA files and sold them to Soldier of Fortune. Then Coleman talked about DEA informants in Time magazine, and he's blown their covers.'

These charges were particularly contemptible.

First, the $5500 was demanded by a cameraman in the full-time employ of a London television news company who shot some film for the DEA with his employers' equipment in the course of his official duties and thus wished to be paid twice. Coleman refused to give him the money.

Second, by 'stealing from his landlord', Hurley presumably meant the telephone bills which he had neglected to pay after Coleman left his government apartment and returned home.

Third, this was the first reference anywhere to the theft of DEA files, a more serious offence than a passport violation, particularly if they were then sold to Soldier of Fortune, a Federal crime on the part of both seller and buyer.

Fourth, as for blowing the covers of DEA informants in Time magazine, the only one mentioned by his real name was Ibrahim El Jorr, an 'offence' of which Byron was also guilty, and who had long since dropped out of sight, no doubt because he knew too much about DEA-controlled deliveries from Cyprus.

Then came Peter Schweitzer of CBS News, who suggested that Coleman had conned the network's foreign desk in New York into having him tag along with Schweitzer and his team when they went out to Saudi Arabia 'to cover the hajj in September of 1985 ... He was nice enough, it is true, but he was of no help and had no special expertise. He didn't speak Arabic or anything.'

Schweitzer's memory was evidently playing tricks. He had covered the hajj in 1984, not 1985, from his hotel room, keeping out of trouble while Coleman did battle -- in Arabic -- with Saudi Ministry of Information officials to save the unit's video footage from censorship.

'My wife, her family, my many friends and my present employer who hired me as a part-time Arabic translator will be interested to know that I don't speak Arabic,' he wrote in a long letter of rebuttal to New York magazine (which neither acknowledged nor published it).

A spokesman for the University of Alabama came next. He claimed that Coleman had been hired as 'assistant director of international student affairs' but after a couple of months 'he just left, so we dismissed him.' They then discovered that some student visa forms had gone with him, and they 'wound up having to void every student visa he'd issued'.

Except one. Coleman's appointment had been a DIA set-up from the start, with the dual object of putting him on hold for the winter and importing Syrian George on a student visa. The DIA may not have confided this to the university's anonymous spokesman.

He was followed by an equally anonymous spokesman for Auburn University, Montgomery, Alabama, who declared, 'We've never had a Lester Coleman on the payroll.'

In Montgomery, no. But on the main campus at Auburn, Alabama, the DIA had arranged for him to take up a full teaching assistantship in the Department of Political Science. (The local newspaper ran a story about a lecture he gave there on Middle East politics, complete with Coleman's picture.) He was admitted to graduate school on 23 December 1986, and the records show -- if they have not since been shredded -- that when he arrived in Cyprus in February 1987, seconded to the DEA, he was enrolled for a course entitled Thesis Research. (The spokesman's confusion may have arisen because Coleman was paid by the DIA while on campus and not by the university.)

A similar problem afflicted the next anonymous spokesman, this one for the National Intelligence Academy, Fort Lauderdale. 'He [Coleman] worked here for eleven days in October of 1988. He was a videotape editor. That's all I know.'

In fact, it was 1987. Coleman was assigned to the Academy for six weeks, and he kept a souvenir -- his official staff pass. It reads: 'Director, Video Operations'. Also, he does not know how to edit videotape.

Last but not least, Byron quoted yet another anonymous spokesman, this time for the Boy Scouts of America. 'He worked here in PR,' he said. 'Let's just say he's gone; things didn't work out.'

Just before his recall by the DIA for Operation Shakespeare, Coleman received his annual review as director of Marketing and Communications for the BSA, Chicago. In three areas of responsibility, his performance was rated: in one, 'Exceeded requirements'; in another, 'Far exceeded requirements', and in the last, 'Met requirements'.

If Byron's New York article had aspired to greater balance, he might have offset some of this with one or two more positive opinions.

If he had approached Msgr. John A. Esseff, for example, who went out to the Middle East in 1984 to direct a Catholic church relief mission and later gave evidence to a Congressional committee inquiring into Lebanese drug trafficking, he would have heard that 'Les Coleman was the most respected, most knowledgeable source on the Middle East and the kinds of terrorist activities that had been engaged in by Syria, Iran and Libya that I had met ...

'I find him trustworthy and courageous. He is not someone who has made these revelations to cater to sensationalism and journalistic playing to the crowd for material gain ... Les may not see himself as a modern prophet, but I see him as a biblical prophet who is driven by a sense of justice, truth and honesty to reveal the truth.'

This and other testimonials from public figures in support of Coleman's plea for asylum in Sweden did not, however, fit well with Byron's New York thesis that 'Coleman's career underscores an important message about contemporary American life: how eager the media have become to charge the very worst about government, even when the evidence in a story points to the opposite conclusion.'

Though confusingly expressed, his meaning was clear. But equally it could be said that mistrust of government is enshrined in the American political process, and that, in the absence of evidence to the contrary, the media have a constitutional duty to assume the worst. In his eagerness to exonerate the government by blackguarding Coleman, Byron tortured the evidence in his story to the point of travesty.

In defence of Rowan's article, Time said it had obtained documents proving that Coleman had been, as he claimed, employed by both the DIA and the DEA.

'What Time didn't point out,' wrote Byron, 'was that two of these documents were affidavits of DIA and DEA officials that contradicted many of Coleman's claims.'

True. But they did not contradict the essential one, which was that Coleman had been employed by them. And that was the point Time had sought to verify.

Similarly with Coleman's pre-trial services report, from which Time had quoted this passage: 'Although Mr. Coleman's employment history sounds quite improbable, information he gave has proven to be true.'

Uncomfortable with this official endorsement of Coleman's credibility, Byron wrote: 'What Time didn't tell its readers was that the information in the report came mainly from a court officer's interviews with Coleman himself, as well as from Brian Ross of NBC News: the very first sentence in the report says so.'

Really? The very first sentence of the report reads as follows: 'The information below was gathered through interview of the defendant and through contact with DEA headquarters [author's italics], NBC News and the subject's attorney.'

The reason for Byron's omission of DEA headquarters as a source for the report becomes clear in the text. This says plainly that Coleman 'worked as an undercover investigator for the Drug Enforcement Administration of the United States'. And it goes on: 'Ray Tripiccio, an agent with DEA in Washington, D.C., verifies that Coleman has formerly worked in a relationship with the Drug Enforcement Administration. The only information he could give on this secret activity is that Coleman was deactivated as a contract consultant as of 6-24-88.'

Not as a 'low level' informant, part-time or otherwise, but 'as a contract consultant'. Not 'fired' or 'terminated', but 'deactivated'.

Coleman's pre-trial services report gives the lie to all subsequent DEA statements about his status, starting with Steven Emerson's CNN newscast in December 1990, continuing with Micheal Hurley's sworn declaration 'under penalty of perjury', with Martz's 'not-for-publication' letter, Byron's systematic misrepresentation of his career, and Emerson's review of 'the DEA file on Coleman'.

Having failed to silence him, the DEA's motive in seeking to destroy Coleman's credibility was clear: he knew too much about the sequence of events that led up to the Flight 103 disaster, and it was imperative that no one should believe him.

Byron's motive in withholding information in order to assist the DEA in those efforts is a matter for speculation.

Still trying to attack his former colleagues at Time and denounce Coleman in the same breath, Byron accused Rowan of quoting selectively from the pre-trial services report in order to present Coleman as a credible source, 'ignoring those parts of it that clashed with that view [in the circumstances, a remarkable piece of hypocrisy].

'Thus, the story unquestioningly parroted Coleman's claim that he had been tricked into applying for a passport under a false name ... Yet the pretrial services report states the truth of what actually happened: Coleman indicates that he is currently working on a book, and that he was attempting to make arrangements to return to the Middle East, in order to do more research ... Coleman states that he needed a passport in a different name because his name is known to drug traffickers in the Middle East.'

This was indeed true, if not the whole truth -- although how Byron could have known was not explained. At the time of his arrest, Coleman was certainly working on a book. His name was certainly known to drug traffickers in the Middle East. And he certainly needed a passport in a different name. What he did not reveal to the pre-trial services officer was his identity as a DIA agent who had been instructed to apply for another passport to use on a mission to Lebanon to investigate its military government's links with Iraq. Byron was either unaware of this or again chose to withhold the information.

The rest of his New York magazine article was a more or less standard rehash of the lies, half-truths and innuendo that had dogged Coleman from the day his cover was blown. But there were one or two ingenious twists. In order to get around the awkward problem of why other journalists of greater reputation should have asked Coleman to corroborate a story obtained from other, unconnected sources, Byron attempted to show that Coleman was also behind the other sources.

While it was clearly not safe to accuse Pierre Salinger of lying when the ABC newscast attributed its story about the DEA's involvement in the Flight 103 disaster to 'law enforcement officials', Byron could suggest, in language appropriate to someone tiptoeing around the edge of libel, that 'there is good reason to wonder whether Salinger properly understood the full picture of what they were telling him.'

Byron's theory was that when Coleman's attorney in Chicago subpoenaed the DEA and other agencies on 31 August 1990, he triggered an internal Justice Department inquiry into Coleman's story that lasted 'for many months' and resulted in the DEA giving itself a clean bill of health. While that was going on, 'the DEA began getting press inquiries from ABC itself regarding COREA -- inquiries that it now seems evident were prompted by Coleman.' Evident to whom? Not, clearly, to Salinger, who had already said that he met Coleman in London shortly before the broadcast to corroborate material he had previously obtained from 'law enforcement officials'.

'Thus, without knowing each little fact of the matter,' Byron went on, 'we can begin to sketch the general outlines of what happened: ABC News, egged on by Coleman, called its law-enforcement sources on the COREA business, only to hear that the government was indeed looking into the question. In short, if ABC News thought it had "other sources" for its Pan Am story, it is equally possible that it had simply caught the scent of Lester Coleman disappearing around a corner.'

Unfortunately for Byron, 'each little fact of the matter' carries too much weight to be borne by so flimsy a piece of special pleading, despite his attempt to include readers in the conspiratorial 'we' and his disingenuous 'equally possible'.

It is not at all possible that Salinger, 'a journalist with a long and strong track record' who had told Byron there was 'no possible way' that his sources 'could have been in contact with Coleman or even have known him' was referring to sources within the government who had merely confirmed that the Justice Department was looking into 'the COREA business'. Who could reasonably assume from this that allegations of DEA involvement in the Lockerbie disaster were true? In any case, these government sources would certainly have known about Coleman even if they had not been in contact with him.

It is equally implausible to suggest that two months after inquiring if DEA agents in Nicosia had been running a controlled delivery operation at the time of the Flight 103 disaster their superiors in Washington still did not know the answer. And surely, if there had been an internal inquiry, it would have taken place a year earlier, in September 1989, when Pan Am attempted to subpoena the same documents?

In fact, the only 'good reason to wonder' Byron provides is whether he properly understands the nature of responsible journalism.

After a slanted synopsis of Bathen's DIA declaration and an embellished version of Hurley's, Byron turned again to Burchette for 'evidence' that Coleman was lying when he said he recognised a photograph of Khalid Jafaar.

'During the month he was on Cyprus, Lloyd Burchette says he met every informant working with or for Coleman and he maintains he never met anyone who even looked like Jafaar.' Burchette further claimed that Coleman called him after the ABC newscast, which had included a photograph of Jafaar, and denied that he recognized him.

This was conclusive enough for Byron.

'The fact that Time magazine was willing to put a charge of government complicity in the Pan Am bombing on its cover on the doubtful assertions of a private eye [Juval Aviv] and an international fugitive in a passport case, and against the strong protestations [later denied] of its own Washington-bureau experts,' he wrote, 'reveals more than sloppy journalism -- it reveals something about the impulse to self-destruction that seems to be chipping away at America's faith in itself and its institutions.'

As an authority on American values, Byron's credentials are perhaps less impressive than they are in the matter of sloppy journalism -- as witness the concluding paragraph of his article.

"And what of Lester Coleman? As things turned out, he was never called as a witness in the Pan Am trial, and no affidavit, declaration or deposition from him was submitted at the trial, either. Apparently realizing they'd been snookered, Pan Am's lawyers seem to have concluded that if they put Coleman on the stand, the plaintiffs' lawyers would rip him apart. As a result, the only people who now need to be told the truth about the Pan Am bombing are the millions of TV viewers and magazine readers who weren't in the courtroom. Thanks in no small part to Lester Coleman and the American media, they no doubt continue to wonder whether the US government was, in fact, involved in the mass murder of American citizens."

Not knowing each little fact of the matter, Byron got most of this wrong as well. At no time had Coleman ever been considered as a possible witness in Pan Am's defence of the civil liability suit. His affidavit had been obtained in the course of Pan Am's third-party suit against the US government, and the only circumstances in which he might have been called as a witness in that action would have been if the government had produced the discovery material that Pan Am's counsel had asked for. As it did not, the third-party suit was dismissed on the eve of the liability trial.

The only issue that then remained was whether Pan Am's security lapses at Frankfurt amounted to wilful misconduct, and Coleman had never had anything to say about that. Even if Pan Am had wished to put him on the stand for some reason it could not have done so, not only in view of his circumstances but because the judge had already made it clear in advance that he would rule out any testimony suggesting government complicity in the bombing. The jury was there to try a claim against Pan Am, not the US government.

In fact, the only parties keen to 'rip him apart' were the Drug Enforcement Administration and, on this evidence, Christopher Byron (although he would shortly be joined by his colleague Steven Emerson). With that in mind, the last sentence of Byron's article takes on an unintended irony. Nor are the editors of New York magazine beyond reproach. When Coleman sent them a point-by-point rebuttal of the smear, they not only failed to publish it, thus denying the accused a chance to defend himself, but failed even to acknowledge his letter. (Or, if they did, he failed to received it.)

Hard on the heels of Byron's article, the September 1992 issue of the Washington Journalism Review fielded Steven Emerson on the same subject, using much the same material to arrive at much the same conclusion.

Leading off with the Franks/Schafer/Lovejoy business to demonstrate that 'Time obviously screwed up,' Emerson was prepared to forgive the magazine for that but not for relying on Juval Aviv and Lester Coleman, whom he described as Pan Am's 'paid consultants'.

Aviv had been, of course, some two years earlier, but to describe Coleman in this way was about as accurate as Emerson's previous description of him on CNN as a disgruntled former DEA informant (and was no doubt attributable to the same source).

Coleman received nothing from Pan Am except travel passes and expenses incurred on Pan Am-related business. To assert, as Emerson did later in his article, that 'the two men have been paid tens of thousands of dollars by Pan Am's attorneys, according to officials close to the case', was presumably intended to suggest that Coleman had been a beneficiary of legitimate payments made to Aviv before he resigned as Pan Am's investigator, long before Coleman had even met him.

In its own interests, Pan Am had always been scrupulously careful to avoid compromising Coleman as a possible witness, preferring to leave the buying of testimony, as in the case of the Libyan defector, to the government.

After a brief synopsis of Time's cover article, Emerson went on to note that the 'independent' President's Commission on Aviation Security and Terrorism had, in 1990, seen 'no foundation for speculation in press accounts that US government officials had participated tacitly or otherwise in any supposed operation at Frankfurt Airport having anything to do with the sabotage of Flight 103.'

What he, in common with most government spokesmen, failed to mention, however, was that the commission had been specifically excluded from any role in the investigation of the bombing and had thus never addressed the issue of government complicity.

Emerson did, however, concede that the indictment of two Libyans for the crime in November 1991 had 'generated some controversy, leading several critics to charge that the US government might be engaged in a cover-up.' Time, he felt, had 'exploited this controversy' by running a story derived from Aviv's original Interfor Report of 1989.

Without referring again to a possible cover-up, Emerson went over the government's now familiar dismissal of Aviv and his report, echoing the Observer's 1989 charge that he 'had pieced together known events and facts in a wild conspiracy'. Things then died down, he wrote, until the NBC and ABC news reports in October 1990 revived the story of the DEA's involvement in the bombing.

Differing slightly from Byron's account of what happened then, Emerson claimed that 'within a week, the agency reviewed every file from the previous five years and sent inquiries to its agents overseas. The evidence collected by the DEA -- and independently confirmed by the FBl -- showed that the allegations reported by NBC and ABC were baseless ...

'Still, some journalists were not convinced,' he wrote. 'In its 17 December 1990 issue, Barron's published a lengthy article reporting virtually everything in the Aviv report. The conspiracy theory would not die.

The main reason for this, Byron suggested, was Lester Coleman, who had alleged that Khalid Jafaar was one of his informants and who had teamed up with Aviv in 1990.

Both statements were incorrect. Coleman had never claimed Jafaar as an informant and he met Aviv for the first time in late 1991.

Nevertheless, according to Emerson, the DEA had shown him 'an internal November 1990 DEA memo' which said Aviv had told a DEA agent that Coleman had contacted him several months earlier and that he (Coleman) was trying to sell information about the bombing. 'By the time NBC and ABC interviewed Coleman,' wrote Emerson, 'he had worked out his story with Aviv.'

Why Aviv should have reported Coleman to the DEA and then collaborated with him in concocting a story for NBC and ABC was not explained. Nor has Coleman been able to verify the existence or contents of the DEA internal memo for, unlike Emerson, he has never been able to obtain access to his DEA file, not even under Title 5, 552 (b) (6) of the Privacy Act.

Emerson's special relationship with the DEA was further demonstrated when he quoted from another internal DEA memo describing Coleman's association with DEA Cyprus. This, not unnaturally, echoed Hurley's sworn declaration on that subject, and led to 'corroborative' testimony from Ron Martz of the Atlanta Journal-Constitution, on the record this time, and Lloyd Burchette Jr., now described as 'a screenwriter'.

After that, Emerson drew his readers' attention to what he described as 'half-truths, misstatements and omissions' in the Time magazine story, displaying a measure of the same disregard for his own shortcomings in this respect as Byron had shown in his article, and, again like Byron, getting Coleman's status as a Pan Am witness completely wrong.

'According to sources familiar with the defence strategy,' wrote Emerson, 'Pan Am's attorneys began having doubts about Aviv and Coleman two years ago. Even so, they went along with the conspiracy story because it was their only hope of winning the case. But when the defence attorneys apparently realized that their prize witnesses and their story would be torn to shreds under cross-examination, they dropped the witnesses.'

It was clear from this that neither Byron nor Emerson had understood that there had been two lawsuits to be tried: the civil action against Pan Am brought by the families of the Flight 103 victims, and the action brought by Pan Am against the US government for third-party liability .

Coleman and Aviv might have been called as witnesses in the third-party suit if it had not been dismissed three days before the main trial began, but at no time -- before, during or after -- did Coleman have a role to play in the suit against Pan Am. On the issue of the airline's alleged 'wilful misconduct' in flouting FAA security regulations at Frankfurt, he had nothing whatever to contribute.

Although clear enough from the court records, the legal position was apparently too difficult for Byron and Emerson to grasp. In which case, their 'sources familiar with the defence strategy' might at least have spared them the humiliation of looking foolish in print.

On the other hand, perhaps they did not mind. For a parting shot at Coleman, Emerson turned again to reporter/screenwriter Lloyd Burchette Jr. and the Franks/Schafer affair.

'Burchette recalls that one day in May 1988, in Cyprus, Coleman showed him a letter of identification stating that Michael Schafer "is a representative of CBN News assigned to the Beirut bureau",' he wrote. 'It included a photo of Schafer -- the same photo Time said was David Lovejoy -- and was signed by Coleman, who was then a CBN senior correspondent. A copy of this letter of identification shows that the photo of Schafer and that of Lovejoy are exactly the same. There is no evidence that Lovejoy exists.'

In fact, there is some evidence that Lovejoy exists, but aside from that, a less committed writer might just have paused here and asked Burchette these questions (or if he did ask them, to have favoured his readers with the answers):

Why would Franks/Schafer sign Coleman's marriage certificate as Franks if he was holding a letter of identification from Coleman in the name of Schafer?

If Coleman had given this letter of identification to Franks/Schafer in Beirut in 1985, what was Coleman doing with it in Cyprus in 1988?

How did he get it back from Franks/Schafer?

And how did Franks/Schafer then get it back from him?

For Coleman, safe for the moment in Sweden, these smears mattered only because they showed how far the US government was ready to go in suppressing the truth. And that was important because, having given up hope of a fair hearing in court or in the news media, he had sought to have the whole story of his career as an intelligence agent told in a book.

After the Byron and Emerson articles appeared, negotiations with a prospective publisher stalled, and when New York magazine and the Washington Journalism Review both failed to publish his rebuttal, they collapsed.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:32 pm

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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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:34 pm

Chapter 19

Sweden's idea of a refugee camp would not look out of place in any prosperous, middle-class suburb. Nor does its scale of support for refugees fall short of the minimum standard of life it underwrites for its own citizens. Indeed, the generosity with which the Swedish government treats the displaced and persecuted, and the numbers given asylum in relation to the country's population and economy, speak of a genuinely civilized society that, without setting out to do so, serves as both an example and a reproach to the rest of the world.

The Colemans' 'camp' was a modern apartment complex in a landscaped setting on the edge of town, with its own medical centre and children's nursery. While their claims for asylum are considered, newcomers are temporarily housed there in circumstances that, even by American standards, are little short of luxurious. Accustomed to a gulf between theory and practice in most Western professions of virtue, Coleman was astonished.

"They put us up in a three-bedroom apartment with brand-new appliances, including a TV and a computerized refrigerator, and completely furnished, down to the bedsheets. It was summer, so we bought a used bicycle to go to the market, and every other Thursday, we'd stand in line outside the office to receive our stipend, which amounted to about £700 a month.

"It was amazing. People arrive, exhausted and demoralized, expecting workhouse charity at best, and it's a shock, not to be greeted as a problem, as a bureaucratic nuisance. The Swedes never toot their horn about it, but they really care. They do all this for genuinely humane reasons. Outwardly, they may not seem a very emotional people, but they express their feelings in practical ways. They take everybody very slowly -- you have to prove yourself. But once they accept you as a friend, you're a friend for life."

Even so, the Colemans were in exile. Despite the hospitality and protection of their hosts, there were endless adjustments to make in the business of day-to-day living, to differences in outlook, culture and language, and, not least for a Southerner like Coleman and his Mediterranean wife, to a change of climate as drastic as their change of status. Above all, there was an underlying sense of impermanence that nothing could dispel. The shabby pretext for issuing a fugitive warrant was proof enough that the octopus was still out there, waiting.

Having agreed to offer the Colemans sanctuary while their application for permanent asylum was considered, the Swedish government was clearly in no hurry to arrive at a decision. 'Refugees can wait for years, unable to work or live a normal life, the uncertainty gnawing away at you day by day,' says Coleman. 'They call it "living in splendid misery".

'After a year in the camp, when it became clear to everybody that the passport charge was a phony, the police moved us into a modern apartment in town for our own protection. The rent and utilities were paid for, and they gave us a grant of 50,000 kronor to furnish it. Not a loan -- grant. At that time, before the recession really hit, we also got 600 hours of free language tuition, bus tours all over the place, picnics, computer classes, and access to all the social services open to Swedish citizens. And that's remarkable, when you remember the cost was borne by a country of only eight million people with all kinds of economic problems of their own. But even so, we were still in limbo, still awaiting a decision.'

Meanwhile, the FBI had tried to get at him through his mother. On 26 March 1992, Special Agent Robert Sleigh (pronounced 'sly') of the FBI's CI-3 counter-intelligence section stopped by her house in Birmingham, Alabama, for a chat. After Syrian George had been debriefed by the DIA, Coleman had turned him over to Sleigh so that the FBI could determine his eligibility for a resident's visa.

Introducing himself politely, Sleigh proceeded to ask Margie Coleman a series of questions about her son.

Did she know where he was?

'Me?' she said. 'You're the FBI. Don't you know where he is?'

Well, they thought he was in Sweden. Did she know if he planned to come back?

'I don't know,' she said. 'Is there any reason why he shouldn't?'

Well, that was up to him. Did her son love America?

'A whole lot more than America loves him,' she said. 'After serving his country the way he has, he deserves better than this from you people.'

Well, would he renounce his American citizenship?

'Does he have a choice?' she asked. 'You better ask him yourself.'

Well, they certainly would like to talk this over with him. Could she give them his number?

'I don't think he wants to talk to you,' she said. 'Goodbye.'

Having shown Agent Sleigh the door, she went around to a neighbour's house and telephoned Coleman from there, just in case her line was tapped.

After thinking things over, Coleman informed the Swedish police, who advised him to report the incident in writing to the attorney who was helping him with his affairs.

"It is quite interesting [he wrote], that Agent Sleigh should appear at my mother's home within weeks after you and I were told by Swedish Immigration that the evidence I have presented in my claim for political asylum may be verified by the Swedish Foreign Office. ..

"I must conclude that the Swedish government is making inquiries in the USA about me, and this has alerted the FBI CI-3, whose job is to monitor foreign governments in the USA.

"I am sure the Swedish Foreign Office is aware that their secure cable and voice traffic is being monitored by the FBI. The bottom line is that the FBI now believes that I am in Sweden and is asking some very political questions about my patriotism."

Coleman's next disturbing call was from Joseph L. Boohaker, the Lebanese-American attorney who had arranged bail after his arrest on the passport charge. Somebody had contacted Boohaker to ask about him, and the circumstances were sinister enough for Boohaker to write this report on the incident while it was still fresh in his memory:

"On Thursday, 11 June 1992, at approximately 3:00 P.M. (CDT), I received an anonymous phone call from an individual who identified himself only as a person calling from Washington, D.C. The individual had a message for me to convey to my 'friend living in the North country'. The message, roughly, was as follows:

"'Mr. Boohaker, tell your friend living in the North country that Monzer al-Kassar was arrested today in Barbados and that among his belongings was found a picture of your friend. Tell your friend to take extra security precautions.'

"When I asked for the person's identity, he refused to give it. When I asked him, 'Should my friend from the North country ask where I got the information, what should I tell him?'

"The anonymous caller said, 'Just tell him that it comes from a reliable source, and he will figure out who I am.' He continued, 'Also contact Sly [sic] and Strike 6 in Birmingham, and give him the same message.'

"I asked, 'Who is Sly and Strike 6? Is it FBI?'

"He replied, 'I can't tell you. You will have to find out for yourself.'

"I contacted Mr. Coleman, who gave me the identity of Sly. I contacted Sly and we met in my office on Friday, 12 June 1992. At that time, I gave Mr. Bob Sly the same message related hereinabove. I also related to Mr. Sly that my wife had indicated Thursday evening that the same anonymous caller had called my home looking for me and that his call was directed to my office.

"Mr. Sly was very gracious. He explained that the FBI was interested in my friend only as a fugitive from US justice. He also indicated that he wished to talk to my friend regarding Pan Am 103.

"I provided Mr. Sly with a copy of the Time magazine article written by Mr. Rowan that featured an interview with my friend and that also referenced Mr. al-Kassar. I told Mr. Sly that the article would tie together the entire matter. Mr. Sly asked for a copy of the article and I provided him with mine.

"I expressed concern that an anonymous caller would call my home and asked Sly if he could tell me anything about what was going on. He did not know. However, he took a description of the caller from me and said that the telephone company may be able to trace the origin of the call. I gave him permission to find out. He called later and said that the phone company could not trace the call to the individual number that had placed it, but he did say that if I got another such call to notify him."

When he heard what had happened, Coleman asked Boohaker to do the same thing, because there was not enough there for him to 'figure out' who the 'reliable source' really was.

'Boohaker also told me that Sleigh wanted to talk about Flight 103,' he recalls, 'and did I want to talk to him? No, I said. "Well, he seems friendly enough," said Boohaker. "And he says he remembers you as being rather a nice fellow."

"'I'm sure he does," I said. "If he calls again, tell him I'm thinking about it."'

It was the first time that anybody, British or American, concerned with the official investigation had shown any interest in talking to him about the Flight 103 disaster. After thinking about it for almost a month, curiosity got the better of him.

"I decided, well, what the hell ... I had one of those USA direct number directories in my wallet, and one day I placed a call from here to the USA direct number in Austria and called Sleigh collect. So when the operator got on the line to the FBI, she offered a call from Mr. Coleman in Austria.

"'Well, hi,' he says. 'How'ya doing? Where are you? What's going on?'

"'You tell me,' I said. I reminded him of the Syrian George episode and asked him if he'd realized I was working for the DIA at the time.

"'Well, no,' he says, like it was big news. 'No, I didn't know that. But that's not what I want to talk to you about. I want to talk about the passport charge and this Flight 103 business.'

"'Left it a bit late, haven't you?' I said. 'I'll call you back in five minutes.'

"So I hung up and called him again, this time through the Swedish direct number operator.

''I can call you from Bangladesh next,' I said. 'In fact, we can play this game all day if you like.'

"'No, come on,' he says. 'We know where you are. Let's talk about Flight 103. Let's see if we can't figure out some way to clear up this mess.'

"'Sure,' I said. 'I'll talk about it. You get that US attorney up in Chicago to drop his phony charge against me and I'll talk all you want. But I guarantee you, he won't do it.'

"'Well, it's not as easy as that,' he says. 'You know how it works. He's going to be looking for some kind of a deal here.'

"'I already know what kind of a deal he's looking for. He wants a deal to stop me talking about Flight 103. Otherwise you guys are going to be tied up in hearings from now until Doomsday.'

"'And what about you?' he says. 'You got a wife and kids. Are you being fair on them? Unless you cut some kind of a deal, you're going to be on the run for the rest of your lives. You can't just walk away from this, you know. They won't let you.'

"'Then you better come and get me,' I said. 'If you know where I am, you can have me extradited. We'll have a public hearing in a neutral court, and talk about all the juicy little details, and we'll see what an impartial judge thinks about it.'

"'Don't kid yourself, Les,' he says. 'This is the United States government you're talking about, and that you can't beat. Nobody can. If they want you bad enough, they're going to get you -- we both know that. So why don't you make your peace? Now. While you still got the chance.'

"'First drop the charge,' I said. 'Then pull the warrant. After that we can talk.'

"And I guess that must have sounded pretty final because he just sighed and said, 'Okay. I'll run it up the flagpole. If anything comes back, we'll contact your attorney in Chicago.'

"And that was it. I never heard from my attorney in Chicago."

Coleman knew in his bones that Sleigh was right. They would never leave him alone, although the chances that the FBI would resort to direct methods of the Fawaz Younis type seemed remote. It was one thing to snatch somebody in international waters, from Mexico or from a Central American banana republic and quite another to operate on Swedish soil. Besides being logistically difficult, the diplomatic fallout would be out of all proportion to the likely gain. But if force was ruled out, and probably extradition, there was still plenty of pressure that Washington could exert on the Swedish government to have him deported as an undesirable.

Trying hard to resist the claims of paranoia, and equally to avoid displeasing his hosts, Coleman signed up for his story to be told in a book.

There was no other way he could think of to defend himself against the octopus, against that ruthlessly powerful, self-protective oligarchy of senior intelligence, military and law-enforcement bureaucrats who were convinced they knew best, regardless of what the politicians had to say, and who cynically manipulated the machinery of government to cover their tracks.

As it lived away from the light and worked best in secret, Coleman felt he might be safer out in the open.

Stranded in Sweden, he also needed the money. If he restored his reputation, there was still an outside chance that he could pick up the threads of his former career, perhaps as a writer and journalist.

In the late summer of 1992, that prospect was all but extinguished by the flat-out assault on his character by Byron and Emerson in New York magazine and the Washington Journalism Review. Coleman was a soft target, as there was no risk of his responding with a libel suit, but it had an unexpected side effect. Until then, not a word about his application for asylum had appeared in Sweden, but now the country's national afternoon newspaper iDAG picked up the reference to his whereabouts in Byron's article and traced him through the immigration authorities.

He was interviewed in the conference room of his local police station. The superintendent served coffee and biscuits. And on 19 October 1992, the paper came out with this front- page banner headline:

Speaks Out on Murder Threat From His Hiding Place"

Outlining how Coleman had been driven into exile, a two-page inside spread with pictures described him as 'The Man Who Knows the Truth About the Lockerbie Catastrophe'.

In a curious way, it made him feel less isolated, less like an object of no one's concern. Besides generating public awareness of his plight -- Sweden had lost two of its citizens in the Flight 103 disaster -- the iDAG interview also made it seem less likely that he would be targeted for covert action, authorized or not. To that extent, he felt more secure, particularly as the story carried the implicit endorsement of the Swedish police.

It also had the effect of dispelling his inhibitions about possibly embarrassing the Swedish government by drawing public attention to himself. Now that everybody knew he was there, the appearance of a book, with its attendant publicity, would serve only to underline his need for asylum.

And that seemed to be getting more acute. As Special Agent Sleigh had made plain, the octopus was still probing for him. From a contact in Washington, Coleman had learned that the American Embassy in London was inquiring through Interpol about his status in Sweden, to see if Swedish law provided for the possibility of deportation. Now, through another contact in the Justice Department, Coleman obtained a copy of a confidential FBI 'Investigative Summary', dated 30 March 1992, setting out the basis for the passport violation charge and the subsequent issue of a fugitive warrant.

It was the 'smoking gun' he had always hoped to find.

The charge had been rigged as a plea-bargaining counter for the government to exchange for his silence. No great care had been taken in framing it as there had never been any intention of going to trial. That would have defeated the object. But now Coleman had escaped from American jurisdiction, it was necessary to patch over some of the holes so that the charge held at least enough water to persuade the Swedish authorities that there was a real case for him to answer.

To do that, the Justice Department first had to get around the fact that Coleman had held a birth certificate in the name of Thomas Leavy since 1 March 1982, when it was given to him by the government itself. The other big obstacle it had to gloss over was that a copy of that birth certificate had already been misappropriated by the DEA, apparently to obtain a passport for one of its people in Egypt.

As no inkling of this could be revealed to Interpol or the Swedes without the frame-up becoming self-evident, there was only one thing to do, and that was to dissemble.

"This investigation was instituted on February 7, 1990 [the FBI summary began], when New London, Connecticut Resident Agency, New Haven Division, reported that they had been notified by the New London Bureau of Vital Statistics that a person identifying himself as Thomas Leavy had requested a copy of his birth certificate. Leavy's date of birth (DOB) was listed July 4, 1948, his parents were listed as John and Mary Leavy, and Thomas Leavy's address was listed as 416 County Line Road, Barrington, Illinois. A computer check of the Bureau of Vital Statistics records revealed that the real Thomas Leavy had died in New London, Connecticut, two days after his 1948 birth.

"On April 6, 1990, Richard Beckman, Chicago Passport Office ... advised the Federal Bureau of Investigation (FBI) Chicago that he had a possible passport violation. An application submitted by a Thomas Leavy on March 26, 1990, at the Arlington Heights Post Office, had a number of indicators that pointed to a violation.

"The first indication was the birth certificate for the dead baby. Other indicators were recently issued driver's license and Social Security Account numbers."

Though plausible on the surface, this raised or begged as many questions as it tried to answer.

If Coleman already had a Thomas Leavy birth certificate, issued 1 March 1982 (and still had photocopies), why would he need another one?

And why, if he did, would he apply to the New London Bureau of Vital Statistics when Connecticut's official authority for issuing birth certificates is located in the state capital of Hartford?

And why, if he did, would the New London Bureau go ahead and give Coleman, posing as Thomas Leavy, a copy of Thomas Leavy's birth certificate if a computer check revealed that he had been dead for 42 years?

And why, if it did, could Ms. Gloria Hatfield, clerk of the Records Office in New London, later find no record of the alleged death of Thomas Leavy on 6 July 1948? (When asked about his alleged birth on 4 July she explained that a birth record required the presentation of documents which the researcher did not have.)

And how did Richard Beckman in the Chicago Passport Office know that the Thomas Leavy birth certificate was for a dead baby, and thus 'the first indication' of a 'possible passport violation'?

Thus committed to a piece of pure invention (reflecting no great credit on its author's imagination), the rest of the FBI's 'Investigative Summary' was concerned to ice the cake by putting a false construction on the admitted facts of the application, but even here it stumbled from one improbability to another.

'The home and work addresses on the application,' for instance, 'came back to two separate mail drop locations ... Another indicator was that the contact person listed on the application was a relative. The contact is Lestre Colman [sic] 416 West County Line Road, Barrington Illinois ... listed as a brother-in-law.

'Investigation at Chicago revealed that the owner of one mail drop and the office manager of the second identified the photo from the passport application as Lester Knox Coleman.'

But if Lester Coleman, or anybody but an imbecile, had wished to obtain a Thomas Leavy passport for his own unauthorized use, is it likely that he would have rented two mail drops in his real name?

Or, if the passport was for his own unauthorized use, is it even remotely probable that he would have given his own name and address as a reference?

Nor did the FBI or the prosecutor anywhere suggest a motive for the application. Why would Coleman want a Thomas Leavy passport for his own unauthorized use if he already had a perfectly good one in his own name?

The only motive ever proposed was the one he had himself suggested at the time of his arrest, when he was still concealing his identity as a DIA agent. He was returning to the Middle East to research a book, he had told the FBI, and needed a new passport because his real name was known to Arab drug dealers -- but he had never seriously expected anyone to swallow that. Anybody proposing to visit an Arab country for such a purpose would normally be at pains to avoid using a Jewish-sounding name like Leavy. If Operation Shakespeare had gone ahead, the intention had been to travel on the Leavy passport only as far as Israel.

With the frame-up exposed in the FBI's own document, Coleman was not overly concerned that the Swedish authorities would take the charge at its face value or see it as grounds for deportation. But the octopus had long tentacles, and putting himself in the shoes of those who were probably now regretting that, out of deference to another agency, they had not gone for a Casolaro-type solution, Coleman approached the second anniversary of his arrival in Sweden with a growing apprehension that some new and more serious charge against him might be in the works.

If the risk of covert action had diminished, the possibility of perhaps some sort of treason-related case, properly constructed this time and backed by impeccably manufactured evidence of a kind the Swedes could not ignore, began to seem more likely. It was not a comfortable feeling for a family man, to know in his bones that Washington would prefer him to be dead.

His country had certainly not forgotten him. To mark the fourth anniversary of the Lockerbie disaster, Mike Wallace, for CBS in New York, returned to the attack by interviewing Juval Aviv in the 20 December edition of the network's flagship news programme '60 Minutes'.

CBS News had tried to inveigle Coleman into appearing also but, now wise in the ways of the octopus, he had prudently declined. Any programme produced with the help of Vincent Cannistraro, late of the CIA, Christopher Byron, fresh from setting out the government's stall in New York magazine, and Steven Emerson was hardly likely to deal objectively with anything he might have to say.

And he was right. Referring to the judgment against Pan Am in the civil liability suit a few months earlier, Wallace opened the proceedings by saying: 'It is not surprising that Pan Am and its lead insurer, US Aviation Underwriters, would appeal that verdict. What is surprising, perhaps, is that they would hire a private detective like Juval Aviv to help them avoid paying huge damage claims.'

Anyone who had not been following the case closely -- that is, all but a handful of viewers -- might have assumed from this that Pan Am and its insurers had hired Aviv after the judgment against them in an effort to avoid the consequences, that '60 Minutes' was about to report a new development. In fact, there was no connection at all between the verdict and the hiring of Juval Aviv. The juxtaposition of the two was simply to create the illusion of a news peg in order to justify a rerun of the charges already ventilated in New York magazine. Wallace was well into the programme before he acknowledged that Aviv had resigned from the case on 31 May 1990 -- two and a half years earlier.

After summarizing the always questionable construction that Aviv had placed on the intelligence data in his Interfor Report, Wallace invited Lee Kreindler, lead attorney for the victims' families, to comment on the 'brutal shock' his clients received when Aviv's findings were leaked to the media (in 1989!).

One of them, he said -- 'I love her dearly, she'd lost her husband, a wonderful lady and she said, "Lee," she said, "how do I renounce my American citizenship? The CIA killed my husband." All this is pure fabrication. Out of the mind of Juval Aviv.'

Vincent Cannistraro agreed.

As far as he was concerned, it was 'a transparent attempt to get Pan Am off the hook, which has, as its only purpose, to blame anyone else other than Pan Am for the crash of Pan Am 103'. There was never any CIA involvement with an undercover drug operation at Frankfurt airport, he said. 'No such element ever existed, no such "sting" operation existed at Frankfurt airport.' Nor was the plane targeted because of the five CIA agents aboard, returning home to blow the whistle on a rogue CIA operation.

'Completely false,' Cannistraro declared. 'First of all, there weren't five CIA agents on that plane. There were two CIA agents on that plane. And they made their travel arrangements at the absolute last minute, and therefore there was no way that they could have been targeted, or that flight could have been targeted in advance.' (He did not reveal that the agents had changed their plans on Cyprus, using the DEA's travel agents, RA Travel Masters. This had always suggested to Coleman the possibility that Hurley had told them it was all right to fly Pan Am 103 as it was a controlled delivery flight.)

Wallace then turned to Aviv's claim that he was a former member of the Mossad, a claim rejected by an Israeli source who had described him as 'a junior security officer for El Al'.

'You were fired in April, 1984, after less than eighteen months of work,' said Wallace, 'because you were, quote, "unreliable and dishonest", close quote. And [the statement] goes on to say that after that, you had been, quote, "involved during the years in various acts of fraud and impersonation". So they're lying about you?'

'I'm not saying anything,' replied Aviv. 'I do not discuss. They are free to say whatever they say. I know what I am, and I will not get into it.'

Wallace conceded that some law firms Aviv had worked for had praise for him, 'but others had charged him with everything from ripping off clients for tens of thousands of dollars for spurious investigations, to originally trying to sell his services to the families of those who were killed in the plane bombing ...' (Two years earlier, Aviv's colleague and attorney, Daniel Aharoni, had explained to Barron's that 'our heart was with the families, but the problem was there were 270 victims, and families with all levels of sophistication. How do you report to 270 different clients? And Pan Am was very clear that they wanted the truth. They said, "Let the chips fall where they may".')

Kreindler's recollection was different. According to Wallace, 'he was appalled that Pan Am and the insurers would hire a man like Juval Aviv,' and Kreindler confirmed this on camera.

'They embraced this character, Juval Aviv,' he said. 'The slightest checking on their part would have shown that he was a fraud.' (In the same Barron's article, James Shaughnessy had stated that 'we asked him for references from other law firms ... They checked out in glowing terms.')

At this point, Wallace set up Aviv for a face-to-face confrontation with Cannistraro.

'You've ever talked with him?' he asked Aviv.


'Well, he says -- Cannistraro told us -- your theory is -- is totally wrong. He says, a tissue of fabrication.'

'Well, that's his opinion. As ex-CIA, he has to do the party line. He's not going to simply come out and say, Now that I left, I was involved in maybe cover-up. He will not say that. He can't say that.'

'So you would like to talk to Cannistraro, let's say.'

'I would talk to -- well, Cannistraro, I would like to talk to Cannistraro --'

'We're going to make that possible for you right now,' Wallace interrupted. 'Vince? Come on in.'

The results of this ambush, perhaps more appropriate to 'This Is Your Life' than a serious news programme, were not particularly illuminating.

'Almost everything you said is completely fabricated,' said Cannistraro. 'It's invented.'

'What you're doing right now -- you don't discuss the issues,' Aviv replied. 'You're attacking me again.'

'Wait a minute,' said Wallace, intervening as they both started to talk at once. 'We're talking about Pan Am 103. What you have said, Juval Aviv, is that the United States government -- that the United States government knew about that bag that was going aboard this particular flight, did nothing to stop it.'


'Totally false,' said Cannistraro. 'Your report, which I have read very carefully, alleges the existence of a CIA element, which you call CIA-1, at Frankfurt airport. Totally false. Completely false. Today, Mr. Aviv has only speculation, rumours and theory that has not been supported by one scintilla of material evidence. I would like to see it before we continue this discussion.'

Again, they both started to talk, and Wallace cut through to say: 'No, no, no -- with all respect, Mr. Cannistraro, you're ex-CIA.'


'It has to be suggested that perhaps a former CIA man is not going to point the finger at his own government, at his own agency.'

'Well, I assure you, CIA is probably not very happy that I'm appearing on television, saying these kinds of things. But I had personal friends on that plane who died. And I assure you that I wanted to find the perpetrators of that disaster as much as anyone wanted to. And I really resent people like Juval Aviv and all the other shysters that were involved in constructing this government conspiracy theory blaming everyone else other than Pan Am for the negligence that resulted in that disaster.'

'And the fact is,' added Wallace, cutting away, 'that in a letter dated June 1990, the lead lawyer for Pan Am's insurers, James Shaughnessy, wrote to Juval Aviv that despite probably hundreds of thousands of dollars given him, Aviv had failed to come up with, quote, "a single piece of admissible evidence" for the Pan Am case. It was at that point that Aviv finally went off the insurers' payroll. (A moment's reflection on Wallace's part -- or anybody's part -- might have suggested that Shaughnessy's letter reflected, not 'a transparent attempt to get Pan Am off the hook', but a transparent conviction that Pan Am's case could be supported by admissible evidence.)

'Even after that, though,' Wallace went on, 'Pan Am kept pushing its case in the courts and in the press, kept pushing the idea of conspiracy, focusing now on the US Drug Enforcement Agency instead of the CIA, despite vehement denials from the US government.'

He sounded aggrieved, as if defending a lawsuit were somehow perverse.

"Where did Pan Am's DEA evidence come from? [he asked]. One key source. This man -- Lester Coleman, who claims to have been a key undercover agent for the US DEA. But according to the DEA, Coleman was little more than a low-level informant for a couple of years. He was ultimately fired for, quote, 'lack of integrity and a propensity for fabrication' -- a description we heard repeated by many who have known Coleman over the years.

"Currently, he is in Europe avoiding arrest on passport fraud charges in the United States. And who helped him get out of the US to Europe, from where he supplied an affidavit in support of Pan Am's charge?

"Pan Am flew him there, free of charge."

It was a typical Byronesque shot, right down to the sleazy implication that Pan Am had helped a wanted criminal escape.

At the end of the programme, Wallace would thank Christopher Byron for his help in sustaining the reputation that CBS had already earned in the trade as the Cheap Broadcasting System, but first he had a word with Tom Plaskett, board chairman of Pan Am at the time of the bombing.

'Aviv, who is charged with being an imposter; Coleman, fleeing the United States on passport fraud charges -- these are two of the lead investigators for Pan Am?' Wallace suggested.

'I don't think it's proper to characterize them as "lead investigators",' Plaskett replied. 'In the first place, in intelligence and in the world in which some of these people operate, you simply don't have a diploma hanging on the wall which certifies their credibility.'

'Would you hire Aviv again?' asked Wallace.

'I don't think so,' said Plaskett. (And who could blame him, with media coverage like this?)

At this point, Wallace interpolated a comment from none other than Steven Emerson, who, he said, had written 'about the various parties who, he charges, knowingly bought into Aviv and Coleman's fabrication'.

'They knew they were being conned,' said Emerson, 'but they went along because they had a constellation of the same interests [sic]. The insurance companies wanted to avoid paying out. Pan Am wanted to avoid being accused of being negligent. And the media wanted a good story.'

Not unexpectedly, the principal culprits turned out to be ABC, NBC and Time magazine, who, if Emerson's remarks meant anything, must have been surprised to hear that they shared a common interest in helping the insurance companies to avoid paying out and Pan Am to avoid being accused of negligence.

Cutting back to Plaskett, Wallace quoted from a memo written by Bob Alford, former head of the claims department of the lead insurers, who was 'highly critical of the tactics used by his former employers to avoid paying those big damage claims to the families of Pan Am 103'.

'This man, Alford,' said Wallace, 'senior vice president of your own insurers, says, quote, "These families should have been compensated two years ago. The money that has been spent litigating this case is outrageous." And you acknowledge it's tens of millions.'

'Mike, it has been a very long and difficult process,' Plaskett replied, 'and I certainly have great empathy for the families in waiting so long. But no one has proven how the bomb got on the airplane. The act of wilful misconduct, on which the jury based its verdict, we do not believe will be sustained in a court of appeals.'

With this, Wallace returned to Cannistraro for his 'last word' on the conduct of Pan Am and the insurance companies.

It was 'reprehensible'. And 'despicable'.

'By the way,' added Wallace, in conclusion, 'we, like many in the media, were briefly taken in by Juval Aviv a few years back. We paid him no money but we did provide him with a letter indicating he was checking into certain stories for "60 Minutes". A mistake.'

This was a necessary admission, for Aviv had kept a copy of the letter. It had been written, not 'a few years back' but on 11 April 1991 -- long after Aviv's 'fabrication' had been leaked to the media and 'discredited'; long after Pan Am's 'reprehensible' conduct had been denounced in the media; long after ABC and NBC had knowingly allowed themselves to be 'conned' by Lester Coleman, and months after Emerson had 'unmasked' Coleman on CNN television as a 'low-level DEA informant'.

With all this information at his disposal, Wallace had written:

"Dear Juval Aviv,

"This letter will confirm that you will be working with myself and [producer] Barry Lando as a consultant on numerous assignments for '60 Minutes.'

Mike Wallace,
CBS News/60 Minutes"

A mistake?

' .... surprising, perhaps, that they would hire a private detective like Juval Aviv to help them ...?'

' ... when the slightest checking on their part would have shown that he was a fraud?'

It would be interesting to know what additional information had come Wallace's way between April 1991 and December 1992 to cause him to change his mind so completely about the competence and credibility of Aviv as an investigator. He certainly did not confide it to his viewers or, indeed, tell them anything new. In fact, with the families having already won their case against Pan Am, it was hard to see any point to the programme at all except that, like Byron's New York magazine article, it served the government's purpose in helping to create a climate of opinion hostile to any further questioning of the official line on Flight 103.

So who was 'conned'?

ABC, NBC and Time by Pan Am, Aviv and Coleman?

Or Mike Wallace by the government, Cannistraro and Byron/Emerson?

In the days when CBS News enjoyed a reputation for independence and responsible reporting, '60 Minutes' might well have been more interested in examining the substance of Pan Am's appeal than questioning its right to appeal. For Coleman, watching the programme in Sweden and remembering the days of Ed Murrow and Walter Kronkite, it was a dispiriting experience, all too consistent with the standards of television journalism that had driven him into the coils of the octopus eight years earlier.

It was a bad time in any case.

On 6 January 1993, his father died. So far away, Coleman found that hard to grasp. He would have liked to have been there when his father's ashes were scattered on the lake. He would have liked to have felt, and to be, closer to his mother, and his children by his former marriage. His son was growing up and he had missed his daughter's marriage. There was something dream-like still in not really belonging anywhere, in waiting endlessly in exile for something to happen.

In February 1993, he heard on the grapevine that the Department of Justice had empanelled a Federal grand jury in the Eastern District of Virginia and was trawling through his record, calling witnesses who had known him in his six-year spell with the DIA.
Clearly, there was to be no forgiveness for anyone who had tried to bring out the truth about Flight 103 and the tragedy at Lockerbie. Among the grand jury's other targets were Juval Aviv and James M. Shaughnessy.

Then in March, just two months short of the second anniversary of the family's arrival in Sweden, Coleman heard that his application for permanent residence had been denied.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:46 pm


In May 1993, Pan Am's appeal was heard in the U.S. Court of Appeals for the Second Circuit, and although a decision was not expected before the autumn, there seemed little doubt that the judgment against the airline in the 1992 liability trial would be set aside.

The issue had hinged on whether or not Pan Am had complied with FAA directives about the inspection of baggage. Counsel for the relatives had interpreted the regulations as requiring the airline physically to match all interline transfer bags with passengers, so that any bag not accompanied by a passenger would be identified and either hand-searched or left behind.

'To make out their liability theory,' Pan Am's attorneys argued, 'it was necessary for plaintiffs to prove that the bomb was in the suitcase, the suitcase was unaccompanied by any passenger, and the suitcase had been delivered into Pan Am's baggage system by interline transfer from another carrier, Air Malta.

'It was also necessary to show not only that Pan Am's baggage security procedure violated FAA requirements, as construed by plaintiffs, but also that Pan Am had adopted the procedure with a mindset so indifferent to safety as to constitute wilful misconduct.' (On this point, plaintiffs contended that the airline had wilfully broken the rules in order to save money and improve on-time performance.)

In its defence, Pan Am had maintained that it had not only complied with FAA requirements by making an 'administrative match' between passengers and bags, as allowed by the rules, but had also used state-of-the-art X-ray machines to inspect all interline bags, accompanied or not. (A physical match would have required passengers to go out on the tarmac and identify their bags before they were loaded aboard the aircraft, a process so time-consuming that no airline routinely performed such a match, not even El Al.)

The airline's counsel went on:

"Defendants attempted to show, but were precluded from showing, that because Pan Am believed the relevant FAA regulation to be unclear, it had obtained (or thought it had obtained) the FAA's concurrence with Pan Am's baggage security procedure. Defendants were also precluded from showing that Pan Am's X-ray inspection of interline bags was permitted by British aviation authorities, and defendants were precluded from rebutting the testimony of the plaintiffs' expert that unaccompanied bags posed such a unique risk as to make the use of X-ray inspection inappropriate.

"In addition, Pan Am set out to show, but was precluded from showing, that plaintiffs' theory of how the bomb was planted on board the aircraft was implausible and that other possibilities for which Pan Am would not be responsible were more likely."

This last point was crucial.

While fully accepting the implications of the hard, forensic evidence, Pan Am's counsel insisted that the Libyan/Air Malta theory, advanced by government and plaintiffs alike, rested on circumstantial evidence alone: namely, that the bomb bag had contained items of clothing purchased in Malta, that baggage records from Frankfurt airport purported to show that an unaccompanied bag from Flight KM180 had been transferred to Flight 103, and that a schedule prepared by the Scottish police had matched every bag with a passenger except one, the unaccompanied bag containing the bomb.

With testimony and records from Air Malta showing that no unaccompanied bag had been loaded aboard Flight KM180, and with substantial questions still unanswered about the validity of both Frankfurt's baggage records and the bag-matching schedule, in Pan Am's view, the plaintiffs' circumstantial evidence was simply not enough to establish how the bomb got aboard.

Denied access to official sources of information on grounds of 'national security', the airline had attempted to offset its handicap by calling five expert witnesses who, between them, would have discounted the Air Malta theory as both implausible and insufficiently supported by the evidence. Four of the five were not permitted to testify, however, and the fifth only on a minor, peripheral matter.

(Two of the excluded experts were British: John Horne and Peter Gurney, both with wide experience of terrorist bombings and bomb disposal operations gained in service with the British Army and Scotland Yard. Formerly in charge of the explosives section of the Yard's anti-terrorism branch, Gurney had personally disarmed a bomb intended for an El Al flight in 1986, and in 1991 had defused two IRA mortar bombs launched at 10 Downing Street.)

Worse still, at no point in the trial proceedings had Pan Am been allowed even to mention the possibility that a rogue bag might have been slipped into the system further down the line in order to bypass its security checks. Nor was it allowed to cross-examine one of the plaintiffs' own experts on the subject of 'rush-tag' bags, which, by definition, are unaccompanied by their owners.

This last turned out to be particularly damaging.

When Pan Am called Kurt Maier, operator of its baggage X-ray machine at Frankfurt on the day in question, he testified, first, that he had been told to call a supervisor if he saw a radio inside any bag, and second, that none of the 13 unaccompanied bags he screened for Flight 103 had contained a radio-cassette player. (When Maier's competence as an operator was challenged, Pan Am sought to demonstrate the X-ray machine to the jury in order to prove that anyone, trained or not, could identify a radio-cassette player from the image on its monitor, but once again, the airline was not permitted to do so.)

Maier's testimony was crucial because the plaintiffs (and the government) insisted that 12 of the 13 bags had been accounted for, and that the 13th was the one with the bomb.

Pan Am, on the other hand, contended that the 13th bag must have belonged to a Pan Am captain who had sent two suitcases home from Berlin via Frankfurt, rush-tagged to Seattle via New York, before piloting a flight to Karachi. One suitcase had unaccountably been left behind at Frankfurt. The other, containing Christmas presents for his family, was found at Lockerbie. As this was not among the 12 unaccompanied bags officially accounted for, and as all 13 had been X-rayed and cleared, the 13th bag could not, therefore, have contained the bomb.

On attempting to cross-examine one of the plaintiffs' own experts on the subject of rush-tag bags, however, Pan Am's counsel was specifically barred from asking if the 13th bag could not, in fact, have belonged to the pilot. They were also prevented from asking another of the plaintiffs' experts if it might not have been easier for a terrorist to have placed the bomb in a parcel of cargo rather than in an unaccompanied bag.

Having listed many instances where Pan Am's defence had been hampered, in counsel's opinion, by such rulings and by the improper exclusion of evidence, the airline's appeal documents then turned to those occasions when evidence for the plaintiffs had been improperly admitted. Depositions were allowed, for instance, alleging previous misconduct on Pan Am's part that had nothing to do with the plaintiffs' Libyan/Air Malta theory, and their experts were also permitted to give 'lengthy one-sided summaries of the evidence and to render expert opinions that [improperly] judged the credibility of witnesses.'

Closely reasoned, meticulously documented and including a catalogue of alleged procedural and technical errors, Pan Am's appeal brief, and the subsequent hearing in May 1993, left little doubt in anyone's mind that the original proceedings had been fatally flawed and that a new trial would be held before a different judge, probably in the spring of 1994.

Indeed, the only serious reservation expressed by legal observers about the outcome had less to do with the validity of Pan Am's appeal than with the integrity of the American judicial system under extreme government pressure. If a new trial is ordered, and if Pan Am is allowed to make its defence unhindered, the stage will be set for the final demolition of the plaintiffs' case against the airline, and with it, inevitably, the government's case against the two Libyans, al-Megrahi and Fhimah.

With a five-year cover-up to explain away, not to mention its cynical manipulation of the United Nations to engineer the imposition of international sanctions against Libya, the American government's commitment to the Libyan/Air Malta theory will subject the Federal judiciary to one of the most severe tests it has had to face since the separation of powers was written into the constitution.

If Lester Coleman's hopes are realized, the result of Pan Am's appeal may also persuade the octopus to leave him in peace at last, although, having gone to ground again in the face of Washington's vendetta, he now believes there is probably more to it than meets the eye. Since his story is now supported by no less an authority than Major Khalil Tunayb, a former chief of intelligence for the PFLP-GC, there would seem little point in continuing to harry him so relentlessly unless there were some wider reason.

(During the winter of 1992-1993, Tunayb surfaced in the media to confirm that Khalid Nazir Jafaar had been affiliated with Muslim fundamentalists in Lebanon and Detroit who knew he was working in drug operations for the DEA and CIA. According to Tunayb, Jafaar was used by the PFLP-GC as an unwitting accomplice to get the bomb bag aboard Flight 103 and had been escorted from Beirut by two equally unwitting American agents. Significantly, Tunayb's story supports much of the intelligence data provided in Juval Aviv's original Interfor Report.)

So what else did he know, Coleman wondered, that might account for Washington's unabated intent to silence or discredit him?

Looking back over his career as an American agent in the Middle East, he realized that most of his work had been concerned with tracking Syria's involvement in terrorism, hostage-taking and narcotics. In the course of his duties, he had helped compile dossiers on the likes of Rifat Assad, Monzer al-Kassar and Ali Issa Dubah which, in any civilized country without a death penalty, would have put them behind bars for life.

All else being equal ...

In fact, Rifat Assad, a vice president of Syria, returned home from exile in August 1992, and is thought to be undergoing a low-profile rehabilitation in Damascus with a view to succeeding his older brother, Hafez Assad, when the time comes. The President's health is poor, and his son, Basil, is generally regarded as too young and too lightweight for the job. As heir to the presidency, Rifat is clearly Washington 's best bet in countering the threat of a militant fundamentalist take-over on his brother's death -- and the fact that he was, or is, a CIA asset hardly undermines his qualifications!

Adding weight to the idea that the American government and its allies are lending a hand to clean up Rifat's act, the virtual disappearance of his partner Monzer al-Kassar after his arrest in Spain in the summer of 1992 neatly removed another awkward reminder of their controlling interest in America's heroin imports. (His conditional release a year later, on £10 million bail, was also a reminder of his enduring influence with the intelligence agencies of those governments.)

With Rifat's friend and colleague, General Ali Issa Dubah, promoted soon after to the post of Hafez Assad's deputy chief of staff for security affairs, and thus well clear of any further day-to-day involvement with the Syrian narcotics industry, Coleman was moved to wonder if, perhaps, he was now the last unmuzzled American witness who could testify directly as to Rifat Assad's unsuitability for any political role in the Middle East, most of all, that of America's key Arab ally.

Could it be, he asked himself, that what he knew about Lockerbie was just part of what he knew about Syria, and that what he knew about both left the whole of America's Syria-first policy open to question?

To see if a Democratic administration would take a more sympathetic view of his plight, Coleman addressed the following petition to President Bill Clinton, with a copy to the new Attorney-General, Janet Reno:

"'Mr. President,

"I spent two years assigned to the White House as a radio correspondent during the Carter administration. My work has been recognized with two Emmys and several other national reporting honors.

"In the mid-80's, I left journalism and became involved with two government agencies, the DIA and the DEA, affiliated with classified activities in Lebanon. My background in the Middle East was of interest to my government. I grew up in Iran and Libya, for example.

"I witnessed conduct within the US DEA in particular that was not conducive to operational security. I still feel this lax security at DEA Country Office Nicosia may have contributed to the bombing of Pan Am 103. I gave an affidavit, April 1991, that I observed a Lebanese, later identified as Khalid Jafaar, at a DEA office where I was working in 1988, six months prior to the bombing. Jafaar was killed on 103. DEA has repeatedly denied Jafaar had any connection with them.

"On May 2, 1990, I was arrested for making a false statement on a passport application, using a birth record provided to me by the US government. We now have conclusive evidence that this arrest was directly related to my knowledge of DEA's activities that may have been compromised by elements linked to the Pan Am bombing.

"My wife, children and I were subsequently harassed. Death threats were made to us, and I was warned by a DEA agent directly not to get DEA involved in my case.

"In 1991, in fear of our lives, we fled the USA and sought sanctuary in Sweden. I left the USA legally, with permission of the U.S. District Court in Chicago. After our arrival here, the FBI continued harassment by faking a doctor's appointment before the court. The doctor the FBI stated they had appointed declared that he was never contacted by the United States government. I complied with the terms of my bail release, reporting to pre-trial services biweekly up until the FBI's false doctor's appointment episode. Afterwards, I asked, and received, protection from the Swedish authorities for me, my wife and three children.

"We have since obtained a copy of a FBI file which was leaked by closet patriots within the Bureau. This file contains false statements about me regarding the passport case pending in Chicago.

"We have been waiting patiently, Mr. President, for the appointment of a new Attorney General who will hopefully clean out the gross misconduct under the Bush administration, which includes persecuting this American citizen, forced to flee his homeland.

"I request that Attorney General Janet Reno investigate this matter. We wish to return to America but will not do so until the United States government stops persecuting us, drops the charge in Chicago and shall look upon me as a witness, not a fugitive.

"A book entitled 'Trail of the Octopus' documenting the events of the last three years shall be published this fall. I hope your administration will extend an olive branch and distance itself from the conduct of a morally corrupt Bush Justice Department and arrange for us to come home."

Coleman sent his petition by fax, the machine confirming that the transmission had been received, and provided a fax number to which the White House could reply.

That was on 15 March 1993.

By mid June, having heard not a word, the Coleman family resigned itself to a life on the run.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:48 pm



Excerpts From The Appellate Decisions Denying Pan Am’s Request for Retrial

Editor’s Note

Donald Goddard’s narration of events concludes with Pan Am’s submission of its appeal to the United States Court of Appeals for the Second Circuit in Case Numbers 92-9251, 92-9253, and 92-9255. While Goddard was hopeful that what he saw as errors in the trial process would be remedied on appeal, he questioned whether the judicial process would be up to the challenge of doing justice where the result might be to reopen a chapter in history that the U.S. government clearly wanted closed.

Two appellate decisions rendered, the first on January 31, 1994, and the second on September 12, 1994. Neither decision accorded any substantial relief to Pan Am, and both were “split decisions,” by the three-judge panel. Both majority opinions were written by Richard J. Cardamone, a Reagan appointee who is still on the bench. Both dissenting opinions were written by Ellsworth Van Graafeiland, a Ford appointee who passed away in 2004.

Justice Cardamone’s smooth rejection of Pan Am’s position is in sharp contrast to the objections of Justice Van Graafeiland, who observed at the outset that the position he was obliged to take would make his “name anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with [District] Judge Platt may suffer some stress.” Apparently stung by the strong criticism of the District Judge’s refusal to allow testimony that the FAA had orally approved Pan Am’s policy of x-raying luggage rather than forcing travelers to open it up on the tarmac and affirm it as their own before boarding the plane, Justice Cardamone adjusted the contours of his reasoning somewhat after Pan Am sought and obtained a re-hearing. The September 14th Opinion liberally applied the doctrine of “harmless error,” which is to say that, that even if Pan Am had been able to introduce all of the evidence Judge Platt excluded from the case, the jury would’ve found Pan Am liable anyway.

The following excerpts are drawn from the text of the opinions. Ellipses have not been utilized, and professional readers are directed to the original decisions, easy to find by punching the case numbers into the Second Circuit decision database.

Excerpts From the January 31st Majority Opinion

On December 21, 1988 a bomb exploded on Pan Am Flight 103 causing it to crash over Lockerbie, Scotland. The 243 passengers and 16 crew members aboard the flight traveling from London to New York all perished. Numerous plaintiffs, including those in the cases before us, brought wrongful death actions against Pan Am and Alert, a Pan Am affiliate that provided security services in London and in Frankfurt, where Flight 103 originated. All those actions were consolidated for trial in the Eastern District of New York.

On July 10, 1992 the jury found that the defendants engaged in wilful misconduct that led to this fatal crash. The trial's liability phase centered on Pan Am's alleged noncompliance with FAA directives concerning baggage inspection, particularly with regard to unaccompanied baggage that might contain explosives. Additional proof was introduced regarding other alleged misconduct on the air carrier's part. Plaintiffs contended that the bomb entered the flight on an unaccompanied bag that Pan Am, through its wilful misconduct, failed to inspect and detect. Under plaintiffs' theory -- detailed by several expert witnesses -- the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

Although bags transferred from other flights to Flight 103 in Frankfurt were x-rayed, plaintiffs asserted the airline's x-ray procedure violated security requirements contained in the FAA ACSSP, particularly those regulations ensuring that bags matched passengers and that any unaccompanied bags be physically inspected. Pan Am unsuccessfully argued to the jury that its actions did not amount to wilful misconduct, and that it was impossible to determine how the bomb was planted on Flight 103. To meet plaintiffs' claims of wilful misconduct, Pan Am and Alert emphasized that the transferred bags had been examined using x-ray equipment, but that no bomb was discovered. They challenged plaintiffs' theory of causation and suggested that even if there were any misconduct on their part, it did not lead to the crash.

Appellants … focus on … three different lines of proof they were not allowed to present to guide the jury's application of that standard, that is, the oral waiver, the British regulations, and expert testimony regarding the threat posed by unaccompanied baggage.

Defendants maintain that an FAA official granted them an oral waiver excusing strict compliance with certain FAA regulations, and that Chief Judge Platt abused his discretion when he disallowed their evidence purporting to demonstrate their belief in this waiver. Defendants' argument essentially is that this evidence would have shown that their x-ray inspection of interline bags complied with FAA requirements or that, regardless of FAA requirements, they did not act with conscious or reckless disregard of the probable consequences of their x-ray procedures since they thought the safety precautions they were following were permissible.

In support of this point, Pan Am points out that a regulation may be interpreted orally, and that the regulation at issue is ambiguous and therefore susceptible to such an interpretation. As a matter of law the FAA regulation at issue here -- ACSSP XV C.1.(a) -- is not ambiguous, as the following Discussion demonstrates.

Pan Am and Alert assert that physical inspection could be interpreted to mean an x-ray inspection. For several reasons, we think this a strained reading of the unambiguous regulation. First, the FAA promulgated "Physical Inspection Guidelines" in the ACSSP which specified that physical inspection involves opening and inspecting all compartments of baggage. The guidelines do not mention x-ray as an acceptable means of inspection. Second, the jury heard testimony from Pan Am's own General Manager at Heathrow, and other witnesses as well, that physical inspection under the regulations involved opening up bags and that x-raying them did not satisfy the regulation. Third, ACSSP regulations applicable at other, lower security airports explicitly permitted x-ray or physical inspections. Thus, it is plain that the regulations applicable at Frankfurt and London's Heathrow were unambiguous: they did not permit x-ray inspections as a substitute for a physical inspection. We hold, therefore, that the district court did not err in refusing to allow witnesses -- like the co-chair of the Pan Am Security Task Force, Richard Cozzi -- to testify that they thought the regulations were ambiguous.

Given that the FAA regulation in question is not ambiguous, Pan Am next asserts it obtained an oral waiver of the regulation from the FAA and that the district court erred in disallowing evidence of that waiver. But since FAA regulations state that any waiver of its requirements must be obtained from the FAA in writing, appellants would not have been justified in relying on an oral waiver.

The Director of the Office of Civil Aviation Security at the FAA at the time of the Pan Am bombing, Raymond Salazar, testified that in order to obtain an exemption from an ACSSP regulation an air carrier would have to file a written request and follow a specific procedure that was then in place. Plaintiffs produced the e-mail message that Pan Am security officer Daniel Soneson had sent to the regional Pan Am security representatives at Heathrow and Frankfurt. The e-mail message, dated March 28, 1988, stated in part, "the Dir. FAA R Salizar has granted x ray as and [sic] alternative to searching pass. baggage." Salazar testified that that representation was inaccurate and a misrepresentation, and when pressed by counsel, characterized it as "a falsehood."

The excluded evidence concerning the oral waiver primarily involved the testimony of two witnesses. We are told that the first witness, Daniel Soneson, would have testified that he approached the FAA in 1986 and received a verbal authorization for the x-ray-only inspection of interline bags, though he could not recall who gave this authorization. He would have testified further, so defendants state, that at an October 1987 meeting with Salazar and others he was advised that x-ray inspection would comply with ACSSP requirements. The trial Judge suggested that an offer of proof outside the presence of the jury be made regarding this witness' proposed testimony, but for some reason Pan Am chose not to make such an offer:

The second witness proffered by the defense was a former co-chair of the Pan Am Security Task Force, Richard Cozzi. Although Cozzi testified at trial, he was not permitted to testify as to Pan Am's purported verbal authorization from the FAA. Even had Cozzi been permitted to testify on this issue, his statement respecting what Soneson reported would have been inadmissible hearsay and would not have been admissible at trial in any event.

In a series of oral rulings repeated throughout the record, the trial Judge stated that any testimony by defense witnesses as to the purported verbal authorization would be excluded. It treated the proffered defense as an attempt to mount a so-called government authorization defense, the bounds of which will be discussed shortly. Chief Judge Platt believed that a government authorization defense may only be predicated on authorization from a government official with power to grant such authorization. He held the defense unavailable because anyone who might have given a verbal exemption at the FAA would have had no authority to do so.

We believe what appellants sought to present at trial was essentially a mistake of law defense, that is to say, defendants thought what they were doing was in accordance with the law and, even if they were mistaken, they think under such a circumstance they should not be held liable for wilful misconduct. The usual standards defining the permissibility of a mistake of law defense are as effective where the mistaken law is a regulation.

There is cause to be wary because of the ease with which air carriers could fabricate sham defenses and ignore with impunity safety regulations. Instead, where one of the handful of corporations in the business of transporting the public by air asserts a mistake of law as its defense to wilful misconduct under the Warsaw Convention, it may only present its objectively reasonable beliefs as to the law's requirements. To state this in other words, because of the legal status of the FAA regulations and the duty of air carriers to know and follow them, an absence of wilful misconduct -- when based on a claim of a mistaken understanding of those regulations -- must be supported by objectively reasonable evidence as to that mistaken understanding. When a law, rule or regulation that pertains to passenger and crew safety is clear and no reasonable air carrier would have believed it was authorized to act in contravention of it, we hold that an air carrier may not successfully mount a defense based on its assertion that it did not know the law.

Pan Am and Alert presented a strong defense to the jury that even if they violated the ACSSP, their actions did not amount to wilful misconduct. They insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Appellants' counsel emphasized in closing argument and elsewhere the safety and expense of the x-ray technology purchased and employed by Pan Am, the fact that even an untrained person could spot a radio on one of their x-ray machines, and made the point that FAA inspections had shown Pan Am x-ray equipment to be in compliance with regulations.

Appellants' motion to exclude proof not tied to the Air Malta theory of causation (that the bomb bag came from an interline transfer) was denied by the trial court. It observed that since appellants planned to contest the Air Malta theory, plaintiffs were entitled to present evidence of alleged other misconduct on defendants' parts. The trial Judge reasoned that even if the Air Malta theory did not explain the bomb's presence on Flight 103, other pervasive and extensive wilful misconduct by defendants must have accounted for the bomb's presence.

Plaintiffs asserted that a contempt for security pervaded Pan Am from the highest to the lowest levels of the corporation, and that the totality of security failures would permit the jury to infer wilful misconduct. We have approved consideration of the totality of a defendant's wrongdoing in determining whether wilful misconduct existed.

Various attempts by appellants to suggest other specific causation theories were … rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory. Because there was no evidence presented with respect to other possible methods of causation that might explain how this tragic event occurred, and because appellants never sought to show that any other specific method of bombing could have caused it, any testimony relating to such other causes would necessarily be speculative.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings.

Scottish Detective Constable Derek Henderson provided deposition testimony as to his work in the Flight 103 investigation. He was assigned responsibility for matching certain bags -- the ones that might have been placed in the flight container that was determined to have held the bag with the bomb -- with passengers on the aircraft. Henderson prepared his report largely through compiling computerized records of bags. These computerized records had been set up to amass reports from passengers' and crew members' friends and relatives, and from evidence obtained at the scene of the crash.

Pan Am and Alert also sought to include an x-ray demonstration as part of their defense to show how clearly a radio-cassette player would appear on the screen. Such a demonstration was ultimately ruled irrelevant, given plaintiffs' offer to stipulate that a radio-cassette player would be visible on an x-ray screen. Pan Am and Alert nevertheless declare the demonstration would have generally supported Pan Am x-ray operator Kurt Maier's testimony that he x-rayed all the interline bags transferred to Flight 103 in Frankfurt.

From the January 31, 1994 Dissenting Opinion

VAN GRAAFEILAND, Circuit Judge, Dissenting:

Writing a Dissenting opinion in the instant case is not a pleasant task. My name will be anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with Judge Platt may suffer some stress. However, because I am convinced that Pan Am*fn1 did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so.

At one point near the end of the trial, Pan Am's counsel said to the court:

“Now, Judge, I would tell you, on a scale of 1 to 10, doing what I want in this courtroom, I have been about a minus 2, or maybe imaginary numbers would be a better way to describe as the level to which I have gone.”

I have read the record dispassionately, and I completely agree with this observation. Plaintiffs' attorneys were permitted to range far and wide with prejudicial, irrelevant testimony, while Pan Am's counsel was precluded time and again from presenting relative and probative proof. Because I recognize that evidentiary rulings are largely discretionary and because I want to follow the somewhat unusual practice, at least for me, of quoting at length from the record, I will limit my Discussion to what I deem the major reversible errors.

At the outset, I want to state one clear and uncontrovertible fact: NO ONE KNOWS WHEN, WHERE OR HOW THE BOMB GOT ON THE PAN AM PLANE EXCEPT THE PERSON WHO PUT IT THERE.

The jury had to content itself with "expert" testimony, more properly described as educated guesses. My colleagues summarize the plaintiffs' proof as follows:

Under plaintiffs' theory--detailed by several expert witnesses--the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

The accuracy of the supposition that a suitcase carrying the bomb was sent unaccompanied from Malta to Frankfurt, was transferred there to a Pan Am plane in which it was flown to London, where it was transferred to the plane in which it subsequently exploded, was a crucial issue in the case, because plaintiffs' theory of liability was based upon Pan Am's allegedly deficient baggage checks during the two transfers. If there were no transfers, there could not have been any willfully deficient screenings. The district court permitted plaintiffs' experts to testify in support of the supposition but precluded any testimony by defendant's experts in opposition thereto. Having read the testimony of Pan Am's experts that the district court kept from the jury, I am convinced that had the jury been permitted to hear this evidence, there is a strong likelihood it would have rejected plaintiffs' contention that the bomb which exploded began its deadly journey in Malta.

The jurors who had suffered through the same experiences that many of us have, with missed planes and lost luggage during connecting airline flights, probably wondered how presumably clever and experienced terrorists reasonably could have expected an unaccompanied bag containing a bomb to travel from Malta to Frankfurt to London, through two sets of baggage checks, to be smuggled finally aboard Pan Am Flight 103 and explode only after the plane had left London. The jurors' willingness to accept the plaintiffs' theory undoubtedly would be influenced in large measure by what Pan Am's witnesses said.

The first refutation of plaintiffs' supposition came from Wilferd Borg, the general manager of ground operations for Air Malta, one of the few witnesses produced by defendant whose testimony was admitted:

Q What were the circumstances under which you saw the flight file at that time?

A. Our office in Germany had received a request from the German police requesting us whether we had any passengers or baggage connecting to Pan American flights out of Frankfurt. They said they were investigating this, they wanted this information in view of the Lockerbie incident in December, '88.

Q. And what did you do with respect to their request?

A. The request was passed along to me by our office in Germany. I requested the manager responsible to keep these records, to give me this relevant flight file. I went through it and gave the relevant replies to the German police.

Q. What were those replies?

A. We had no passengers connecting on the flights out of Frankfurt. We had no baggage destined to go in flights out of Frankfurt. And, we had no unaccompanied luggage on that flight.

Q. Now, sir, based upon everything that you've read and all the investigation that you did, are you able to tell this jury whether or not there was an unaccompanied bag on Flight 180?

A. No, there was no such bag.

Q. Were there any bags destined for Pan Am, any Pan Am flights?

A. No, there are no bags.

Q. Any passengers destined for any Pan Am flights?

The following testimony of Dr. Ariel Merari of Tel Aviv University, an expert on terrorism and bombing, also would have shed unfavorable light on the Malta-origin "theory." However, this testimony was kept from the jury.

Q. Do you think, sir, that it is conjectural how the bomb got on board?

A. Could you please rephrase the question.

Q. Do you know how the bomb got on board?

A. No, I don't.

Q. Do you think any, based upon the readings you have done in this record, a fair-minded, honest, so-called expert, with a reasonable degree of professional certainty, could opine how the bomb got on board?

A. Well, of what I have read, including the trial transcripts, I cannot see how anybody can say with any degree of certainty how the bomb got on board.

Q. Do you have any level of familiarity with what our government has been saying with respect to the indictments of two Libyans?

A. Yes, I do.

Q. And have you had, to the extent you can discuss this in this forum, a conversation with any representatives of security or secret services of any governments on that subject?

A. Yes.

Q. Has whatever knowledge that has come to you through those discussions in any way changed your view that an honest and reasonable chap cannot say to a reasonable degree of professional certainty how this bomb got on board?

A. No. I still feel that I don't know how the bomb got on board and I don't think that at this particular stage, before more intelligence information comes in, which may be a long time after the incident, in some cases, I still feel that I don't know how the bomb got on board and I don't think anybody knows for sure or even in any degree of reasonable certainty how the bomb got on board at this time, except for the terrorists, of course.

Q. Is it possible that a bomb was smuggled on board Pan Am 103 by an unwitting courier?

A. I think it is.

Q. Has that possibility been widely discussed secretly in the intelligence community?

A. Yes, it has.

Even stronger refutation of the Malta theory was given by Peter Gurney, a Scotland Yards bomb expert, whose testimony also was kept from the jury:

Q. Let me ask you this: Do you have an opinion based upon your review of the data made available to you of the existence of the fire system that existed in that Neus Toshiba bomb B 453 radio cassette?

A. I do have an opinion.

Q. What is it?

A. I cannot see how such a device could have been used on a multi leg journey with one of the earlier legs being of longer duration than the flight on which the explosion took place.

Q. If you were a bomb designer wanting to blow up Pan Am 103 over the Atlantic Ocean on [sic] off the coast of the United Kingdom would you use the Air Malta routing suggested in this case?

A. I'm not a bomb designer. We often have to think like terrorist [sic] in order to combat them. I would think that that was very unlikely because air travel there are many delays in air travel. Normally on the ground. So to work up the exact timing to get the thing to go off when you want it and not have it go off on the ground could be extremely difficult. This is used in a straightforward timer, sir.

Finally, the defense made an unsuccessful offer of proof of testimony by Noel Koch, a security consultant for the United States Department of Defense. If Koch had been permitted to testify on the subject, he would have said that the Air Malta theory is "widely at variance with modus operandi of Middle Eastern Terrorists attacks and specifically attacks on United States airlines," and that the "Air-Malta theory involves far too many variables to jibe with usual modus operandi." He also would have testified that the Pentagon relies on x-rays to scan baggage.

Admittedly, a district Judge has wide discretion in determining whether to admit evidence. However, this discretion "may not be utilized to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue." "Rule 403 requires even-handedness." The district Judge's lack of even-handedness cannot be justified by his reliance on the indictment of two unapprehended, unquestioned and unapproachable Middle Eastern terrorists:

THE COURT: And I must view the evidence that we're talking about in that light, not in the light of a criminal case, because we're not in a criminal case.

MR. CODDINGTON: Exactly. And my submission to you is that you may not give any evidentiary weight to the fact of that indictment.

THE COURT: No, But I may give evidentiary weight, probable cause weight to the fact that a grand jury has returned the indictment. Not in a criminal case, but in the civil case, for purposes of, I may not so instruct the jury, but as a qualifier from my standpoint, I may give it that weight. In fact I must.

Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple Justice required that defendant's experts be given an opportunity to demolish it. "The admission of a report containing 'Conclusions' is subject to the ultimate safeguard--the opponent's right to present evidence tending to contradict or diminish the weight of those Conclusions." Denial of this "ultimate safeguard" in the instant case was prejudicial reversible error.

Everyone who boards an airplane justifiably believes that guns, bombs and other dangerous devices will be detected by x-ray screening and barred from the flight. That, obviously, is what Pan Am believed, and Pan Am wanted to show that it was encouraged in this belief by assurances from Raymond Salazar, Director of the Federal Aviation Administrations Office of Civil Aviation Security, that x-ray inspection of interline baggage would satisfy FAA requirements. Plaintiffs' attorney knew from pretrial depositions that testimony to this effect would be given by Daniel Sonesen, Pan Am's Assistant Director for Security, and the attorney determined to meet this testimony head on. He did this by offering in evidence in his affirmative case an E-mail message from Sonesen to Pan Am's airport security officers, which read in part as follows:

PER MESSAGE OF 10 MAR-88 ANSWER: FAA R SALIZAR HAS GRANTED X-RAY AS AND [sic] (alternate to searching Pass.)

Following this piece of evidence, plaintiffs' counsel offered the following testimony of Salazar:

Q. This document is something more than that, isn't it, sir? It says that you granted x-ray as an alternative doesn't it?

A. Yes, that is what the document says.

Q. You just said to me that you never granted that to Mr. Sonesen?

A. That's correct, I did not.

Q. You had never even spoken to Mr. Sonesen, did you?

A. About this issue, I have no specific recollection of speaking to Mr. Sonesen about this issue.

Q. Therefore, sir, if you didn't grant permission to Mr. Sonesen, and he said in this document you did, isn't that a lie?

A. It is an improper interpretation.

Q. It is an improper interpretation. I am not talking interpretation now of the procedures, I am talking about the statement: R. Salazar granted. Is that statement accurate?

A. No, it is false.

Q. So that statement, as it goes, R. Salazar has granted, is a lie.

Q. Can we agree that when Mr. Sonesen said that you had granted, in this phrase, that that was a falsehood?

A. That was a falsehood.

On the basis of Salazar's testimony, the district Judge made a colossal blunder by a sua sponte ruling [Editor’s note: sua sponte means “on his own initiative”] that was so contrary to established legal precedent and simple Justice that it smacked of a due process violation--he declared that he would receive no testimony from Sonesen or any other Pan Am employee in support of Sonesen's assertion of what Salazar had told him, Sonesen, whose testimony was an important part of Pan Am's defense, was branded a liar, and the district court precluded Pan Am from attempting to prove that he was not. So far as the jury knew, a substantial part of Pan Am's defense was built upon a lie, or as plaintiffs' counsel described it in summation, "a concocted piece of baloney."

Now, to lay to rest any argument that the district Judge was not fully aware of what Pan Am intended to prove in response to Salazar's testimony, I quote from the trial testimony:

THE COURT: As I understood, your position is somebody in the FAA, I don't know who, told Sonesen or somebody in Pan Am verbally once they had the x-ray machine they didn't have to physically search a couple of bags.

MR. SHAUGHNESSY: That's correct.

THE COURT: That is your position.

MR. SHAUGHNESSY: I understand.

THE COURT: I won't allow that offhand remark in when I have no basis for it at the moment.

MR. SHAUGHNESSY: What I propose to do is end my examination at this point and raise this question as part of my direct case.

THE COURT: Based on what I know I won't let that in.

THE COURT: Mr. Sonesen's testimony was, as I recall it, and it's right here before us, Sonesen's testimony was that I got this verbal permission from Salazar, we discussed it up and down the hierarchy which would include these Discussions here right up to what's his name.

MR. SHAUGHNESSY: Your Honor, what Salazar and Billie Vincent said was that Salazar had the authority, he just couldn't do it orally.

THE COURT: Salazar had the authority, but there has been nothing produced in writing and Sonesen said he got it orally and he acted on it orally and he told all of these people that he had the authority from the FAA and it's irrelevant what he told people in the Pan American organization on this subject, because he didn't have the authority. It's like my saying to you that I have the authority to go over and remove the money from the Chase Manhattan Bank. You know I don't, and you can't go and say gee, whiz, I'll go spend that sum of money that he promised me from the whole because you know that it's ill-gotten gains and you know that it's that simple.

MR. SHAUGHNESSY: No, it's not.

THE COURT: Yes, it is.

MR. SHAUGHNESSY: No, it's not. This is not a statute that's being violated. This is not even a regulation that is being violated. This is a rule promulgated under the regulations that is being violated.

THE COURT: It doesn't make any difference. According to the very rule, that cannot be altered or modified except in writing. And you're charged with that knowledge and all of these people are charged with that knowledge and they never did have any writing.

MR. SHAUGHNESSY: So I take it that all of the conversations among these people are out?

THE COURT: Obviously they're not objecting to it, but I'm going to sustain those three questions that he's objected to and I'm going to--you might as well know now that I'm going to sustain the questions and answer on page 78.

MR. SHAUGHNESSY: I understand, your Honor.

THE COURT: And anything else that they object to in between I'm going to sustain because I think it's irrelevant.

The district Judge never budged from his misunderstanding of the law:

THE COURT: The proposition before us is that Sonesen says--Sonesen not being Pan Am corporation, about whom we are talking, but only an employee [sic] of Pan Am. Sonesen says he got verbal permission from Salazar. The cases are quite clear, that that is in admissible under the issue of lawfulness or otherwise, and I have never seen anything at the moment, recently, that casts any doubt on it.

THE COURT: Ever heard the expression, an individual may not bind the government?

MR. CODDINGTON: Ever heard the expression that an individual may not bind the government? Yes, I have.

THE COURT: The government enacted a regulation or promulgated a regulation, I may not take off my robe, I may not work until executive capacity authorizes to make that. United States against Sorenson [sic] regulates, while on this subject, said: Whoever had the authorization from the DIA and C.I.A. to smuggle guns to Russia, and so forth and so on, and the 2d. Circuit upheld, may not do that verbally. That's the law. This theory of yours, if you have verbal authorization from somebody to violate a regulation, I will have to charge the jury that an individual may not do that.

MR. CODDINGTON: Well, certainly I'm happy to brief that.

THE COURT: Brief it all you want, because I sweated blood over this issue, because this was really quite serious. This was the business of taking armaments from this country and swapping it over from Russia, all on the okay of D.I.A. and C.I.A., And I wouldn't let them put that defense before the jury, and the 2d. Circuit said I was right. I went through a tremendous amount of research and wrote an opinion on this, and it was published, United States -vs- Schwartz. You may not as an individual authorize somebody to do something against the regulation, whether you are high-ranking. I don't think the President may do it. I didn't have to decide.

THE COURT: In any event, nobody approved this in writing. So the whole defense is a non-entity. I know you don't want to get rid of it from your mind, but there it is. If you want to stop the trial and mandamus me to the Second Circuit and have your ears pinned back, fine. But that's it, that's the ruling, you've got to live with it. You've got to stop trying to sneak it in through the back door or I'm going to have to take appropriate action.

THE COURT: You might have some validity to it if--if there was any kind of an acknowledgment from Salazar that he--that he had any such conversation, but he emphatically denies it. Everybody says it is not within anybody's power to give it or--and the regulation itself says you've got to have any modification in writing. It just doesn't make any sense to me that anybody in his right mind would rely--would, in fact did rely on any such permission. It just didn't exist.

Wilfulness is a question of fact for the jury. A trial Judge cannot take the question from the jury and answer it himself by applying his own objective standard of wilfulness. We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision. My colleagues clearly err, therefore, in holding that "an absence of wilful misconduct--when based on a claim of a mistaken understanding of [FAA] regulations--must be supported by objectively reasonable evidence as to that mistaken understanding." Because these are the crucial issues in the instant case, the trial court should have followed a liberal policy in admitting evidence directed towards establishing the Captain's subjective state of mind. No evidence which bore even remotely on this issue should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy.

We would be blinking reality if we did not hold that the district Judge's erroneous rulings were prejudicial. Indeed, as disclosed by the following excerpt from the argument on appeal, plaintiffs' counsel admitted as much:

JUDGE VAN GRAAFEILAND: Let me ask you this, Mr. Kreindler: If I read the record, I listen to your argument and I read the record, and I decide that Judge Platt said I'm not going to hear from Mr. Sonesen no matter what, would you concede that that is very prejudicial error in this case?

MR. KREINDLER: Under those circumstances, yes. But that's not what happened. That's--

JUDGE VAN GRAAFEILAND: I'm not asking you that. I'm asking you if I read this record and I decide that that is what happened--leave this offer of proof business out--if I decide that Judge Platt just simply said, I'm not going to hear Mr. Sonesen, that would be prejudicial error; wouldn't it, in this case?

MR. KREINDLER: Your Honor, even--

JUDGE VAN GRAAFEILAND: Counsel, wouldn't it be prejudicial error?

MR. KREINDLER: Of course, if the Judge were hearing--

JUDGE VAN GRAAFEILAND: Of course, it would. Then we have got the issue: did he refuse to hear him, or didn't he?


JUDGE VAN GRAAFEILAND: All right, that's the issue. I'll read the record very carefully, Mr. Kreindler.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorists organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. This proof, my colleagues recognize, "undercut[s] the allegation that [Pan Am] consciously or recklessly disregarded the probable consequences of its x-ray procedures" and "clearly was relevant." My colleagues continue, "[a] showing that Pan Am and Alert complied with British security directives--whether or not they violated the ACSSP-might have made it somewhat less likely to believe that they acted recklessly in adopting an x-ray-only approach to inspecting interline bags." I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.

Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to permit x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am wilfully used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.


If all of the irrelevant and prejudicial evidence dealing with such matters as television commercials and the private lives of Pan Am employees, together with the colloquies of court and counsel arising out of the district court's "425" erroneous rulings, were eliminated from this case, it could be retried in several weeks. Particularly in view of the fact that the outcome in over two hundred cases hinges upon the judgment in the instant case, Justice demands that the matter be remanded so that it can be tried fairly.
I Dissent.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Thu Oct 31, 2013 11:49 pm


Excerpts from the September 12th Majority Opinion

[T]he evidence offered by Pan Am regarding its mistaken view of what was required by the ACSSP was inadmissible for the purposes of mounting a mistake of law defense. Notwithstanding the foregoing, appellants insist the oral waiver evidence was admissible on the question of their wilful misconduct, which is of course the ultimate issue in this Warsaw Convention case…. On Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir. 1984), we addressed the question of admissibility of evidence going to a defendant's state of mind in the context of a statute that required "conscious misconduct" be proven for a seaman to recover under the penalty provision in a wage-withholding statute. We held that "no evidence which bore even remotely on [state of mind] should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy." Id. at 1064. This formulation is in some sense a restatement of the well-known balancing test contained in Rule 403 of the Federal Rules of Evidence.

Whether the problems to be anticipated by admission of the oral waiver evidence in the present case clearly outweighed the evidence's relevancy is a close question. Analysis of this issue cannot exist in a vacuum. Because the oral waiver evidence was so intertwined with the government authorization and mistake of law defenses, which as a matter of law were not available to defendants, we believe that admission of such evidence might well have been unnecessarily confusing and perhaps prejudicial so as to justify the trial court's refusal to allow its admission.

Nonetheless, even were it an abuse of discretion to deny admission of the oral waiver evidence on the foregoing grounds, we hold that such an error was harmless. An evidentiary ruling is harmless when we are fairly assured that it had no substantial effect on the jury's verdict. See Rea,958 F.2d at 1220. In the instant case, the record is replete with evidence that wholly undermines Pan Am's claim of good faith. The overwhelming evidence presented during the course of the three and one-half month trial established that Pan Am officials ignored repeated warnings and signals that its security measures were insufficient.

The scope and nature of this evidence needs to be set forth in some detail. We begin in 1983 when a Pan Am flight leaving Rome, Italy for New York was the target of a bomb planted in an unaccompanied interline suitcase. Disaster was averted only when Turkish authorities conducted a passenger/bag match that uncovered the suitcase. Pan Am thus knew of this type of sabotage and that physical matches of suitcases were successful in averting such a terrorist act.

In 1985 a bomb hidden inside a radio and packed in an unaccompanied interline bag exploded on an Air India 747 over the North Atlantic, killing all aboard. The dangers of a bomb hidden inside radios packed in interline bags were well known to Pan Am and the airline industry. These two incidents not only led to the adoption of ACSSP XV.C.1(a), but they conveyed clear warnings that what actually happened at Lockerbie was a distinct possibility.

In September 1986 Pan Am received a report from a group of Israeli security experts commissioned to review Pan Am security at various airports, including Heathrow and Frankfurt. The security experts concluded that "under the present security system, Pan Am is highly vulnerable to most forms of terrorist attack. The fact that no major disaster has occurred to date is merely providential." The report specifically cautioned Pan Am on the use of x-ray machines as substitutes for physical searches, and the dangers of interline unaccompanied bags.

In October 1988 Alert Manager for Germany Ulrich Weber wrote a memo to New York headquarters citing the need for more personnel to remedy Frankfurt's security shortcomings. Only minimum efforts were made to remedy them.

In July 1988 the FAA issued a Security Bulletin warning of the high threat of a terrorist retaliatory attack because of the downing of an Iranian Jetliner. In November 1988 Pan Am received an FAA Security Bulletin warning that a raid on a terrorist group had uncovered a bomb built into a Toshiba radio cassette player. (Toshiba Warning). The bulletin warned that the bomb was difficult to detect by the use of normal x-ray.

The most wilful disregard of passenger safety, bordering on the outrageous, was in December 1988 when Pan Am received an FAA Security Bulletin advising that the United States Embassy in Helsinki had received a telephone warning that a Pan Am flight from Frankfurt to London and on to New York would be bombed. (Helsinki Warning). The Helsinki warning came just 14 days before the instant tragedy and specifically referred to the Toshiba Warning. Despite these warnings, Pan Am failed to conduct searches of unaccompanied interline luggage, and instead inspected such bags only by x-ray. Pan Am did not even alert x-ray technicians to watch for Toshiba radios. It violated FAA regulations by failing to match the bags with particular tickets without advising the FAA in writing that interline bag match had been discontinued. And it violated other FAA regulations by failing to warn pilots about the unaccompanied bags on board for fear that the crews might become "jittery." Additionally, Pan Am did not replace several members of its security team who were woefully undertrained given their responsibility for thwarting terrorist attacks.

Moreover, the Helsinki Warning was deliberately placed under a pile of papers on the desk of the security officer who received the bulletin and was first discovered in the morning following the downing of Flight 103. There was also evidence that Weber, the security officer in charge, ordered the Pan Am employee who discovered the bulletin after the explosion to backdate the warning to give government investigators the impression that the warning was timely disseminated when received. The district court found that the backdating was evidence of consciousness of guilt on the part of Pan Am for its part in the wrongful causation of the crash.

This and other evidence overwhelmingly supported the jury's Conclusion that but for Pan Am's wholly inadequate terrorist prevention techniques and its deliberate indifference and overt acts of wilfulness, the bombing and the senseless loss of life would not have occurred. Even had Pan Am been permitted to present Sonesen's deposition testimony to the jury, the above recited proof, plus the additional fact that any waiver of FAA regulations had to be in writing, make it plain to us that it would not have affected the jury's finding that Pan Am was guilty of wilful misconduct. Its exclusion was therefore harmless error.
Consequently, for all of the above reasons, the district court's refusal to permit the admission of Pan Am's oral waiver evidence -- on government authorization, mistake of law, and state of mind grounds -- does not constitute a sufficient basis for the granting of a new trial.

Various attempts by appellants to suggest other specific causation theories were then rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory.

The trial court did not abuse its discretion in excluding the testimony of defense experts Koch and Merari because their Conclusions as to more likely explanations for the bombing were speculative. Any testimony as to some other particular method of bombing -- without any foundation that such method might explain the Flight 103 bombing -- was clearly conjectural.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings. Neither had experience in aviation bombings or security. Moreover, neither had any background or knowledge concerning the Flight 103 bombing itself; the trial court found this rendered their proposed testimony unhelpful and largely irrelevant. This ruling was well within the trial court's Fed. R. Evid. 702 discretion.

Appellants admit that at trial they sought to argue that the method of bombing was not established and concede they were unable to suggest a specific alternate theory. They vigorously argued that the method of bombing was unclear, and accomplished this through extensive cross-examination of plaintiffs' experts. Pan Am and Alert also were not deterred from attacking plaintiffs' weaker theory that widespread misconduct on defendants part more likely than not caused the bomb to be loaded on Flight 103. In sum, Pan Am and Alert exercised the ample opportunities given them to undermine plaintiffs' causation theory. Thus, the rulings limiting cross-examination and expert testimony were unremarkable and without error.

Excerpts from the September 12th Dissenting Opinion

I am convinced that Pan Am did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so. Before undertaking the unpleasant task of discussing where I believe the district court erred, I find it necessary to undertake the even more unpleasant task of commenting briefly upon my colleagues' amended opinion, a substantial portion of which is devoted to a rebuttal of arguments that Pan Am never made. As will be discussed below, the district court clearly erred in rejecting all evidence offered by Pan Am in support of its contention that it received and relied upon an oral interpretation from Salazar. Although my colleagues devote seventeen pages of their amended opinion to a Discussion of the "oral waiver," "government authorization," and "mistake of law" defenses, none of these defenses was asserted by Pan Am or is relevant to the pertinent issue herein.

Because, as in my Dissent to the original majority opinion, I deem it necessary in the interest of uncontrovertible accuracy to quote at length from the record, I will not prolong this opinion by an extended counterstatement of the facts. Indeed, what is perhaps the most crucial fact has been established by stipulation: [Pan Am] insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Majority opinion at 31. It is worth noting, however, how this stipulation came into being. After Pan Am was satisfied that it could use x-ray examination of luggage, it purchased for the Frankfurt airport the most expensive up-to-date x-ray machine on the market, the Astrophysics Linescan X-ray Screening System.

Q. Does your company make a larger machine than this?

A. This is the largest machine we make.

Q. Does your company make a more expensive machine that this?

A. No, sir.

Q. At the time it was sold, was there a newer or more advanced state of the art machine than this?

A. No, sir.

(Testimony of Derek Kemp, an Astrophysics Company official).

Pan Am wanted the jury to see the machine and how it operated, and for this purpose it had the machine transported to the courthouse. For obvious reasons, plaintiffs' counsel did not want the jury to have the benefit of this first-hand observation, and he stipulated what an examination of the machine would have shown. Although Pan Am should not have been required to accept this stipulation in lieu of actual observation, see United States v. Gantzer,810 F.2d 349, 351 (2d Cir. 1987), the district court gave it no choice. At the district court's direction, the machine sat in the basement of the courthouse, alone and unobserved. The fact that plaintiffs' counsel objected to a jury inspection is evidence in and of itself that the district court erred in not permitting it.

My colleagues' Discussion of the Helsinki warning is in the nature of a half-truth that calls for exposition. Pan Am's response to this warning, as described in the testimony of Wolfgang Schwab, a Pan Am supervisor at Frankfurt, was quite different than what my colleagues would have us believe:

Q. Prior to the Lockerbie disaster, had it been brought to your attention that there was a warning received by the United States Embassy in Helsinki to the effect that a Pan Am flight to the United States would be bombed?

A. Yes.

Q. Tell us, please, when and how that was brought to your attention?

A. I am not able to give you the exact point in time but it was certainly before Lockerbie, when we were told that a female Finnish passenger would try to smuggle a bomb aboard.

Q. Were you warned to pay particular attention to all female passengers or only Finnish female passengers?

A. Particularly to a female Finnish passenger.

Q. Did you ever issue any instructions to look out for Finnish women or to pay particular attention to Finnish women?

A. Yes, I did.

Q. When was that?

A. Before Lockerbie.

Q. What instructions or suggestions did you issue?

A. Now, I told the screeners and the staff that they were to pay particular attention to female Finnish passengers or woman coming from that region up there and I told them that one person would try to smuggle a bomb aboard a plane.

Q. Do you remember if you did it personally or if you asked someone else to do it?

A. I did it personally.

Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple Justice required that defendant's experts be given an opportunity to demolish it. Obviously any testimony concerning how the bomb got on the plane had to be conjectural. However, the burden of proof on this issue was on the plaintiffs, not the defendant. Pan Am nevertheless offered expert testimony to challenge plaintiffs' contentions, which the district court refused to receive.

If Pan Am's experts were correct in opining that no expert could testify with any degree of reasonable certainty how the bomb got on the plane, the district court's refusal to permit Pan Am's experts to so testify meant that the district court deprived Pan Am of all means of contesting the testimony of plaintiffs' experts on this important issue. The constitutional implications of such a result are obvious. "The admission of a report containing 'Conclusions' is subject to the ultimate safeguard -- the opponent's right to present evidence tending to contradict or diminish the weight of those Conclusions." Denial of this "ultimate safeguard" in the instant case was prejudicial reversible error.

A carrier covered by the Warsaw Convention cannot limit its liability to $75,000 if a plaintiff's damages were caused by the carrier's "wilful misconduct." Wilfulness as thus used involves the issue of intent, not an intent to violate an FAA regulation, but the intent to perform an act with knowledge that it probably will result in injury and with disregard of that probable consequence. Because the issue of intent, or state of mind, is crucial in any determination of wilful misconduct, the following generalizations concerning proof of intent will be helpful in the Discussion that follows. A court has no right to reject testimony dealing with a person's state of mind because it deems the testimony incredible or lacking in persuasive force. The pertinence of the above legal generalizations in the instant case is readily apparent. It cannot be gainsaid, for example, that resolution of the issue of wilfulness involves consideration by the jury of the mental processes of Pan Am officials. As stated above, the state of mind of these officials was a fact question to be proved the same as any other fact, and the district Judge had no right to reject testimony dealing with this fact because he deemed it incredible or unpersuasive. Any evidence which has a material bearing upon the intent with which a person acted and which fairly tends to a disclosure thereof, or which is explanatory of the intent or purpose with which an act was done, or is to be done, is admissible. The record is clear that both the district court and plaintiffs' counsel had ample notice of Pan Am's intention to offer evidence of Sonesen's conversation with Salazar concerning the propriety of using x-ray screening.

The district Judge even precluded Pan Am from showing that FAA officials inspected Pan Am's operations both before and after the bombing and made no complaints of irregularities. The district Judge's ruling on this issue is illustrative of his mind-set.

THE COURT: I'm satisfied, Mr. Shaughnessy, this is another back-door method of getting Mr. Sonesen's unilateral interpretation of his authority to bury the FAA regulations before this jury. I don't like you doing it. I think the next time you attempt to do it you should alert the Court that this is what you're attempting to do. I have ruled upon it. Had you gotten this before the jury before alerting me and one had been asleep, I probably would have had to declare a mistrial. We're six weeks into this trial. The law has been stated by me to be that based upon two Second Circuit decisions, both of which went to the Supreme Court and certiorari was denied, you have promised me that you were going to show me the law was otherwise. You haven't. You may not do this.

MR. SHAUGHNESSY: All I wanted was to ask the witness –

THE COURT: You attempted to get this FAA report in before this jury with, knowing that this man was operating under this assumption, that what they were doing was correct and was in direct violation of the FAA regulations, and he was doing it on the basis of this verbal authorization of Mr. Sonesen who said he had reached him. According to FAA officials, testified he didn't have, and the regulations themselves say he couldn't have, and you can't do it. You do it again and I'm going to have to take appropriate action.

A threat of contempt for attempting to introduce evidence that FAA officials who, after personally inspecting Pan Am's operations found no fault with them, is pretty strong medicine. However, it illustrates once again that the district Judge was fully aware of what Sonesen's testimony would have been.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorist organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.

Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to clarify the permissible use of x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Fri Nov 01, 2013 12:19 am


Cub Scout Lester Knox Coleman III aged eight.

Boy Scout executive Lester Knox Coleman III in 1988 on the eve of Operation Shakespeare, his last mission as an agent of the United States' Defense Intelligence Agency.

The beachfront villa in Beirut where Coleman lived in 1985 during his first DIA undercover assignment. Posing as Middle East correspondent for the Christian Broadcasting Network, he was on a mission to serve as linkman for the DIA's Lebanese spy network and to frustrate an Iran-Contra arms deal engineered by Oliver North.

The identity badge and pass issued to Coleman in 1987 when he taught a course in audio and video surveillance at the National Intelligence Academy in Fort Lauderdale, Florida.

Coleman's DIA spy kit. Consisting of off-the-shelf commercial equipment that anyone might buy, it included the Sony video camera that was still signed out to him at the time of his arrest by the FBI in 1990 on a trumped-up passport charge.
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Re: Trail of the Octopus: From Beirut To Lockerbie

Postby admin » Fri Nov 01, 2013 12:24 am

Two of Coleman's DIA-issue tape recorders and 'bugs'. The Sony voice-activated machine was used to record the conversation with a DEA attache Micheal Hurley seven months before Lockerbie in which Coleman warned him of the 'disaster waiting to happen'.

The identity papers seized by the FBI at the time of Coleman's arrest in May 1990. Most of them are in the name of Thomas Leavy, a cover identity originally provided by the CIA in 1982 and reinforced by the DIA in 1990 for Operation Shakespeare.
The Thomas Leavy birth certificate issued to Coleman in 1982 by the CIA. In 1990, he was charged with applying for a copy of a birth certificate in that name and using it to make a fraudulent passport application. The FBI has yet to explain why he would have needed another copy when he already had one.

A rare moment of relaxation for Lester and Mary-Claude Coleman in the Bakamo-Galaxen refugee camp after they sought political asylum in Sweden in 1991.
Front-pages news, 19 October 1992. Eighteen months after the Colemans' arrival iDAG, Sweden's national afternoon newspaper, tells the story of the first American citizens to seek asylum in that country since the Vietnam war.
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