Has Senator Menendez heard the good news yet?

The reappointment of Kenny MacAskill as Justice Secretary for a second term was fully expected, but no less symbolically important for all that. One of the (many) things that had depressed me over the last year as I contemplated the prospect of the SNP losing the election was that some of our "friends" on the other side of the Atlantic might misinterpret it as a vindication of their rather colourful critique (if I can dignify it with such a term) of the decision to release Megrahi. But I needn't have worried. The Scottish government's renewed and enhanced mandate, Kenny MacAskill's own comfortable re-election in Edinburgh East, and Alex Salmond's vote of confidence in his Justice Secretary all send a powerful message to presumptuous US politicians and officials like Robert Menendez and Robert Mueller - assuming these most insular of men ever find out about any of it. I had thought of tipping Menendez the wink via Twitter, but by the look of his account his tweets are probably written by a staffer!

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The parliamentary vote to formally re-elect Alex Salmond as First Minister on Wednesday reminded me of what seems to be a major flaw in the rules. One of the most important principles is that a fresh general election must be called if a First Minister isn't chosen within a month - this is to ensure that a stalemate parliament where no administration can possibly command sufficient support is quickly put out of its misery. But the rules fail to achieve that for one simple reason - abstentions aren't taken into account when determining what constitutes a majority. That doesn't matter if, as on this occasion, there is only one candidate - those members who want to express their lack of confidence in the candidate can simply vote against rather than abstain. But as soon as more than one candidate is validly nominated, a problem kicks in - there's no provision in the rules to vote down all of them, so long as the very modest quorum is reached. If, for example, Conservative and Liberal Democrat MSPs had decided four years ago that they weren't prepared to accept either Alex Salmond or Jack McConnell as First Minister, how could they have voted both down in the final ballot? They couldn't, even though there would have been a natural majority against both candidates.

Of course, in those circumstances an incoming government would probably have been swiftly defeated in a vote of confidence. But in theory the same First Minister could then have been re-elected on a minority vote, and the whole circular process could have carried on and on. Surely there's an obvious way round this problem - if the most popular candidate for FM doesn't have an absolute majority, he or she should then be subjected to an additional affirmative ballot, just to check that the majority of parliamentarians are at least prepared to tolerate the incoming administration. Cumbersome, admittedly, but it could potentially save a lot of grief in the long run.

Selective standards of proof

Brian Flynn is the brother of one of the American victims of the Lockerbie bombing, and was also one of those consulted by Kenny MacAskill in a video conference before the decision to release Megrahi was taken. He has had a high profile in recent days, castigating the Scottish government, alleging nefarious motivations for the decision on the basis of "evidence" that frankly isn't there, and last but not least demanding the resignation of both Alex Salmond and Kenny MacAskill.

It's difficult to know how best to respond to someone who has suffered so much, has a huge amount at stake in all this, and clearly has no agenda other than the truth as he sees it. But it seems to me that when the integrity of others is being wrongfully impugned, it's still important that those points are rebutted. In particular, it strikes me that Mr Flynn is guilty of a clear double-standard - he is very quick to label anyone who questions Megrahi's guilt as the peddler of wild conspiracy theories, and yet the evidential basis for those "theories" are demonstrably about a thousand times stronger than the "proof" he cites for his own apparently unshakeable belief that the SNP were nobbled by businessmen in the Libyan corner.

Here is the comment I left at Mr Flynn's latest article in the Guardian -

As I've said to him on another website, I have every sympathy for what Mr Flynn and his family have gone through since 1988. But the fact remains that his logic is self-contradictory, evades certain inconvenient facts, and thus leads him to direct his anger towards the wrong place.

The point about the dictatorship in Libya having been strengthened by Scotland's actions is first of all a totally unproven assertion, and frankly highly implausible. The idea that a devolved government could ever have anything like as much impact on international affairs as Mr Flynn is suggesting stretches credibility to the limit. But the much more important issue is this - does Mr Flynn want the rule of law to prevail, or doesn't he? If he does, then he can't seriously argue that Kenny MacAskill should have been taking account of any theoretical side-effects of his decision. He was acting in a quasi-judicial capacity, and thus had to focus on the narrow matter of whether Mr Megrahi satisfied the conditions for compassionate release, and whether it was appropriate to release him. If he'd done anything else, he would be guilty of Mr Flynn's charge of treating Megrahi differently from others for political reasons. But he didn't.

"two months before the release, the Scottish National party received a visit from the Qatar Investment Authority (QIA), a Middle East-based sovereign wealth fund critical to SNP's plans for capital investment and greater economic independence from the UK"

A fairy story. The only thing that can give Scotland "greater economic independence from the UK" is legislation at Westminster, not shady deals with mysterious Qataris.

"Clearly, the vaunted Scottish justice system had been corrupted by the political needs of the SNP."

This really is an extraordinarily silly charge, and it resembles the one made by Menendez and co over Lord Trefgarne's (utterly unimportant) letter. Mr Flynn's logic seems to be that because it can be shown that someone said something to the SNP, the SNP are somehow automatically "implicated" in it. It apparently doesn't even change anything if it can be clearly shown that the SNP gave a firm response that political and economic considerations would under no circumstances be taken into account.

"And dozens of prisoners die of natural causes every year in Scottish prisons. Why was al-Megrahi considered a special case?"

The whole point is that he wasn't. Many terminally ill prisoners have been recommended for compassionate release before, and it has always been granted by Scottish ministers. If they had rejected this particular recommendation on political grounds, they would indeed have been treating Megrahi as a special case. They didn't.

"How is it right that al-Megrahi served only 11 days for murdering a little child four days before Christmas in Lockerbie?"

And if he hadn't been granted compassionate release, how many days more would Megrahi have served for that murder? One or two, at the very most. I can understand the emotive power of those kind of statistics, but they aren't terribly meaningful in these particular circumstances. It simply wasn't in Kenny MacAskill's power to give Megrahi the kind of punishment Mr Flynn feels he deserves.

'There are no Kellys in Scotland...'

It has to be said I'm having extreme difficulty breaking the habit of leaving comments on every ignorant American article I come across relating to the Megrahi affair. The latest one is from the Wall Street Journal - it basically just rehashes some very old information about the specialists having been unwilling to commit to a firm three month prognosis, and packages this as a stunning new revelation. Of course, the absurdity of the article is that those specialists made clear that, whatever the uncertainties, they fully expected Megrahi to live "months, not years" - words which speak for themselves.

Instead of reprinting one of my own comments on the article, however, I thought this time I'd reprint a comment from someone who replied to me. It really is a classic of its kind...

"James, I suppose you are now going to tell me you are a retired musician with an interest in politics! You sound remarkably like the person I had an exchange with on The Time Mag website during PM David Cameron's visit to Washington a few weeks ago. Then, I believe your name was Robert.

Firstly, I have never heard of a Scot with the name Kelly. Unheard of. Secondly, you have unsurprisingly twisted the meaning of my statement "That is beside the point though". I only said that, now regrettably, to indicate that there are many Scots in The Labour Party. And I am sure many of them would secretly be in favor of Scottish independence.

You say the SNP does not have any foreign relations. The party does not of course, but a Scottish government minister supposedly released Megrahi of his own accord. He, Kenny MacAskill, is not free to roam the world as a free agent of the Scottish government! His relations with the US and Libya for that matter, are controlled by the Foreign Office in London. So, your argument does not wash. That would be like the governor of one of the US States having independent relations with a foreign government, not like George Bush taking orders from the Iranian President! Your analogy is ludicrous and illogical.

Why don't you now tell us who you really are since this is one of few sites that request people use their full real names. If you are from the UK Foreign Office, I have some suggestions for you."


As John Smith once memorably said, "you don't even have to set traps for them"...

American views on compassion are based on "emerging evidence"

USA Today has published an opinion piece on the Megrahi case, which (as you can probably guess without even reading it) is full of the now-familiar ignorance and innuendo. They do, to be fair, reprint Alex Salmond's first letter to John Kerry as an 'opposing view' - although, mysteriously, it's very heavily edited. Anyway, I decided to leave my own comment...

"Perhaps Libya has a better hospice system than anyone realized, or perhaps Megrahi's failing body was revitalized by the hero's welcome he received when he returned home."

Or perhaps USA Today should have read the statement Kenny MacAskill made when he released Megrahi, making abundantly clear that it was possible he might live longer than three months. That was merely a reasonable estimate, based on the best medical evidence from impartial doctors. That's right - doctors. Not prophets.

"Emerging evidence suggests the release was, at best, based on misguided notions of sympathy and bad medical advice; at worst, it involved a sleazy deal by British businesses — including, yes, BP — to improve commercial ties with Libya."

What evidence? At what point did it "emerge"? This is the whole problem with much of the US media on this story - and indeed with many of your politicians. It's as if you just have to say the words "evidence" and "suspicions" often enough and that'll do to be getting on with. For the four Senators (who as Alex Massie has identified have been peddling almost laughable inaccuracies about this story from the beginning) it's apparently sufficient to point out that there is an awful lot of "coincidence" at play in this case. Well, I'll tell you the biggest coincidence of all - Megrahi just happened to become gravely ill at a time when BP were lobbying for the PTA to be concluded. By the senators' logic, does that mean God was also nobbled by BP?

In any case, how can there be "emerging evidence" that the compassion shown to Megrahi was "misguided"? If you think the values Scots Law is founded on are wrong, that's fine, but it's also an utterly subjective opinion, of no greater or lesser validity than anyone else's. It's not based on evidence, "emerging" or otherwise. An abuse of the language, by any standards.

Finally, if the only link anyone can find between the Scottish government and BP is a single ill-advised letter from Lord Trefgarne, expressly written on his own behalf as a member of the House of Lords as much as on behalf of a council of which BP is only one member, then this conspiracy theory really is looking pretty threadbare. That letter, incidentally, says a good deal more about Trefgarne - a senior member of David Cameron's Conservative Party - than it does about Kenny MacAskill, who I'm quite sure read it dutifully and then promptly disregarded it.

Why is the Scottish government even cooperating in writing with this committee of clowns?

I was going to try to resist the temptation to write yet another full post on almost exactly the same subject as the last one, but it has to be noted in passing that Menendez's latest pronouncement on the Megrahi affair is bordering on the deranged. He's clearly impugning the integrity of Kenny MacAskill and Dr Andrew Fraser by suggesting that "all" witnesses who have declined to appear before the Senate are "stonewalling" and need "to clear their names". The latter point shows an arrogant disregard for UK/Scottish sovereignty by implying that a US committee is the appropriate (and indeed final) arbiter for who is or is not "guilty" in this matter.

He also warns us that he and his colleagues will be "publicly" and "frequently" requesting further documents from the Scottish government. Evidently the world is meant to shudder before America's righteous and tireless pursuit of truth. But what do you want to bet that these requested documents will be - just like the last batch - ones that were published on the Scottish Government website months ago, or ones that haven't been published for the simple reason that the US government denied permission? The man's refusal to do basic homework and his need for others to point out elementary facts that are in front of his eyes - sometimes many times over before the message finally gets home - utterly beggars belief. And any sign of a gracious apology when he realises that one of his previous sanctimonious rants was based on false information or outright ignorance? Don't be daft. This man who presumes to adjudicate upon the integrity of others demonstrably has precious little of his own.

From initially having thought that Alex Salmond should testify in person, I'm beginning to wonder why he's even bothering to cooperate in writing with this committee of clowns. They don't want "The Truth", they want a show-trial with a transparently predetermined outcome. I'm glad that the Scottish government is at least showing strictly limited interest in playing along with their little game.

OK, Senator Menendez, you've convinced me - you're a buffoon

When I first heard about the four US senators demanding a probe into the release of Megrahi, I was giving them a limited benefit of the doubt, in the sense that I assumed that their cavalier attitude to fact was based on typical American insularity - ie. if something hasn't been reported in the US media, it might as well never have happened at all. But the more I've followed the pronouncements of Menendez, Gillibrand, Schumer and Lautenburg over recent days, the more I've recognised their offensive buffoonery for what it is. Witness this statement from Menendez at a press conference just a few hours ago -

"some independent reports suggest that he [Megrahi] may well be alive for another ten years"

These "some reports" of course refer to the musings of Dr Karol Sikora - a fact that poses a couple of rather huge problems for Senator Menendez. First of all, Sikora has made clear that while it is theoretically possible that Megrahi may survive for another decade, the chances of that happening are less than 1%. Now, does that justify the characterisation "may well be alive for another ten years"? The most charitable thing that can be said about that statement is that it's consciously intended to mislead.

Secondly, Sikora is the doctor whose initial report Menendez and his colleagues (falsely) claimed was used by Kenny MacAskill to inform his decision, a "fact" that was deemed outrageous due to Sikora being paid by the Libyan government. So let me get this clear - Sikora is a Libyan stooge when he's saying what the senators don't want to hear, but miraculously becomes an "independent" source of information when he says what they do want to hear?

But this was the comment from Menendez that really took the biscuit -

"We'd like to know how you can get it so wrong."

Whoever said Americans don't do irony?

Holyrood's opposition politicians look like (even) smaller people tonight

The last 48 hours or so have provided yet another textbook example of a lack of imagination on the part of opposition politicians in Holyrood, and (to invert Andrew Marr's infamous phrase) they look like rather smaller people tonight as a result. A much more thoughtful response to the Scottish government's refusal to send ministers and officials to testify in person at the US Senate would have been to echo Jack Straw by noting how unusual - verging on the unheard-of - it would be for such testimony to occur before the legislature of another sovereign nation. That observation would not in any way have compromised the opposition parties' established stance that Megrahi should not have been released. Indeed they could have reiterated that point volubly, underlining that they only oppose the government where there's a principled disagreement, and not for opposition's sake. But it was always too much to hope for that the likes of Richard Baker would show that sort of class. For him, if a decision has got Alex Salmond's name on it, it's an outrage - end of story...

"It is quite extraordinary Kenny MacAskill has ruled out appearing before the US Senate inquiry. He and Salmond are the men responsible for the decision and they are now running scared."

A comment that now begs the obvious questions - is it "extraordinary" that Baker's senior party colleague Jack Straw has also ruled out attending the hearing in person, for near-identical reasons? Would Baker care to tell Straw to his face that he's a coward?

I dare say Labour's response to what I've just said (indeed as far as I can see it's the only conceivable defence they've got) would be that devolution offers the Scottish party scope to diverge in its views from its Westminster colleagues. Well, I'm all for that principle - but in reality, does anyone seriously believe that there would be so much as a cigarette-paper between Baker and Straw in any other circumstance than an opportunity to bash the SNP?

While Annabel Goldie might not have to worry about contradicting her London overlords, her own contribution to proceedings has been pretty poor as well -

"The SNP would be the first to complain if anybody refused to co-operate with them so they must comply with this request from the US Senate."

Come off it, Annabel. Alex Salmond is indeed noted for insisting upon proper respect for Scottish institutions, but the idea that he would be arrogant enough to demand that a senior member of the US government or the governor of a US state should appear before a committee of the Scottish parliament upon request (which would be the rough equivalent of what is being asked of him) is utterly risible.

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Perhaps the most telling aspect of the Scotsman's report on Straw's snub to the Senate is the suggestion from his aides that he is effectively being invited to speak on behalf of the Scottish government, for their decision to release Megrahi. Whereas the Scottish government, for their part, are declining the invitation partly on the grounds that they are effectively being asked to answer for the UK government's collusion with BP over the Prisoner Transfer Agreement. Is there a contradiction here? No, because the Senate committee is indeed absurdly demanding that both administrations answer for the other by muddying the waters in the stated focus of its inquiry between two separate issues that aren't and can't possibly be linked. It seems to me Kerry and co have got to decide whether they're investigating a) the release of Megrahi on compassionate grounds, or b) BP's involvement in the 'deal in the desert'. If they persist with their boneheaded insistence that it's c) "the link between the two", then the least they should be expected to do is specify their grounds for reasonable suspicion that such a link might exist. "Megrahi is a bad guy, BP are bad guys and I've got an election to fight in November" does not constitute such grounds.

"The various claims from the Scottish government raise more questions..."

Or so the US Senator Kirsten Gillibrand has said. I don't think she realises quite what a revealing utterance that is, as she's effectively admitting that she and her colleagues (just like John Bolton on Newsnight) have been shooting their mouths off without bothering to inform themselves on the Scottish government's position, and the legal and constitutional basis on which the decision to free Megrahi was made. As far as I can see, there is literally nothing that Alex Salmond has said in his letter to John Kerry that hasn't been pointed out many times before, and therefore nothing that should have come as a surprise to anyone who had been following the story with anything more than a passing interest.

Although I was tending towards the view that it might be a good thing for Alex Salmond or Kenny MacAskill to testify in person before the Senate committee, that was simply on the basis that they had such a watertight case to put forward and were bound to emerge well. There was certainly no moral imperative for them to do so, and any criticism of their decision not to go will ring distinctly hollow, given the open contempt with which the US government has routinely treated external probing into its own affairs, whether by international bodies or the institutions of other sovereign nations. Salmond's refusal to testify in person makes an important statement about equality of esteem between nations, although of course far more importantly it demands an acknowledgment of the clear demarcation lines between two separate issues that the senators are cynically (or perhaps ignorantly) trying to blur - the shady lobbying of the UK government by BP on the one hand, and the actual process that led to Megrahi's release by the Scottish government on the other. If Kerry's committee ever shows the slightest interest in probing a matter the Scottish government actually has responsibility for, perhaps Salmond's response will be different.

American TV's version of the truth over Lockerbie

I've just had a first taste of American television's coverage of the recent Megrahi controversy by watching on online clip from ABC News. I don't know whether to laugh or cry. It's a one-and-a-half minute "report" that shamelessly and risibly portrays the four US senators as morally righteous pursuers of truth, fearless in taking on the powers-that-be. Funny that, because to me they look uncannily like a part of the powers-that-be, brazenly setting up a smokescreen to distract from the real issues surrounding Lockerbie.

As you might expect, apart from the general distortion and highly selective use of fact, there is one outright inaccuracy in the report. It claims that Megrahi was released on the basis that "the doctor said he had only three months to live, but now one of those doctors says that he could live for another ten years or longer". That sentence doesn't even make logical sense (ie. the singular 'doctor' suddenly becomes 'doctors' plural) but it is clearly Karol Sikora that is being referred to, and the Scottish government has repeatedly made clear that Sikora was not "one of the doctors" that informed Kenny MacAskill's decision to release Megrahi. In any case, Sikora made clear that in his view there was a less than 1% chance that Megrahi would live for ten years or more. Now, I wonder why ABC would have omitted that rather important caveat?

View from the periphery

I'm very pleased I watched Newsnight Scotland tonight, because I realised as a result that the premise of one of the points I made the other night was wholly wrong. I'm thoroughly relieved to be reminded that the law isn't quite as much of an ass as I took it for - Megrahi could, of course, have been granted compassionate release without dropping his appeal. I think the reason for my confusion was my recollection that the last thing Kenny MacAskill said to Megrahi during their meeting was that, under the rules, the appeal would have to be dropped if the application was to be approved - but of course the application he was referring to was for prisoner transfer, not for compassionate release. In a way the whole conversation was utterly superfluous, because we all know that pigs would fly before an SNP minister would have approved a prisoner transfer to Libya under Blair's tainted 'deal in the desert' framework. So should MacAskill be criticised for leading Megrahi up the garden path, and saying something that may have led to the appeal being dropped needlessly? Absolutely not. He was there to talk specifically about the application for prisoner transfer and that alone, under the legal provisions that granted Megrahi the right to put his case in person. As I understand it, there is no such provision for compassionate release applications. Had MacAskill given a nod and a wink and said "you don't really need to drop your appeal, old chap, because there's no prospect of me granting your prisoner transfer request anyway", that would have been deeply inappropriate. He played a completely straight bat, and simply informed Megrahi of the rules relating to the application they were discussing.

As someone who has long doubted Libya's responsibility for the Lockerbie bombing, Hans Köchler's concerns over MacAskill's meeting with Megrahi, and the reasons for Megrahi subsequently dropping his appeal, certainly deserve to be treated with a good deal more seriousness than the transparently partisan complaints we've heard from other quarters. However, Megrahi's decision was scarcely an illogical one - he may well have been advised (however erroneously) that prisoner transfer was a runner and that the best way of maximising his chances of release was to withdraw his appeal. Furthermore, while I can understand Köchler's wish for more light to be shed on these matters (although I'd very surprised if there's anything untoward to be discovered as far as the Scottish government is concerned) I'm slightly puzzled as to why he feels a US Senate Committee is the appropriate body to be probing a domestic Scottish decision.

Jim Swire also seemed surprisingly optimistic that the Senate inquiry might yield something valuable. For me, Murray Leith hit the nail on the head - the US Senate is a vastly powerful institution with the legal clout to get to the bottom of just about anything if it wants to. John Kerry and co have shown literally zero interest in investigating anything to do with Lockerbie other than what Swire correctly characterises as an issue "right at the periphery" - ie. Megrahi's release, and the fact that he has outlived the central estimate for his life expectancy. It's rather akin to the Bloody Sunday inquiry only being interested in probing the moral outrage of one of the soldiers being incorrectly attired.

David Miliband's severe case of false memory syndrome

Alex Salmond was of course absolutely right to highlight David Miliband's hopelessly clumsy attempts to shift his ground on the Megrahi case, and if this skewering helps to finish off the elder Mili-brother's leadership bid, I certainly won't be crying any tears for him. But listening to the recording of Miliband's latest comments, what leapt out at me the most was his claim that "there is a problem" because we had been told Megrahi's release was ordered on the grounds that it was "certain" he would be dead within three months.

Well, there's a problem all right, David, and it appears to be with your memory. Let's have a look at what Kenny MacAskill actually said at the time...

"Mr Al-Megrahi was examined by Scottish Prison Service doctors on 3 August. A report dated 10 August from the Director of Health and Care for the Scottish Prison Service indicates that a 3 month prognosis is now a reasonable estimate. The advice they have provided is based not only on their own physical examination but draws on the opinion of other specialists and consultants who have been involved in his care and treatment.

He may die sooner - he may live longer. I can only base my decision on the medical advice I have before me."

Now, I wonder where precisely in those words Miliband was detecting such a degree of "certainty"?

Kenny MacAskill is already 'nationally accountable', Mr Kawczynski

The Megrahi affair seems to have caused a subtle shift in the devolution narrative in some parts, with the novel idea being advanced by the likes of Tory MP Daniel Kawczynski that it's somehow an unforeseen flaw in the system that Westminster doesn't have a way of "holding Scottish ministers to account from a national perspective". Newsflash for Mr Kawczynski : the whole point of devolution is that Scottish ministers should - within the limited scope of their responsibilities - be accountable first, last and always to the Scottish Parliament and Scottish people, and never to Westminster. Not even to the august body that is the All-Party Group on Libya. But he need have no fear - there is a very simple mechanism by which Kenny MacAskill will indeed be held to account on a 'national basis', and that will occur when the country which elected him in the first place holds its next national parliamentary elections in May. And if the 'respect agenda' has any meaning at all, David Cameron's response to Kawczynski's letter should be predominantly concerned with explaining that principle to a member of the Tory parliamentary party who clearly doesn't quite 'get it' yet.

As for Kawczynski's argument that Britain as a whole has a stake in MacAskill's decision because it affected the country's image abroad, I'd have said that above all else that's a compelling argument for British representatives beyond these shores to do a far better job of explaining the nature of Scotland's constitutional relationship with the rest of the United Kingdom. Anyone who heard the brazenly ignorant John Bolton (a former US ambassador to the UN, for pity's sake) on Newsnight last week will know there's a mammoth job to be done on that score. But, there again, Kawczynski might want to be careful what he wishes for - the Americans may have been angry about MacAskill's decision, but American opinion is not the same thing as world opinion. (Admittedly the two are all too frequently conflated.) Does Britain really want to give up on the reflected glory of Nelson Mandela's high praise for MacAskill's courageous decision, for example?

It's struck me more and more in recent days that the real tragedy of Megrahi's situation (well, one of the many) is that if it hadn't been for the severity of his illness, he'd probably by now be well on the way to establishing his innocence, along with all the consequences that would bring - a long-overdue spotlight being shone on the American law enforcement agencies' central role in the miscarriage of justice, for instance. But, because of a cruel quirk of fate, and the stupidity of the law that insists compassionate release can only be considered for those who have dropped all outstanding appeals, the likes of Kawczynski and the US senators are now free to self-righteously prattle to their heart's content about the release of a "mass-murderer", and know that the law will permanently be on their side in defining Megrahi in that way. Instead of the widespread and irresistible calls we would by now be hearing for inquiries into the serious issues surrounding Lockerbie, ie. the identity of the real culprits and the Americans' motives for framing Megrahi, we are left - absurdly - with angry calls for 'investigations' into, of all things, Kenny MacAskill's conduct. This affair is fast starting to resemble a black comedy, and I dare say there are quite a few people on both sides of the Atlantic who can scarcely believe their luck.

You don't actually have to believe in Megrahi's innocence to see why the rules that have put us in this situation are cruel and indefensible. Any legal system that contains an appeals process is a legal system that tacitly acknowledges its own fallibility. By definition, therefore, any seriously ill prisoner protesting his innocence and still in the midst of an active appeal might just be telling the truth. So why force such a person to make the impossible choice of either giving up on his chance of compassionate release, or giving up his appeal? The widespread suggestions that Megrahi was admitting his guilt by opting for the latter course of action in such impossible circumstances are beyond idiocy. I can, I suppose, see the rationale for the principle that a prisoner in normal circumstances cannot be granted parole without dropping all appeals, but compassionate release for a man who has no realistic prospect of seeing his appeal through to its conclusion is a different matter entirely. It's a curious notion that the law has far less compassion for a man who it tacitly acknowledges might yet turn out to be innocent than it does for one it regards as guilty beyond all dispute.

Conditional compassion

With the mounting controversy surrounding Kenny MacAskill's forthcoming decision over whether to release the Libyan convicted of the Lockerbie bombing, I had a peek last night at the Victims of Pan Am 103 site. This is obviously a very difficult area to pass comment on, because the founders of that site have clearly been through unimaginable grief and are sincere both in their absolute belief in Megrahi's guilt, and in their belief that any early release would represent an appalling injustice. However, following one or two of the links on the site, to commentary made by those who are not relatives of the victims, it struck me once again the extent to which Americans in general are a people of 'conviction' - often starting with an unshakeable belief in the truth of something, and then working backwards to amass supporting evidence, and to rubbish any contrary evidence. (That's perhaps how creationism and a denial of global warming have such an unusually strong hold in the US.)

Witness the curious logic of Richard Marquise, billed as 'a former FBI agent who investigated the bombing', in a rebuttal piece that was apparently also published in the Herald's letters page. In it, he takes great exception to the newspaper's implication that the relatives of UK victims are more inclined to show compassion to Megrahi. "Americans are a very compassionate people" he assures us loftily, "but we also believe in justice". Neatly glossing over the reality (as clearly stated by the Herald) that the different approach to Megrahi displayed by many of the UK relatives is based almost entirely on the fact that they have learned over the years there is considerable doubt about the Libyan's guilt - they simply believe in a profound injustice being righted. More to the point, they know this represents the only way of getting to the real truth of what actually happened in 1988 - which, however unbearably painful it might be to have to go back to square one, is ultimately in the best interests of all those touched by the tragedy. For as long as Megrahi's guilt remains nominally a 'legal fact' (and unfortunately MacAskill's decision cannot change that one jot) very little progress can be made in the search for answers.

So what does Megrahi have to do to earn the compassion that Marquise says is very much on offer from Americans? Simply admit his guilt. Compassion for a dying man who is the victim of an appalling miscarriage of justice is apparently not even a theoretical option. 'Facts' are simply 'facts', and Megrahi's guilt is one of those facts, whatever the evidence might show. Curiously, Marquise lists a number of questions that Megrahi has failed to answer, and apparently satisfactory responses to these questions is something that's also required to satisfy the criteria for American compassion. Quite what the point of Megrahi responding to these questions would be when the answers are supposedly already long-established fact is a bit of a mystery. In reality, of course, there are probably any number of reasons why a Libyan intelligence official would not want to answer awkward questions about his actions or the actions of his colleagues in the late 1980s - which needn't have anything to do with Pan Am flight 103.

It's also a bit much to see Marquise ripping into the Herald journalist for mistakes she apparently made about the respective functions of different American agencies. "A reporter should have a basic understanding" of the US system, he snorts. Hmmm. I've rarely seen American reporters take anything other than a "fill in the blanks as we go along" approach to the more alien aspects of other countries' systems.