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

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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