Michael Scharf

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Person.png Michael Scharf  Rdf-entity.pngRdf-icon.png
Michael Scharf.jpg
NationalityUnited States
Alma materDuke University/School of Law
InterestsInternational law

Michael Scharf is a renowned American law professor at Case Western Reserve University School of Law and is the co-founder of the Public International Law & Policy Group. In April 1989, attorney Michael Scharf joined the US State Department's Office of the Legal Adviser for Law Enforcement and Intelligence, just four months after Pan Am Flight 103 was downed on 21 December 1988 and at the height of the CIA's Lockerbie bombing investigation.

In the Spring of 2000, shortly before the Lockerbie trial of two Libyan suspects began in The Netherlands, Michael Scharf wrote an article entitled "Terrorism on Trial: The Lockerbie Criminal Proceedings", which concluded:

Given the peculiarities of the Scottish procedures and the problems with the prosecution's case which are discussed above, it will be very difficult for the prosecution to obtain a conviction in the Lockerbie case. And no matter the outcome, the Lockerbie criminal proceedings will play into Colonel Gaddafi's hands.

If the verdict is "not proven," Colonel Gaddafi can claim he was not behind the bombing. Even if found guilty, al-Megrahi and Fhimah are unlikely to implicate Gaddafi because their families remain in Libya. They will take the fall and Colonel Gaddafi can claim that the trial never proved that he was involved.

Most importantly, the UN Security Council has already lifted the sanctions on Libya, thus putting an end to Colonel Gaddafi's pariah status. International trade with Libya is booming since the surrender of al-Megrahi and Fhimah, and even the United States seems poised to remove Libya from its list of terrorist-supporting states.

Faced with no trial, or this trial, perhaps this was the best possible solution. The families of the victims of the bombing will finally see some sort of closure to their ordeal. Yet, they will not necessarily see justice done, nor the full truth told in the case.[1]

In November 2006, five years after Abdelbaset al-Megrahi had been convicted, Professor Scharf admitted he had been misled by the CIA and that the case against Libya "was so full of holes it was like Swiss cheese."

UN Security Council

In response to information supplied by the CIA, which accused two Libyans of the 1988 Lockerbie bombing, the UN Security Council imposed international sanctions on Libya in 1992. Michael Scharf was the US State Department attorney who was responsible for drafting UN Security Council Resolutions (UNSCR)s 731, 748 and 883, which were designed to force Muammar Gaddafi to hand over the accused Libyans, Abdelbaset al-Megrahi and Lamin Khalifah Fhimah, for trial.[2]

Case against Libya

The case against the two Libyans involved three highly contentious elements:

  • A printed circuit board fragment from a Swiss MEBO timer that allegedly detonated the Lockerbie bomb;
  • A Libyan informer, Majid Giaka, who told the CIA that he could incriminate the two accused; and,
  • A Maltese shop-owner, Tony Gauci, who would identify al-Megrahi as resembling the person that purchased clothing which was allegedly packed inside the bomb suitcase.[3]

It was not until May 2000 that the Lockerbie trial eventually began. The trial ended on 31 January 2001 with the conviction of Abdelbaset al-Megrahi and a not guilty verdict for Lamin Khalifah Fhimah.[4]

"Lockerbie trial was a CIA fix"

Five years after the Lockerbie trial, Professor Scharf made some astonishing claims to a Scottish newspaper:

"Lockerbie trial was a CIA fix, US Intelligence insider claims"
(By Liam McDougall, Home Affairs Editor, Glasgow Sunday Herald, 12 November 2006)
The CIA manipulated the Lockerbie trial and lied about the strength of the prosecution case to get a result that was politically convenient for America, according to a former US State Department lawyer.
Michael Scharf, who was the counsel to the US counter-terrorism bureau when the two Libyans were indicted for the bombing, described the case as "so full of holes it was like Swiss cheese" and said it should never have gone to trial.
He claimed the CIA and FBI had assured State Department officials there was an "iron-clad" case against Abdelbaset al-Megrahi and Lamin Khalifah Fhimah, but that in reality the intelligence agencies had no confidence in their star witness and knew well in advance of the trial that he was "a liar".
Scharf branded the case a "whitewash" and added: "It was a trial where everybody agreed ahead of time that they were just going to focus on these two guys, and they were the fall guys." The comments by Scharf are controversial, given his position in US intelligence during the Lockerbie investigation and trial. It also comes at a crucial time as the Scottish Criminal Cases Review Commission (SCCRC) is to report in the coming months on whether it believes there was a miscarriage of justice in the case.
In January 2001, following a trial at Camp Zeist in the Netherlands, Fhimah was acquitted and al-Megrahi was sentenced to life in a Scottish jail for his part in the December 1988 bombing.
Scharf joined the State Department's Office of the Legal Adviser for Law Enforcement and Intelligence in April 1989, just four months after Pan Am Flight 103 was downed and at the height of the CIA's Lockerbie bombing investigation. He was also responsible for drawing up the UN Security Council resolutions that imposed sanctions on Libya in 1992 in order to force Tripoli to hand over al-Megrahi and Fhimah for trial.
He added: "The CIA and the FBI kept the State Department in the dark. It worked for them for us to be fully committed to the theory that Libya was responsible. I helped the counterterrorism bureau draft documents that described why we thought Libya was responsible, but these were not based on seeing a lot of evidence, but rather on representations from the CIA and FBI and the Department of Justice about what the case would prove and did prove. It was largely based on this inside guy Libyan defector Majid Giaka. It wasn't until the trial that I learned this guy was a nut-job and that the CIA had absolutely no confidence in him and that they knew he was a liar. It was a case that was so full of holes it was like Swiss cheese."
Scharf, now an international law expert at Case Western Reserve University in Ohio, said he was convinced that Libya, Iran and the Palestinian terrorist group the PFLP-GC were involved in the bombing, which killed 270 people. But, he said, the case had a "diplomatic rather than a purely legal goal".
"Now Libya has given up its weapons of mass destruction, it's allowed inspectors in, the sanctions have been lifted, tourists from the US are flocking to see the Roman ruins outside of Tripoli and Gaddafi has become a leader in Africa rather than a pariah. And all of that is the result of this trial. Diplomatically, it has been a huge success story. But legally, it just seemed like a whitewash to me," Scharf said.
Robert Black, professor of Scots law at Edinburgh University and the principal architect of the Lockerbie trial at Camp Zeist, described the Lockerbie case as 'a fraud'. "That the trial at Camp Zeist resulted in a conviction is a disgrace for Scottish justice," Black said. "I think this [Scharf's comments] indicates that a growing number of people on both sides of the Atlantic now believe they were used in this case."
Dr Jim Swire, who lost his daughter Flora in the bombing, said: "Myself and Michael Scharf are coming from exactly the same position. I went to the trial and became convinced after watching it unfold that the case was full of holes."
Tony Kelly, al-Megrahi's solicitor, said he would not comment while the SCCRC was still examining the case.
No-one at the CIA in Washington was available to comment.[5]

FBI takes Scharf to task

On Thursday, 16 November 2006 (08:15:35), the FBI's Richard Marquise emailed Professor Scharf:

"Mr Scharf: I am a retired FBI agent who led the US task force which investigated the Lockerbie bombing and also recently had published a book on the investigation, "Scotbom: Evidence and the Lockerbie Investigation". I have seen your comments in the Sunday Herald and totally disagree with them. I have written a letter to the editor to respond to your interview. The fact you had a role in drafting documents regarding the sanctions against Libya was interpreted in the media that you somehow had a role in the "intelligence community" and therefore inside access to the investigation. We both know this to be incorrect.
I would encourage you to read my book which I think spells out what we found and what we did not. Our case was far from perfect. Courts like to see eyewitnesses, DNA and the like and these things were missing. However, we had a circumstantial case and the three judges at Zeist agreed with our assessment of the evidence. The case was NOT made on the evidence provided by Giaka. He helped us and I made a point in the book that I am not sure we would have obtained an indictment without his testimony before the Federal Grand Jury.
However, if you have read the transcript of the trial and the courts opinion, the court dismissed much of his testimony, which I think was wrong and I discuss it in my book. I wonder if you were misquoted in the Herald article where you were alleged to have said that Libya, Iran AND the PFLP-GC were responsible. So, who are you saying did it? You cannot have it every way. I find it hard to imagine that Shiite Iran collaborated with Sunni Libya or Sunni PFLP-GC when they cannot get along in the rest of the world. The evidence led us only to the two Libyans although others could have been named in the indictments, a decision was made not to indict them (Libyans).
I believe strongly in the outcome of the case and the trial and not because I have a political agenda or carried one out at the behest of someone in my Government as I would never have done that. I know that no one of us manipulated our findings to carry out any political agenda. We followed the evidence.
Richard Marquise
PS-- the FBI did not keep the State Department in the dark as you allege and I have no doubt the CIA did NOT manipulate the Lockerbie trial. The Scots would NEVER have allowed that.

Lockerbie "whitewash"

Within the hour, Professor Scharf had responded to Richard Marquise:

From: Michael Scharf <mps17@mycingular.blackberry.net>
To: rmarquise <rmarquise@aol.com>
Sent: Thu, Nov 16, 2006 8:56 am
Subject: Re: Lockerbie
I was indeed misquoted and mischaracterized in the article as I indicate in the correspondence reproduced below, in which I have requested a correction.
I did, however, say (and continue to believe) the case presented to the Court was full of holes, it was a whitewash since it only focused on low level intel officers and not Khadafi who had to have approved the operation, and that confidential informant Jiacha was a terrible witness.
I'd love to read your book if you have an extra copy you could send me.

Scharf: I'm not a spook

on 16/11/06 12:20 am, Michael Scharf at michael.scharf@case.edu wrote:
Dear Liam:
Thank you for sending me the link to your Lockerbie article, in which I was quoted.
I have one very large concern with your article. The headline describes me as a "US Intelligence Insider" and the text of the article says "the comments by Scharf are controversial, given his position in US intelligence during the Lockerbie investigation and trial." As you know full well, I was a Department of State lawyer, not an intelligence officer. And I left government in 1993, well before the trial. The article even includes my quote that I was never privy to the intelligence on Lockerbie, but rather worked on the UN Sanctions Resolutions and ICJ Case from general representations about the strength of the case by the CIA and Justice Department.
As you also know, I continue to work closely with the US Government, assisting in the trial of Saddam Hussein, and I am afraid that my colleagues in the State Department are going to be very angry that I have been representing myself as a former US Intelligence officer or insider, when in fact I told you the exact opposite. I believe I have a legal right to ask you to print a correction. It should read something like: "Correction: The article "Lockerbie Trial was a CIA Fix, US Intelligence Insider Claims," by Liam McDougall (date), incorrectly identifies Michael Scharf as a former "US Intelligence Insider" with a "position in US intelligence," when in fact Scharf was merely an Attorney-Adviser in the Office of the Legal Adviser of the US Department of State who specifically said that he did not have access to intelligence information concerning the Pan Am 103 bombing."
I look forward to your reply.

Correction agreed

Dear Professor,
Thank you very much for your email reply. I can only apologise that the you were erroneously described in the headline as a US intelligence insider.
Please accept my apologies and can only offer the explanation that I had no control over the headline and did not see it until the Sunday when it was published. When we talked about you being at Camp Zeist, I mistakenly took that to mean you were still involved in the case at that point.
I will pass on your concerns to my news editor so that we print a correction.
Thank you again for your help and I hope that we can continue to speak about Lockerbie and other issues in the future.

"The Conspiracy Files: Lockerbie"

Seven years after the Lockerbie trial, on 31 August 2008, BBC Television broadcast an hour-long documentary "The Conspiracy Files: Lockerbie" which carried a ten-minute interview with Professor Scharf (42 mins et seq). This is what Michael Scharf told the BBC:

"There was this great celebration that we have the smoking gun and it was the Libyans, and everybody was convinced it was going to hold up in court." Scharf was tipped off about a secret CIA informer at the heart of the plot to blow up Pan Am 103. "He was the one that could go into the courtroom and say I was the one who worked with these individuals. They were ordered to blow up Pan Am 103. I saw them with the explosives and I saw them put it on the plane."
Majid Giaka aka "puzzle piece"
In June 1988, six months before Lockerbie, Giaka walked into the American embassy on Malta and offered his services for a fee. He said he was an agent in the feared Libyan External Security Organisation and boasted of having been trained by the KGB. The CIA were impressed and gave him the codename "puzzle piece". We can reveal what the CIA tried to keep secret: Majid Giaka was not so much 007, more WD40! This secret agent had started out in the car pool, and that was the nearest he had ever got to driving an Aston Martin. Giaka had never been a staff member of the Libyan ESO. He has been a ‘shirker’ while in Malta, generally dodging ESO assignments. This informer was being paid $1,000 a month rising to $1,500 to meet his CIA handlers in a Malta safehouse. But Giaka never delivered the goods.
"My moment was like wow, they didn’t tell us anything like that. The CIA knew all along that this guy was a liar; that this guy was just out for money. They didn’t believe half of what he said – of anything of what he said, and yet they were presenting him as the star witness in a case that is of such importance. So for me that was an eye-opening moment, a shocking moment."
When Giaka took the stand behind a screen to protect his identity, he described how he had seen al-Megrahi and Fhimah at Luqa airport with a brown suitcase. Apparently, Giaka had first recalled this ‘handy lead’ three years after the event, and after the CIA had whisked him away from Malta in a speedboat, given him and his wife a new identity and a new life in America under the witness protection programme. The Judges were not impressed nor was the man who had been told to put his faith in the CIA’s secret Libyan agent:
"We have to take it as a matter of trust and we go into the Security Council and we make the case, and they trust us because they have no reason to think that we’re lying. And I have to say that years later that I played a role similar to that of Colin Powell after the invasion of Iraq. He went in and said that we had open and shut evidence of weapons of mass destruction, and now today he feels that ruined his career. It didn’t ruin my career, but it’s a moment I’m not proud of."
Tony Gauci "not a definitive eye-witness"
"When we were presented with the Tony Gauci evidence they said that there was a shop-keeper who could do a definitive eye-witness account placing the defendant at the scene buying the clothes that were found in the suitcase that contained the bomb."
Police visited Gauci nineteen times, and he gave self-contradictory evidence about the shirt and about al-Megrahi.
"It was very clear at that point that he was not a definitive eye-witness; that he had thought that other people may have bought the clothes; that he was never sure that the defendant was the guy. In fact, the most definitive statement he had was that the guy sort of resembles the person who bought it. That’s the kind of exculpatory evidence that is required to be turned over to the defence counsel. And I think that the investigation now is right to be very concerned about why that evidence was not in fact turned over. Because that’s the kind of evidence that the whole case can turn on."[6]

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