Lawyers Journal

’Terror’ details fight for justice in Pan Am flight bombing

"The Price of Terror"
by Allan Gerson and Jerry Adler
Published by HarperCollins (2001)

On Dec. 21, 1998, Pan Am flight 103 was blown out of the sky 31,000 feet over Lockerbie, Scotland. Two hundred and seventy people died. Thirteen years later, in a Scottish Court sitting in the Netherlands, Libyan Abdel Basset Ali A-Megrahi was found guilty of the murders, while his alleged accomplice Al Amin Khalifa Fhimah was acquitted. That there was ever a trial to bring the perpetrators of the deadliest attack, prior to Sept. 11, on American citizens to justice honors undaunted spirits and uncompromising principles.
The spirits are the families of the American murdered on Pan Am 103. No government, including their own would quell their force. The principles are older than the notion of "corrective justice" formulated by Aristotle: i.e., the role of justice is to redress an imbalance between two parties caused by the wrongful acts of one of them. For the families, it did not matter that the credible evidence implicated the leader of Libya, Maummar Kaddafi. If their own government would not pursue justice, they would. And they found the right lawyers to do it, and together rewrote black letter law.
In the fact-packed 300 pages of "The Price of Terror," Allan Gerson and Jerry Adler meticulously track the story of Pan Am 103 from a moonless sky over Lockerbie to a security-laden criminal court at Camp Zeist in the Netherlands. In the intervening years, Pan Am is sued and its airport security proven to be a farce. Its own consultants had reported two years before the detonation: "Pan Am is highly vulnerable to most forms of terrorist attack [and] almost totally vulnerable to a midair explosion through explosive charges concealed in the cargo."
But proving Pan Am culpable of "willful misconduct" was only one front on which to fight in the families' quest for justice. It was easier for many of them to reconcile the airline and insurers' high regard for money than it was to grasp the seemingly pusillanimous posture of their own government. The families decided they must simultaneously fight on a second front: if their government would not lead them to justice, they would lead the government.

Here Gerson and Adler's narrative fully engages the reader. Ordinary Americans aided by a cast of high-minded, trail-blazing lawyers, recruit Bob Dole, who collaborates with George Mitchell. Ted Kennedy provides them solace and staunch support. A grieving mother buttonholes a campaigning George Bush and indictments are announced against Megrahi and Fhimah in November 1991. Later, President Bill Clinton and Tony Lake, his National Security adviser, are drawn into the endeavor to achieve justice.
But it wasn't only the indictments the family wanted. They wanted Megrahi and Fhimah tried and held criminally accountable. They also wanted Libya to be civilly prosecuted. Kaddafi wasn't about to give up his agents, and Kaddafi claimed sovereign immunity for his country and for himself. The families' zeal combined with the best legal minds in the country and a lot of creative lawyering would trump Kaddafi's defense.
The author, Gerson, plays an intimate role in this endeavor.
Gerson and his colleagues would push the international law, arguing that when states sponsor terrorism they implicitly waive sovereign immunity. Fearing to tread in uncharted waters, federal judges scuttled the argument. Undaunted, the families went to Congress with their lawyers in 1994 to amend the law, creating a cause of action for civil damages against state sponsors of terrorism. Another bomb explosion in Oklahoma City gave thrust to their lobbying efforts.
A provision in the "Comprehensive Terrorism Prevention Act of 1995" created exceptions to sovereign immunity, putting a chink in its 350-year-old armor and giving the U.S. federal courts jurisdiction over foreign states "designated as a state sponsor of terrorism." Kaddafi would challenge the constitutional validity of the provision; the 2nd Circuit Court of Appeals upheld the law. Libya's sovereign immunity was no longer an impediment to the families' quest for justice.
Yet there were impediments. The U.S. Justice Department and the Scottish police were holding crucial evidence and would not share it until after a criminal trial. But international sanctions having badly hurt Libya, and under pressure from his own allies, Kaddafi agreed to a trial in the Netherlands, with a Scottish court and a jury composed of Scottish judges. Trial commenced in May 2000, verdicts were returned in January 2001. Megrahi continues to claim his innocence.
Megrahi's legal teams continue to work to exonerate him. In the civil action against Libya, discovery is ongoing. The families of the victims of Pan Am 103 remain steadfast and their lawyers indefatigable in pursuit of "corrective justice" commensurate with the magnitude of terrorism that murdered their children, spouses, siblings and loved ones.
"The Price of Terror" details a shot across the bow of any would-be state sponsors of terror: although governments may put diplomacy and international affairs before an individual's right to redress, survivors will not. Survivors will shake the world order till justice reigns.

©2014 Massachusetts Bar Association