WASHINGTON — In an unprecedented legal arrangement designed to bring a decade-old national trauma to closure, the Clinton administration has agreed to allow the two Libyans charged with the 1988 bombing of Pan Am Flight 103 to be tried by a Scottish court in The Hague, according to U.S. officials and families of the victims.
Secretary of State Madeleine Albright is expected to notify the families in a conference call today, according to families who have been told to be available.
The compromise plan, not yet accepted by Libya, calls for Abdel Basset Ali Megrahi and Lamen Khalifa Fhimah, who are allegedly Libyan intelligence agents, to be tried by a panel of Scottish judges under Scottish law at the headquarters of the Dutch government, U.S. officials confirmed Sunday.
"The goal is to see if we can't resolve this long overdue and outstanding case and bring these two men to justice," a well-placed U.S. official said. "This is a chance to move forward."
But the compromise has infuriated several families of the 270 victims who died when the jumbo jet passenger plane exploded over Lockerbie, Scotland, four days before Christmas.
"It's appalling. It's a desecration. It's the one thing that the U.S. government said it would never do," said Susan Cohen, whose daughter Theodora died in the attack.
"What does it say about the integrity of the American legal system when a terrorist takes the line that he can't get a fair trial in America and wants it in a neutral country--and we agree to hold a trial somewhere else? Why should a terrorist have a right to decide where he is tried?"
The regime of Moammar Kadafi, which has refused to turn over the two men since they were indicted in 1991, has long sought a compromise location and an international panel of judges because it charges that the suspects would not receive a fair trial in the U.S. or Britain.
The new U.S. offer, also agreed to by the British, is an attempt to break the long impasse and follows months of behind-the-scenes discussions with the Dutch government and other third parties. The two countries intend to stand firm, however, on Scottish judges rather than an international panel.
The final decision, which awaits formal Dutch government approval today, was facilitated in part by the U.S. cruise missile attacks last week against camps in Afghanistan allegedly run by Saudi dissident and Islamic extremist Osama bin Laden, U.S. officials say.
The United States will now not appear as if it has a policy that is weak in responding to terrorism, a counter-terrorism official said.
But Eleanor Bright, who lost her husband, Nicholas, said the U.S. decision was particularly painful after the strikes on Afghanistan last week. U.S. officials believe that Bin Laden was responsible for the Aug. 7 bombings of two U.S. embassies in East Africa that killed more than 260 people, including 12 Americans.
In the Pan Am 103 bombing, 189 Americans were killed.
"It makes us feel as if our loved ones weren't as important," Bright said Sunday.
Justice Department officials also are said to be unhappy about the decision.
Several families also are charging that the deal represents a Libyan buyout because of discussions over a $9.7-billion deal between the Kadafi government and British Aerospace, Europe's biggest aircraft and arms maker. The deal could reportedly include as many as 30 Airbus civilian jetliners and new or refurbished airports.
But for the deal to go through, U.N. sanctions against Libya would have to be lifted. An embargo on international air travel and arms sales was imposed on the country in 1992 and was later expanded to include a freeze on some of its assets abroad and on oil industry technology. Oil sales, however, were not sanctioned.
"There's been tremendous pressure by the British, who want to resume business with the Libyans. And they're only the first in a long line of companies who want to do business," said Stephanie Bernstein, whose husband, Michael, a Justice Department lawyer, died in the 1988 bombing.
"They say sanctions are not working, but the fact is Kadafi is desperate to get out from under them. This is giving him exactly what he wants. It's beyond comprehension," Bernstein added.
Yet despite Kadafi's repeated offers of a compromise, administration officials are not sure that his government in Tripoli will agree to the deal, in part because testimony by the two suspects is expected to point to the highest levels of the Libyan government, U.S. officials say.
At the time of the 1991 indictment, State Department spokesman Richard Boucher said the midair bombing was "a Libyan government operation from start to finish."
U.S. officials say their decision offers win-win options: Either the two Libyans are handed over or the Libyan regime is put on the defensive, giving the United States a stronger hand to take other steps if it chooses.
If nothing else, the take-it-or-leave-it deal will call Libya's bluff, counter-terrorism officials said.