The Work

August 24, 2009 8:31 PM

Lockerbie Lawyers Share Their Libya Stories

Posted by Brian Baxter

The bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988 has a long legal history, most recently dredged up by the "compassionate" release Friday of a Libyan convicted of planning the attack who is reportedly terminally ill with cancer.

The uproar surrounding Scottish justice secretary Kenny MacAskill's decision to release Abdelbaset al-Megrahi to allow him to die in his native country has only intensified in recent days.

Last week FBI director Robert Mueller sent a scathing letter to MacAskill calling the action a "mockery of the rule of law." On Monday the Scottish parliament hauled MacAskill before the governing body to explain his decision.

In 2002 the families of the 270 people aboard Pan Am Flight 103 settled their civil case against the Libyan government for $2.7 billion, or about $10 million per family. But the release of Megrahi to a hero's reception in Libya has reopened old wounds--a codefendant of Megrahi was acquitted in 2001--and revived painful memories.

We talked to four people entangled in the Lockerbie legal web to discuss the impact of Justice MacAskill's decision: a former government attorney who heads the Pan Am Flight 103 victims' group, an ex-Sonnenschein Nath & Rosenthal lawyer who helped craft the $2.7 billion settlement, a White & Case lawyer who represents Libya in U.S. litigation, and those who knew a former Covington & Burling lawyer turned Nazi hunter who was among the 270 who died on that fateful night.

Frank Duggan, Victims of Pan Am Flight 103

Frank Duggan, a semiretired lawyer and former chairman of the National Mediation Board, has been helping the relatives of Lockerbie victims for more than 20 years.

In the early 1990s, President George H.W. Bush named Duggan to a presidential commission on aviation security and terrorism that studied the Lockerbie bombing. Duggan eventually became president of the Victims of Pan Am Flight 103, a group that represents the families of American victims seeking to uncover the truth behind the December 21 attack.

"Of all the things that I've done in government, this has been the most gut-wrenching, but also the most rewarding," says Duggan, who also served as assistant secretary of labor in the Reagan administration.

To say he's furious by MacAskill's decision to release Megrahi is an understatement.

"As a first generation Irish-American, I've always had a genetic distrust of the British, but I've always trusted the Scots," Duggan says. "This is just obscene."

What irks Duggan the most is the fact that relatives of Lockerbie victims were given their first opportunity to make victim impact statements this year--when the issue of Megrahi's appeal came before MacAskill.

A few weeks ago, Duggan says 15 family members gathered at the British embassy in Washington, D.C., and consulate in New York, for a teleconference with MacAskill and his staff. But their pleas to keep Megrahi in Scottish custody evidently fell on "deaf ears," he says.

Duggan is also dismayed that MacAskill has ducked the issue of releasing Megrahi's medical records. Proponents for Megrahi's release claim the former Libyan intelligence officer has prostate cancer and three months to live.

But MacAskill has only released a document with the redacted names of several oncologists attesting to Megrahi's terminal condition while his actual medical records remain under seal. Expecting the public to accept that claim at face value is asking too much, Duggan says.

"I've been to Lockerbie and heard from people there, how the Christmas presents fell from the sky--," he says haltingly, his voice trailing off. "A few weeks ago we saw Bernie Madoff get sentenced to 150 years in prison. And that was only money. Where is the justice here?"

Douglas Rosenthal, Constantine Cannon

Douglas Rosenthal, a former Sonnenschein partner who helped negotiate the Lockerbie victims' $2.7 billion settlement in a 2002 effort spearheaded by James Kreindler of New York's Kreindler & Kreindler, isn't surprised by Megrahi's release.

"I've been dealing with the Libyans for some time and they'll stick it to you afterward," Rosenthal says.

The release was clearly orchestrated to further political discussions between the U.K. and Libya over oil, he says.

Since Congress passed the Libyan Claims Resolutions Act a year ago, all of the victims Rosenthal represented have been paid. He remains in constant contact with victims' families to "get the truth out about Libya's complicity" and is trying to help other private victims of terrorism.

Rosenthal is doing that work at a new firm, Constantine Cannon, after leaving Sonnenschein four years ago because of a much-publicized dispute over Lockerbie pay. A court later awarded Rosenthal a nominal amount on top of his fee in the case.

Christopher Curran, White & Case

After ditching Arman Dabiri--the Libyan government's longtime outside U.S. counsel--for White & Case in spring 2008, Libya finally started seeing positive results in its decades-long legal disputes with U.S. authorities.

Christopher Curran, head of the firm's D.C.-based litigation practice, led a White & Case team that represented the Libyan government in 20 cases that represented all U.S. litigation against Libya.

With White & Case's help, those cases were settled in last year's bilateral agreement between the U.S. and Libya that granted the Libyan government immunity from future terror-related civil suits. Libya also paid $1.5 billion into a fund to settle claims by other alleged terror victims, enabling full diplomatic relations to resume between the two countries. (Sibling publication Legal Times named Curran one of its nine "Visionaries" for 2009 for his role brokering the agreement.)

White & Case, however, did not play any role in winning Megrahi's release, says Curran, who declined to comment on the matter because the firm is not authorized to comment on behalf of the Libyan government.

Michael Bernstein, Covington & Burling

Michael Bernstein is just one of 270 lives that abruptly ended in the winter sky over Scotland. But his is a particularly poignant one for lawyers.

After graduating from law school at the University of Chicago in 1979, Bernstein began his legal career in the litigation department of Covington & Burling. He stayed there until 1985 before leaving the firm for a higher calling, says his wife, Stephanie, a rabbi in Bethesda, Md.

Bernstein joined the Justice Department's Office of Special Investigations (OSI) to hunt former Nazi war criminals. It didn't have the glamour of the silver screen, but as assistant deputy director of OSI, Bernstein was personally responsible for deporting seven of the 24 former Nazis deported during the OSI's first ten years of existence, according to his New York Times obituary.

"Mike was thoughtful, quiet, and committed," says Covington litigation chair Gregg Levy, who lived in the same D.C. neighborhood as Bernstein. "He chose a path, ensuring that that horrors of the Holocaust were not forgotten, that speaks for itself."

Bernstein died while returning from Vienna, where his obituary states he "persuaded the reluctant Austrians to take back some native sons they would rather forget, beginning with an Auschwitz SS guard, Josef Eckert."

His wife says she was "sick to her stomach" when Megrahi was released and "incredulous" that her husband's murderer might spend the rest of his life under house arrest in a villa overlooking the Mediterranean.

"What kind of world do we leave if we wash our hands of this?" she says. "What kind of people are we if we do this?"

Instead Stephanie Bernstein hopes that her husband's dedication to the pursuit of justice remains his legacy, a legacy summarized by a note he hung on the door of his office: "The law sometimes sleeps, but it never dies."

[Note: A call to Scotland's former lord advocate and solicitor general Colin Boyd was not returned by the time of this story. Boyd, now a partner with Scottish firm Dundas & Wilson in Edinburgh, was instrumental in pursuing criminal charges against the two Libyans.]

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