Guest Post: “Initial Thoughts on the Overdue Appearance of Pan Am Flight 103 Suspect in a US Court”

Today’s post is by Lawfire^® contributor and Duke Law grad Minyao Wang who reflects on the announcement that Abu Agila Mohammad Mas’ud was brought into U.S. custody to stand trial in the United States.  The case is based on Mas’ud’s alleged involvement in the 1988 bombing of a Pan Am flight that killed 270 people, including 190 Americans.  The State Department announcement about this terrible tragedy noted that:

The victims came from 21 nations and included 35 students from Syracuse University returning home to spend the holidays with their families, two Diplomatic Security Agents from the State Department, a CIA officer, and 11 residents of Lockerbie, Scotland.

When Mas’ud’s charges were announced in 2020, the Department of Justice referenced the criminal affidavit which alleged that a Libyan intelligence official “directed [him] to fly to Malta with a prepared suitcase.” The affidavit said he subsequently “set the timer on the device in the suitcase for the following morning, so that the explosion would occur exactly eleven hours later.”

It quoted then Attorney General William. Barr:

As to all the victims and the families, we cannot take away your pain from your loss, but we can seek justice for you. Our message to other terrorists around the world is this – you will not succeed – if you attack Americans, no matter where you are, no matter how long it takes, you will be pursued to the ends of the earth until justice is done.

Let’s take a look at Minyao’s observations on this very important development in the case. 

Initial Thoughts: The Overdue Appearance of Pan Am Flight 103 Suspect to a US Court

by Minyao Wang

The United States has extradited Abu Agila Mohammad Mas’ud to stand trial in connection with the December 1988 bombing of Pan Am Flight 103. Prosecutors believe that Mas’ud, a senior intelligence officer of Libya during the Muammar el-Qaddafi era, physically set the timer on the bomb that caused the aircraft to disintegrate four days before Christmas over Lockerbie, Scotland.

It was the defining terrorist event for an entire generation of Americans.  270 people, including 190 American citizens, were killed. It is the second deadliest terrorist attack ever against American civilians—surpassed only by the 9/11 attacks.  (It remains the deadliest terrorist incident in the history of the United Kingdom). To quote Attorney General William Barr, “this heinous assault lives in infamy in the collective memory of the American people.”

While the final chapters of the legal saga involving Mas’ud will play out in the coming weeks and months in a courtroom in the District of Columbia, I want to offer two preliminary observations. 

First, the response to this barbaric act of terrorism shows the promise and ultimate limits of international law.

After an exhaustive three-year-long joint investigation, the U.S. and British governments released strong evidence demonstrating Libya’s culpability in the bombing. The United Nations Security Council then imposed punitive economic sanctions on Libya. Seven years later, in 1999, Libya surrendered two suspects, who were intelligence officers of that country, to an ad hoc court established in the Netherlands pursuant to Scottish law for trial.  But only one of the two defendants was subsequently convicted.

This outcome was deeply unsatisfactory to the families of American victims.  They perceived the Scottish judges as whitewashing Qaddafi’s personal involvement. The proceeding was in reality more a diplomatic theater aiming at saving Libyan face than a trial designed to ascertain the truth.

Only in the summer 2003, some 15 years after the bombing and in the wake of the U.S. invasion of Iraq, did the Libyan government publicly admit responsibility for the bombing and pay meaningful compensation to the victims’ families. 

After the fall of Qaddafi during the Arab Spring, his successors have proved incapable of cooperating with the U.S. in concluding the investigation into the bombing.  It is notable that the White House said only that Mas’ud was “lawfully” taken into custody with the State Department adding it followed an “an intensive diplomatic effort“ so the exact details remain to be seen.    

The fact that international law was at least partially effective stems from a uniquely fleeting moment in international politics that will not be repeated anytime soon.  While Libya was a significant client state of the former Soviet Union, the victory of the Western democracies in the Cold War meant that Russia was not willing to cover for Qaddafi. Hypothetically, if a rogue state today is accused of perpetrating a major terrorist attack against the United States, the Russian Federation or the People’s Republic of China will almost certainly use its veto power to thwart enactment of economic sanctions against that state.

Second, under the Ex Post Facto Clause of the U.S. Constitution, Mas’ud can only be charged with offenses that were already proscribed by Congress in December 1988. 

And alas the United States did not have that many statutory tools back then to combat international terrorism. The principal charge that Mas’ud faces is 18 U.S.C. § 32, which criminalizes destruction of or damages to airplanes in transit. This provision unquestionably covers Mas’ud’s alleged crime, but the legislative history shows that it was mainly crafted to address hijacking of aircraft. 

If the bombing of Pan Am 103 took place today, federal prosecutors would have more suitable charging options.  For example, 18 U.S.C. § 2332, which criminalizes the murder of U.S. citizens abroad in connection with an act of terror, would most likely have been the lead charge.

The American families will also be disappointed to learn that the death penalty is not available against Mas’ud. This is because while the Supreme Court held in Gregg v. Georgia, 428 U.S. 153 (1976) that the death penalty is not per se unconstitutional, Congress waited until 1994 to enact constitutionally compliant procedures for imposing a federal death sentence.

If Mas’ud pleads guilty or is convicted in a courtroom in our national capital, it is to be hoped that the American families will finally have a long-overdue sense of closure. For the United States, it will have sent a powerful message that political violence against ordinary American will not go unpunished. 

The experience of the last 34 years is also a reminder to policymakers that international institutions and international laws, while appealing in theory, do not generally provide real-world solutions to our most pressing problems.      

      About the author:

Mr. Wang grew up in Fort Lauderdale, Florida.  He is a 2008 graduate of Duke Law School and a 2003 graduate of Duke University.  Minyao counts the National Security course then taught by Professor Scott Silliman as one of his favorite classes ever.  He has been a commercial litigator in New York City, focusing on complex bankruptcy litigations and cross-border disputes.  Minyao is a former clerk to Carla E. Craig, the Chief Bankruptcy Judge for the Eastern District of New York.

In addition to his commercial law practice, Minyao has done pro bono work for NGOs related to the protection of human rights and the rule of law.  He also previously advised the New York City public school system on the integration of immigrant students from East Asia.  Minyao is fluent in written and spoken Chinese.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!