Review by Amb. Thomas E. McNamara (ret.)
The Forgotten Flight: Terrorism, Diplomacy and the Pursuit of Justice by Stuart H. Newberger; One World, London, 2017
To almost all Americans over the age of 30, the December 1988 tragedy of Pan Am Flight 103 over Lockerbie, Scotland is a story that needs no telling. The bombing and its aftermath were front-page news for over a decade. Nine months later, an identical tragedy occurred with an identical explosion, but this country hardly noticed. Yet, the two flights are linked by their common perpetrator, the tragic outcomes, parallel investigations, and a common conclusion. Author Stuart Newberger is a renowned lawyer who specialized in counterterrorism law. He tells the story of that second flight and correctly calls it the “Forgotten Flight.”
The regularly scheduled UTA (Union de Transports Aériens) Flight 772 left Ndjamena, Chad on September 19, 1989 and exploded, killing all 170 aboard, including the unwitting passenger with the bomb in his luggage. Pan Am 103 was designed to explode over the unsearchable Atlantic Ocean. It detonated over Lockerbie due to a delayed departure. UTA 772 was set to explode over the almost-unsearchable Sahara Desert in Niger, and it did.
The perpetrator of both these barbarities was Libyan dictator Muammar Qaddafi and his intelligence services. As one of the chief sponsors of pan-Arab terrorism, Qaddafi was engaging in terrorism against Western targets and interests, and aggression against his neighbors, Chad in particular. The U.S. and France countered with political and conventional military attempts to stop him. Unable to succeed in military operations against the two, Qaddafi attacked their civilian airliners. The first was a failed hijacking at the Karachi, Pakistan airport in September 1987. Then, came the December 1988 PanAm and the UTA bombings.
The book begins as a non-fiction who-done-it. Where is the plane; how did it crash; who brought it down; why? It took over two years for the answers to emerge. Newberger recounts a cooperative effort between French prosecutors and intelligence agencies and their American counterparts to seek justice for victims of one of the world’s worst terrorist acts. Next comes the battle in U.S. courts against a determined Libyan regime, resulting in a huge multimillion dollar judgment. Finally, it is a story of how the Pan Am and UTA cases came together again, as American diplomats negotiated with Libya for a comprehensive settlement — less than the judgment, but significant nonetheless.
Newberger is a careful researcher. More important for the reader, he is a good storyteller, who stays on track and keeps the narrative moving, weaving in the detail skillfully. No danger of becoming lost in legal lingo or left to wander the corridors of power unaccompanied. Newberger minimizes the lingo and maximizes the guidance. He explains briefly and clearly how the complex French justice system works, and how he navigated U.S. courts for his clients, the American families of those killed on UTA 772. It is the combination of all these efforts that produced a massive judgment in favor of the UTA 772 families and guaranteed the final payments for Pan Am families.
As Newberger took on Qaddafi the odds were stacked against success. The forensic evidence was scattered over hundreds of square miles, requiring months of efforts by French police and military to partially reassemble the shattered aircraft. He found a capable and reliable legal partner in Paris, an unstoppable French investigative judge (Juge d’Instruction), Jean Louis Bruguiere.
How Bruguiere, the highly-skilled, motivated chief terrorism prosecutor in France, zeroed in on Qaddafi is the stuff of fine detective novels. It took him to several African and European nations, including Libya. Newberger explains how Bruguiere pieced together the picture, greatly accelerated by finding remnants of the bomb detonator and timing device in the wreckage. These were indisputable links to the Lockerbie bomb, since they were identical and made on special order in Europe for the Libyan government.
As is often the case, diplomacy played a barely noticed but critical, role in settling both bombings by moving the issue into the United Nations Security Council. President George H.W. Bush fundamentally changed Ronald Reagan’s policy of bilateral military and political confrontation aimed at overthrowing Qaddafi, which led to the Lockerbie tragedy. Instead, Bush chose to prioritize the ending of Qaddafi’s terrorism, even if Qaddafi remained in power.
Bush authorized a trilateral partnership with the United Kingdom and France to take both bombing cases to the Council for condemnation and serious sanctions. In the Council, the three partners rounded up the unanimous support of the fifteen members. The condemnation and sanctions isolated Qaddafi for most of the 1990s and ended further Libyan international acts of terrorism for the remainder of his rule. This was done by changing the basic dispute from one between Qaddafi vs. the U.S. and France into one between Qaddafi vs. the Security Council and the entire UN membership, all of whom were obliged to observe the sanctions that the Security Council imposed on Libya.
With the forensic work explained, Newberger describes how he laid his and Bruguiere’s evidence before a federal district judge, Henry H. Kennedy. Newberger ably argued against a strong team of lawyers who were engaged by Qaddafi to use any argument or legal device to stop a judgment against the Libyan government. In this case the good guys won. Qaddafi lost when Judge Kennedy in 2008 returned a heretofore-unheard-of judgment of $1.5 billion. Collecting the judgment was another matter, one that could have dragged on for decades. Given Qaddafi’s demise four years later and the resulting chaos in Libya, payment may never have been made.
Here, diplomacy stepped in, again, in this instance without consultation with Newberger or the families. The State Department combined the Lockerbie and UTA cases with other Libyan cases and negotiated a single settlement, thus, avoiding years of trying to capture Libyan assets. How this sudden and final twist evolved is carefully told by Newberger, who was surprised and upset about the settlement reducing the judgment. That was the end of the UTA case, and it ends Newberger’s narrative.
This 300-page story of fascinating investigative, judicial, and diplomatic activity provides extraordinary insights into the intricacies of counter terrorism in all its multiple aspects. It is a tribute to the author that this excursion is clearly and objectively laid out in this definitive description of the Forgotten Flight.