In a stunning decision, U.K. Home Secretary Theresa May has blocked an extradition request from the U.S. for accused British hacker Gary McKinnon. The controversial decision was handed down on October 16. It is believed to be the first time that a British home secretary has blocked an extradition request to the U.S. under Britain’s current treaty governing such actions. More significantly, the home secretary says she will seek to grant British courts new and enhanced powers to challenge future extradition requests from the U.S.
Home Secretary Theresa May threw down a serious challenge to American justice
McKinnon had been battling extradition to the U.S. for ten years. He was accused in 2002 of committing what the U.S. Department of Justice (DOJ) called the “biggest military computer hack of all time.” McKinnon allegedly hacked into 97 U.S. military and NASA computers causing “significant” damage. The DOJ claims that McKinnon deleted critical files and shut down a military network of computers. McKinnon is also accused of copying data, files, passwords and posting taunting messages (“Your security is crap”) on army websites. On one computer, McKinnon left a message stating “US foreign policy is akin to Government-sponsored terrorism these days…It was not a mistake that there was a huge security stand down on September 11 last year…I am Solo. I will continue to disrupt at the highest levels.”
Despite being diagnosed with serious mental illness, the U.S. vigorously sought Gary McKinnon’s extradition from the U.K.
Predictably, McKinnon was indicted by a federal grand jury sitting in the Eastern District of Virginia in 2002. The Eastern District of Virginia is a favorite venue for federal prosecutors pursuing cases involving national security. While the District of Columbia would be a more appropriate forum for such matters, the jury pool there, consisting largely of minorities, has been deemed to be unreliable by the DOJ for important cases. The Eastern District of Virginia, with its staunchly conservative judges and almost exclusively white pool of jurors, presents a much more inviting opportunity for federal prosecutors. Indeed, many of the alleged terrorism cases flowing from the events of 9/11, including shoe bomber Richard Reid, were prosecuted in federal court in Virginia’s Eastern District.
The U.S. courthouse for the Eastern District of Virginia is a popular destination for alleged enemies of America
Seasoned observers recognized that McKinnon was being treated as a terrorist and likely to receive a disproportionately long sentence for computer hacking. Initial press releases from the DOJ stated that was facing up to 70 years imprisonment. There was also a fear that McKinnon would be treated as an “enemy combatant” and sent to a military prison or worse. McKinnon publicly expressed fears of being sent to the U.S. government’s torture camp at Guantanamo Bay, Cuba.
McKinnon’s fear of imprisonment in America’s notorious Guantanamo Bay may not have been wholly unfounded
British authorities quickly recognized that McKinnon was not engaged in any kind of terrorism and had almost comical motives for his actions. McKinnon claims to have breached the computers’ security in a search for proof of the U.S. concealing evidence of UFO’s and extra-terrestrial life. He has been diagnosed with a mild form of autism as well as Asberger’s syndrome. In his mind, the hacking was a success as he claims to have uncovered photographic proof of alien spacecraft as well as the names and ranks of “non-terrestrial officers.”
The U.S., however, was not amused and began to actively seek McKinnon’s extradition in 2005. In 2006, Home Secretary John Reid signed an extradition order for McKinnon to be sent to the U.S. to face trial. The British High Court ruled against an appeal of the extradition order, upholding the action in April of 2007. The matter was then brought by McKinnon’s legal team to the House of Lords.
McKinnon advanced several compelling arguments before the House of Lords. His lawyers emphasized the disproportionately long sentence McKinnon was facing under draconian U.S. federal sentencing guidelines. They also highlighted the disparity between the 70 year sentence McKinnon faced if he went to trial and the offer of 37-46 months if he consented to a plea agreement. McKinnon’s lawyers claimed that this disparity was an attempt to force McKinnon to waive his legal rights. While defendants typically receive a one-third reduction of sentence for a guilty plea in the U.K., American style plea bargaining, where basic rights are waived by the defendant, is foreign to British jurisprudence. The DOJ had also told McKinnon’s lawyers that he could serve his sentence in the U.K. if a plea agreement were reached. His lawyers were experienced enough to know that such assurances by the DOJ are often empty and the offer was rejected when American authorities would not issue written documents guaranteeing those terms.
McKinnon’s legal team argued that the court could deny extradition if there was an abuse of process by the Americans. “If the United States wish to use the processes of English courts to secure the extradition of an alleged offender, then they must play by our rules.” This argument was wholly rejected by the House of Lords. Lord Brown of Eaton-under-Heywood stated that “the difference between the American system and our own is not perhaps so stark as (McKinnon’s) argument suggests” and that extradition proceedings should “accommodate legal and cultural differences between the legal systems of the many foreign friendly states with whom the U.K. has entered into reciprocal extradition arrangements.”
Lord Brown failed to recognize exactly what American justice held in store for McKinnon
Having lost his bid before the House of Lords to halt extradition, McKinnon’s lawyers appealed to the European Court of Human Rights. While the court did issue a temporary stay of extradition, most observers considered an outright victory to be a long shot. The appeal was ultimately denied without hearing.
McKinnon was left with few options. His legal team of Ben Cooper and Karen Todner sought judicial review of the home secretary’s failure to consider medical evidence, stating that in light of McKinnon’s documented autism and Asbereger’s syndrome, it would be cruel and inhumane to inflict further stress upon him by subjecting him to extradition. McKinnon’s mother, Janis Sharp, claimed her son would likely commit suicide if extradited and criticized the then-home secretary Alan Johnson for linking her son to the 9/11 attacks. Then-Tory leader David Cameron agreed with the growing call for a review of McKinnon’s case and the extradition treaty with the U.S. in general, stating that McKinnon is “a vulnerable young man and I see no compassion in sending him thousands of miles away from his home and loved ones to face trial.”
David Cameron, then Tory Leader, agreed that McKinnon’s case warranted closer examination before agreeing to America’s demands
McKinnon’s efforts to avoid extradition received an added boost when the Joint Committee on Human Rights said that “The government should renegotiate the U.K.’s extradition treaty with the U.S. to ensure that British citizens get the same protection as Americans.” A review of the treaty by retired court of appeal judge Sir Scott Baker was ordered. In October, 2011, he found that the current treaty between the U.S. and U.K. was “balanced and fair.” Regardless of Baker’s findings, many members of parliament added their voices to the groundswell of support for changing the Extradition Act.
Was Sir Scott Baker pressured into finding the extradition treaty with the U.S. “balanced and fair?”
The ruling on McKinnon does not in itself constitute a repudiation of the Extradition Act as it is being justified in relatively narrow terms. Home Secretary May blocked extradition on the grounds of his serious depression and “high risk of him ending his life.” The home secretary elaborated by saying, “Mr. McKinnon is accused of serious crimes. But there is also no doubt that he is seriously ill. He has Asberger’s syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition."
McKinnon’s mother, Janis Sharp, was understandably overjoyed at the home secretary’s ruling
Couching her language in such terms suggests that the home secretary had been carefully coached before issuing her statement. May was careful not to make any indictment of the Extradition Act or use language that could be cited by others in fighting the Act. This may very well have been part of a compromise reached between U.S. and British authorities. McKinnon would be spared American justice, but there would be no wider benefits bestowed upon similarly situated British citizens. America’s thirst for punishment should have been at least partially sated by May holding out the possibility of McKinnon being tried in the U.K.
McKinnon’s lawyer, Karen Todner, said it was “a great day for British justice.” American officials, however, expressed displeasure with the ruling. “The United States is disappointed by the decision to deny Gary McKinnon’s extradition to face long overdue justice in the United States,” spokeswoman Victoria Nuland told reporters.
Karen Todner, lawyer for McKinnon, worked tirelessly to spare her client from American retribution
State Department spokesperson Victoria Nuland expressed disappointment, but failed to comment on the wider implications of refusal of the extradition request
Despite the McKinnon decision, there is still widespread dissatisfaction in the U.K. over what Brits see as a loss of legal sovereignty. This is buttressed by the fact that so many Brits are being tried elsewhere for offenses committed in the U.K. Dominic Raab, a Conservative MP, claims that Britain has extradited seven of its nationals for every one American going the other way. Add to this the fact that no American has ever been extradited to the U.K. for an offense committed entirely within the U.S. and you have at least an appearance of extreme inequity.
This perceived inequity is part of what is driving calls to amend the Extradition Act and return a greater measure of discretion to British courts. MP Raab has expressed a desire to make such changes and afford greater protection to Brits. Likely, he is responding to the fact that Brits are vocally adding their dislike of the Extradition Act to their list of grievances against the government.
MP Dominic Raab promises further scrutiny of the Extradition Act
Implicit in the home secretary’s decision is that fact that much of the world, and in this instance certainly the U.K., has come to recognize what currently passes for justice in the U.S. Threatening a mentally ill man with decades in prison and linking him to international terrorism for an offense that would likely result in a relatively minor “tampering” charge in his home country was found to be objectionable by many of McKinnon’s fellow Brits. The McKinnon affair has also caused British lawmakers to reexamine the current state of American justice and afford their citizens greater protection from its excesses. The U.S. has granted itself unlimited long arm jurisdiction over virtually any matter it sees fit and the McKinnon matter is a striking example of the kind of resistance that should be expected when one nation appoints itself as an international enforcer with limitless power to mercilessly prosecute targets of its displeasure. As the American legal system’s insatiable desire for retribution grows more punitive, greater resistance will likely be seen.
(Originally posted in Online Publishing Company, www.onlinepublishingcompany.info)