And another thing…

YOU OFTEN hear claims that the treaty under which Gary McKinnon’s extradition is being sought was constructed specifically for dealing with terrorists.

This is false.

The explanatory notes to the Extradition Act 2003 state:

The Government set out its proposals to reform the law on extradition in a consultation document “The Law on Extradition: A Review” in March 2001.

That was six month before 9/11, incidentally. Crucially, it states:

Crime, particularly serious crime, is becoming increasingly international in nature and criminals can flee justice by crossing borders with increasing ease. Improved judicial co-operation between nations is needed to tackle this development. The reform of the United Kingdom’s extradition law is designed to contribute to that process.

Extradition is an important tool in dealing with international crime: no one should be able to escape justice by simply crossing a border. The law should provide a quick and effective framework to extradite a person to the country where he is accused or has been convicted of a serious crime, provided that this does not breach his fundamental human rights.

So, no mention specifically of extraditing terrorists, although we can assume that terrorism falls under the “serious crime” heading.

And yet a myth – one of many in this case – has developed that Gary is to be extradited under legislation “intended” for terrorists. And I have been asked quite a few times on my Twitter page whether I think Gary is a terrorist. To which my answer, of course, is “no”. If he were facing terrorist charges in the US, the indictment would have made mention of the fact.

The Extradition Act 2003 was framed in order to deal with serious crimes. And, as Alan Johnson told the Commons today:

Gary is accused of serious criminal offences. He is alleged to have repeatedly hacked into US Government computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US army’s military district of Washington’s computer network for 24 hours. During interviews under caution, Mr. McKinnon admitted to much of the conduct he is accused of.

And another thing…

Regarding our allegedly “imbalanced” extradition trearty with the US, Alan told the Commons:

…members of both main Opposition parties have argued about this point. That argument was made in 2003, when the treaty was being concluded. What has happened since? In how many cases have we failed to get extradition from the US? None. Zilch. Nil. None whatsoever. Every case we have made to the US using probable cause has been successful. In contrast, there are seven cases in which the US has sought extradition from this country that are still held up in the system

I wonder if that fact will be covered by tomorrow’s Daily Mail? Hmm…

(You can read #1-6 of the Gary McKinnon myths here.)

ALAN JOHNSON, the Home Secretary, made a statement in the Commons this afternoon in response to an Urgent Question (they used to be known as “Private Notice Questions”) from Gary McKinnon’s MP, David Burrowes.

Alan dashed the hopes of campaigners hoping he would intervene in the extradition process. At the risk of boring you all, I thought it would be useful to reproduce Alan’s entire openign statement, since it is the most comprehensive and logical response to the “Free Gary” campaign I have heard.

Gary McKinnon is accused of serious criminal offences. He is alleged to have repeatedly hacked into US Government computer networks over a period of 13 months, including 97 US military computers from which he deleted vital operating systems and then copied encrypted information on to his own computer, shutting down the entire US army’s military district of Washington’s computer network for 24 hours. During interviews under caution, Mr. McKinnon admitted to much of the conduct he is accused of.

A great deal has been made of the perceived imbalance in UK-US extradition arrangements in respect of probable cause versus reasonable suspicion. While I am clear that no such imbalance exists, as Mr. McKinnon has admitted the conduct which has given rise to the extradition request, this issue is academic in his case. This aside, under the terms of the Extradition Act 2003, I can prevent an extradition only in very specific circumstances: where the person in question could be sentenced to death if convicted; where there is a chance of that person being tried for crimes committed before that extradition which were not specified in the extradition request; or where the person has previously been extradited to the UK from another country, or transferred here by the International Criminal Court, and no consent has been given to their being extradited elsewhere.

Outside of the statutory extradition scheme, the courts have made it clear that the only circumstances in which I could prevent extradition would be where the evidence demonstrates that extradition would be a breach of human rights. If it would breach human rights to proceed with extradition, I would have to halt proceedings. If it would not, it would be unlawful for me to do so.

Mr. McKinnon has challenged his extradition in the district court, the High Court, with the Law Lords, and in the European Court of Human Rights, all of whom have ruled that the extradition should go ahead. Following the diagnosis of Asperger’s syndrome in August 2008, he made fresh representations to the then Home Secretary claiming that because of his medical condition his extradition would breach the European convention on human rights. The then Home Secretary decided in October 2008 that the evidence Mr. McKinnon submitted did not meet the threshold needed to constitute a breach of the ECHR. Mr. McKinnon challenged in the High Court this decision and the decision by the Crown Prosecution Service that there were no grounds for him to be tried in this country.

On 31 July 2009, the High Court handed down both judgments. In its judgment on the Director of Public Prosecution’s decision that Mr. McKinnon should be tried in the US, Lord Justice Stanley Burnton said this:

“It is true that the Claimant’s offending conduct took place in this country. However, it was directed at the USA, and at computers in the USA; the information he accessed or could have accessed was US information; its confidentiality and sensitivity were American; and any damage that was inflicted was in the USA. The witnesses who can address the damage done by his offences are in America…However, it is not for this Court to decide where he should be prosecuted. The decision is that of the DPP. As appears from the preceding paragraphs of this judgment, he cannot be faulted for considering that, other things being equal, the Claimant should be prosecuted in the USA.”

He expressed the view that it would be

“manifestly unsatisfactory in the extreme”

for Mr. McKinnon to be tried in the UK and refused permission for this aspect to be judicially reviewed.

Secondly, the Court ruled on 31 July that the decision of the Home Secretary that the extradition of Gary McKinnon to the US would not amount to a breach of his human rights was also correct. The Lord Justice said:

“Ultimately, I have to weigh the impressive medical evidence adduced by the Claimant against the severity involved in Article 3. I have no doubt that he will find extradition to, and trial and sentence and detention in the USA, very difficult indeed. His mental health will suffer. There are risks of worse, including suicide. But if I compare his condition with those considered in the authorities to which I have referred above, even taking full account of the (in my view undesirable) possibility of his being prosecuted in this country, his case does not approach Article 3 severity.”

Following that decision, Mr. McKinnon’s lawyers made fresh representations, including additional medical evidence. I have carefully considered those representations and I am clear that the information that his lawyers have provided is not materially different from that placed before the High Court earlier this year and does not demonstrate that sending Mr. McKinnon to the United States would breach his human rights.

There are legitimate concerns about Mr. McKinnon’s health, and the United States authorities have provided assurances, which were before the High Court in July, that his needs will be met. It is also clear from the proceedings to date that there is no real risk that Mr. McKinnon, if convicted, will serve any of his sentence in a supermax prison. Should Mr. McKinnon be extradited, charged and convicted in the US and seek repatriation to the UK to serve his sentence in this country, the Government will progress his application at the very earliest opportunity.

As I have said at every stage of these proceedings, we will not commence extradition proceedings until all legal avenues that Mr. McKinnon wishes to pursue have been exhausted. He can lodge a judicial review within seven days of this decision, and he can appeal to the ECHR within 14 days of the same date. I am currently considering a request from Mr. McKinnon’s lawyers for an extension of the seven-day time limit.

LET’S explode some myths on this one, shall we?

MYTH #1: Computer hacking is not a serious crime.

Yes it is, and it causes millions of pounds of damage every year. People who hack into other people’s computers should be charged and tried. If convicted, the sentences should be severe.

MYTH #2: McKinnon was pursuing a harmless obsession about UFOs.

In that case, why did he leave this message on one of the US Defense Department computers?

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

Doesn’t this suggest that his motives were not only political but malicious? Doesn’t sound much like a “moral crusade” to me.

MYTH #3: Asperger’s sufferers shouldn’t be extradited.

Why not? Would this argument be made in favour of an Asperger’s Syndrome sufferer who had committed a less “acceptable” crime, like murder or child abuse?

MYTH #4: The extradition treaty with the US is one-sided.

There is some truth in this, but because of the role of the US constitution, not the UK legislation itself. But are we saying that because of this, no British citizen should ever be extradited to America? If Gary Glitter’s extradition was demanded by the US authorities, would there be the same level of oposition on the grounds of a lack of reciprocity?

MYTH #5: McKinnon cannot expect a fair trial in America.

Nonsense. The US legal system is one of the fairest in the world and McKinnon will have his chance to plead his case in open court in exactly the same way as any US citizen. And the highest courts on this side of the Atlantic – including the Court of Appeal and the European Court of Human Rights – have already given McKinnon a fair hearing and have found against his request to remain in the UK.

MYTH #6: McKinnon will receive an unduly harsh sentence.

Unlikely. This is from Corante Blog:

(Federal) sentencing guidelines are referred to in Lord Brown’s ruling, but they are rarely referred to in UK coverage. McKinnon was offered a plea agreement if he pleaded guilty to two of the seven charges.

From the ruling: “On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK.”

If you are seriously interested in the facts of this case, and not the unthinking Daily Mail spin, I would recomment Gary McKinnon: The truth is out there, just not in the British press and Socialist Unity, which has taken a brave and principled stand on this issue, unlike many on the Left.

UPDATE at 4.45 pm: There’s a fantastic comment by a “paddy garcia” on this subject over at Socialist Unity which I reprint here in full:

Please tell me what is wrong with hacking into US military computers? How can any socialist oppose bringing down the US imperialist war machine by this or any other means? Anyone who tries to this is a hero. Please explain all this alleged Brit nationalism stuff? I have not heard Gary McKinnon say anything that could be interpreted as such. Obviously the gutter press have their own agenda but that doesn’t mean that this man should be extradited.

Doesn’t add much to the debate, I’ll grant, but a real hoot!