David Allen Green

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Why did it take ten years to block the extradition of Gary McKinnon?

What you believe about the McKinnon extradition case is probably false

By David Allen Green Published 16 October 2012 11:03

Gary McKinnon. Photograph: Getty Images

The Home Secretary has decided that the extradition of Gary McKinnon will not go ahead.

Relying on the same human rights law which she has strongly criticised in the past in respect of other extradition cases, the Home Secretary has ruled that the suicide risk is such that it would be contrary to McKinnon's human rights for the extradition to proceed.

If that is what the evidence is before the Home Secretary in respect of a suicide risk, then it was plainly the right decision for her to make, though it opens obvious questions as to whether it can be now a precedent for other extradition cases.

However, it appears that, but for this determination, the extradition would have proceeded - put another way, the legal case for McKinnon's extradition was otherwise sound.

But how can we best understand how the McKinnon case has taken so long to get to this stage?

The alleged offences took place in 2001 and 2002, and based on mainstream media accounts, it just seemed such a clear injustice being inflicted on a sympathetic defendant.

The answer, in part, is that there has long been a mismatch between the mainstream media accounts of the McKinnon case and the underlying legal facts.

On one hand, there was an admirable, tireless, and spiritied campaign on McKinnon's behalf. Unfortunately, one consequence of this campaign is that there were many contentions about the case which "everyone knew" even if few ever seemed to check if they were true.

On the other hand, there have been a series of legal judgments which provided a very different perspective on the case. In 2010, in a sequence of blogposts at Jack of Kent, I set out the correct legal position. This is not to say I believed McKinnon should have been extradited; it was just to balance the media narrative on the case with a more source-based approach. This was important as, without understanding there was a mismatch between the mainstream media version of the case with the legal realities, one could not understand why the extradition had gone on so long.

My survey at Jack of Kent set out a number of points which did not feature in mainstream media accounts of the case.

First, the contention that all McKinnon was doing was looking for evidence extraterrestrial life had no basis in the legal case. UFOs played no part in the litigation whatsoever. The UFO explanation was never provided by McKinnon or his legal team in the court cases. In fact, McKinnon's original case was that his motives were political and he contended that political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds alone.

Then there was the assertion that his offences were trivial and more the fault of lax US security. Again, this is not supported by the legal documents. Instead, the alleged offences are serious and were sustained over a lengthy period. The allegations are in respect of a hacking exercise which took place over fourteen months and involving 96 computers in five US government departments, and which came to an end (it seems) only with his detection and arrest. The CPS also provided detailed reasons as to why they would not prosecute McKinnon in the UK - and this was not a supririse, as both the unauthorised access and the alleged damage occured entirely in the US.

Moreover, the allegations against McKinnon also went beyond unauthorised access to substantial file deletion and copying. The US alleged that there was significant operational damage and that they could evidence the damage.

It was also usually overlooked that the unauthorised access (ie the offence) had been actually admitted by McKinnon's legal team (so it was likely to be no issue to be tried). His legal team even indicated that he may also admit the damage as well as the unauthorised access.

Accordingly, the US could thereby show a prima facie case. Therefore the disparities in respect of the UK/US extradition arrangements were not actually relevant in this case - the notorious "one-sided" extradition treaty was a red herring here, even if it was relevant in other cases.

And given the human dimension in all this, and perhaps most importantly of all, the US even provided detailed assurances as to how McKinnon's condition of Asperger's Syndrome would have been accommodated should he be extradited.

It should also be noted that McKinnon rejected a highly advantageous plea bargain in 2003 (and so would have been free of all this by around 2006, rather than still waiting as late as 2012).

Finally, the US also stated that there was no principled opposition to McKinnon applying to serve his sentence in the UK.

The McKinnon legal case was never how the mainstram media presented the case; and so it was always difficult for anyone following to comprehend why the extradition went on for so long.

But, unless the DPP decides to now prosecute McKinnon in England, none of the above legal analysis matters any more.

It would appear the "Free Gary" campaign has succeeded in keeping the case going in England until they could get the official decision they sought. This is an incredible achievement. The fact that the legal realities of the case were often ignored along the way by the mainstream media is now perhaps only of academic importance.

(Supporting analysis and links to all the above is at my blog at Jack of Kent.)

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28 comments

Fri, 2012-11-09 13:39 — Posh Tosh (not verified)

He ought have had Margaret Morans doctor, the former MP that helped herself to many ten of thousands of pounds whilst in Parliament ill not have to go through trial as is too unwell and will have to go on a course of treatment afterwards. So said the Court yesterday.

I remember a friend of mine whilst doing things similar but in a small way, went to Court, as had too, he was mentally ill through the episode, and now that he is terminall ill cannot get a care home due to the fact that whilst in hospital and ill he lost a Council home, through non-payment of rent. Mind you they came back after twelve years to refuse him a care home anywhere because he was a debtor to the Council, even though they do not have dates at the Council or how the debts incurred, he was a former councillor that opposed the Councillors ruling property planning group plc.

Wed, 2012-11-07 14:45 — Anne O'Nymous (not verified)

Some additions to this piece.

1. "First, the contention that all McKinnon was doing was looking for evidence extraterrestrial life had no basis in the legal case. UFOs played no part in the litigation whatsoever. The UFO explanation was never provided by McKinnon or his legal team in the court cases. In fact, McKinnon's original case was that his motives were political and he contended that political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds alone."

Of course UFO's played no part in the defence, because it was an extradition hearing not a criminal trial and therefore all that had to be looked at was the extradition treaty and whether or not the request conformed to the needs of said treaty.

McKinnon has never claimed his motives were political.

2. "Moreover, the allegations against McKinnon also went beyond unauthorised access to substantial file deletion and copying. The US alleged that there was significant operational damage and that they could evidence the damage."

The CPS, having reviewed the US 'evidence' of damage, said it amounted to nothing more than hearsay, and the judge at the time said "this would have been very embarrasing if the CPS had decided to prosecute.".

3. "His legal team even indicated that he may also admit the damage as well as the unauthorised access."

No, they did not.

4. "Accordingly, the US could thereby show a prima facie case. Therefore the disparities in respect of the UK/US extradition arrangements were not actually relevant in this case - the notorious "one-sided" extradition treaty was a red herring here, even if it was relevant in other cases."

This case and the fact that it was extraditable was based solely on the damage. The CPS having said that it amounted to nothing more than hearsay then the US had no prima facie case.

5. "And given the human dimension in all this, and perhaps most importantly of all, the US even provided detailed assurances as to how McKinnon's condition of Asperger's Syndrome would have been accommodated should he be extradited. "

The US is now getting rid of Asperger's as a recognised psyndrome and has a terrible record of how physically and mentally disabled inmates are treated.

6. "It should also be noted that McKinnon rejected a highly advantageous plea bargain in 2003 (and so would have been free of all this by around 2006, rather than still waiting as late as 2012). "

A plea bargain that he at first agreed to and was then told there was no guarantee and there would be nothing in writing ! Would you agree to a 'deal' like that ?

7. "Finally, the US also stated that there was no principled opposition to McKinnon applying to serve his sentence in the UK."

That was contingent on him not fighting extradition, once the US realised the fight was on they said he would not be repatriated and even implied his family would not be allowed to see him.

8. Oh there is no 8 ! What a surprise, since this swiss-cheese of an article has so many holes.

You always bring up the same, tired old things you are under the misapprehension of labelling 'facts'.

Your 'source-based' approach always ignores the very important points i have listed.

You pretened you are neutral and want to cut through the hysteria, but you obviously have an agenda since you always ignore the facts laid here before you.

You are the journalist, i am a commentator. Where are your sources for the points in this article that i have negated ?

Will you bother to search for the sources behind my points ?

Fri, 2012-10-19 10:52 — David S (not verified)

"The answer, in part, is that there has long been a mismatch between the mainstream media accounts of the McKinnon case and the underlying legal facts. "

This is true, but the accounts of the case in those sections of the media hostile to McKinnon have also been a bit shaky on legal facts.

The sympathetic accounts of the case have tended to overstate the likely sentence that he would serve in the US. Hostile accounts have tended to understate it, and have ignored the fact that, if he had accepted the plea bargain offered to him he would have been accepting a US costing of the damage caused, which in fact he contests.

There has also been a fair bit of nonsense to the effect that McKinnon cannot be tried in the UK because he has not committed an offence in the UK. The territoriality provisions of the Computer Misuse Act make it quite clear that he has done so, and the fact that the damage was done overseas does not change that.

There have also been repeated straw man arguments about McKinnon's Asperger's. It has been said that he claims his condition means he is not culpable, which he has not done. He has also been accused of "conveniently discovering" it, when in fact it was not mentioned until Simon Baron-Cohen became aware of the case and asked to examine him.

Basically there has been a whole load of bollocks talked about the case from both sides of the fence.

Wed, 2012-10-17 13:43 — Thomas Skogestad (not verified)

"Extradition shall not be refused based on the nationality of the person sought."

Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, article 3.

Um. Wow.

The Norwegian–US extradtion treaty of 1977 states:
"1. Neither Contracting State shall be bound to deliver up its own nationals, but the executive authority of the requested State shall, if not prevented by the laws of that State, have the power to deliver them up if, in its discretion, it be deemed proper to do so." (article 4)

Norwegian law does not provide for the extradtion of Norwegian citizens to the U.S.

(BTW, McKinnon looks freakishly similar to Richard Ramizerz, the Night Stalker)

Tue, 2012-10-16 22:54 — Blaise F Egan (not verified)

It always seemed to me that the case for extraditing him seemed strong. I was hoping he wouldn't be, simply because I thought the sentence he would get in the USA would be outrageously severe. There were reports that he could get 60 years - more like what we'd think appropriate for a serial killer.

Tue, 2012-10-16 23:06 — Fahmida (not verified)

You're right, they will not get justice in the US. They're kept in solitary confinement, which can be up to three years before the trial! In a cell, 23-24 hours a day, with no human contact. They get food through a slit in the door. There's a 92% (2005) conviction rate for federal crimes in the US, sound right to you? Something the American should have been fighting for themselves. It means one can't prepare an adequate defense, and everyone should be entitled to that. Innocent until proven guilty, remember. Gary's ok, for now. But those (Talha Ahsan, Babar Ahmad- look these people up, read about them, and make your own decision, Abu Hamza) who were extradited on the 5th October will not see a fair trial, what do we do for them? Because they are us, British. British Justice for British Citizens.

Tue, 2012-10-16 22:50 — Hikaru22

David A.S. Lindsay:

'Miliband must insist on the repeal of one-sided extradition arrangements, together with the removal of any foreign military presence from British soil, waters and airspace, and together with the complete operational independence of our Armed Forces under the Crown in Parliament, subject to no foreign command whatever.'

I agree with David Lindsay about this. Britain was not one of the Axis powers, so why does it feel like we are under de facto military occupation by The United States?

Tue, 2012-10-16 23:20 — Davidaslindsay (not verified)

Very many thanks.

Most people in Britain have never heard of the War of 1812. But they have heard of it in America. Their National Anthem commemorates it, referring to our “foul footsteps’ pollution”. That is what you get if, as we did, you burn down the White House. Britain and America nearly went to war many times during the nineteenth century, and a huge military presence was required to defend Canada. America entered the First World War on, among other conditions, the partition of the United Kingdom by means of the creation at least of the Irish Free State.

In 1906, Edward VII conferred the Order of Merit on two Japanese princes who had been instrumental in setting up the Imperial Army, and on the legendary Admiral Tōgō, “the Nelson of the East”. But that was before America had foisted on us the 1922 Washington Naval Treaty, under which we granted her the naval parity that we had just fought a World War more than anything in order to avoid granting to any other country. America thus destroyed our naval alliance with Japan, with all that followed from that destruction.

Up to and including the bombings of Hiroshima and Nagasaki, which were anti-British no less than anti-Japanese acts, designed to prevent the War from instead being ended by the British re-conquest of the Empire in Asia and the Pacific. To that end, the British Pacific Fleet had been cheered into Sydney Harbour because it was not the American one that had been expected to turn up and require that Australia and New Zealand cut all trading and migration ties to Britain, abolish the monarchy, adopt American spelling, teach American rather than British history in schools, and so on. Those remain key American objectives.

America’s efforts to detach Commonwealth countries from the Sterling Area forced us back onto the Gold Standard in 1925, sending our manufacturing industries into depression and thus causing the 1926 General Strike. America was planning in detail for a war against Britain as late as 1935, and decided to retain that War Plan Red even in 1939. It was not classified until 1974. America subjected us to Lend-Lease, not paid off until 29th December 2006, though paid off on that date, so that no debt from the War can any longer be said to exist.

America required us to decolonise far too quickly, with disastrous consequences for numerous of the countries that we were forced to leave. America entered both World Wars for her own reasons, and on her own strictly businesslike terms with us. Nothing wrong with that. But it gives the lie to the popular fantasy of a “special relationship”, a term which no American has ever used. America’s conduct over Suez does need to be seen in the light of the fact that that was a misadventure on our part, but America has subjected us to more than 60 years of the presence on our soil of foreign forces, politically as unmentionable as they are permanently unforgettable, without any parliamentary authorisation. America maintains bases here with fake British names, entirely unaccountable to us.

America also maintains such bases on two other pieces of our territory, denying democratic representation to the British inhabitants of Ascension Island, and forbidding the British people of the Chagos Islands to set foot there at all. America charges us for the privilege of hosting American nuclear weapons and pretending that they are our own, but we have so little self-respect that we pay up. America forced us to join the European superstate, which has been an American-sponsored project since the 1940s. America, fundamentally defined against any British presence in the Western Hemisphere, did everything short of send forces to fight for Argentina in 1982.

America spent decades arming and directing our terrorist enemies (who “haven’t gone away, you know”) in order to bring about a United Ireland within NATO and the EU, up to and including more than complicity in the murders of at least three British parliamentarians, one of them a member of the Royal Family; America was funding and arming the IRA at exactly the same time as Gaddafi’s Libya was doing so, and the most uncritically pro-American Prime Minister until Tony Blair mysteriously “escaped” from what was supposedly an IRA attempt to assassinate her.

No, not a few people in New York and Boston: it was common knowledge that NORAID was financially dependent on the CIA, as its own publications made clear. In fact, one of the places where the Cold War was hotly fought by proxy was within that subculture in Northern Ireland which still professed allegiance to the 32-County Republic of 1916. Two superpowers equally, and equally violently, opposed to the existence of the United Kingdom, fighting it out on the streets of the United Kingdom: that was the reality of the Cold War as it impacted on the United Kingdom.

America invaded Grenada, a Commonwealth Realm in the Caribbean, and America has long had legislation in place providing for the forcible incorporation of Canada. One fifth of British casualties in the first Gulf War were killed by American “friendly fire”, which managed to get in before the enemy did. America seeks to disperse the inmates of Guantánamo Bay by flattering politicians in British Overseas Territories as if theirs were the sovereign states that their electors have consistently voted not to become. Slavish devotion to America took us to war in Iraq and Libya, and keeps us as at war in Afghanistan. We must free our entire nation as surely as we have freed Gary McKinnon.

Wed, 2012-10-17 01:30 — M J Harrington (not verified)

I am in complete agreement. I have been trying,in vain, to persaude my fellow Conservatives of this case for years. I must say that I believe that the American penetration of the Conservative Party is one of the great unwritten stories in the period since 1945. The destruction of Sir Anthony Eden is a good case in point and you will find some suggestive material in David Carlton's biography of Eden.

However I still love America in all sorts of ways and I will love her even more when British independence has been restored. I fancy they will have more respect for us.

Thu, 2012-10-18 13:27 — Des Demona (not verified)

Yep you only have to look at Liam Fox and his spurious Atlantic Bridge ''charity'' to see the depths of that penetration. Take a look at how many cabinet ministers who were former trustees are scrabbling to distance themselves from it now it has all come out.

Thu, 2012-10-18 13:26 — Des Demona (not verified)

Wed, 2012-10-17 00:59 — johnny yank (not verified)

Don't worry, you pathetic Limey cvnt. We'll come get McKinnon. And fvck you and your history lesson. Your record in Ireland is a disgrace, as it was in India, Kenya and the rest of your colonies. Our effort to destroy your empire was the best thing we ever did as a country. After 1783 I mean.

Tue, 2012-10-16 21:36 — willoyen

thanks for this article. It puts a completely different complexion on this case, in no way changing the respected position of this congenial defendant. It puts the media in the dock (once again...) Obviously in their interests to keep their version of the case going as long as possible and to keep up their phoney stance of the protection of a brit in need. Great that the human rights act was invoked. That'll stir up the ants' nest of tory human rights/democracy/EU haters.

Tue, 2012-10-16 20:29 — Des Demona (not verified)

I find it disturbing that it has taken 10 years to get here. But reading this article it occurs to me that it was because some lawyers are crap. Which leads on to the fact that that justice can be bought by political or financial means unless enough of us masses stand up to injustice

Tue, 2012-10-16 19:55 — Davidaslindsay (not verified)

No one, not even Abu Hamza or Babar Ahmad, and still less Gary McKinnon, should ever be extradited from the United Kingdom to any jurisdiction with less than equal reciprocation. One Nation, with an equal emphasis on the One and on the Nation. Inextricably bound up with which is British justice, with an equal emphasis on the British and on the justice. It is too funny for words, at least in this case which they have lost, to watch the allegedly conservative, patriotic and even Tory Israel First, America Second, Britain Nowhere brigade going bananas over this.

This is the opportunity for Ed Miliband to distinguish himself from that tendency, such as there still is of it, in his own party. Someone like Alan Johnson is in any case highly unlikely to contest the next General Election. Miliband must insist on the repeal of one-sided extradition arrangements, together with the removal of any foreign military presence from British soil, waters and airspace, and together with the complete operational independence of our Armed Forces under the Crown in Parliament, subject to no foreign command whatever.

Tue, 2012-10-16 19:44 — Fahmida (not verified)

Utterly ridiculous- double standards. Of course, Mckinnon should not be extradited to the US, but the same applies to all other British citizens, including Talha Ahsan, who also has Asperger's, like Gary. Yet he was extradited on October 5th. Is there a certain idea of what being 'British' Ms May has in mind? Unjust and unfair, what more can i say. British Justice for British Citizens! We all need to fight for this.

Tue, 2012-10-16 19:29 — Old woman (not verified)

And I thought I was the only one out of step with the rest of the media and twitterati. He is accused of committing some pretty serious offences and if he's not being sent off to the US he should answer for them in the British courts.

Tue, 2012-10-16 18:26 — Roddy Campbell (not verified)

DAG - do you answer the question in the headline? I can't quite see why it took that long.

Tue, 2012-10-16 17:30 — anonymous coward (not verified)

My concerns were over the ludicrously inflated damage claims and the statements made by numerous senior figures regarding 'cyber-terrorism'.

These were not secure systems in any meaningful sense any work required to restore them to a known state and upgrade security was work that was required in any case. There is some cost impact but nothing like that suggested.

The numerous and very public statements about cyber-terrorism were clearly disproportionate, potentially prejudicial and unfounded. Cyber-terrorism is oxymoronic but leaving this aside the statements raised a concern that his treatment would be politically influenced and unfair.

As far as the principle of extradition in this case is concerned it seemed very non-controversial with a crime commited against US based victims which is also a crime in the UK. I do not understand the logic of using the Ausberger's syndrome to prevent extradition either we trust foreign courts to take such matters into account and we allow extradition or we do not.

I am concerned about the possibility of being extradited to the US based on the content of a web site created in the UK.

Tue, 2012-10-16 17:24 — Mark M (not verified)

Whatever arguments McKinnon's lawyers used, the basic question is whether or not it was in the public interest to proceed with a prosecution. Hacking, during the 1990s, was almost a sport for computer 'geeks'; a competition between the hacker and the system manager. In a post 9/11 world however the US sought to make an example of McKinnon. Our compliant, authoritarian government of the time was only to happy to help. If he suffers from Aspergers, as someone who works with sufferers, I question whether he understood that he was doing wrong or even his fitness to plea. The Home Secretary has made the right decision, whatever the reason given.

Tue, 2012-10-16 16:35 — McMac

As far as I can tell McKinnon’s defence against extradition seemed to centre on him really really really not wanting to go to prison.

A plan so cunning it’s worthy of Baldric at his best. I bet Abu Hamza’s legal team are kicking themselves.

Tue, 2012-10-16 15:53 — Hikaru22

David Allen Green:

'Then there was the assertion that his offences were trivial and more the fault of lax US security. Again, this is not supported by the legal documents. Instead, the alleged offences are serious and were sustained over a lengthy period. The allegations are in respect of a hacking exercise which took place over fourteen months and involving 96 computers in five US government departments, and which came to an end (it seems) only with his detection and arrest.'

Do you mean to say that he hacked into '96 computors in five US government departments', over a period of fourteen months, and this was no fault 'of lax US security'? Did they invite him in, then? Or did they just leave the doors open, so that anybody was free to wander in and out, at will?

Sophie Elmhurst tells a different story:

'McKinnon was surprised at how easy it was to enter the US networks. There were no firewalls and many government staff did not even have passwords. He left notes as he went, pointing out (their) security deficiencies.'

How very helpful and public-spirited of him. Has the President of The United States sent him a note of thanks for pointing out the dismal security deficiencies of his Security Services?

Tue, 2012-10-16 14:49 — David Kilham (not verified)

I feel you have some interesting legal arguments, but this is one of those cases where the law really doesn't understand what McKinnon was doing, and that includes his own lawyers. My background is working on transatlantic University projects [including NASA and DoD] throughout the 1990s.

What's hard to describe in 2012 is just what the state of the technology was when he started 'hacking'. The machines he logged into were usually very expensive (i.e., $50 000 for basic mainframe), which was simply normal for that time. It's therefore easy to do masses of 'damage' (i.e., for the prosecution to inflate the figures). In reality, his deletions, apart from a few current [logging] files, would have all been backed up and reinstalling even a fully corrupted machine would never have taken more than a day, possibly even less. And if they couldn't, then what sort of IT staff did the US employ? Also, the default position for most of those machines was that ANYONE could log onto them. They came out of the box totally open, and you had to plug the multitudinous gaps. It wouldn't have taken mad skillz to have wandered around the systems when you had found a small trapdoor. This is a good time to trot out the 'He showed up their security' argument. It has merit. Security only became a global issue at the end of McKinnon's run. Again, it's hard to think of a world without all the bad guys pressing to get in; the internet wasn't a Wild West of cyber-criminals, with McKinnon wearing the extra-large black hat.

My analogy is that McKinnon opened windows of a building, wandered around leaving footprints and sometimes had to jam the offending window shut to avoid the owners from finding his fingerprints. He didn't steal anything or vandalise the interior, it's just that the owners didn't like vacuuming his footprints and the fact he'd wandered around, looking at their private works of art, disturbed them. In comparison to what happens in cyber-warfare today (blowing up the building, making a copy of the building so the occupants don't realise it's moved country, or simply stealing the contents), it's innocuous and whatever the prosecution have to say, I think most people realise it.

Tue, 2012-10-16 14:47 — Michael Dixon (not verified)

No mention by the author of the role of the past Labour Govt.

After all the Coalition has been in power for just one quarter of this period

Strange omission. Political or legal reasons?

Tue, 2012-10-16 20:20 — Jon Bon Jovi (not verified)

Why should there be? There was no mention of the role of the current administration either, other than the fact that it was the current Home Secretary who blocked the extradition.

Unless there is something specific to which you are alluding, it makes little sense to mention any of the respective governments, regardless of colour, as this case has been going through the courts. The judicial system is (ostensibly) independent from government.

Tue, 2012-10-16 17:21 — Interested Bystander (not verified)

Unlikely to be political reasons - DAG is a Lib Dem, not a Labour supporter!

Tue, 2012-10-16 15:02 — BigC (not verified)

"Political or legal reasons?"

On a left leaning website what do you think the reason is??!! I'm actually quite suprised the NS are not trying to blame the Tories for taking so long!

Tue, 2012-10-16 14:26 — Jonathan da Silva (not verified)

From a Home Secretary who tries to deport people to be tortured and screams at the Human Rights act this is clearly an act of folly and rods for our backs. Her main criteria appears to be to appeal to tabloids and provide lawyers with as much money as possible.

The other irony in the Qutada case was having said how awful he was she/UK tried to get him pardoned in Jordan where with the net he'd be as dangerous as if in Jarrow - probably more so.

Theresa May is a wretched excuse for a Home Secretary. Like a combination of the bullying Ed Balls and the worst of Ed Miliband.

This decision will cost us.