Gary McKinnon has lost his extradition appeal

Hacker loses extradition appeal
BBC News, 31st July 2009

British hacker Gary McKinnon has lost his latest High Court bid to avoid extradition to the United States.

The US wants to try the 43-year-old, from Wood Green, north London, for what it calls the biggest military computer hack of all time, in 2001 and 2002.

Mr McKinnon admits hacking, but denies it was malicious or that he caused damage costing $800,000 (£487,000).

Whether or not he can appeal to the UK Supreme Court will be decided at a later date, Lord Justice Burnton said.

He said it was a matter which should be dealt with "as expeditiously as possible".

'Lawful and proportionate'

Glasgow-born Mr McKinnon had challenged refusals by the home secretary and the director of public prosecutions (DPP) to try him in the UK.

The home secretary insists he has no power to demand the trial take place in the UK.

The DPP refused to order a UK trial, saying the bulk of the evidence was located in the US and Mr McKinnon's actions were directed against the US military infrastructure.

He had also asked the court to rule on whether his Asperger's Syndrome meant he could not be extradited to the US.

His lawyers argued extradition was "unnecessary, avoidable and disproportionate" and had not taken place in other cases.

But, in a 41-page ruling, the judges said extradition was "a lawful and proportionate response to his offending".

Home Secretary Alan Johnson said: "Mr McKinnon is accused of serious crimes and the US has a lawful right to seek his extradition, as we do when we wish to prosecute people who break our laws.

"The court judgement has also made absolutely clear that the DPP's decision not to prosecute in the UK was the right one.

"My predecessor has already sought and received clear assurances from the US that Mr McKinnon's health and welfare needs would be met, should he be extradited.

"It is open to Mr McKinnon to seek to appeal to the House of Lords."

UFO search

Mr McKinnon faces up to 70 years in prison if convicted in the US of what prosecutors have called "the biggest military computer hack of all time".

He has always insisted he was looking for classified documents on UFOs which he believed the US authorities had suppressed.

Speaking outside the High Court, his mother, Janis Sharp, said her son - who did not attend court - had been "naive enough to admit to computer misuse without having a lawyer and without one being present".

"We are heartbroken. If the law says it's fair to destroy someone's life in this way then it's a bad law."

She said she feared for his health.

"He's very ill, he's got really bad chest pains, it's affected him emotionally, mentally, every way, he's terrified," she said.

Ms Sharp appealed directly to US President Obama to intervene in the case.

"Stand by us and make this world a better place, a more compassionate place," she said.

"Obama wouldn't have this. He doesn't want the first guy extradited for computer misuse to be a guy with Asperger's, a UFO guy. He wouldn't want this.

"I'm just praying, please hear us, Obama, because I know you would do the right thing," she added.

In a statement, his lawyer Karen Todner, asked: "What does it take to make this government sit up and listen to the clear public view that Gary McKinnon should not be extradited?

"The extradition treaty with America was brought in to facilitate the extradition of terrorists and it must be clear to anyone following this case that Gary McKinnon is no terrorist.

"Why aren't they stopping the extradition of a man who is clearly vulnerable and who on the accepted evidence suffers from Asperger's?

"Gary is clearly someone who is not equipped to deal with the American penal system and there is clear evidence that he will suffer a severe mental breakdown if extradited."

Mr McKinnon accessed 97 government computers belonging to organisations including the US Navy and Nasa.

In February the Crown Prosecution Service refused to bring charges against Mr McKinnon in the UK.

The decision followed a ruling last October by then Home Secretary Jacqui Smith to allow his extradition.

Mr McKinnon has already appealed unsuccessfully to the House of Lords and the European Court of Human Rights and his latest judicial reviews in the High Court are likely to be his last chance.

His lawyers say the authorities have not given proper consideration to his Asperger's Syndrome, which could have "disastrous consequences," including suicide, if he was to be extradited.

They argued he was "eccentric" rather than malicious and should be tried on lesser charges in the UK to protect his mental health.

Various quotes

It would be illegal for me to stop the extradition of Gary McKinnon, which the court ruling has made clear.

Mr McKinnon is accused of serious crimes and the US has a lawful right to seek his extradition, as we do when we wish to prosecute people who break our laws.

My predecessor has already sought and received clear assurances from the US that Mr McKinnon's health and welfare needs would be met, should he be extradited. - Alan Johnson, Home Secretary

I am deeply saddened and disappointed with this decision. Gary 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.

If he has questions to answer, there is a clear argument to be made that he should answer them in a British court.

This case raises serious questions about the workings of the Extradition Act, which should be reviewed. - David Cameron, Conservative Party Leader

Today's judgement is a hammer blow to a vulnerable man and his long-suffering supporters.

The succession of ministers who have let this sorry saga drag on for seven long years should hang their heads in shame.

There is no way the American government would hang one of their citizens out to dry in the same way. The [UK] government must ensure that the US-UK Extradition Treaty is repealed and that its replacement treats US and British citizens equally. - Chris Huhne, Liberal Democrat Home Secretary

It now falls to our government to show compassion in the case of Gary McKinnon, and to turn its attention to the very many disabled people lost within the justice system.

Those with autism, learning disabilities and mental illness face obstacles to understanding at every turn in police stations and in courts.

If they do end up in prison they are more likely to be bullied by other prisoners, disciplined by staff and excluded from programmes that would help them survive a sentence and prepare for release. - Juliet Lyon, Prison Reform Trust

Today's court decision demonstrates the disgrace that is Britain's extradition arrangements that allow vulnerable people to be shipped off around the world when they should be tried here at home.

Our judges' hands have been tied by rotten legislation that should now be overhauled by Parliament without delay. - Isabella Sankey, Liberty

We are so disappointed for Gary and his family and so angry he is still in this position.

The threat of extradition has been hanging over him for seven long years and sadly the nightmare continues.

The NAS has campaigned hard for his extradition to be reconsidered in the light of his diagnosis of Asperger syndrome.

We will continue to do whatever we can to keep him here in the UK and will support him in his appeal to the Supreme Court.

People with Asperger syndrome are often far more vulnerable than initial appearances would suggest, frequently isolated, often bullied and sadly many experience severe mental health problems if they do not get the right support.

We are extremely disappointed that the High Court has decided to continue with Gary's extradition despite these concerns. - Mark Lever, National Autistic Society

My heart goes out to Gary, Janis and all those who have fought so hard.

Reason and common sense dictate that Gary's extradition would be abhorrent.

We cannot let this be the end of the road. It is quite clear that Gary is a deeply vulnerable man, ill-equipped to cope with the trauma of extradition.

I am determined to continue to press government to intervene in this blatant travesty of justice. - Trudie Styler, Campaigner and wife of Sting

The failure to overturn the decision to extradite Gary McKinnon to the USA is disappointing.

The extradition arrangements between the USA and the UK are in place to help counter-terrorism and serious crime, and should not be used against vulnerable people like Mr McKinnon.

These extradition arrangements need to be reviewed. The Home Secretary should use his discretion to look again at Mr McKinnon's case and intervene to stop the extradition. - Keith Vaz, Home Affairs Select Committee

In similar cases where Great Britain has tried to extradite an American to Great Britain to stand trial, there is a 20% less chance that that will happen. This is fundamentally unfair.

Gary McKinnon could be tried under British law to stand trial there, it's just that the British courts and the prosecutors... have deemed that not the appropriate response. I would say that's poor thinking on the part of the British government.

Sometimes allies can agree to disagree; sometimes we can advocate for the best interests of our own citizens against the desires of the other country. - Joseph Gutheinz, US lawyer and Ex-NASA criminal investigator

Some news articles

Hacker Gary McKinnon loses appeal against extradition to US - Guardian, 31st July 2009

Gary McKinnon should be extradited, court rules - Guardian, 31st July 2009

I might never see him again: Mother of Gary McKinnon pleads for mercy from Obama after hacker loses extradition fight - Daily Mail, 31st July 2009

Hacker mother appeals to Obama - BBC News, 31st July 2009

Gary McKinnon: mother makes appeal to Barack Obama - Telegraph, 31st July 2009

Gary McKinnon: timeline of the computer hacker's case - Telegraph, 31st July 2009

40 MPs in plea to Barack Obama over computer hacker Gary McKinnon - Telegraph, 1st August 2009

Mother of hacker Gary McKinnon pleads for President Obama’s help - Times, August 1st 2009

Government to insist Gary McKinnon serves sentence in the UK - Times, 2nd August 2009

Gary McKinnon could serve time in UK jail - Techradar, 3rd August 2009

Cabinet split after Peter Hain demands Gary McKinnon be tried in Britain - Daily Mail, 3rd August 2009

Betrayal of a naive hacker: Why are our MPs doing nothing to help Asperger's victim Gary? - Daily Mail, 3rd August 2009

Betrayal of a naive hacker - the ins and outs of the extraordinary extradition battle for Gary McKinnon - Daily Mail, 3rd August 2009

Links

FreeGary.org.uk

Join the campaign to prevent Gary McKinnon's extradition to the U.S.

AS Hacker Could Face 70 Years In Jail - Wrongplanet

The Big Question: What exactly did Gary McKinnon do wrong, and should he be extradited?

Independent, 4th August 2009

Why are we asking this now?

Because Gary McKinnon has been fighting the United States' plans to have him extradited on hacking charges for the best part of seven years.

But last week the 43-year-old lurched ever closer towards being handed over to American law enforcement officials after losing his latest High Court battle to have him stay in the UK. After weeks of deliberation, two High Court judges went against McKinnon on two legal points he had hoped might allow him to be tried in the UK rather than in the States, where he faces up to 60 years in a maximum security jail.

So what exactly is he accused of doing?

The US accuses him of being responsible for the "biggest military hack of all time", although his supporters say that is over-hyped rhetoric from US prosecutors who are determined to see him jailed in the States and therefore want to emphasise the severity of his crimes. What is not in dispute (because he admits it) is that, between February 2001 and March 2002, Mr McKinnon hacked his way into 97 US military computers, including terminals owned by the US Navy, the Pentagon and Nasa. The US claims that he deleted critical files from operating systems that led to the near-complete shut down of the US Army's Washington network, costing some $700,000.

How did he do it?

Remarkably easily, in fact. When The Independent interviewed Mr McKinnon last year he described how breaking into American military computers, even after the September 11 attacks, was surprisingly simple because many staff at government facilities simply left their default passwords in place and were therefore incredibly easy to crack. But Mr McKinnon disputed the suggestion that he caused any damage.

"I wouldn't call what I did an attack," he said. "It was more like probing, snooping around and leaving messages – what hackers call 'hactivism'. Attack suggests some sort of malicious intent, which there simply wasn't." American officials, however, see things very differently, with one New Jersey prosecutor promising to see the north Londoner "fry" for his hacking.

How did he get caught?

Once again, remarkably easily. Mr McKinnon did little to hide his IP address (the individual identity code that each computer has) and even hacked using his own email registered to his flat in Wood Green in north London. McKinnon's supporters argue that this is proof of how he had no malicious intent. If he was really a dangerous cyber-hacker, they argue, he would have covered up his tracks.

So why did he do it?

Part of it was political – the messages he left on hacked military computers ranged from posts like "your security is crap" to anti-American slogans which, in the febrile atmosphere post-9/11, obviously didn't go down very well with US officials. But what really motivated Mr McKinnon was a conspiracy theorist's belief that America's military had evidence of extraterrestrial life and, specifically, UFOs.

Isn't that quite strange behaviour?

As Mr McKinnon's case rumbled on in Britain's law courts he was eventually diagnosed with having Asperger's Syndrome, a form of autism which, his supporters say, led to compulsive and obsessive behaviour at the time of his hacking. When he was caught, Mr McKinnon was spending up to 18 hours a day on his computer, obsessed with the idea of finding extraterrestrial life. His lawyers maintain that far from the dangerous cyber-warrior American prosecutors portray him as, he is in fact an eccentric and vulnerable individual who should not have to go through the trauma of being imprisoned thousands of miles from home.

What is the situation with the legal arguments?

Mr McKinnon's lawyers have been to the courts numerous times before, but the latest High Court battle, which they lost last week, centred around two arguments.

The first was that extraditing McKinnon to the US, where he faces a maximum sentence of 60 years in a so-called "supermax" prison, would be a breach of his human rights because of his Asperger's. The second was to oppose a decision by Keir Starmer QC, the Director of Public Prosecutions, who declined to have McKinnon prosecuted in Britain rather than the US. On both counts courts sided with the Government.

His lawyers have promised to appeal to the newly created Supreme Court within the next 28 days and, if necessary, to the European Court of Human Rights. So Mr McKinnon is not going to be clad in irons just yet.

So is his extradition a foregone conclusion?

If the appeals fail then, according to the Government, it is. Home Secretary Alan Johnson has claimed that stopping McKinnon's removal would be in breach of the extradition treaty signed between the US and Britain and would therefore be illegal. But a number of legal minds have disputed this position, including Lord Carlisle – the Government's own terror adviser – and two barristers from Cherie Blair's Matrix chambers, who believe the Home Secretary is entitled to use his discretion and intervene. Both the Conservatives and the Liberal Democrats support the idea of Mr McKinnon being tried in the UK and, yesterday, Peter Hain became the first cabinet minister to break ranks with Mr Johnson by stating that it would be better to prosecute him "in a British context".

Isn't Britain's extradition treaty something of a sore point as well?

McKinnon's backers are generally made up of two camps. The first are those who believe he is a vulnerable person who did something stupid without malicious intent and is being disproportionately pursued by the United States, with Britain's blessing, because they are embarrassed by what he did and want to send a strong signal to other "hactivists". A second camp, however, sees his potential extradition as part of a wider policy by Britain of kowtowing to America without expecting reciprocity from across the Atlantic.

So what's wrong with the treaty?

Detractors of our extradition treaty – which, unlike Parliament, took Congress years to sign – say it is weighted against Britain because it removes the requirement for the US to provide prima facie evidence when requesting the extradition of any UK citizen, but still requires the UK to do so. Campaigners also believe that, compared with other British subjects who have been extradited to the US, Mr McKinnon has had little support from the Government. They contrast his treatment to that of the so-called NatWest Three – a trio of bankers who were later found guilty of fraud related to the Enron scandal. As their extradition loomed Tony Blair personally lobbied to make sure they received bail on arrival in the US and would serve out their sentences in the UK. Britain has only just indicated that it may be willing to do the same for Mr McKinnon after seven years of campaigning.

So should Mr McKinnon be sent to stand trial in the US?

Yes...

*He may say he didn't mean to cause damage with his hacking, but he did and should take responsibility for his actions

*He has admitted to the hacking, which could have been catastrophic for American security

*Fears over the punishment he might face in the US are exaggerated

No...

*The United States are treating a harmless eccentric who made a non-malicious mistake like a terrorist

*The treaty between the US and UK is unfair and should not be used

*McKinnon's self-confessed crimes may have impacted on the US, but they were committed on UK soil and hence he should be prosecuted here

I was discussing the Gary McKinnon affair with a lawyer who specialises in international law. He told me that he is 99.99999% convinced that the Israeli government, and not the US government, are the ones demanding the extradition. I asked the lawyer to explain this in more detail and his reply was that although he does not have accurate information about exactly what computers Gary McKinnon hacked into and what data he was able to access or corrupt, he thinks that some of the data concerned Israel and either included material of a top secret nature or that which will cause serious embarrassment to Israel, and Israel somehow found out about the hacking. Although the lawyer is no expert on the technicalities of hacking computers, he knows that plenty of computers owned by the US government and military contain top secret data about Israel. Under various international agreements, the Israeli government has access to computers owned by the US government and military, and vice versa for the US government.

The decision whether to prosecute a hacker is a dilemma for the owners of a computer that has been hacked into. The lawyer stated it is quite commonplace for hacking to go unreported and the hacker to be let off scot free simply in order to avoid potential embarrassment that a certain organisation's computer security is weak. There have even been cases where a discovered hacker has been sent a strongly worded letter saying that the organisation will drop all charges on the condition that the hacker signs and returns a form declaring they will not disseminate any data they have accessed, and keep their trap shut about the hacking incident. If they publicise the hacking incident then the organisation will prosecute as it will have nothing to lose and everything to gain.

The lawyer thinks that it is possible that the US government would either have let Gary McKinnon off or pressed for the British government to prosecute him under the Computer Misuse Act if he had hacked into purely American computers, because in reality he is a curious lone wolf rather than involved in organised terrorism. If however, another foreign power such as Israel enters the equation then it becomes a completely different story, and the lawyer thinks that the government of Israel considers Gary McKinnon to be a serious danger to their country, so are pressing for the extradition.

This is certainly plausible considering how much power and influence Israel wields over the US and UK governments. The US military protects and supports Israel meaning that it is almost a certainty that confidential and sensitive information concerning Israel is contained on US military computer systems. Considering how successive US and UK governments have been lackeys to the interests of Israel and the Zionist elite, then if Mossad tells senior British and American politicians to jump, then they jump.

Israel may also be the instigators of 9/11.

People, please don't write off-topic especially if it is to propose a conspiracy theory. Also, simply reposting from the news media is boring. Simply supply the link and then comment on it.
Even though Gary McKinnon is one of us, being an Aspie does not mean that he is not responsible for his actions.

What we should be discussing in this thread are the morals, ethics, etc., of McKinnon's situation. Also, it might be worth comparing the asymmetric extradition treaty between Britain and USA with libel tourism. In the latter, any libel ruling in the UK is legally binding in the US. This is something that annoys the Americans so much that the US congress is looking into breaking that treaty. So, perhaps the British should get equally annoyed with that extradition treaty and maybe something will be done about it. It might also be worth talking about whether McKinnon might have ended up in Gitmo under Bush. Or those British citizens who were in Gitmo but are now out. These points are worth discussing, not conspiracy theories, please.

I used to be a conspiracy theorist and I would like to propose that Aspies are more prone to this than most people. I will discuss this in another thread. Or maybe somebody has already mentioned this.

Many unanswered questions surround the Gary McKinnon affair. Until these questions are answered then conspiracy theories will continue to circulate. Gary McKinnon's lawyers almost certainly know crucial stuff about the case that is not in the public domain.

I am wondering if his lawyers know something concerning the AS that we don't which has contributed to much of the media coverage making an issue of the AS. If AS can be used as a defence then it will relate to American law rather than British law. Could there be some obscure legislation in the US penal system that exempts people with AS and certain disabilities from harsh punishments, such as 60 years in a supermax? If his lawyers knew that AS was absolutely no defence whatsoever then they would almost certainly have cut it out of the whole affair as being an irrelevant matter, and the AS side of things would have received far less media coverage. I personally think that AS has been given a disproportionate amount of media coverage and strength in opposing the extradition compared with the timing which I consider to be a much stronger defence that cannot be disputed by anyone. Gary McKinnon hacked into the US government computers during 2001 and 2002, BEFORE the extradition treaty came into force in 2005.

The reasons why I am opposed to the extradition are:

1. Because Gary McKinnon is a British citizen who committed the crime in the UK.

2. There is already sufficient legislation enshrined in British law to prosecute and jail hackers for their crimes committed both within Britain and abroad. Namely the Computer Misuse Act 1990.

3. US law does not apply in Britain.

4. If extradition is imposed then the laws will need to be equal between all countries on a global basis before it is considered fair or acceptable. I believe the current situation is very one-sided as in the US can extradite British criminals but Britain cannot extradite American criminals. Countries having stronger rights to extradite than others effectively end up imposing whatever laws they want, and penalties for noncompliance, on a global basis.

I could understand a desire for the US to extradite Gary McKinnon if either British laws did not exist to prosecute him or the British government steadfastly refused to prosecute him, but this is not the situation, which makes the extradition plain rough justice. Even Gary McKinnon himself had admitted he is happy to be prosecuted in a British court under the Computer Misuse Act.

I personally don't see what was wrong with prosecuting Gary McKinnon in the UK under the Computer Misuse Act BEFORE he had his diagnosis of AS. If that had happened then he would have received a few articles in the papers back then and would now have faded into obscurity. Anybody remember Paul Bedworth?

Instead what has resulted from a decision to extradite him is a 7 year long legal wrangle; a diagnosis of AS; bringing AS into the picture - for the better or the worse of anyone; and high profile media coverage almost promoting him to a celebrity status.

Another thing that intrigues me is why the Daily Mail is supporting Gary McKinnon when it is generally a newspaper that is tough on crime. I could understand a liberal newspaper such as the Indepedent screaming that he was only being curious and deserves a slap on the wrist, but it seems a bold move for the Daily Mail unless there is some underlying motive. Concerns have circulated in the AS community in Britain over whether the real reason why the mainstream media is giving so much publicity to Gary McKinnon is not because they support him or oppose the extradition, but to create a false impression of AS in the eyes of the general public and employers and to tarnish the reputation of people with AS.

I looked up Paul Bedworth and I see that the affair concluded in 1993 - two years before AS became a recognised condition in the DSM.

How does the extradition treaty work between the US and UK ? Can a suspect be extradited for crimes only after the date of the treaty ?

I suppose that conspiracy theories will abound because, to most humans, any answer is better than no answer at all. To quote a statement by a computer security consultant from the Bedworth affair: "These cases are always very interesting
but a distraction from the more mundane".

As for misrepresenting aspies in the media, there may be truth in this. Consider how the condition is portrayed in film. We are these poor sods with crappy social skills but Mother Nature has compensated us by making us unbelievably talented in a specific field (i.e. "austistic" is really short for "autistic savant"). This puts an unfair expectation on us and when we don't live up to that expectation, people lose interest in us quickly. However, this article http://news.bbc.co.uk/1/hi/magazine/8192895.stm on the BBC's news website attempts to dispel this myth that we are all extraordinarily gifted.

EDIT [2009-09-05 17:03]: Added word "really"

I'm not quite sure how this extradition treaty works because I'm not a lawyer who specialises in this type of law. Something tells me that extradition treaties are above and beyond the law and decisions are made by politicians from both countries involved.



There's the Curious Incident of the Dog in the Night-time that I consider to be highly stereotypical and generally unrepresentative of teenagers with AS. It is unfortunately many people's first source of information about AS which means it has potential to create a false impression about the condition and how it affects people with AS.

A question I raised within the AS community a few years ago is: after reading a stereotypical article in the press about AS, has the journalist misunderstood AS or has the journalist understood AS but misrepresented it?



I believe this to be correct. If court cases are held then the outcome of the trial is decided in advance by senior politicians and the judges told what to say by them. After all, remember who are the paymasters for judges and who has the powers to sack them.