This is the first of a series of blogposts looking at the well-known and controversial case of Gary McKinnon.
What interests me about this particular case is the fundamental mismatch between, on one hand, the passionate campaign in his support and, on the other other, the continued upholding of the decision to extradite by the Home Office and the English court system.
This mismatch made me wonder whether either the campaign or the upholding of the decision is misconceived.
In other words, and in accordance with the subtitle of this blog (see above):
Is the legal position being misrepresented?
Or is there a misuse of law?
It would appear that the McKinnon campaign have succeeded in promoting a widely-held view that this case is a miscarriage of justice.
There may be those whose opinions on the McKinnon case are so strongly held (one way or the other) that they see no point for this blog to examine the case in a source-based and skeptical manner; if so, they are welcome to scroll down to the comments box to now type away and, subject to the comments moderation policy, their comment will be published.
However, for those who want to base their opinions - especially very strongly held opinions - on sources, then I set out below the first part of my examination of the McKinnon case.
This is culled from a far-longer piece I am writing, but it became too unwieldy for a single post.
This first part sets out the procedural history of the case and the actual allegations which the US government are making against Mr McKinnon.
(For your information, I personally oppose the extradition for reasons which will give in the last part of my examination of this case.)
The Procedural History
The alleged criminal activity of Mr McKinnon took place over thirteen months, from February 2001 to March 2002.
He was interviewed under caution and his computers seized on 19 March 2002, and he was again interviewed under caution on 8 August 2002.
In November 2002, the East Virginian US District Court charged this Indictment (which should be read in full by anyone interested in this case). The New Jersey US District Court also charged this Indictment
As to what happened next, until May 2006, para 21 of the first High Court judgment here sets out the US explanation.
(Of particular note here are the plea bargain negotiations of April 2003 to June 2003, on which more in the second part.)
On 10 May 2006 (after it appears a year of adjournments), Bow Street Magistrates' Court acceded to an application made on behalf of the Government of the US government and sent Mr McKinnon's case to the Home Secretary for a decision as to whether or not Mr McKinnon should be extradited. The decision to proceed with the extradition was made by the Home Secretary on 4 July 2006.
On 13 and 14 February 2007, the High Court heard Mr McKinnon's appeals of the decisions of the District Court and the Home Secretary on the basis of a wide range of human rights and abuse of process arguments.
On 3 April 2007, the High Court in a reasoned judgment dismissed the appeals: read the judgment here.
On 16 June 2008, the House of Lords heard Mr McKinnon's appeal of the High Court decision. In a unanimous and reasoned judgment given on 30 July 2008, the House of Lords dismissed the appeal: read the judgment here.
(On 28 August 2008, the European Court of Human Rights refused Mr McKinnon's application for "interim measures" so as to stay the extradition.)
Within four weeks of the House of Lords decision, Mr McKinnon was diagnosed as suffering from Asperger's syndrome. There is no reason to doubt this diagnosis, and such late diagnoses are not uncommon.
This diagnosis enabled Mr McKinnon to have a new legal basis to challenge the extradition decision.
The Home Secretary was asked to reconsider the extradition decision, but the decision was made to continue with the extradition on 13 October 2008.
Permission to apply for "judicial review" of this new extradition decision was granted on 23 January 2009, but the substantive application for judicial review was refused by the High Court on 31 July 2009, and an application to appeal that refusal was also refused on 8 October 2009.
So, in summary, other than obtaining permission to apply for judicial review, Mr McKinnon's case has not succeeded before the Magistrates' Court, the Secretary of State, the High Court, the House of Lords, the Secretary of State (again), and the High Court (again).
And, other than obtaining permission to apply for judicial review, each single judge has decided against Mr McKinnon's case.
If the McKinnon Campaign is correct in that Mr McKinnon's case represents a fundamental miscarriage of justice, then this uniform rejection of his case by each court and each judge is extraordinary, and it would be a matter for the gravest concern.
It is sometimes not clear from the reporting on the McKinnon case what are actually the allegations against him.
For example, Geoffrey Robertson states:
"In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: 'US foreign policy is akin to government-sponsored terrorism these days.'"
As we will see, this is not an altogether accurate description of the allegations; even the date he gives is perhaps misleading.
The allegations against Mr McKinnon have not essentially changed since the original charging by the East Virginian and New Jersey US District Courts in 2002.
In summary, taken from the April 2007 High Court judgment, the allegations can be described as follows:
- that for thirteen months, Mr McKinnon gained unauthorised access to 97 US Government computers, see para 3 here;
- that Mr McKinnon deleted critical operating system files from nine computers and this led to a 24 hour shutdown of 2000 computers in the Washington network of the US Military, see para 4(1) here;
- that Mr McKinnon deleted 2,455 user accounts on one particular US Army computer, see para 4(2) here;
- that Mr McKinnon deleted system files and logs from computers at the US Naval Weapons Station responsible for the identity, location, physical condition, staffing and battle readiness of US Navy ships, rendering the station's entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001, see para 4(3) here; and
- that Mr McKinnon copied data, account files and passwords onto his own computer, see para 5 here.
Mr McKinnon also left the following message on one Army computer:
"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 … "
These are, of course, only allegations; there has not yet been a trial.
However, it would appear that forensic analysis of the computers seized from Mr McKinnon confirms these allegations (see see para 7 here).
It also appears that the alleged activity, if not the damage caused, was admitted to by Mr McKinnon in his two interviews under caution, see para 8 here.
One wonders whether these allegations are more serious than many of those who have strong opinions about the case realise, especially those allegations which go beyond mere unauthorised access to extensive file deletion and the file copying.
Here one can note that the High Court said of the submissions of Mr McKinnon's barrister ( para 30):
"In our view Mr Lawson has tended to understate the gravity of the offences which Mr McKinnon is alleged to have committed. At the same time he has tended to overlook the fact that, if prosecuted and convicted, the equivalent domestic offences include the offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment."
And this was repeated by the House of Lords at para 38 of their judgment:
"As the Divisional Court itself pointed out (at para 34), the gravity of the offences alleged against the appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment."
The starting point for any sense of injustice in this case must surely be the seriousness of the allegations.
But - in my view - the allegations are more serious than are commonly represented.
Indeed, the allegations appear - again in my view - to have been misrepresented by those campaigning against the extradition.
However, this does not make such allegations true, and certainly not proven.
And even it the allegations are serious, they are not determinative of any exercise of mercy.
In Part Two, later this week, the failed plea bargain and the relevance of the Extradition Act 2003.
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