I have changed my mind on the extradition of Gary McKinnon; let me explain why.
When I decided to write a series of blogposts on this well-known and controversial case, my primary intention was simply to explore the difference between a source-based approach and the version of the case familiar from mainstream media.
There was, to my mind, a complete mismatch between the media construct of the "Free Gary" campaign and the information one could obtain from a close reading of the judgments and from an accurate understanding of the applicable law.
I thought such an exploration would be best done by a blogger rather than a journalist, as a blogger can freely link to sources and take time to "get it right" in a way that a journalist under the constant crunch of deadlines would just not be able to do.
I also thought my background as a serious legal blogger with a strong liberal bias would mean that my exercise would not be seen as a hatchet job.
In my summary blogpost here (which links to the other blogposts), I was able to show that a source-based approach would indicate that any extradition of Mr McKinnon would not be either unjust or illegal.
There is nothing whatsoever in a source-based approach to substantiate the popular media version of this case being a miscarriage of justice in action.
In particular: the alleged offences are serious and were sustained over a lengthy period; the allegations went beyond unauthorised access to substantial file deletion and copying; there had been allegedly significant operational damage; the unauthorised access had been admitted and Mr McKinnon's legal team had indicated that he would also admit the damage; the US can evidence the damage; the US can thereby show a prima facie case; UFOs play no part in the litigation, and indeed Mr McKinnon's original case was that his political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds; Mr McKinnon had wrongly rejected a highly advantageous plea bargain; the disparities in respect of the UK/US extradition arrangements were not relevant in this case; the CPS had provided detailed reasons as to why they would not (and probably cannot) prosecute Mr McKinnon in the UK; and, perhaps most importantly of all, the US has provided detailed assurances as to how Mr McKinnon's condition of Asperger's Syndrome will accommodated should he be extradited and has also stated that there is no principled opposition to Mr McKinnon applying to serve his sentence in the UK.
(For sources to all of these, follow the references at my summary blogpost.)
In short, there is a case to answer at the trial which would follow extradition.
But in my summary blogpost I urged that - even though a source-based approach showed it would be neither unjust nor illegal to extradite Mr McKinnon to answer the case against him - mercy should still be applied.
After all, eight years is an unacceptably long time for an extradition, especially as the facts were admitted and documented back in spring and summer 2002.
This plea for mercy shocked some of those who had followed my series; it was almost as if I had let them down.
But it was my liberal inclination asserting itself having dismantled the central elements of the "Free Gary" campaign. I do not want to see Mr McKinnon extradited and I feel desperately sympathetic for his predicament.
(For me, skepticism (a source-based approach combined with open, detailed, and critical reasoning) is what one employs to get to the facts, and liberalism is what one applies to the facts once you have got them. In this way one can try and avoid the usual progressive problem of sentimental wishful thinking.)
And what happened after my plea for mercy was perhaps instructive.
The Free Gary campaigners continued to troll and be confrontational (and indeed repeatedly abuse me on Twitter). They did not seem to care that I had come down on "their side". They seemed more concerned about defending their narrative as being "true".
On the other hand, others who followed my blog, especially the estimable Dr Brian Blood, sought to grasp my point about mercy and apply critical thinking to it.
And I can now say I have changed my mind.
The application of mercy in this case should go to sentencing not the extradition decision. That is the correct point for such mitigation to be considered.
This must be right, and I stand corrected.
I still want Mr McKinnon to be free of this extradition and this case. But I am now convinced that whatever my personal feelings about his predicament, and my general loathing for custodial sentences (unless they are to protect the public), my plea for mercy was procedurally premature.
I wish I could at a stroke release Mr McKinnon both from his situation and from the misconceived legal strategy he has followed. I rather hope the Home Secretary can find some plausible pretext.
But that is not enough to objectively set aside an extradition process which, on proper examination, has actually been neither unjust nor illegal.
I do so wish it was otherwise; but I am afraid - on reflection - it is not.
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Wednesday, 16 June 2010
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27 comments:
We all have Damascene moments... wondered how long it would take. Enjoyed your series though.
Difficult one. Maybe Labour didn't get it wrong after all?
Tom Harris MP wrote about this some time ago... assume you saw his posts?
You have sufficiently covered your back for critics who say you're heartless. You've shown that the argument which says the US didn't care a hoot about GM's Aspergers was short sighted, as well as the one that made GM out to be a simple UFO enthusiast who couldn't have understood his actions.
Your dislike of detaining people who are neither a danger to us or themselves is noble, but the truth of the matter is there is nothing to be suspicious of about the law on this - as hard as that is to swallow for some.
I am glad you have changed your mind, although of course that's easy for me to say because your new stance is now the same as mine, although I think you have more sympathy for Gary than I do (I'm more of the "if you're scared of travelling/prison/punishment then don't hack into the USA govt's computers" type). But it is perfectly legal and reasonable to extradite him, and if any mercy is applied then it should be at sentencing stage, should he be found guilty.
I am very sorry you experienced abuse and irrationality on Twitter. I hope that wasn't instrumental in your leaving - I realise you have many other projects as well as a career which take up your time so I'm guessing it is those which have resulted in your Twitter decision, but you should know that you have given much food for thought, and educated many people, as a result of these posts, to such an extent that I don't doubt any further mainstream media coverage will take a different direction. If it doesn't, then there is an excellent factual resource here for complaints to the editors.
It's also sad to say that I'm not surprised at some of the vitriol you've received from some supporters - where there is crossover into the 9/11 conspiracy theory online community there is always abusive behaviour. I have witnessed it myself often. It's a shame that protest driven by compassion is marred by a few individuals who have no manners, but such is internet life.
I do wish the Free Gary supporters the best of luck (those of them not involved in the 9/11 truther movement, anyway) but I don't expect the campaign to succeed if it hasn't done thus far and whether you intended it or not, I think your excellent summaries of the actual documentation rather than reliance on editorial, emotional pleading and rhetoric, may well be a tool in its ultimate failure, if only because it's now possible to get "both sides" of the story properly.
I can appreciate your careful analysis of the legal history and facts of the case, and recognize that what one reads in the press is not always consistent with the facts. I can also appreciate your initial conclusions with respect to the extradition of Mr McKinnon. Where I differ is with the point at which you reached a change of mind with respect to the extradition as it relates to the issue of mercy.
Can you honestly say that you have confidence that the US judicial system will show mercy, both in its pre-trial treatment of Mr McKinnon and in any sentencing it may impose, should he be found guilty of any or all of the alleged offences? And can you honestly say that the judgment will be fairly considered and arrived at, by a U.S. jury where capital punishment is still the law of the land? Do you think that Mr McKinnon will survive a custodial sentence in the US where he is so far away from his family members, given his condition? And do you believe the US government assertions that Mr McKinnon would be permitted to serve any sentence in the UK?
The very issue of extradition cannot, in my view, be fairly separated from any post-extradition show of mercy that might or might not take place.
Well, as I have mentioned previously - the day that the Google board and the USA based and UK based Google management are handcuffed in the High Court in London facing computer misuse and terrorism charges due to their corporately organised hacking of perhaps millions of UK located private, business and probably military computer systems is the day I will be sympathetic to the extradition of Gary McKinnon on charges of hacking into fewer than 100 inadequately secured and public facing systems.
This discrepancy is simply ludicrous.
One law for the Barry Georges and one law for the fleet of foot. Jail for one and commercial success for the others.
I respect a lot of what you have pulled together Jack Of Kent. You pulled together a lot more of a very distorted puzzle for me and for that I was grateful. BUT (there had to be one) did I miss the bit where you pointed out the grand failure of the US security system in place at the time that let a UK citizen with a UK IP address wander around for two years AND install non standard software on US military machines - many machines - and leave many messages - some angry messages, some ''obviously stupid' ones and, eventually, after one of the biggest world shaking terrorist acts of all time, to lose his temper and try and let someone know how lax the security of the US was... how come you, as a 'Top' super sleuthing legal journo blogger can only stick to the paperwork - the legal and the 'well meaning' but 'wrong' .. how comes you didn't mention which company was supposed to be in charge of the security at the time - which person was supposed to be in charge of the said company who did such a shit job that allowed Gary McKinnon, good guy, but stoner, boozer, head banger/ Asperger's man,to be where he got to on too many occasions. You could have pointed the finger at the real dishonest criminals who took US tax payers money and gave them a shit system in return - how much money? What should the system have been capable of withstanding? - As far as I can see ALL the US paperwork is after the act paperwork, all the UK paperwork is a fight against that bag full of smoke and mirrors. Who let him do what he did? He is not regarded as the best computer expert in the world let alone in ... wherever. Yes, I am a man who has let anger cloud my judgement regarding this 'cause' and I have said some dumb things regarding this case - things that might still come back to bite me.. But, who let him in? who failed the USA? WHO? Find the answer to that and you might find out why the Gary McKinnon case is still dragging on. Good luck... Oh and now it seems that our UK govt was making more of the supposed evidence than was real in order to foist the costs of the case onto the US people... so much more to come - 5.5 blogs do not a full and honest summary make
I look forward to hearing who in your next blog - cheers Jack - Please look into this
Are you sure?
Are you sure you can take a properly informed view without reference to the transcripts, the evidence, or the reports from those present at the hearings? Really?
I must say I am very surprised.
I have referred you several times to the documents in question, which should not be hard for someone of your background to source.
Then again, perhaps I should not be so surprised. Your methodology from the start was not exactly unbiased. You appear to have selected out of your analysis the information which doesn't match your final view.
I also think you seriously misjudge those who oppose the extradition, and your repeated (and unsubstantiated) allegations of abuse do your reputation no credit either.
I wish you the best, also, but I shall be back in due course to let you have the link to the information you have missed out.
James
I'm not condoning whatever they did, but Google weren't hacking into computers.
Unencrypted WiFi routers are very rare nowadays and all Google would have got was a brief snapshot of any Internet traffic during the period the Google car was in range. The data they recorded would have relatively small.
I understand your change of view on this point and can appreciate the moral dilemma such a position causes.
In general, I think you have not addressed the real source of disagreement on this case however. Your posts have carefully examined the evidence and legal framework applicable and reached a conclusion as to what the law says should be - but are the laws right? That to me is the heart of the argument which you haven't really tackled.
Of course, the evidence base to consider such points would need to be very different, as would the approach to analysing it and would perhaps be better done by a sociologist/criminologist rather than a lawer (who's job after all is knowing the law and how to interpret it rather than defining new laws) - I over simplify I know...
I believe your assertion that the crimes accused are serious is correct in the current legal framework, but I think many who oppose extradition feel this is one area where the law may be being 'an ass'
My analogy, if a kid found an unsecured building site that made a great playground and they kept going back there to play despite knowing they really shouldn't, and if eventually they caused enough damage that the skyscraper being built fell and caused untold damage...who should be liaible for the eventual damage?
Yes, the child was at fault, but any risk assessment would have identified the likelihood of some kid being tempted and the same thing happening and so suitable security should have been expected.
I don't mean to equate Gary to a child. As an adult he has responsibility for his actions, but I couldn't think of a better analogy.
In this case, the relevant authorities had a responsibility to provide suitable security for their systems and once this lack had been identified following some damage being caused, they really needed to assume that EVERY system thus exposed could have been compromised by any one around the world, not just the systems identified as compromised by this individual. As a result, the remedial work to fix the mess caused by the identified intrusion is only a small part of the much larger work needed to implement the improved security retrospectively on every system. In fact, such work would be no more than that needed to ensure all systems have been secured.
So, how serious should the law consider the acts of the individual who was identified? Are they liable for all the remedial work needed? Currently the law seems to say they are it seems (IANAL so relying on my understanding of your analysis) but should this be the case?
Equally, the campaign argues that the law should take some account of a persons mental diagnosis in considering extradition beyond that you have outlined.
Personally, my concern rests on jurisdiction for virtual crimes as I can see circumstances where it would be "unjust" to find someone guilty of crimes in countries they have never visited or knowingly even acted virtually.
So, I think your posts have been rigourous in looking at what the law is, and except for briefly arguing that perhaps it should change when it comes to mercy, I don't you've addressed the questions of what it perhaps should be - hence the conflict of views?
JoK's interest in the McKinnon case appears, to me, to be based on wishing to understand why certain parts of the media and a number of the more ill-informed members of the FGM claque (some contributing to this blog) present a view of the case so at odds with how it appears from the published judgments and admitted facts - indeed, present it as a significant miscarriage of justice.
As a community, those of us who are seeking the 'truth' in this case have joined with JoK in his endeavor. Our approach has mirrored his - it has been both skeptical and rational.
Where inference served a purpose (as, for example, in suggesting a reasonable context for the 'let him fry' remark) it has been employed.
When unsupported assertions have been made, we have asked for the evidence; where provided, we have examined it, and, after a proper estimation of its value and where appropriate, incorporated it into our thinking.
Where our personal judgments might have been premature we have been humble enough to change our minds - and to avoid weasle words when doing so.
The law works, or rather it can be trusted, because all really are equal under it. Judgments made in previous cases, where they are not in error, form the bedrock of understanding that informs any later case of a similar kind.
For if we are to assert that 'ignorance of the law is no defence' then surely the law cannot be capricious, partial or contrary - nor the practice of it.
Thornton, on a first viewing, appears to establish new law. Some have complained that this is not the role of the judiciary. 'Parliament makes the law, judges uphold it'.
English law does not work like that - a point I am sure JoK would confirm. English law is built on cases not on statutes, and is the richer and maybe the more just for it.
I am sure many of us have shivered ever so slightly when yet another politician demands that tariffs be set to bind the hands of those who determine the sentences to be served by the guilty.
Are judges really so out of touch with the real world - any more than our current Prime Minister, the beneficiary of an education at Eton and Oxford.
Surely, it is because judges have to justify first to themselves what decision is appropriate, have to read earlier judgments where people of all classes have sought redress under the law, have to examine the evidence set out in these earlier judgments that display the hopes, expectations, foibles and faults of all sections of society, rather than just thumbing through a book of statutes, that, IMO, English law is one of the true wonders of human creation - and worthy of the careful study that we give it here.
It will always be the case that others will take a contrary view of the evidence - freedom of choice means freedom to be wrong!
Street myths and factoid are hard things to give up even when the facts shout a different story.
After all, for many, Elvis still lives and Martians really did abduct their sisters.
Elaine writes
"I have referred you several times to the documents in question, which should not be hard for someone of your background to source."
Elaine, if you're so familiar with the documents, why didn't you provide the links. But I guess that would constitute being helpful.
Elaine
"I shall be back in due course to let you have the link to the information you have missed out."
So you still haven't produced the links. Are they locked up in Fort Knox? Your aggressive failure to provide evidence simply beggars belief.
Firstly I would just like to echo Tracy's comments that I hope the abuse and irrational twitterings of others did not push you over the edge and cause you to leave Twitter.
I have really enjoyed this series on Gary McKinnon and was slightly shocked by your original conclusion since after reading your posts I had changed my opinion in favour of extradition.
I actually agree with your sentiments on custodial sentences but if a law is broken then the individual that broke that law has a case to answer for irrespective of how long that case has been brought to bear.
Unfortunately it would appear that wanting leniency for Gary but not believing he doesn't have a case to answer for at all is not enough for the Free Gary campaign. It is likely that this campaign is destined to failure, particularly if they continue to misrepresent the facts of the case. Ultimately we should have, for want of a better word, faith that the truth will out and justice will be served. You posts have gone some way to address the first of these issues.
I hope that justice is lenient, I don't believe that Gary is a threat to others or malicious in his motivations.
Thanks again for your excellent posts.
Nick's analogy is apt. If you leave something unsecured that should be secured, and people wander into it, some blame for the consequences must attach to you.
The intruder, however, must also take at least a share of the blame for any damage. It's clear from the sources to which Allen has drawn our attention that Gary did cause damage and this is not denied. The question is how significant the damage really was and to what extent it was caused deliberately by Gary or by his negligence.
It does seem reasonable to argue that this should be settled in the legally appropriate forum, in this case the US court relevant to the jurisdiction in which the damage was caused.
But we must always take into account the damage caused to the accused by the judicial process itself. This is something our judicial system too often seems willing to overlook: for example, when teenagers with no previous criminal record are held on remand for long periods in unpleasant and dangerous environments while awaiting trial.
It does our system no more credit to feed Gary into the sausage machine of US justice without first assessing the balance of public interest and personal welfare in his case. Justice is supposed to be blind to the status of the accused, not to their suffering.
Whatever we think of the Asperger's diagnosis, it seems clear that Gary, a socially awkward person with a narrow experience of life and no history of behaviour injurious to others, has been traumatised by the prospect of being rendered for trial to another country with a judicial system even more dauntingly unfamiliar than our own, and would be further traumatised by a trial and by the uncertainty of whether he would be allowed to return to the UK. Despite the plea bargain supposedly offered, along with unethical threats, by US prosecutors - who it seems were not prepared to put any deal in writing - the sentences available to the court would terrify any defendant. Despite the reassurances given on the handling of mental health issues in the prison system, the abuse of prisoners in US jails, as a result both of inhumane conditions and of inadequate protection from attack and exploitation by other inmates, is well documented.
Where is the necessity that overrides these pressing concerns? Given that the techniques used by Gary in his "hacking" operation were (as Allen's sources again clarify) laughably unsophisticated; that the systems involved, although owned by the military, were no more relevant to national security than any corporate network; that no lasting harm was done and nobody was injured as a result; and that his foolish actions alerted the authorities to a risk of more malicious and destructive intrusions which had been left open by completely inadequate security measures; it is surprising that the US has chosen to press charges at all. There is no obvious public interest in doing so. Nobody seriously suggests Gary is likely to repeat his actions, and in any case his meagre skills would fall ludicrously short against even trivial security measures.
Still less obvious is the UK public interest. It may be felt, of course, that it serves the country's political interests to apply the letter of the extradition treaty and "let them have this one". Again, this is hardly a laudable motivation.
We are a long way from being able to put our hands on our hearts and say piously that Gary must be extradited simply because to do so is the only proper way to uphold the law.
On balance, then, it seems to me that the decision to extradite is wrong; that bringing whatever charges are practical against Gary in a British court may be legally justifiable, but for the prosecution to seek a custodial sentence would be disproportionate and an abuse of powers created to deal with a different order of computer misuse; and that Allen was right the first time.
I believe adambanksdotcom analysis is flawed.
If I leave my car, unlocked, outside my house and it is stolen, the taker of the car can be prosecuted and found guilty of theft.
But, one might argue, the insurance company will not pay out because I left my car unlocked.
To see the latter as having a bearing on the former is to confuse two different things.
Theft is theft - whether the car is locked or unlocked, that remains the case.
The insurance company is relying on a duty of care that exists as part of my contract with them. If I secure my car in a way acceptable to them, they will pay out. If not, they argue they should not.
I believe this analogy serves us well when considering the McKinnon case.
Assuming that some other consideration does not intervene, say McKinnon's mental capacity, his 'alleged' and 'admitted' breaking into a private computer system and deleting log files, etc. is clearly an offence.
Where software has been installed, I can well believe that searching it out and removing it is a time-consuming and costly affair. I have no problem with the US specifying damages in this case, nor do the figures claimed seem unreasonable.
These 'statements of fact' are what the case is about - the efficiency of the security used to 'protect' the computers is, in my opinion, a red herring - just as, in my original example, whether my car is locked or unlocked is irrelevent in determining whether the stealing of my car is theft.
The conditions inside US prisons is not so very different from those inside our own. Some are good, some very much less so. Unless one is taking the position that all custodial sentences are morally wrong then this also is a 'red herring'.
The US authorities have laid out how they intend handling McKinnon's custody to the British courts. We have reviewed them here and have not found them objectionable.
It is entirely natural that someone facing prosecution and the prospect of incarceration should feel uneasy about the whole matter.
We are, fortunately, a long way from swallowing the socio-legal nonsense that implies that when crime is committed it is society that is at fault, and that individuals like McKinnon are society's victims are therefore innocent.
I only know what I've read in the press, and I do know that the press can be extraordinarily biased in this kind of case. But I have seen no suggestion of any facts to justify the way that McKinnon's life and career have been destroyed. To me his actions seem similar to someone who ignores signs on a military base saying "Do not enter", because he's a keen birdwatcher and has heard an interesting bird call. That deserves a minor reprimand and nothing more. The "damage" he caused is clearly invented (the costs quoted are of investigating what happened and fitting the locks that should have been on the doors in the first place, not of actual damage caused), and many of the statements made by politicians are rubbish (he didn't "delete operating systems", he only deleted a few log files). His offence is a minor trespass. Give him a ticking off, then employ him as a security consultant.
"Elaine, if you're so familiar with the documents, why didn't you provide the links."
Exactly.
(waits)
If we are to believe that Michael Kay is relying only on what he has read in the press (see: http://friendfeed.com/pro-us/7e1e45bd/michael-kay-how-mckinnon-was-stitched-up)
then I would wish to draw his attention to matters already set out here:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/2021.html
from paragraph 5: under point 13:
[allegations made by the US authorities]:
"Having gained access to these computers the appellant deleted data from them including critical operating system files from nine computers, the deletion of which shut down the entire US Army's Military District of Washington network of over 2000 computers for 24 hours, significantly disrupting Governmental functions; 2,455 user accounts on a US Army computer that controlled access to an Army computer network, causing these computers to reboot and become inoperable; and logs from computers at US Naval Weapons Station Earle, one of which was used for monitoring the identity, location, physical condition, staffing and battle readiness of Navy ships, deletion of these files rendering the Base's entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter leaving the network vulnerable to other intruders."
from paragraph 25:
[admission made by McKinnon]
"On 23 December 2008 ... [a] letter enclosed a witness statement of the Claimant, and stated that he accepted that his computer hacking in 2001-2002 constituted offences under section 2 of the Computer Misuse Act 1990"
from paragraph 50:
[further admission made by McKinnon]
The witness statement, dated 14 July 2009, contains admissions that the Claimant knew that his computer activities would have impaired the US computers he accessed, and that that would cause the temporary shutdown of those computers; he states that he did not intend to delete any files belonging to US computers. For present purposes, I assume that these admissions of knowledge of the consequences of his actions do amount to an admission of the specific intent required by section 3 of the 1990 Act. "
I would suggest that the press is not to be relied on - which is after all one reason why JoK has been examining this particular case.
I came across an interesting quote which seems very relevant to this 'blog' it was on a site called garystays.co.uk it is by Mahatma Gandhi it reads:
"first they ignore you... then they laugh at you... then they fight you... then you win."
Jack, like his argument, is so very very transparent.
Since Don Trustem has thought fit to bring Gandhi into this matter, he might like to reflect on the philosophical basis upon which he led his life and counselled his supporters.
Like my own daughter-in-law Jasmine, Gandhi was a brought up a Jain amongst whom the principles of vegetarianism, truthfulness and non-violence are fundamental.
Gandhi studied law in London and , when he attempted to practise law in India and later in South Africa, came up against the injustices that bore down upon those from non-white racial groups.
The Wikipedia article about Gandhi
ref: http://en.wikipedia.org/wiki/Mohandas_Karamchand_Gandhi
makes reference to his methodology of non-violence:
"In 1906, the Transvaal government promulgated a new Act compelling registration of the colony's Indian population. At a mass protest meeting held in Johannesburg on 11 September that year, Gandhi adopted his still evolving methodology of satyagraha (devotion to the truth), or non-violent protest, for the first time, calling on his fellow Indians to defy the new law and suffer the punishments for doing so, rather than resist through violent means."
In other words, Gandhi accepted that opposing the law meant also accepting any punishment that might follow from that opposition.
I wonder whether, as a lawyer, he could morally have approached this problem in any other way.
"I wonder whether, as a lawyer, he could morally have approached this problem in any other way."
There is the example of Mandela.
The problem of course, even despite the fact that the media have dramatically underplayed the seriousness of the allegations, is that he broke the law in the UK. This is the fundamental point of it all. He broke the law in the UK. Has he ever even been to the US? (I assume not)
If someone enters into a homosexual relationship should they be extradited if Sudan asks so that they can be prosecuted? Of course not.
It matters where the act is committed, not who could claim to be 'harmed' by it. I'm sure there are fundamentalists in Sudan who would claim to be harmed by homosexual relationships, but shouldn't we hold to the general rule that it matters where people commit acts?
Jon Ronson's 6th July 2005 Guardian article and the 'facts'.
McKinnon approached Ronson, possibly prompted by Bell Yard.
Qquotations are in the order in which they appear in the article:
1. "It was never really politically motivated"
ref: http://www.bailii.org/ew/cases/EWHC/Admin/2007/762.html
#10: "... it was submitted that the extradition was barred by reason of extraneous considerations in that the request was made for the purpose of prosecuting him on account of his political opinions ... [this submission was] rejected upon an assessment of the evidence."
2. "He [McKinnon] strenuously denies the justice department's charge that he caused the "US military district of Washington" to become "inoperable"."
ref: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2021.html
#50: "witness statement, dated 14 July 2009, contains admissions that the Claimant [McKinnon] knew that his computer activities would have impaired the US computers he accessed, and that that would cause the temporary shutdown of those computers ..."
3. "Gary was caught in November 2002"
ref: http://www.bailii.org/ew/cases/EWHC/Admin/2007/762.html
#7: "On 19 March 2002 ... his computers were seized"
#8: "... McKinnon was interviewed under caution in London on 19 March 2002 and ... on 8 August 2002"
4. "'Hello, my name's Jeff Donson from the National High Tech Crime Unit. Gary McKinnon, you're under arrest!' ...""
'Jeff Donson' is Geoff Donson
5. "... the Americans offered him a deal, via his British solicitor. "They said, 'If you incur the cost of the whole extradition process, be a good boy, come over here, we'll give you three or four years, rather than the whole sentence.' I said, 'OK, give me that in writing.' They said, 'Oh no, we can't do that.' So they were offering a secret trial, no right of appeal on the outcome, no comment to the newspapers, and nothing in writing. My solicitor, doing her job, advised me to take it ...'"
Comment: US plea bargains, which include an admission of guilt, are subject to review in a US court. Where the sentence given lay within the published tariff McKinnon would have no right of appeal. There is no bar to speaking to newspapers, nor a failure to put negotiating positions in writing. That any negotiations would not be part of the record was only applicable were McKinnon not surrender voluntarily to the US authorities.
6. "What he is not ... someone who deserves extradition and 70 years in an American jail."
"He thought he was going to get a year, max. Now they're talking about 70 years."
ref: http://www.justice.gov/criminal/cybercrime/cccases.html
ref: http://www.bailii.org/ew/cases/EWHC/Admin/2007/762.html
Under the plea bargain his sentence would have been 37 – 46 months, most of it in a UK facility and where "he would be subject to UK remission rules ..."
Mike, the Mandela story is also very interesting.
I suggest you read http://en.wikipedia.org/wiki/Nelson_Mandela from which I selectively quote below:
"Mahatma Gandhi influenced Mandela's approach, and subsequently the methods of succeeding generations of South African anti-apartheid activists. Mandela even took part in the 29–30 January 2007 conference in New Delhi marking the 100th anniversary of Gandhi's introduction of satyagraha (non-violent resistance) in South Africa."
"Fellow ANC member Wolfie Kadesh explains the bombing campaign led by Mandela: "[we were going] to blast the symbolic places of apartheid, like pass offices, native magistrates courts, and things like that ... post offices and ... the government offices. But we were to do it in such a way that nobody would be hurt, nobody would get killed.""
"Mandela later admitted that the ANC, in its struggle against apartheid, also violated human rights, sharply criticising those in his own party who attempted to remove statements supporting this fact from the reports of the Truth and Reconciliation Commission."
R-15 should refer to http://jackofkent.blogspot.com/2010/06/skeptic-looks-at-mckinnon-case-part-two.html where this matter has already been discussed. In essence, the courts ruled that it would be improper to force the UK authorities to prosecute McKinnon on lesser, even if admitted, charges in the UK when there was prima facie evidence that he had committed more serious offences (related to file deletions on US machines and a claim for damages) that could only be tried in the US.
Dr Blood,
I'm aware of that, still Mandela did resort to violence, which Gandhi didn't. Don't assume, though, that I condemn Mandela for it. Mandela and Gandhi faced different situations and I think each chose rightly for his situation.
I think in his speech in court he made a sound case for the resort to violence against the apartheid regime and his conduct of the violence readily distinguishes his, and the ANC's approach from that of so many other movements that embrace terrorism as a technique. That restraint on the part of the anti-apartheid movement played, IMO, a criticial role in the eventual ending of apartheid by agreement.
R-15 said “If someone enters into a homosexual relationship should they be extradited if Sudan asks so that they can be prosecuted? Of course not.”
Indeed, however, your example fails the relevance test on two grounds. First, it assumes that the homosexual activities occurred outside Sudan, so there is no actual connection between the _actions_ of the homosexual couple and Sudan. You appear there to be ignoring the fact McKinnon intentionally interfered with computers he knew were located in the USA, thus establishing as clear a nexus with the USA as if he’d shot someone located inside the USA from across it’s border with Mexico or Canada. The second failure is that even if the homosexual couple had engaged in sex in Sudan and returned to the UK establishing the nexus, the extradition attempt (assuming the UK and Sudan have an extradition treaty) would fail on general human rights grounds.
“shouldn't we hold to the general rule that it matters where people commit acts?”
Indeed, and in an electronic world, one can commit an act in multiple places at the same time.
For those interested in other analyses of the McKinnon case, might I recommend:
'U.K. Hacker Gary McKinnon Plays the Asperger’s Card' by Kevin Poulsen
ref: http://www.wired.com/threatlevel/2008/08/uk-hacker-gary/
'Gary McKinnon, PR, Spin and The Rule of Law' by Andy Newman
ref: http://www.socialistunity.com/?p=4930
'The Case for Gary McKinnon's Extradition' by Tom Harris
ref: http://www.tomharris.org.uk/2009/11/27/the-case-for-gary-mckinnons-extradition/
and for a rather less reverent take on the story:
'Autistic Hacker - Stoned, Again'
http://the-newrepublic.blogspot.com/2010/01/autistic-hacker-stoned-again.html
which includes a link to what New Republic describes as a 'press release calling on people to support ... Gary McKinnon.'
http://www.londontv.net/press-release.html
Bearing in mind the problems, described above, with Jon Ronson's 2005 Guardian article, all these links come with the usual health warning:
read carefully, check thoroughly, think rationally!
I left a comment to an earlier port where I pointed out that it is likely that the actions of McKinnon's "supporters" have contributed significantly to his ill-judged strategy to date - the whole affair could have been over years ago if he could just have said "fair cop mate, I'll take the plea bargain".
Instead, it seems that the hero/martyr role encouraged by this "support" has meant that he now is suffering a whole lot more than he otherwise would have, and indeed deserves.
So I noted the Gandhi reference above with some interest (along with the utterly irrelevant "he isn't as bad as Google", "it was the victim's fault" etc).
It must be great having this martyr for your cause, but maybe you might want to think about what it has cost the martyr.
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