Britain resists extraditing hacker Gary McKinnon
globalpost.com
globalpost.com
Much of the resistance like many things is not borne out of rational cold hearted logic, such as the kind that permeates through tptacek's comments. It would be great if we had directly comparable systems where we could guarantee that a US citizen would not be sent to Cuba for hacking if we (the UK) wanted to extradite them and vice versa, but the fact is we don't. The guys doing the extraditing are not the same guys handing down sentences, therefore they're not necessarily going to be able to guarantee a deal.
The bottom line is that Gary did some very stupid things, has admitted to them and deserves to serve some time for those things. I don't think anyone can dispute this, not even him or his mum, as lovely as she is (she's just trying to help her son, what mother wouldn't?). The question is where it gets served, for how long and under what sentencing guidelines.
In the UK this is fairly clear. Gary would be sentenced under the Computer Misuse Act, plead guilty and face close to the maximum amount of time permitted under UK law (which would probably see him free tomorrow).
In the US this is less clear. Is this an act of vandalism? Terrorism? Espionage? Is he ideologically motivated? Is he the same as Al-Qaeda? All of these uncertainties cause problems. The inability of the Americans to say, "If he comes here, he will be given X" is the biggest stumbling point. I'm not trying to say that tptacek is right or wrong, I'm not trying to say that the extradition is right or wrong, I'm simply highlighting the common aspects of the sentiment towards his extradition. This is a man who is clinically depressed and is a suicide risk even here, let alone when faced with the uncertainty of gitmo (unlikely but possible) or a long term espionage sentence with no parole.
Ultimately I think he should serve time, the question is under which juristiction and which law. If the US can lay it out and say what they're going to go for I think it would go a long way towards cooperation.
It's not the case that the UK simply can't say what McKinnon would be charged with. He's under extradition demand after being indicted for specific crimes in a US civilian court, just like the vast commanding majority of everyone else the US prosecutes.
This "is he the same as Al Qaeda" thing is simply a smokescreen. He was indicted for a specific crime. Here's the indictment:
http://news.findlaw.com/cnn/docs/cyberlaw/usmck1102njind.htm...
Can you find the references to "terrorism" or "espionage" in that indictment?
Or is the case being made here that we're demanding extradition under false pretenses, and that we're simply going to bait-and-switch the UK government and lock the guy up in a military brig? Because, fine, that's a viable argument for a message board, but I think making it requires surrendering some credibility: you can't cite that specific thing ever having happened before, and if that could be true, so could anything else about the US.
Thanks for posting the indictment. That's actually exactly the sort of info that needs to be posted here for people to understand what's really happening. It's easy to get it wrong. Just look for the indictment of Moazzam Begg. There isn't one. It makes it really easy to paint a story that the Americans do not respect the rule of law when you quote that case. Bear in mind that McKinnon was around the same time. It's a case of fear. Whether it's deserved fear or not is irrelevant, the fact is that those wanting McKinnon to stay in the UK can capitalise on it.
I'm reminded of the Louise Woodward case. This was a case where someone had been accused of doing something horrific but was British and as such portrayed differently in the British media compared to the US media. IN the eyes of the US media she was a child murderer. In the eyes of the UK media she had just accidentally committed acts that resulted in Matthew Eppens death. The fact is that her actions may or may not have led to his death, but when the death of a child is involved no-one stands up and says 'maybe we should all take a step back and think rationally about this'. Likewise with this case, it's not going to happen, there are too many vested interests involved.
In this case you have a clear-cut instance of someone who has all but confessed to the crime --- a crime recognized by both jurisdictions --- and an extradition demand made under the aegis of an actual criminal indictment in a US civilian court; an extradition demand that would probably have passed muster even under the egregiously unfair terms of the 1970's extradition treaty the UK held with us.
The arguments being made against it basically amount to taking every bit of anecdotal evidence about the unfairness of the US criminal justice system, in the absence of any countervailing evidence about the unfairness of the UK criminal justice system, and then attempting to apply it to this case.
This case, mind you, that will almost certainly end in a guy serving 1-3 years in minimum security, as one of the most closely watched inmates of the US prison system. Again: it's not like people haven't been accused and convicted of breaking into our fabulously insecure DoD networks in the past.
It's completely clear cut - the guy broke into systems that no normal human being would go at. The level of security is irrelevant - if you commence a military act, surely a military response is appropriate, no?
Your points are completely valid but you're missing the view that is brought forward, that he's one of ours, he's not that bad a guy, and doesn't deserve the same as people in gitmo.
I don't agree with the view and I think that all things being equal he should serve a small amount of time in the US, but thats not going to happen. Either he's going to serve a large amount of time in the US (from the perspective of the Brits) or he's not going there.
It's especially interesting for me because this happened before with some inside traders at natwest. It'll be interesting to see if this happens again.
The UK perception seems to be based on a lack of assurances that he won't end up in an orange jumpsuit, as fetching as he may look in one.
The US is unable to provide said assurances because the people looking to extradite him are not in a position to make that type of a deal (as far as I know, if I'm wrong please say so).
Bear in mind that at the time he committed said acts the US would have generally considered it an act of hacking, whereas now it could be considered an act of terrorism or even an act by an enemy non-combatant. The grey area seems to be the thing that's causing the block. If the US said, "He'll serve 5 years in a minimum security jail for hacking" then I'm sure the resistance would be over.
Bit unclear on where the "bullying" is occurring. The UK signed a treaty with the US that requires them to extradite McKinnon. The idea that public outcry in the UK --- a venue where advocacy of the US's counterclaims are obviously disadvantaged, despite appearing to be officially/formally/factually undisputed --- could preempt the UK's obligations? It seems like the "bullying" is in rather the other direction.
If the US penal system was so inhumane as to make it impossible for any high-functioning people with mental impairments to be housed there, why have an extradition treaty at all?
One expects the same argument to cut the other direction as more countries try to indict Bush-era officials, like Nigeria? is with Cheney.
Much of the McKinnon trial took place during the Bush years. British people were deeply uneasy that McKinnon wouldn't serve his sentence somewhere proportionate to the crime, but instead would be put in a maximum security prison and treated as a vicious terrorist in order to make a point.
First, the evidentiary standard for extradition under the new treaty isn't "on a whim". Prior to the treaty, the US was required to provide evidence sufficient to make an entire case for the offense, while the UK only had to provide probable cause --- in other words, it seems, the US had to make a criminal court case, and the UK only had to make a grand jury case. That's now changed; the US now needs to demonstrate "reasonable suspicion". Note that the UK apparently never had to provide "prima facie" evidence. The previous treaty was unfair, and more egregiously so, in exactly the opposite direction. It feels to me like that blunts your argument, like, a lot, but I'm listening.
(There's an interesting Chatham House writeup that documents a debate as to whether perfect reciprocity even matters; many treaties aren't reciprocal, and what does it matter to citizens of the UK whether citizens of the US are harder to extradite? The terms for UK citizens are either reasonable or they aren't, independent of parity.)
Second, extradition isn't the same thing as conviction. People are extradited to stand trial. Evidentiary standards are there so that another country can't harass your citizens with frivolous charges that create tremendous hardships (having to argue your innocense in a venue overseas). That's not what's happening here.
Third, it's hard to argue that the evidentiary standards really matter in this case, since McKinnon has already asserted more than enough details publicly for the US to make a case. The evidentiary standards of the new treaty aren't the point.
So I'm back to my original point, which is that the arguments in favor of not extraditing McKinnon seem to boil down to "the US legal system simply isn't trustworthy". That's what they're saying when they claim McKinnon is headed straight for Gitmo. It's a smokescreen. If you believe that about the US legal system, you shouldn't be extraditing anyone; we're running kangaroo courts, after all.
The UK government does have a burden of responsibility to its citizens, even ones who have committed crimes.
But again. The guy was sat in his bedroom in the UK throughout the assumed criminal activity. From where I'm standing this fails even the 'reasonable suspicion' test unless the State Department is alleging that McKinnon somehow made a trip to the US that isn't currently in evidence to perform his attacks.
If that's what you believe, that's fine, but there's no middle ground for us to come to, no understanding for us to build here. I'm willing to entertain the issue of hardship (hardship is something taken into consideration in US sentencing, after all), but the idea that crimes are unreal or have special jurisdiction simply because they occur on computer networks is hard for me to even consider.
Meanwhile, the rest of your argument boils down to, "I believe the UK criminal justice system is so much better than the US criminal justice system that we shouldn't extradite there". Uh, ok. For over 100 years your country has been a signatory to a treaty that disregards any such belief.
Who's to say this is even a factually viable argument? The rights of the accused in the US and the UK are different. In particular, criminal defendents in the US are protected by the 5th Amendment (courts in the UK can make negative determinations based on your refusal to testify against yourself) and the 4th Amendment (the US has a formal presumption that searches are unreasonable unless shown otherwise). Sentencing in the UK may be more lenient for computer crime offenders, but McKinnon may also be easier to convict there.
That would be my preference. Especially since the kangaroo courts may well be CIA flights to Afghanistan.
Like many Americans I'm deeply uncomfortable with the way we handled the issue of foreign "combatants" in AfPak and Iraq. I'm unhappy that Obama didn't simply close Gitmo and force us to suck up the pain and chaos that would have caused the rest of the country; we earned that pain fair and square. However, I understand these issues in context: to wit, (a) our war in Afghanistan, which while ineptly prosecuted was not prima facie illegitimate, put us in a position where neither military nor civilian law nor the resources we were prepared to field in theater were adequate to the task of handling the prisoners we generated, and (b) the widespread belief inside the government that specific named agents of known terrorist networks could be captured and turned to prevent future attacks.
Both are bad. Both are wrong. But they're specific circumstances, and utterly unlike the circumstance faced by McKinnon. It's not as if there's no judicial record for what happens to people who hack our unbelievably wildly insecure DOD networks. Hint: not black sites.
On the one hand you seem to argue that the US justice system is sane, but on the other hand the US operates a prison that's one of the worst ever in existence (I for one would pick a death penalty over being tortured in said prison), and the justice system has not done anything about it.
Why isn't the UK extraditing the operators of said prison for torturing UK citizens? (or are they?)
(The track record I was referring to was prior convictions and sentences for people whose computer crimes included intrusion in .mil systems.)
> one of the worst ever in existence
Do you disagree with this? As far as I know the grounds for putting people in there were not good, and the torture that occurred in there was brutal, in fact it was so brutal that many prisoners tried to commit suicide. Would you commit suicide if I cut off your legs and arms? Probably not. Apparently these prisoners thought that what was happening to them was worse than cutting off their legs and arms. Can you name a prison that is worse? Yeah, Auswitz, for example, but that's not a very high standard to compare to is it?
> (The track record I was referring to was prior convictions and sentences for people whose computer crimes included intrusion in .mil systems.)
Right. Which ones?
You still didn't back up your claims.
>> (The track record I was referring to was prior convictions and sentences for people whose computer crimes included intrusion in .mil systems.)
> Right. Which ones?
A more serious lawsuit is in Spain against 6 senior Bush officials for having authorized torture. See http://en.wikipedia.org/wiki/The_Bush_Six for that.
Wasn't the deal that the UK also gets a treaty in the other direction? Isn't what this is all about?
"Britain has also signed up to a controversial agreement with the United States government to fast-track suspects back to the US - even though some critics say the agreement is not adequately reciprocated."
What is true about the "new" treaty is that it made the evidentiary standards applied to the US more lenient than they were in the past.
What is not true is that the new treaty was designed to fast-track terror suspects to Gitmo without evidence (the treaty had been under negotiation prior to 9/11, and was changed because the previous treaty --- which was egregiously "unfair" to the US [to the extent that matters] --- had become unwieldy).
Because the US and UK have different criminal justice systems, the resulting treaty does not apply exactly the same terms to each country; doing so would apparently not make sense. It is less clear that there is overt unfairness in the resulting treaty to either side (again: the previous treaty was overtly unfair to the US).
I'm commenting about this because it's interesting and (I think) fun to talk about. I don't think it's particularly relevant to the McKinnon case.
Here's a very telling example:
According to Shaw’s report, prisons are failing to conduct investigations. His comments are made in an official report into the case of “Mark”, a 21-year-old man with Asperger’s syndrome, learning difficulties and a history of self-harm, who was remanded to Altcourse prison in Liverpool in 2007. It was recommended that Mark, whose name has been changed to protect his identity, be remanded into a psychiatric unit, but there were no places available.
Despite his vulnerable nature, he was placed on a wing with sex offenders and was allegedly raped by a cellmate who had attempted to assault him several weeks earlier. He attempted to throw himself off a prison landing shortly after the alleged incident and is now in a psychiatric unit.
(Note that McKinnon is destined for federal prison, not state prison. With very few exceptions, incidence of sexual misconduct in Federal prisons is much lower than in State prisons, which themselves house the majority of violent offenders).