Gary McKinnon: Response to comments

This is a response to comments on Friday’s post about Gary McKinnon. Normally, I’d just write a comment, but in this case I decided to write a new post so that the links I’ve collated don’t get buried. I’d encourage everyone interested in the case to read Lord Justice Burnton’s ruling of 31 July 2009 (PDF). Included in the ruling are almost two pages (p16-17) from the US Department of Justice on how McKinnon’s mental health needs would be met.

Let’s take the comments in reverse order.

Christian, indeed, let’s look at the facts. The US Senate unanimously ratified the treaty in 2006. The US Embassy and the UK Foreign Office issued a joint statement on the 26 April 2007 noting that the treaty had been ratified by both countries. I’d also note that before this treaty came into force, it was the US that was at a disadvantage in terms of extradition.

See the Foreign Office Statement:

“The treaty, and the Extradition Act 2003, have also redressed the unequal balance that existed under the terms of the 1972 Treaty in which the UK required more from the US than they asked of the UK. The US was required to demonstrate a prima facie evidential case in support of extradition requests made to the UK, whereas the UK merely had to demonstrate ‘probable cause’.”

It is often said that the US uses the imbalance in the current treaty to prevent its citizens from facing British justice. But Richard LeBaron, Chargé d’Affaires, US Embassy, London, in a letter to the Guardian (my employer) wrote:

The US has not refused a single UK extradition request since the 2003 Extradition Act came into force.

Whilst there is justifiable anger at the way the US government behaved under Bush, some of the sense of inequality in US-UK relations is based on perceived sleights not supported by the facts. Christian is not alone in believing, incorrectly, that the US hasn’t ratified the treaty, but I’ve never heard it reported here that it was the US that actually suffered the imbalance before the treaty was ratified.

Ian suggested that the US wanted to ‘crucify’ McKinnon, but again this is a common misconception largely based on poor reporting about the likely, as opposed to the maximum, penalty McKinnon faces. The Law Lords noted, before the formal request for extradition, that McKinnon was offered a written plea agreement.

McKinnon said he was not offered guarantees and his mother says it wasn’t in writing. But the Law Lords said the plea agreement was a ‘lengthy document’, and Lord Brown even manages to to quote from this supposedly non-existent document.

In section 22 of the ruling:

The proposed “deal” was conditional upon the appellant entering into a form of Plea Agreement, a lengthy document including the provision in para 4…) The plea agreement said that in return for a guilty plea, he would be given a 3-4 year sentence based on US sentencing guidelines. Section 18 of the ruling states: “On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK.

He could have served 6-12 months in a US prison, followed by repatriation to the UK. Hardly
‘crucifiction’.

Colin: based on the Lord Burnton’s ruling, reasonable people can come to their own conclusion about the eagerness of the CPS and the DPP to prosecute McKinnon under UK jurisdiction. I’ve embedded the ruling in the previoius post and added the link to the PDF at the top of this post. It’s worth a read.

But I would draw attention to this quote from the Divisional Court ruling in section 45 of the July 2009 ruling:

The CPS did consider whether to launch a prosecution in the UK and for good reason decided against it. The defendant intentionally targeted computers in the US; his actions resulted in criminal damage being suffered there, as well as causing very considerable disruption to the workings of those computers resulting in interference and disruption to military activities in the US. It is not my task to determine which
state has the better right to prosecute, but for what it is worth my view is, unquestionably, if the defendant is to face prosecution, it should be in the US.

As for whether McKinnon was offered community service by CPS, that’s irrelevant because the case isn’t being tried here and the courts have consistently supported the CPS and the DPP in their decision that is shouldn’t be tried here.

McKinnon and his legal team have offered a written confession in the hopes of securing a prosecution in the UK, but Lord Burnton wrote:

Moreover, it would be manifestly unsatisfactory in the extreme for the Claimant to be prosecuted and sentenced on the basis of what he is prepared to admit in this country rather than on the basis of what could be proved in the USA.

This doesn’t entirely refute Colin’s view that the only reason the CPS didn’t prosecute the case in the UK was because of orders from ‘the very top’, but it does provide a perfectly reasonable and legal reason why they did not, reasons that have been supported by British courts.

For the cost estimates, in the interest of argument, let’s say that the disruption causd to the 97 computers listed in the indictment only met the threshhold of $5000 damage, that woud be $51 per computer. However, seeing as his disruption alleges to have shut down a network of 2000 computers in the Miliary District of Washington for 24 hours, the damage estimates sound not only plausible but on the low side.

As for the letter that Colin says exists retaining the right to try him under Standing Military Order Number One, why hasn’t the letter been introduced as evidence? It would be germaine to the defence’s case of the likelihood of disproportinate punishment in US jurisdiction. As it
stands now, without such evidence, UK courts have rejected the possibility of McKinnon ending up in Guantanamo as ‘fanciful’. Lord Burnton also rejects the idea that he might end up in a supermax, and it appears from the judgement that the defence has dropped this contention. The court rulings in this case have dealt with the facts presented and come to the same conclusion now several times.

As for whether New Jersey wants him to ‘fry’ or West Virginia has a death penalty, both contentions are irrelevant. The case is in federal, not state, jurisdiction. The US government, not the state of New Jersey or West Virginia filed the case. As a state, New Jersey doesn’t have a dog in this fight. Even if a sealed indictment does exist, which I doubt, it is irrelevant whether West Virginia has the death penalty because I know of no federal or state hacking law that carries the death penalty. If anyone can show me the West Viriginia state law that sentences convicted hackers to death, I’d be more than happy to amend the post.

As for the charge that I only recognise “facts that fit (my) conspiracy theories”, I recognise the facts presented before British courts in this case and decided to be relevant and accurate by British judges. In those rulings we have signed affidavits, letters from McKinnon’s lawyers, the US Department of Justice, the Crown Prosecution Service and expert witnesses on McKinnon’s mental health, just to name a few. The facts that Colin presents are his own. To believe his telling of the case, we have to put our faith in shadowy orders from ‘the very top’, sealed indictments and hearsay from closed-door meetings.

As for being a friend of Scott Stein, I’ve never met the man. Yes, I am American, and I’ve made no effort to hide that. As for being anti-British, the accusation is ridiculous. I worked for the BBC in Washington for seven years. I’ve lived in London going on five years. If I held any animosity towards the British, I wouldn’t have married a British woman. As an American who has great affection for both my native United States and my adopted home of Britain, I can only say that Americans and most people in the US government whom I have met share my affection for Britain and for the British people.

I’ve also been accused of a personal agenda in my blogging and reporting about the case. As a journalist, I see it as my duty to correct the record, whether in the course of my professional work or here on the blog I share with my wife.

My issue in this case isn’t with Britain but the British press. The core of what I have written in this post and previous posts is based on knowledge of the US legal system, backed by source documents, and more importantly, British court rulings. I’ve done this in my spare time and easily refuted much of what has been written. As I’ve said before, the British press has done an appalling job of reporting this story. It is my job to report facts and separate fact from fiction. It is not my job as a journalist to decide guilt or innocence. I leave that to the courts. I wish the British press would do the same.

4 thoughts on “Gary McKinnon: Response to comments

  1. You have to wonder about this Guy I am fighting for someone’s life, not to avoid justice, but for his right to be tried in the UK by his peers (the only place, incidentally, he has peers). Not really that much to ask. Not only someones life but an extremely vulnerable autistic person’s life or does he question this as well? The ‘writer’ claims to be standing up for ‘journalism’ but in the meantime he is desperate to destroy Gary McKinnon’s life and justify a totally one sided treaty biased in favour of his countrymen (as confirmed by Baroness Scotland the Attorney General ). All he quotes, to justify his ‘balanced journalism’ are the very people who have vested interests in hyping up the charges and minimising the punishment ie. Lebaron (from the US Embassy, he’s not biased at all is he? he claims to have denied no extradition requests yet has only approved 69%? ) Alan Johnson (say no more He has the legal right and power to intervene even though he denies this) Scott Stein (the prosecution again say no more ) and the Judges (who have their hands tied by semantics and are compelled to do the bidding of the above – eg. in the Lords, Lord Brown (who, incidentally, worked for years very closely with GCHQ and MI5/6) disingenuously equated McKinnon’s alleged US damage to the UK’s ‘interference with maritime and aviation laws’ in order to negate the gross imbalance of sentencing. 7 counts of 10 years compared to 2years … Lord Justice Burton’s comment on that was ‘and pigs might fly’ . It is common knowledge and confirmed by UK judges and David Milliband that the government is threatened with withdrawal of ‘Intellegence Support’ and who knows what else if they fly in the face of American interests.

    I had never heard of kevin Anderson until an American journalist wrote something in the Huffinton Post about the Gary McKinnon story and wanted an opposing view from the UK media, Kevin Anderson was the only single one he could find that was against Gary and he just happens to be an American working over here. But since this Kevin Anderson chap is supposedly responding to me, not just as a comment but as a repost (thereby effectively removing my comment) I thought readers of this blog, if any, would like to see the comment he is attempting to respond to. It follows:

    THESE ARE THE FACTS: in 2002 when first arrested the Hi-Tech Crime Unit stated “we have been monitoring your computer for 6 months and as there was no damage you looking at 6 months community service”.
    The Crown prosecution Service CPS were very keen to prosecute him here, as were the High Tech Crime Unit, But the CPS were told from ‘the very top’ to stand aside, denying him the right to a trial by his peers, to allow the americans to extradite (this was before any extradition or indictment) what is that but back door rendition. That is clearly an action of the UK government but one does suspect US politcal pressure.
    In order to even bring an extraditable charge there has to be $5000 worth of damage (no damage no extradition) so the indictment charges Gary McKinnon with causing $5000 damage on each machine!!! In the original Indictment they also include six universities as having $5000 damage on each of them but when the same universities publicly stated there was no damage those charges were dropped from the indictment.
    In the original hearing the judge stated if there is the slightest chance that he will tried militarily He is not going. At that time the judge was not aware that there is a letter given to the solicitor reserving the right to try him under military order number one. or that the legal attache to the American Embassy stated that ‘New Jersey wants to see him fry’ two years later, when it became legally significant, he denied saying it, but he had said it before two solicitors and a QC. In that first hearing to reassure us all that a military trial or the death penalty would not be applied, a diplomatic note was sent from the embassy the note was unsigned! (west virginia the state where Gary is to be extradited to, still executes people)
    Not only does the Indictment state there are seven charges each carrying a sentence of 10years max there is also a second indictment that is sealed and can be reopened with further charges and the possibility/probability of after trial in west virginia he would then have to face this other indictment in New Jersey the very place that wants to see him fry!
    As regards the extradition treaty yes it is totally the UK’s fault for signing such a onerous onesided treaty and you can’t blame America for taking full advantage of it extaditing as they are doing, a vulnerable elderly business man with cancer for a crime that was judged not a crime in the UK or the 79 year old hotelliers for tax or British airways exectutives for price fixing or the UK online gambling people because an american state gambling tax, not to mention a UFO nut with autism.
    The Uk has to provide cotestable evidence to extradite from america the US does not have to provide any evidence…. Simple!
    But I don’t know why I waste my breath as the author is clearly American, clearly a friend of Scott Stein and clearly anti British and only recognizes facts that fit his conspiracy theories.

  2. Colin,

    Your comment still stands on the original post, and people are more than welcome to read it in its entirety there or now here. I’m more than happy for you to re-post your comment here because people can see the full context of what I was responding to. I decided to write another post because of the length of my response.

    For most of the response to your comment, I’d just draw attention to the original post:

    http://strange.corante.com/2009/08/06/gary-mckinnon-the-truth-is-out-there-just-not-in-the-british-press

    As for Lord Brown having connections to the British intelligence services and therefore being biased in this case… Lord Brown is hardly alone in his findings. The case has now been argued in front of the Divisional Court and the Law Lords twice. Also, Lord Brown’s ruling was agreed to by other members of the House of Lords hearing the case, Lord Scott of Foscote, Lord Phillips of Worth Matravers and Baroness Hale of Richmond. Do all of them have a close association with the intelligence services?

    Most of the quotes in my post from last Friday are from British court rulings. If you take issue with the my posts, then your issues aren’t with me or the United States, they are with your own legal system. If you look at the rulings, this is between Gary McKinnon and the Crown Prosecution Service and the Home Secretary at the moment.

    Again, just for emphasis, McKinnon is indicted in a US federal _civilian_ not military court.

    If the threat of the US removing intelligence services is so well known, prove it. Show me who said it. Give me a person who said it. What is the context? I hear wild accusations in the British press and rabid corners of the US media all the time, and they usually are baseless and lack any context.

    As for the accusation that I’m ‘desperate to destroy Gary McKinnon’s life and justify a totally one sided treaty biased in favour of his countrymen’, I find the level that nationalism has been been injected into this case to be deeply troubling. I think that any reasonable person reading my posts would understand that I’m not engaged in a slavish defence of the US, nor am I engaged in an attack on Britain or McKinnon. I am merely calling to account the British press in their one-sided reporting of the case. As for being one-sided, I was more than generous in laying out McKinnon’s position in my post last August.

    http://strange.corante.com/2008/08/03/trust-journalists-audiences-and-countries

    I’m desperate merely for the facts found by British courts to be more widely reported in the British press. I invite British citizens to read the rulings by their courts instead of relying on the rather selective reporting in the press.

    If they were to read the rulings, they would find two pages in Lord Burnton’s ruling from a US Department of Justice outlining in great detail how the US justice system and the Bureau of Prison’s would take into account McKinnon’s Asperger’s Syndrome and also provide the appropriate mental health care. The ruling would demonstrate how the US legal system, just as the British legal system is capable of compassion. They would find that his mental health would be taken into account from the moment he would be taken into US custody throughout the process. His mental health was taken into account with the latest ruling, and there is ample evidence provided in written testimony in the ruling to the high level of care and compassion that McKinnon will face if he is extradited.

    Colin, at the end of the day, I’m not asking people to believe anything. I’m asking them to take a deeper look at the case, read the rulings and make up their own minds. Unlike many journalists and commentators, I don’t believe it’s my job to tell people what to believe but to present them with information. I respect people enough to come to their own conclusions.

  3. You are still so desperate for McKinnon packed off to a situation that would destroy him. You cannot avoid the nationalism in this because it is british rights that are being sublimated to american rights. I do not blame America for taking advantage I blame the UK Government for signing a treaty which denies Brits the right to a trial by ones peers or the right to see and to contest the evidence against them. Lord Brown was the one who made the judgement the others just tacitly agreed. I do have issue with my own legal system that is the whole point they finding for the status quo and not the underlying injustice of the case and I do have issue with your desperation to portray the imbalance and injustice as OK. and for your desperation to have the last word.

  4. Thank you for a considerably better evidenced and presented rebuttal of the McKinnon media circus than I’ve been able to manage on my blog, the New Republic.

    McKinnon’s recent diagnosis of Asperger’s Syndrome (AS) and the enthusiastic promotion of this as a final line of defence against extradition has Right Royally P—– Off large numbers of people, like myself who advocate on behalf of the Autistic community.

    Asperger’s Syndrome does not send one to another planet where right and wrong suddenly become abstract and inscrutable concepts.

    It is a slander on all of us to suggest that AS is responsible for McKinnons “search for the Truth about UFO’s and Free Energy Sources”.

    Perhaps if you write a follow up to this piece you could examine these issues a little more closely?

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