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

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.

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