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.

I usually steer well clear of writing about anything political here on Strange Attractor, but last August I made an exception because I was unsettled by the one-sided coverage of the case of British hacker Gary McKinnon.

I flagged up the post, with reservations, on Twitter last weekend and then, through a friend, I found out that McKinnon’s mother Janis Sharp had mentioned me on Twitter. She went on to call me a lazy journalist and accused me of “launching a smear campaign” for my own agenda. I’ve got a pretty thick skin, but when someone questions my professional standards, even if only with regard to my own blog, I feel the need to respond. Two, now three, blog posts and a few comments in response to attacks by Sharp on Twitter hardly constitute a smear campaign. I simply retain the right to look at the facts on my own and come to an independent conclusion.

I stand by my post. I did make one error, which I have corrected, concerning whether the extradition request was made after the Extradition Act of 2003 came into force. Much of the rest of the post relies on a British High Court ruling, which is available on the Parliament’s website.

My issue is not with Sharp or McKinnon. My issue is with my profession. Apart from some excellent coverage in the UK tech press, much of the coverage in the British mainstream press is deeply flawed. It is one-sided, riddled with errors, sensationalist and filled with the unsophisticated, unthinking anti-Americanism that is pervasive in British media. I expect this from the British tabloid press but, in this case, the coverage in the so-called quality press is almost indistinguishable.

The extradition treaty and the US Constitution

As I said in my original post, I understand the upset about the Extradition Act of 2003. It is unequal, although the inequality of the treaty is much more nuanced than is generally reported here. Channel 4 has an excellent analysis. It is one of the few rational, level-headed discussions about the treaty that I’ve found.

But while opposition MPs claim that following September 11 the UK government granted the US special extradition privileges to help bring terrorists to justice, Julian Knowles QC says that the imbalance is rather due to the specifics of the US constitution.

“They can’t reciprocate due to their Constitution,” Knowles told FactCheck.

The Fourth Amendment, part of the first 10 amendments that we call the Bill of Rights states that probable cause needs to be established. The Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable cause is “information sufficient to warrant a prudent person’s belief that the wanted individual had committed a crime”. In all honesty, probable cause is a pretty low standard of proof. A 1983 US Supreme Court ruling Illinois v. Gates “lowered the threshold of probable cause by ruling that a ‘substantial chance’ or ‘fair probability’ of criminal activity could establish probable cause”.

The US, Europe and members of the Commonwealth need only a warrant for a person’s arrest. And Channel 4’s fact checkers rendered this verdict:

Opposition parties are right to say that there is an imbalance in extradition proceedings between the UK and the US in favour of the US. However, the reasons behind the imbalance are not due to the granting of special privileges for the US, as is claimed

It’s also relevant to note that the standard of proof that the US requires the UK to meet, probable cause, is also the standard of proof that was required to secure an indictment against McKinnon. The US is holding itself to the same burden of proof that it asks for US citizens to be extradited. There is some parity here, even if the treaty leaves an “imperfect reciprocity” between the US and UK.

It’s also worth noting that in the US the American Civil Liberties Union opposed the treaty. They said that it threatened due process and “seriously erodes the judicial review for individuals sought by the United Kingdom”. It sounds very familiar to criticisms here, but it also contradicts the impression that the US has retained excessive latitude to reject extradition requests from the UK.

Federal Sentencing Guidelines and McKinnon’s probable sentence

One of the issues that has the British media in a lather is that McKinnon would face disproportionate justice in the US. The indictment states that McKinnon is charged with “seven counts of computer fraud and related activity. McKinnon faces on each count a maximum sentence of 10 years of imprisonment and a $250,000 fine”. It goes on to say:

The indictment alleges that Gary McKinnon scanned a large number of computers in the .mil network, was able to access the computers and obtained administrative privileges. Once he was able to access the computers, McKinnon installed a remote administration tool, a number of hacker tools, copied password files and other files, deleted a number of user accounts and deleted critical system files.

Based on this, the British media says that McKinnon faces 60 or 70 years in prison.

However, McKinnon has been indicted in federal court, not state court, and US federal sentencing guidelines apply. They used to be binding, but since a 2005 US Supreme Court ruling, more discretion has been returned to judges. Here is a brief explanation from Cornell University Law School:

The Guidelines are not mandatory, because they may result in a sentence based on facts not proven beyond a reasonable doubt to a jury, in violation of the Sixth Amendment. United States v. Booker, 543 U.S. 20 (2005). However, judges must consider them when determining a criminal defendant’s sentence. When a judge determines within his or her discretion to depart from the Guidelines, the judge must explain what factors warranted the increased or decreased sentence. When a Court of Appeals reviews a sentence imposed through a proper application the Guidelines, it may presume the sentence is reasonable. Rita v. United States, 127 S.Ct. 2456 (2007).

The sentencing guidelines are referred to in Lord Brown’s ruling, but they are rarely referred to in UK coverage. McKinnon was offered a plea agreement if he pleaded guilty to two of the seven charges.

From the ruling: “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.” The ruling goes on to note:

19. The predicted sentence of 3-4 years was based upon sentencing guidelines themselves based upon a points system. The prosecution would recommend to the court a particular points level which the court would be likely to accept.

If he refused the plea, Lord Brown wrote McKinnon “might expect to receive a sentence of 8-10 years, possibly longer, and would not be repatriated to the UK for any part of it.”

Even without the plea agreement in place, McKinnon is unlikely to see a sentence of more than 5 years. Although, like the so-called NatWest 3, I would expect McKinnon to be offered a new plea agreement. Note, the NatWest 3 returned to the UK last November to serve out the rest of their 37 month sentence.

However, based on little more than speculation that a vindictive United States humiliated by McKinnon would seek maximum retribution, the British press have condemned him to the rest of his natural life in prison. They say that he has been branded a cyber-terrorist by the Americans. Except he hasn’t: The indictment doesn’t mention terrorism or terror-related charges.

In one of the examples of the British tech press doing the basic journalism that the general press should be doing, Sharon Gaudin of Computerworld quoted “Scott Christie, who was an assistant U.S. attorney in New Jersey at the start of the hacking investigation, and was the first prosecutor brought into the case.” She writes:

McKinnon has contended that if extradited to the U.S., he could be treated as a terrorist, tried in a military tribunal and ultimately imprisoned at Guantanamo Bay.

“Mr. McKinnon has never been classified in that manner or treated in that manner, as far as I’m aware,” said Christie, who now leads the information technology group at law firm McCarter & English LLP. “He will be treated as a normal criminal defendant in the civil court system of this country. He’s a run-of-the-mill criminal with a run-of-the-mill crime.”

And as for the length of the sentence McKinnon is actually facing, Christie has been quoted several times:

Each charge potentially carries a sentence of up to 10 years in prison and $250,000 in fines. However, U.S. sentencing guidelines would likely recommend a much lighter sentence.

A 60-year sentence is “extraordinarily unlikely,” according to Scott Christie, who was the lead prosecutor in the case in New Jersey before going into private practice. …

“His general exposure would be in the range of between three and five years,” he said.

And to be clear, we’re not talking about three to five years on each count but three to five years in total. Not to make too fine a point, but as Lord Brown said in his ruling, one of the factors taken into account in sentencing is the recommendation of the prosecutor. Christie is basing his estimate on the guidelines and the sentence he would have expected with a successful conviction. Three to five years. Not 60.

Christie hardly sounds like the cowboy cops of the American justice system baying for the blood of a cyber-terrorist, as is portrayed without named quote or qualification in the British press. He’s never quoted because he falls outside the terror narrative of the British media’s reality-free McKinnon coverage. He’s too calm, too reasonable and too professional, not vindictive enough, so he’s just airbrushed out of the story. Yes, his quotes should be balanced by other views, but as the person first given the job to prosecute the case, his point of view is relevant and, I would argue, essential to the balanced reporting of this story.

Guantanamo is irrelevant in this case

The British media have created two fantasy prison scenarios for McKinnon. The Scotsman at least realised he wouldn’t be sentenced to Guantanamo but instead suggested that he would most likely serve in a horrific ‘Supermax’ prison in Virginia. The only problem as Kevin “Dark Dante” Poulsen (who has even less patience with the comic book coverage of the case than I do) notes the Supermax facility The Scotsman picked, seemingly at random from the map, is actually a Virginia state facility. The truth is that McKinnon faces charges in the federal court system and would serve any sentence in a federal prison.

While grounded in the horrors of the Bush administration’s extra-judicial atrocities, the coverage of the McKinnon is based on fantasy not facts. Is it possible that, in some fit of vindictiveness, US authorities could have exiled him to that extra-judicial black hole? Almost anything seemed possible during the Bush years. However there is a key difference in McKinnon’s case. He has, and always had, what the Guantanamo detainees have fought for years to get: An indictment in a US civilian court. If you look at the case of “enemy-combatant” Jose Padilla and the detainees, the Bush Administration fought to keep them from having access to US courts in the first place. McKinnon’s case started in the civilian judicial system and that’s where it’s going to stay.

Due process and human rights

In speaking with someone recently about the extradition treaty, I was told that the inequality of the treaty rendered the facts of the case irrelevant. The principles of equality and fairness were more important than the facts of McKinnon’s case or the coverage. I disagree.

The upset over the perceived inequality of the extradition treaty is grounded in feelings of nationalism and feelings of a loss of sovereignty. You hear echoes of anger over Tony Blair walking lock-step with George Bush into Iraq. People here complain about the UK being the 51st State of America. One person even said it felt like “the big, bad USA was lording over our tiny island”. I also know how much the British people value a sense of fairness, and the treaty seems to be inherently unfair.

But there are other issues here, issues that are just as important to democratic countries. One of these core, fundamental values is due process.

If you want to go back to the Magna Carta for a definition of due process, it says: “No free man shall be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

In McKinnon’s case, obsessive coverage of the treaty inequalities has obscured the fact that McKinnon has had access to British and European courts. If the treaty was truly as unfair as the press makes it out to be and the British public now seem to think, McKinnon wouldn’t have had access to appeals. The US would have simply shown up with an indictment and left with McKinnon. The coverage makes the treaty situation appear like some legalised version of extraordinary rendition, where the US can just swoop in and pick up anyone they want. That’s clearly not the case.

Has McKinnon been denied his day(s) in British courts? No. His supporters might not like the outcome, but that should not obscure the fact that the courts here have ruled, thus far, that the extradition and the plea bargaining process have not violated McKinnon’s rights. That has been reaffirmed by court after court in the UK. This is how the legal system works.

Should he be tried in the UK instead of the US? The law of this is relatively straightforward and wasn’t a novel invention created by the Extradition Act of 2003. In most international cases, the jurisdiction for prosecution is determined by the location of the victim, not the criminal. If US hackers broke into British computers, they would be subject to British, not American law. Writing in the Times, Home Secretary Alan Johnson said:

The court was equally clear that he should be tried in America because the crimes he is accused of — although they were conducted from a computer in his bedroom in the UK — did not remotely affect people in this country. They affected critical government security systems in America.

This is why the Crown Prosecution Service won’t bring charges. No British victim. No British crime.

Is McKinnon’s case really the perversion of justice that his supporters make it out to be? Has he been denied appeals and access to British courts? Has he been denied due process by the British legal system?

PR perverting justice

Just as with the NatWest 3 case, the London PR machine has played a significant role in packaging this case for a pliant press. When I wrote last year drawing comparisons between McKinnon’s case and the NatWest 3, I had no idea how right I was. At the BBC News website, Caroline McClatchey writes:

And it’s no surprise to discover there is some PR professionalism in the campaign. London-based PR agency Bell Yard is working “pro bono” (free) for the McKinnon campaign. It has experience in this field, having represented the “NatWest 3” – three British bankers who were eventually extradited to the US on fraud related charges. The agency was unavailable for comment for this story.

The brand masters must be sitting back with some satisfaction that they’ve managed to take the court case of a confessed cracker and turned it into a Live Aid event. I know that this happens frequently on both sides of the Atlantic, but this case is an egregious example of the triumph of spin over the facts of a case.

Now anyone facing extradition has a ready-made recipe to truly pervert the course of justice: Just add spin. Furthermore, opening the British or US legal system to political pressure is a dangerous game. The sense of injustice over extradition is now moving British politicians to manipulate their legal system for the benefit of a single individual. It opens up avenues for abuse that can be exploited not just by people you might like or sympathise with, but also by people whose political views you detest. The source and political inclination of the manipulation doesn’t make it right.

As I have said, my issue is not with McKinnon. My issue is with my profession. British journalism believes in campaigns and they love the narrative of the small guy against the big bad US. They have painted him as the hapless victim of US heavy-handedness while committing no crime but apart from an over-active curiosity. But long ago this campaign lost touch with the facts of the story.

McKinnon says he was looking for evidence of UFOs and alien technology. He may not have found any, but he has succeeded in creating a parallel world. There is the world of the facts and findings of the case available for anyone to see in court documents and rulings, and then there is the fantasy world created by McKinnon and his supporters. McKinnon’s world has been embraced, almost without question, by a credulous British media. Sensing a well-selling story, the media here have become McKinnon’s unquestioning advocates. Opportunistic politicians, a garden-variety pest the world over, have hopped on the McKinnon bandwagon. Their only source is the tireless, and in this case misguided, campaigners in the British press. Tony Blair was lampooned as Bush’s poodle. Now, the fierce watchdogs, defenders of justice and democracy in the British press have become the lapdogs for a confessed cracker.

The view of McKinnon as a vulnerable victim of American rough justice relies on easily refuted distortions of the truth propagated by the media. In the real world, he’s not facing anything like 60 years if convicted, but 3-5. In the real world, he could have served six to 12 months in US custody had he accepted the written plea agreement. In the real world, US prosecutors like Scott Christie speak with quiet, measured professionalism. He is not the rabid American bully that has become the standard caricature in the British press. If you’d like a view of the real world from a UK perspective, read Stuart Turton’s look at the case in PC Pro, another example of the British tech press presenting a balanced and accurate picture of the case where the general press has failed.

I’ll end with one more quote from Christie from an Australian computer security site looking at London Mayor Boris Johnson’s recent column supporting McKinnon (see above reference to opportunistic politicians). In it, Christie says:

[McKinnon] has created this cause celebre status in order to appeal to folks who will beat the drum on his behalf and they conveniently ignore the facts of the situation and the entire nature of his conduct. I think that, unfortunately, it lends some credence to the individuals who are painting McKinnon as a victim, to have the mayor of London weigh in as part of that team … people are resorting to a distortion of the facts in order to further his celebrity status as a victim. It’s troubling.

With that, I’m through writing about McKinnon. You may have a different view of the case, and the only thing I ask is to follow the links in this post. Look at the evidence. You may come to a different conclusion than I have, but at least you’ll know the facts. Welcome to the real world.

Here is the ruling from 13 July, 2009. Here is the original PDF from the British government.

McKinnon v Secretary of State for Home Affairs –