4 ms·

Britain resists extraditing hacker Gary McKinnon

22 points by FrancofileL 16y ago

tptacek 16y ago
"The American legal system is bullying the British legal system and there are a lot of British lawyers who are angry about it." 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.
- Lewisham 16y ago
  The general feeling was/is that the US is able to choose who they wish to extradite (or kidnap, depending on country) whenever they wish. However, when your own nationals are being held, like Guantanamo Bay, you can't do anything about it. The Extradition Act of 2003 is one-sided: the US can request extradition for any UK national operating in the UK without evidence, while there is no such reciprocal agreement. The British legal system != the British government, and pretty much everyone hates that Act. It should never have been signed into law. 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.
  - tptacek 16y ago
    This seems like a red herring on a bunch of different levels. 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.
    - DougBTX 16y ago
      If you believe that about the US legal system, you shouldn't be extraditing anyone; we're running kangaroo courts, after all. That would be my preference. Especially since the kangaroo courts may well be CIA flights to Afghanistan.
      - tptacek 16y ago
        With all due respect, because I have no doubt you're actually a totally reasonable and thoughtful person --- my default assumption about people with track records on HN --- but it seems to me like you're wearing a tinfoil hat on this issue. 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.
        jules 16y ago
        What is the track record then? 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?)
        tptacek 16y ago
- nodata 16y ago
  The UK signed a treaty with the US that requires them to extradite McKinnon Wasn't the deal that the UK also gets a treaty in the other direction? Isn't what this is all about?
  - tptacek 16y ago
    The US and the UK both have extradition rights. The two countries have slightly different evidentiary standards. Neither country has a "no evidence required" standard. Neither country requires incontrovertable proof; such a standard makes no sense, since the purpose of extradition is to enable criminal trials.
    - nodata 16y ago
      This is what I was referring to: "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." -- http://news.bbc.co.uk/2/hi/uk_news/7312853.stm http://news.bbc.co.uk/2/hi/uk_news/7312853.stm
      - tptacek 16y ago
        Read upthread. 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.
- btilly 16y ago
  Yes, Nigeria is suing Cheney for bribery. It looks like Cheney can just ignore it. 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 http://en.wikipedia.org/wiki/The_Bush_Six for that.
jeremyjarvis 16y ago
I do hope they resist. The US prison system is an abomination to human rights. Prisons should be safe places - the punishment should be the restriction of freedom, not fear of rape or murder.
- tptacek 16y ago
  Prison rape is absolutely a major problem in the UK as well. This seems like another red herring. 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.
  - jeremyjarvis 16y ago
    Thanks for bringing this to my attention, gonna look into it. Agreed, shocking - but much less common than in US.
    - tptacek 16y ago
      Wait, what? How do you know that? Are you making an inference about the absolute numbers, or the per-capita? And how does it apply to McKinnon, who isn't going to end up in high-security prison anyways? (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).
iuguy 16y ago
I met Gary in 2001. I didn't actually know who he was until about 2 years ago after I met his mother Janis briefly and a friend pointed the meeting out. He seemed like a fairly jittery guy at the time, but overall a nice chap (as far as the London 2600 crowd went at the time). 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.
- tptacek 16y ago
  Hold on a second. 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.html 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.

22 points by FrancofileL 16y ago

"The American legal system is bullying the British legal system and there are a lot of British lawyers who are angry about it." 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.

Lewisham 16y ago
The general feeling was/is that the US is able to choose who they wish to extradite (or kidnap, depending on country) whenever they wish. However, when your own nationals are being held, like Guantanamo Bay, you can't do anything about it. The Extradition Act of 2003 is one-sided: the US can request extradition for any UK national operating in the UK without evidence, while there is no such reciprocal agreement. The British legal system != the British government, and pretty much everyone hates that Act. It should never have been signed into law. 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.
- tptacek 16y ago
  This seems like a red herring on a bunch of different levels. 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.
  - DougBTX 16y ago
    If you believe that about the US legal system, you shouldn't be extraditing anyone; we're running kangaroo courts, after all. That would be my preference. Especially since the kangaroo courts may well be CIA flights to Afghanistan.
    - tptacek 16y ago
      With all due respect, because I have no doubt you're actually a totally reasonable and thoughtful person --- my default assumption about people with track records on HN --- but it seems to me like you're wearing a tinfoil hat on this issue. 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.
      - jules 16y ago
        What is the track record then? 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?)
        tptacek 16y ago
nodata 16y ago
The UK signed a treaty with the US that requires them to extradite McKinnon Wasn't the deal that the UK also gets a treaty in the other direction? Isn't what this is all about?
- tptacek 16y ago
  The US and the UK both have extradition rights. The two countries have slightly different evidentiary standards. Neither country has a "no evidence required" standard. Neither country requires incontrovertable proof; such a standard makes no sense, since the purpose of extradition is to enable criminal trials.
  - nodata 16y ago
    This is what I was referring to: "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." -- http://news.bbc.co.uk/2/hi/uk_news/7312853.stm http://news.bbc.co.uk/2/hi/uk_news/7312853.stm
    - tptacek 16y ago
      Read upthread. 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.
btilly 16y ago
Yes, Nigeria is suing Cheney for bribery. It looks like Cheney can just ignore it. 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 http://en.wikipedia.org/wiki/The_Bush_Six for that.

jeremyjarvis 16y ago

I do hope they resist. The US prison system is an abomination to human rights. Prisons should be safe places - the punishment should be the restriction of freedom, not fear of rape or murder.

tptacek 16y ago
Prison rape is absolutely a major problem in the UK as well. This seems like another red herring. 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.
- jeremyjarvis 16y ago
  Thanks for bringing this to my attention, gonna look into it. Agreed, shocking - but much less common than in US.
  - tptacek 16y ago
    Wait, what? How do you know that? Are you making an inference about the absolute numbers, or the per-capita? And how does it apply to McKinnon, who isn't going to end up in high-security prison anyways? (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).

iuguy 16y ago

I met Gary in 2001. I didn't actually know who he was until about 2 years ago after I met his mother Janis briefly and a friend pointed the meeting out. He seemed like a fairly jittery guy at the time, but overall a nice chap (as far as the London 2600 crowd went at the time). 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.

tptacek 16y ago
Hold on a second. 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.html 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.