

Britain resists extraditing hacker Gary McKinnon - FrancofileL
http://www.globalpost.com/dispatch/united-kingdom/101202/gary-mckinnon-extradition

======
iuguy
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
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.htm...](http://news.findlaw.com/cnn/docs/cyberlaw/usmck1102njind.html)

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.

~~~
iuguy
You've actually exactly made the popular case (from the UK point of view) why
he shouldn't be extradited. There's a substantial belief here that the US is
demanding extradition under false pretences and that there will be a bait and
switch resulting in him getting an orange jumpsuit and (to paraphrase Harold
and Kumar go to white castle 2) a cock meat sandwich. What needs to be
understood is that what the people think is not the same as what the
government of the day signs up to or even future governments of the day may
have to deal with.

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.

~~~
tptacek
I acknowledge that the fears of UK citizens are based on good faith concerns.
What I don't acknowledge is that they are reasonable.

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.

~~~
iuguy
But surely that's the point, that their good faith concerns are unreasonable.

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.

~~~
tptacek
I worry that we're talking past each other, because I don't think the US
thinks he deserves the same as people at Gitmo either.

~~~
iuguy
I think you're right (that we're talking past each other).

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.

------
tptacek
_"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
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
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.

~~~
handelaar
In this case we're talking about crimes that were committed _in the UK_ , and
handing a mentally-ill person over to a foreign government where he has fuck-
all chance of receiving a sentence that the UK would consider proportional to
the offences.

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.

~~~
tptacek
This argument suggests that it's impossible for someone "in their bedroom" in
the UK to commit a crime that warrants a trial in the US. That's not how UK
law works and it's not how US law works. Note that the UK is also a signatory
to treaties with the rest of Europe that stipulate the same thing as the US
stipulates.

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.

------
jeremyjarvis
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
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
Thanks for bringing this to my attention, gonna look into it. Agreed, shocking
- but much less common than in US.

~~~
tptacek
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).

