Case of Scottish Hacker Illustrates Divide Between U.S. and U.K. Extradition Laws

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Leon Neal / AFP / Getty Images

Gary McKinnon attends a press conference in London, on January 15, 2009.

Sometimes the bleakest of battles can find some unexpected support.

In 2002, a Scottish man living in North London found himself under suspicion for hacking into dozens of Pentagon and NASA databases from his home computer. Fast forward nearly a decade and Gary McKinnon, a 45-year-old with Asperger’s syndrome, is still battling a grueling extradition process under a U.K.-U.S. treaty enacted in the wake of 9/11. If extradited, McKinnon could find himself facing up to 70 years in a U.S. prison. The process has been blasted by McKinnon’s mother, Janis Sharp, who’s said her son has “lost almost 10 years of his life and has served a nine-and-a-half year sentence of psychological torture, despite the crown prosecuting service testifying to the court in 2009 that the US has provided not one shred of evidence of any extraditable offence … because they are not required to.”

Of course, McKinnon’s mother has considerable stake in the case, but she might also have a point.

It’s a complex issue, made more complicated by the ill-defined international agreement. Sharp is hardly the only one rising to McKinnon’s defense against extradition. On Monday, the UK’s House of Commons held a debate over the viability of the extradition agreement. The Conservative MP, Dominic Raab, who initiated the debate said that reform “is not about abolishing extradition, which is vital to international efforts in relation to law enforcement; it’s about whether, in taking the fight to the terrorists and the serious criminals after 9/11, the pendulum swung too far the other way.” The debate saw MPs unanimously agree that the current treaty was in need of change.

The agreement was negotiated in 2003, when both the U.S. and Britain were intent on cracking down on possible terrorists. Today, however, most critics of the treaty are quick to point out the discrepancy in the way each extradition process is carried out. They say that while American authorities need to only show “reasonable suspicion,” which entails outlining the crime, punishment and a justifiable reason for focusing in on a suspect, British authorities have the weight of “probable cause” on their shoulders, where they must provide evidence of guilt in order to extradite a suspect from the US. Critics can point to the numbers. Reports show that 130 people had been extradited to the U.S. under the treaty while only 54 people have faced similar extradition to the UK.

The specifics of McKinnon’s particular case also complicate the issue. He’s been accused of hacking into 81 U.S military computers and another 16 NASA databases, compromising military safety, prompting the shutdown of a large Washington network, and causing a total of $700,000 worth of damage. While he does admit to hacking into the U.S. databases, McKinnon claims that he was merely searching for evidence of extraterrestrial energy, not launching a cyber attack on the US system. He’s also said that the reason he was caught was because he hadn’t used a false e-mail address when registering software he was using and was smoking a lot of marijuana at the time. Not exactly what you’d expect from a seasoned cyber-terrorist. Certainly these are serious accusations, and in the fallout of a WikiLeaked world, these crimes likely loom all the more dangerous in the eyes of U.S. officials. Yet in the U.K., there’s a large and persuasive argument that McKinnon’s human rights would be violated if he were to be extradited. Numerous medical experts have testified that McKinnon’s mental condition is precarious, as he’s suffering from severe depression. If extradited, they say McKinnon would likely become suicidal.

The motion from the MPs, however, is a significant boon for McKinnon’s cause. The unanimous vote from the often-divided parliament is something of a landmark. It also places an extraordinary amount of pressure on Prime Minister David Cameron and his government to act. While parliament’s agreement may be persuasive, pressing to remodel the treaty – the fairness of which, US general attorney Eric Holder recently said, “has been demonstrated by its application during the years it has been in force” – would require some diplomatic finagling.

One possible reform to the current treaty would be implementing what’s known as the “forum bar” to the extradition process. Such a regulation would allow a British court to block a request for extradition if the criminal actions took place in the U.K., rather than in the U.S. This would not only address McKinnon’s particular case, but could also help negate the pressure on British courts to agree to US terms of evidence. While the British government hasn’t officially responded to the MP’s motion, immigration minister Damian Greene has said the government is currently weighing their options.

While there’s been debate over the treaty in the past, clearly McKinnon’s case has been something of a catalyst. As MP Raab stressed in the debate, reform was necessary to prevent violating the hacker’s rights. “Gary McKinnon should not be treated like some gangland mobster or Al-Qaeda mastermind,” he said.

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