Saturday, 28 November 2009

Gary McKinnon: the backlash

Gary McKinnon the autistic-spectrum computer hacker now looks set to be handed over to a vengeful US justice system. The increasingly disappointing home secretary Alan Johnson has concluded, as he wrote to McKinnon's tirelessly campaigning mother Janis Sharp, that McKinnon's human rights would not be violated by extradition. So that - barring an unlikely intervention from the courts - is that.

Of course, Alan Johnson could save McKinnon if he wanted to. Johnson has continually claimed that he has minimal discretion, that his hands are tied, that the law allows him no leeway, that there is nothing he can do. His hand-wringing and expressions of regret, though, carry all the conviction of the tears shed by Lewis Carroll's Walrus on behalf of the oysters he had just eaten. That decision was his (or at least rubber-stamped by him). The new evidence he was invited to consider included a compelling psychological assessment that McKinnon was a high suicide risk. That alone, had Johnson wished it, would have been enough.

In any case, a decision of the balance of legal arguments need only have been provisional. Even if he had been advised that a decision to stay McKinnon's extradition was dubious - under the terms, let it be remembered, of the treaty that his own party had forced through Parliament, against strong and principled opposition on all sides - there was nothing to prevent him from making it.

The worst that might have happened (though it seems doubtful) is that the decision would have been overturned by the courts - in which case Johnson would have had the consolation of having tried his best, not to mention a good deal of positive press coverage. Recent Home Secretaries have not been shy of making legally questionable decisions that stand the risk of being overturned on appeal. It happens all the time - especially under this government. Think Geert Wilders - or the latest Strasbourg-baiting proposals on DNA retention. The job of Home Office lawyers is to produce justifications for political decisions that are at least arguable in court. The Home Secretary's decision, whatever the theory may say, is invariably a political one. The decision to extradite Gary McKinnon is self-evidently a political one. Those who argue that the law left Johnson with no option are being either naive or mischievous.

This fact does, however, raise problems of its own. Gary McKinnon's case is a famous one. It has powerful backing from human rights groups, from Opposition politicians, from the Labour-led home affairs select committee and from most of the press. He has benefited from a skilful PR campaign, fronted by Janis Sharp but joined by numerous celebrities and campaigners. He has a large measure of public sympathy. The basest political calculation ought to impel Alan Johnson to block the extradition - or at least to hold it up till after the election, when perhaps another politician will be responsible for it. To stand up to the American bully - which is how the case has been presented, accurately or not - would be popular. It would help restore his battered image. It would be cheap, effective publicity. In political terms, a no-brainer.

It's not surprising to find a politician making a popular but immoral decision, nor even an unpopular but correct one. But to see a politician set his face against both popularity and justice is very odd indeed - so odd that a special explanation seems to be required. The commonest points to intense US pressure, and the supposedly supine attitude of the British authorities in the face of it. McKinnon was arrested - and confessed to his actions - as early as March 2002, well before the "unequal" extradition treaty was ratified, but that the Americans (with possible British encouragement) held back until requesting his extradition. No satisfactory explanation has ever been offered as to why a trial in Britain was impossible. It may well be that, for technical reasons, an American trial could be considered more "appropriate", but that is a rather different question. Geoffrey Robertson QC, writing in the Independent, recalls defending, some years ago, "a young man whose hacking was alleged to be even more serious that McKinnon's". The trial, however, took place in Britain. The prosecution claimed he had "caused more damage to the Pentagon than the KGB"; yet he received a non-custodial sentence. Robertson sees no reason that could not have been the case with Gary McKinnon.

Some have even suggested that McKinnon is being offered up as a way of soothing American anger over the release of the supposed Lockerbie bomber Abdelbaset al Megrahi. That wouldn't of course explain why the process against him was begun; but it might explain why the present Home Secretary has been so reluctant to take a risk for justice.

An entirely different explanation has been gaining ground in recent days, especially on parts of the Left: that Johnson is right, the McKinnon deserves to be extradited to face long years in a tough US jail, and that those who think differently have been hoodwinked by a clever PR campaign. The Labour MP and blogger Tom Harris has become the most prominent member of this camp. Andy Newman, writing at Socialist Unity, has however set out the most detailed case. Newman makes a number of points worthy of consideration. His principal objection, though, seems to be to the fact that McKinnon's cause has been adopted by (absit omen) the Daily Mail. (My own prejudice, needless to say, impels me to an equal aversion to any message being put over at a far-left site like SU.)

For some on the Left, even their suspicion of the USA would seem to be dwarfed by their hatred of the Daily Mail. They might be felt to have a natural sympathy for someone who, in addition to his interest in UFOs, also left remarks sharply critical of American foreign policy on the servers he hacked. But the warmth with which the Mail has supported him undermines his credibility. And it's not just the Mail, either. Newman complains that "his case has been taken up because of reactionary British nationalism, and assumptions of our superiority over the Americans" - a remarkable claim for which he produces no evidence. Newman also thinks that "there is something very wrong in the way Gary McKinnon’s campaign has sought to mobilise public opinion through tabloid sensationalism to avoid a trial for a criminal offence." But given the failure of the legal system to prevent McKinnon's extradition, his backers can scarcely be criticised for their use of whatever weapons they are able to deploy. And even if, in this particular case, the savagery of American justice has been exaggerated, suspicions are not entirely without foundation. Guantanamo Bay, anyone?

Newman is also anxious to rebut suggestions that there is anything objectionable or unequal about the 2003 Extradition Act or the Treaty with the USA which it brought into law. He claims, indeed, that the Act was passed primarily because of the difficulty that had been experienced in extraditing General Pinochet. Pinochet, he maintains, "exploited" the need to prove a prima facie case before agreeing to extradition requests by "dragging out the process". As a result, the 2003 Act "was designed to streamline the process to make high profile cases less susceptible to political and diplomatic pressure." I've no idea whether this is true. If it is, I find it extremely disturbing. Pinochet's was a single, unrepresentative case. That it proved impossible to pack him off to Spain, where he was the subject of an opportunistic arrest warrant, may have disappointed some old Lefties; but that does not mean that 60 million British citizens should therefore have been stripped of their rights. As for political and diplomatic pressure being a bad thing: sometimes it's all that stands between a manifestly innocent person and an oppressive prosecution.

An example of the good workings of the prima facie rule prior to 2003 is the case of Lotfi Raissi, an innocent Algerian who as a result of a number of unfortunate coincidences was suspected by US investigators of involvement in the 9/11 plot. He was held for months in the harsh conditions of Belmarsh while the courts generously granted the Americans time to present any evidence they might have against him. They had none, and eventually Raissi was released. Had the current treaty been in force, there would have been nothing to prevent his transportation to the US, where he would have disappeared into the vaults where high-security terror suspects are held, perhaps not to emerge for years.

In McKinnon's case, of course, the prima facie rule would not apply: he has confessed to most of what he has been accused of. It is indeed probably better not to become too bogged down in technicalities. In any case, it is not the inequality of the extradition treaty that is its most objectionable feature, but the lack of protection it gives to British citizens when faced with demands from foreign courts (many of the same objections apply, with force, to the avowedly "equal" European Arrest Warrant). It is not the Americans' fault that they have inherited the protections afforded by their constitution, it is merely their good fortune in the wisdom of their founding fathers. Would that we had such protections. Instead, Gary McKinnon finds himself in the position of an inverted Don Pacifico, discovering that the blind eye and feeble arm of England will do nothing to protect him, even if he never leaves these shores. The contrast with France's protection of Roman Polanski is striking.

Nor I am comfortable with the manner in which the coverage has infantilised a 42-year old man who, whatever compulsion drove him, was responsible for his own decisions. But the case is actually quite straightforward. It is a good general rule that the punishment should fit the crime. McKinnon's crime was to have caused a certain amount of damage to the security systems of the US military's IT (a sum large by most people's personal standards - enough to buy a fairly decent house, perhaps - but utterly negligible when set against the gargantuan budget of the Pentagon). But mainly he caused embarrassment. He exposed weaknesses in the Pentagon's defences at a time when fear of terrorism was at its post-9/11 height. He probably did them a favour. The punishment he is facing, given his personal circumstances, is manifestly disproportionate, indeed unjust. Alan Johnson could have intervened. He chose not to. And that really is all there is to it.