Accused Pentagon hacker prosecution could backfire
US military security still poor after 'biggest' hack
Lawyers for McKinnon are petitioning for leave to appeal to the House of Lords on grounds including the use of "deliberately coercive plea bargaining" tactics by US authorities during the course of the long running case. His lawyers argued that he had been subjected to "improper threats" that he would receive a much harsher sentence and be denied the opportunity to serve out the back-end of his jail term in the UK unless he played ball.
Appeal court judges Lord Justice Maurice Kay and Mr Justice Goldring criticised US prosecution tactics but said these didn't offer enough grounds for appeal against the Home Secretary's decision to confirm a 2006 ruling that McKinnon ought to be extradited to the US.
The unemployed sysadmin has had these charges over his head since March 2002 when he was arrested by officers from the UK's National High Tech Crime Unit. The case against him lay dormant until July 2005 when extradition proceedings commenced. McKinnon has suffered ill health over recent months as a result of the stress caused by the case, according to his lawyers.
McKinnon's supporters argue the case has wider political implications. "It is not just about Gary McKinnon, there are lots of other people, from computer hackers to legitimate businessmen, who will continue to fall foul of this sort of surrender of British sovereignty and obeisance before the extra- territorial demands of the US legal bureaucracy," Mark, a member of London 2600 who runs the Free Gary blog, told us. "However the same lack of a requirement to show prima facie evidence also applies to European Union countries under the European Arrest Warrant," he adds.
McKinnon's lawyers chose not argue about whether he might be put on trial before a military tribunal but that this may well be argued in the House of Lords if leave to appeal (which is by no means guaranteed) is granted.
"Basically the judges have said 'we have to trust the USA Government to act in good faith', until they show that they have broken their promises - which will by then, of course, be too late for Gary McKinnon. Unlike Babar Ahmad or even any of the British citizens who were held without trial at Guantanamo Bay, Gary is actually accused of directly 'attacking the US military' systems," Mark notes.
"Even if Gary faces a civilian court in the USA, his chances of being found not guilty or of getting a lenient sentence appear to be slim, given the prosecutions recommendations as to length of sentence."
But the whole effort to try McKinnon in the US might backfire on the US military by putting its security shortcomings under the spotlight.
"If there is an actual trial in the USA, rather than a coerced or otherwise 'plea bargain', there are a large number of senior US military officers and civilian IT managers and auditors who are going to have to explain the incompetence or possible corruption or perhaps treason, which went on for years and months under their command, both before and after September 11," Mark claims.
"Even if this is suppressed in court, it might lead to Congressional Committee hearings," he adds. ®