Original URL: http://www.theregister.co.uk/2010/01/15/mckinnon_comment/

McKinnon: The longest ever game of pass the parcel

After eight years, the music may finally be stopping

By John Leyden

Posted in Security, 15th January 2010 11:02 GMT

Comment Pentagon hacker Gary McKinnon has won breathing space in his long-running fight against extradition, with news on Wednesday that judges have granted a further judicial review. This time it is to consider whether the Home Secretary was right to disregard medical evidence that he might harm himself or even commit suicide if extradited to the US.

McKinnon's lengthy battle looked to be entering the endgame when Home Secretary Alan Johnson rejected psychiatric advice on McKinnon's mental state in allowing extradition proceedings against the UFO conspiracy theorist to proceed back in November. The move restarted the clock on extradition proceedings, sparking fears from the 43-year-old's family that he might be hauled off to face US trial and likely imprisonment, possibly even before Christmas.

Johnson, while maintaining that he is powerless to intervene in extradition cases unless the death penalty might result from a conviction or other exceptional circumstances, has nonetheless maintained throughout that McKinnon was entitled to exhaust his legal options to appeal. That meant that McKinnon's case was once more passed onto the courts, with a hearing agreed for sometime in April or May and a ruling unlikely until late June, by which time a general election will have been held and Britain is likely to have a new (more sympathetic to McKinnon, at least) government.

The opposition Conservatives have publicly backed the McKinnon campaign, even going so far as to table a Parliamentary debate on the one-sided nature of the extradition treaty between the US and UK that the McKinnon case has served to highlight.

US authorities began extradition proceedings against McKinnon in 2005, three years after his initial arrest by UK detectives working for the former NHTCU over hacking attacks on Nasa and US military systems in the months before and after the 9/11 attacks. McKinnon has always admitted the attacks but has consistently denied causing any damage.

The years since have been accompanied by a prolonged, ongoing game of legal pass the parcel. Highlights of the campaign have included unsuccessful appeals to the High Court in 2007 and House of Lords in 2008, on the grounds that US authorities allegedly used strong-armed tactics during plea-bargaining negotiations and that McKinnon might receive a disproportionately long sentence under harsh conditions if extradited. The Lords turned down this appeal, but allowed the European Court of Human Rights to consider the case.

In August 2008, the European Court rejected arguments by McKinnon's lawyers that his human rights had been abused but by that time McKinnon was diagnosed with Asperger's Syndrome, a mild form of autism, establishing grounds for a further round of appeals.

Last July, McKinnon lost judicial reviews on the Home Secretary's decision not to block extradition, as well as a separate review of the Director of Public Prosecutions' decision not to bring charges against McKinnon in the UK.

McKinnon's supporters have long argued that he ought to be tried in the UK and the US authorities' decision not only to decline this option but to wait for an allegedly one-sided extradition treaty to come into effect before commencing proceedings lies at the heart of the case.

McKinnon is charged with hacking into 97 US military and NASA systems in an attack that allegedly crashed the network of the Naval Weapons Station Earle, New Jersey, for a week in the aftermath of the 9/11 terrorist attacks. The US prosecution case claims that the hack interfered with the smooth running of the supply chain to the US Atlantic fleet normally provided by the base.

One US prosecutor claimed that McKinnon had carried out the "biggest military computer hack of all time" when he was originally arrested back in 2002. By contrast, McKinnon describes himself as a bumbling nerd who gained access to insecure systems while motivated by a desire to uncover suppressed evidence that the US military had supposedly harvested advanced alien technology from UFOs. He might have even seen a picture of a UFO at one time, but was too high to figure out how to record anything.

Six years before McKinnon, reformed British computer hacker turned hypnotherapist Mathew Bevan was also charged with breaking into insecure US military computer systems, again motivated by a desire to uncover suppressed UFO-related evidence. Bevan's alleged crimes were cited as examples of cyberterrorism at Senate hearings in 1996.

Bevan, unlike McKinnon, was prosecuted in the UK and no attempt was made to extradite him to the US. The case against Bevan eventually collapsed after 18 months, when prosecutors decided not to proceed. Bevan's alleged accomplice Richard Pryce, then 16 years old, pleaded guilty to hacking offences and received a fine.

Aaron Caffrey was found not guilty by a jury in 2003 of launching a major electronic attack that floored the computer systems of the Port of Houston. The unsuccessful outcome of both cases arguably played a big part in the US decision to seek extradition in the McKinnon case.

Scores of people have pleaded guilty to Computer Misuse Act offences but no one has actually been convicted of hacking offences by a jury in the 20 years since the now amended CMA first became law. This may perhaps have been one reason why the US authorities have pursued extradition so doggedly.

All this still leaves the question of why years of protracted legal procrastinating, that have taken a severe toll on McKinnon's health, have accompanied the case. The reason seems to be that while some New Labour minsters and element of the judiciary are keen to accede to American requests and sympathetic to their law enforcement concerns, others in British society regard the US stance as taking a very large hammer to a small nut.

Feelings that McKinnon has been treated unfairly, and perhaps that he has suffered enough, have grown strongly after he was diagnosed with Asperger's Syndrome back in 2008.

Some reckoned that the departure of the Bush administration would signal the end of the US extradition bid against McKinnon.

That hasn't happened, but Obama's justice team has been noticeably less noisy about the issue.

And whereas President Obama has not intervened directly in what's a little known case in the US, at least, Conservative leader and PM in waiting (if opinion polls are to be believed) David Cameron has publicly backed McKinnon. A future Conservative Home Secretary is likely to finally suspend extradition proceedings against McKinnon, eight years after he was first arrested and five years after the first attempts to haul him over to the US.

So, one might speculate that when we have new justice teams either side of the Atlantic, it will become easier for them to - more or less quietly - bury the case.

It's normally said that justice delayed is justice denied, and McKinnon's exceptionally long wait arguably proves the rule. ®