Nasa hacker's fate hangs in balance

Nasa hacker's fate hangs in balance

Summary: Appeal Court judges hearing Gary McKinnon's extradition case have heard claims he was told he would 'fry' in New Jersey unless he co-operated with US authorities

TOPICS: Government UK

The fate of Gary McKinnon, known as the "Nasa hacker", is still hanging in the balance after his appeal against extradition to the US was adjourned at the Court of Appeal on Wednesday evening.

McKinnon's future is as uncertain as ever, following two days in court during which his defence team presented new evidence that it claimed meant his extradition (to face charges of breaking into and damaging US government computers) should be rejected.

The Court of Appeal is the court of last resort under UK law, and usually it will only find for or against the appellant. But the defence argued on Tuesday and Wednesday that evidence brought to light by the McKinnon case raised serious questions about the US government's case. It has urged the Court of Appeal to consider referring McKinnon's case back to the UK government or to allow a further appeal to the European Court of Human Rights, if it will not reject the extradition outright.

The evidence centred on what was or was not said to McKinnon when he was being offered a plea bargain. More well known in the US, and now also used on an informal basis in the UK, a plea bargain is when the prosecution offers a reduced sentence or other incentive in return for a defendant agreeing to co-operate.

In this case, if McKinnon agreed to co-operate with them, the US authorities said they would agree to a reduced sentence of three years or less. They would also let him serve the sentence in a UK prison and not in an American "super, high-security prison", as Edmund Lawson, QC, for McKinnon's defence, put it.

All parties appear to be agreed on this part, but what was said next became the main source of controversy in court. According to McKinnon and his counsel, a US member of the prosecution team then "threatened" McKinnon that if he did not agree to the bargain, they would push for the highest possible penalties and that he would be "turned over to New Jersey authorities to see him fry".

And, the defence further alleged, that the US said if he did not agree to the deal there would be no chance of McKinnon serving his sentence in the UK near his friends and family.

This quickly became known as the "fry" statement, which the defence said could be taken to mean a threat on McKinnon's life should he be handed over to New Jersey instead of Virginia: the two states where McKinnon was alleged to have damaged IT systems.

In fact, if it was a threat it was something of an idle one. Although both states have the death penalty, New Jersey has not executed anyone in 20 years, while Virginia is still active in executions. In any case, under European law McKinnon cannot be extradited from the UK to the US if there is a risk of execution.

Despite this, Lawson argued that the overt nature of the threat was an infringement on McKinnon's human rights and so could be a matter for the European Court of Human Rights, as was the threat to withdraw the possibility of serving his sentence in the UK.

The prosecution barrister, Max Summers, dismissed the points immediately. None of the evidence on the "frying" allegation could be allowed into court since any words spoken during the alleged offer were only done so in confidence.

There is no automatic right for an extradited prisoner to serve a sentence back in his own country and the majority do not, especially those extradited from the UK to the US. As it was, the US was in no position to refute the allegations over "frying" since none of the relevant American staff involved are currently in the UK, let alone in court this week.

If this evidence was to be considered at all, argued Summers, then the US government would need notice and time to get witnesses organised and so a recess would be required.

After another hour of discussion, in which defence and prosecution and the two judges hearing the appeal discussed the legal consequences of taking the McKinnon case into new legal territory for an Extradition Hearing, court was adjourned at 4.20pm on Wednesday for the Appeal Court Judges to consider the options.

They could find in favour of the US authorities, meaning McKinnon would soon travel to the US, or they could uphold the appeal and allow McKinnon to go free. Alternatively, they could refer the case back to Home Secretary John Reid, who decided in July 2006 that the extradition should go ahead, or reject McKinnon's appeal but allow a further appeal to the European Court of Human Rights. A decision is expected next week.

McKinnon himself did not attend the appeal, and saw a doctor on Wednesday following heart palpitations

Topic: Government UK


Colin Barker is based in London and is Senior Reporter for ZDNet. He has been writing about the IT business for some 30-plus years. He still enjoys it.

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  • The guy's a fool

    Whether it was ethical or not, and whether the 'threat' happened or not, McKinnon's an idiot for not biting the Americans' hands off if you ask me! There's no denying he's done something wrong- he admits that himself- and is going to be punished. So if I was him, serving less than 3 years and serving it over here would look mighty attractive! I did have some sympathy for the guy and agree that the yanks are over-reacting to cover their own shockingly low security levels, but he can only blame himself now if he ends up in some high-security prison in the States for the rest of his life.
  • Explanation of American Lingo Needs to be Understood

    In the US, it is common for the prosecution to use exagerated comments. The term "fry" is actually interpreted as, being subjected to the full extent of the law". At least this is how I as an American would understand such a comment. Penalties for certain crimes carry different penalties based on the severity of the crime, whether it is a state or federal crime, and whether the suspect has a prior criminal record.

    The next thing to consider is that the prosecution in the US has to prove "beyond a reasonable doubt" that the suspect has committed the crime. Our criminal justice system is actually stacked against the prosecution. The prosecution has the burden of proof. In fact the defense can sit there and say absolutely nothing if the prosecution's case is week enough.

    Next, there is no way he would get the death penalty in any state. In order to be sentenced to death you must have killed another person or contributed to the death of another person. Life sentences are only given out to habitual offenders or severe crimes. This guy is probably looking at 10 years max.

    However, since the crimes were committed in two different states, he is subject to prosecution in each state which may mean 10 years per state for a total of 20 years. Then again, since the crime was committed against a government agency and across international borders he may also be prosecuted federally. This may mean yet another 10 years for a total of 30 years imprisonment.

    Lastly, even though an offender gets a 30 year sentence, that does not mean that he would serve the full sentence. In the US we have a parole system that will typically let a person out of prison for good behavior in about a third of the time, which would mean that he would get out of prison in 10 years and would promptly be deported to a country of his choosing; completely paid for compliments of the US tax payer.

    So you see, most of the defenses comments have no merit with the proper explanation.
  • One more thing

    What's up with this serving his time in a UK prison. If the crime was committed in the US then he should serve his time there. He is crazy for not accepting the plea bargain if it would keep him in the UK. Personally, I wouldn't have even made the offer.
  • Over reacting, Na the guy is actually lucky

    Actually, if the prosecution was over reacting they wouldn't have even made an offer of a plea bargain.
  • Why "render" Gary Mckinnon to America? Is America our master?

    Gary McKinnon has made the mistake of being too curious with the Americans, who are running with all their might toward fascism like lemmings to the sea. The Americans are like Saddam Hussein's Baath Party in the sense that their self-righteous belief in the cowboy tactics of "might makes right" appears to justfy anything they want to do for whatever reason they want to do it; honesty and integrity be damned.

    If Gary McKinnon has harmed the UK or Europe in any way, he should be tried for it. But if he has NOT harmed the UK or Europe in any way, he should be freed plus given a stipend to compensate for an incarceration that is at once unwarranted and unjustified. The UK has made fools of themselves by licking their collective tongues up the abominable bums of the Americans. I find it singularly and especially insulting that the UK plays the role of American lapdog so enthusiastcally and with such unspeakable abandon. By sending Gary McKinnon to the US, the UK is no better than the Americans who "render persons of interest" to foreign countries where they can be tortured-- in this case to America, the new torture capital of the world.
  • You're too nice.

    "completely paid for compliments of the US tax payer"

    Well how about if you prosecuted him in his home country where he resides, then you wouldn't have to be so 'complimentally'?
  • If his home country would prosecute him instead...

    ...then the prosecution wouldn't be fighting so hard to get him here. In the US we have laws that protect international interests from our own criminals. If it the suspect were an American compromising UK assets then he would be charged federally for computer crimes across international borders. So yes, if your penalties are at least equal to ours then I would have no problem with it. I am not a fan of playing politics for personal gain. I guess that's why I'm not a fan of President Bush or his international policies.
  • Interesting Point of View Even if it's twisted

    You know this is actually a topic for another discussion, but where do you think that the American government got the idea about moving "persons of interest" as you put it to a more "interrogation friendly" country. It is happening, I'm completely convinced that it is. However, where do you get being all high and mighty considering the UK's interrogation methods of the IRA. Secondly, when you are facing an enemy who is conducting or planning a non-conventional war campaign against you, how else are you to respond, but to use similar tactics. It seems to have worked for the UK against the IRA. Granted they came to the bargaining table, but what brought them there. Unfortunately we do not have that luxury. Our enemy does not negotiate, so why should we.

    I know that President's Bush's policies and those of the Republican lead congress are not popular around the globe. They are not even popular here. That is why we voted out a large percentage of Republicans this last election giving control of Congress to the Democrats. This is also Bush's last term as well, since he's hitting the 8 year mark.