Gary McKinnon: a test case for principles
Now Tories and Lib Dems who condemned the absurd pursuit of Gary McKinnon can save him
The first acid test for Britain's new government is not the economy, but whether it is capable of an act of simple humanity. Can Theresa May deliver on the repeated promise of Tory and Lib Dem leaders to end the torment inflicted by the state on Gary McKinnon, the hacker with Aspergers, whom the Home Office wants to send to lengthy imprisonment and likely suicide in a US jail? His court room cruelty is scheduled to begin again on 24 May: the time has come to end it, once and for all.
In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: "US foreign policy is akin to government-sponsored terrorism these days." He did not realise that the damage he was causing would amount to £350,000. He could (and should) have been tried for criminal damage in Britain, where a similar case (that of the Datastream Cowboy, accused of "doing more damage to the Pentagon than the KGB") ended with a non-custodial sentence. Instead, the Virginia state prosecutors lay in wait for two years until the Extradition Act was changed, and then demanded the UK surrender McKinnon for what the courts accept will be an 8 to 10-year prison sentence.
On any view, this punishment would be cruel and disproportionate, but the Home Office was unmoved. Jacqui Smith, quite disgracefully, refused to give McKinnon even the benefit that Britain insisted on for the Natwest Three, namely bail when extradited to the US, and the right to serve part of the sentence in the UK. It was then that a leading expert on Asperger's, Dr Simon Baron-Cohen, diagnosed McKinnon's condition and reported that he was likely to take his own life if extradited. But that did not bother the Home Office.
It was not that Alan Johnson was incapable of doing the right thing, he was just incapable of working out how to do it. The problem was that parliament in the 2003 act had foolishly limited the home secretary's discretion to refuse extradition to the US to punishment that was "inhuman and degrading". These are the weasel words of the European Convention, which cannot apply to Americans (who are not inhuman) or to their prisons, which are no more degrading than ours.
But the uncivil servants intent on harrying McKinnon out of the country have entirely forgotten that Britain has its own bill of rights, forged in the glorious revolution of 1689 and forbidding punishment that is "cruel and unusual" (a reaction to the indignities heaped on Titus Oates). This law should today protect UK citizens against sanctions that are over-severe by British standards or which can cause a vulnerable individual exceptional mental anguish. A 10-year sentence in a foreign jail, imposed on a suicidal man whose crime, driven by an undiagnosed mental condition, would, if prosecuted here, almost certainly receive a merciful suspended sentence, is about as cruel and unusual as it can get.
Nick Clegg and Chris Huhne said so, repeatedly, during the election campaign. Last year, all the senior Tories agreed, especially David Cameron ("I am deeply saddened and worried about Gary McKinnon ... I simply see no compassion in sending him to America"); Damian Green ("illegal ... damaging to Britain ... and damaging to a very vulnerable and sick man"); and of course Boris Johnson (who condemned the home secretary's decision as "brutal, mad and wrong"). His case was taken up in the media and was one reason why so many decent people disdained to vote Labour.
So, over to Theresa May. Her main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother. They will, perhaps, tell their minister that if she reverses the Smith-Johnson decision, the Americans might take her to court for judicial review. But this is unreal: the Obama administration is unlikely to challenge, on behalf of a local state prosecutor, a decision of the new British government. And even if it does, it is unlikely to be successful (the US-UK extradition treaty of 1976, has a special exception if extradition is barred by a domestic legal rule – the 1689 bill of rights, for instance). And even if the US were successful, parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition Act 2010), a measure that even the most hard-hearted Labour MP would be hard put to oppose.
Gary McKinnon, like Steig Larssen's girl with the dragon tattoo, is a rare and talented individual with Aspergers who should have been dealt with eight years ago, and compassionately, for reckless hacking. Yet Home Office officials (Orwell called them "the striped trousered ones who rule") are still out to get him. In court on 24 May they intend to cross-examine his doctors and argue that because "he has no history of serious self-harm or suicide attempts" European law cannot save him from ending his life in an American prison. That may be so. But British tradition, infused with Portia's admonition that mercy must always season justice, demands that his torment end. If Theresa May does not have the simple humanity to free Gary McKinnon, her party and its coalition partner were elected under false pretences.
In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: "US foreign policy is akin to government-sponsored terrorism these days." He did not realise that the damage he was causing would amount to £350,000. He could (and should) have been tried for criminal damage in Britain, where a similar case (that of the Datastream Cowboy, accused of "doing more damage to the Pentagon than the KGB") ended with a non-custodial sentence. Instead, the Virginia state prosecutors lay in wait for two years until the Extradition Act was changed, and then demanded the UK surrender McKinnon for what the courts accept will be an 8 to 10-year prison sentence.
On any view, this punishment would be cruel and disproportionate, but the Home Office was unmoved. Jacqui Smith, quite disgracefully, refused to give McKinnon even the benefit that Britain insisted on for the Natwest Three, namely bail when extradited to the US, and the right to serve part of the sentence in the UK. It was then that a leading expert on Asperger's, Dr Simon Baron-Cohen, diagnosed McKinnon's condition and reported that he was likely to take his own life if extradited. But that did not bother the Home Office.
It was not that Alan Johnson was incapable of doing the right thing, he was just incapable of working out how to do it. The problem was that parliament in the 2003 act had foolishly limited the home secretary's discretion to refuse extradition to the US to punishment that was "inhuman and degrading". These are the weasel words of the European Convention, which cannot apply to Americans (who are not inhuman) or to their prisons, which are no more degrading than ours.
But the uncivil servants intent on harrying McKinnon out of the country have entirely forgotten that Britain has its own bill of rights, forged in the glorious revolution of 1689 and forbidding punishment that is "cruel and unusual" (a reaction to the indignities heaped on Titus Oates). This law should today protect UK citizens against sanctions that are over-severe by British standards or which can cause a vulnerable individual exceptional mental anguish. A 10-year sentence in a foreign jail, imposed on a suicidal man whose crime, driven by an undiagnosed mental condition, would, if prosecuted here, almost certainly receive a merciful suspended sentence, is about as cruel and unusual as it can get.
Nick Clegg and Chris Huhne said so, repeatedly, during the election campaign. Last year, all the senior Tories agreed, especially David Cameron ("I am deeply saddened and worried about Gary McKinnon ... I simply see no compassion in sending him to America"); Damian Green ("illegal ... damaging to Britain ... and damaging to a very vulnerable and sick man"); and of course Boris Johnson (who condemned the home secretary's decision as "brutal, mad and wrong"). His case was taken up in the media and was one reason why so many decent people disdained to vote Labour.
So, over to Theresa May. Her main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother. They will, perhaps, tell their minister that if she reverses the Smith-Johnson decision, the Americans might take her to court for judicial review. But this is unreal: the Obama administration is unlikely to challenge, on behalf of a local state prosecutor, a decision of the new British government. And even if it does, it is unlikely to be successful (the US-UK extradition treaty of 1976, has a special exception if extradition is barred by a domestic legal rule – the 1689 bill of rights, for instance). And even if the US were successful, parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition Act 2010), a measure that even the most hard-hearted Labour MP would be hard put to oppose.
Gary McKinnon, like Steig Larssen's girl with the dragon tattoo, is a rare and talented individual with Aspergers who should have been dealt with eight years ago, and compassionately, for reckless hacking. Yet Home Office officials (Orwell called them "the striped trousered ones who rule") are still out to get him. In court on 24 May they intend to cross-examine his doctors and argue that because "he has no history of serious self-harm or suicide attempts" European law cannot save him from ending his life in an American prison. That may be so. But British tradition, infused with Portia's admonition that mercy must always season justice, demands that his torment end. If Theresa May does not have the simple humanity to free Gary McKinnon, her party and its coalition partner were elected under false pretences.
