The case of a hacker with Asperger's threatens the US-UK relationship

LONDON, United Kingdom — Within the high gossip of state revealed in the WikiLeaks State Department cables being published this week is something that touches on one small, important story that has the ability to damage the relationship between the United States and Britain.

In a cable dated Oct. 6, 2009 at 16:46, America's Ambassador to Britain, Louis B. Susman, sent a long briefing memorandum to Secretary of State Hillary Clinton, who was due to visit London four days later for meetings with British leaders including then-Prime Minister Gordon Brown. Among the many bullet points in Susman's memo regarding British views on important international treaties, relations with Pakistan and the upcoming British election is this one:

"- Gary McKinnon Extradition Case - The PM will likely raise with the Secretary (as he has with the Ambassador) the extradition case of Gary McKinnon. McKinnon is a 43-year old computer hacker with Asperger's Syndrome who is wanted for prosecution in the U.S.; he is accused of hacking into U.S. government systems in 2001 and 2002. McKinnon has gained enormous popular sympathy in his appeal against extradition; the UK's final decision is pending. The case has also caused public criticism of the U.S.-UK extradition treaty. In August, PM Brown, in a one-on-one meeting with the Ambassador, proposed a deal: that McKinnon plead guilty, make a statement of contrition, but serve any sentence of incarceration in the UK. Brown cited deep public concern that McKinnon, with his medical condition, would commit suicide or suffer injury in imprisoned in a U.S. facility. The Ambassador has raised this proposal with AG Holder and would be happy to brief the Secretary in more detail."

Brown's suggestion was rebuffed by the Obama Administration. In bringing up Gary McKinnon, Susman was doing his job properly. The McKinnon case is proving to be a serious problem in the "special relationship."

"The American legal system is bullying the British legal system and there are a lot of British lawyers who are angry about it," said Alex Carlile, lawyer, Liberal Democrat member of the House of Lords, and a key adviser to the current British government's attempts to prevent McKinnon's extradition to America. Both Conservative Prime Minister David Cameron and his deputy, Liberal Democrat Nick Clegg, are on the record as being against the extradition.

The basic facts of the McKinnon case are not in dispute. In 2001 and 2002, Gary McKinnon, now 44, a computer programmer from Glasgow, accessed NASA and Defense Department computers on more than 90 occasions. The United States claims he hacked his way into the systems, rendered one naval computer inoperable for several days, and copied files from others, causing $800,000 dollars worth of damage.

McKinnon claims he hacked into nothing. He gained entry into bits of the system without using a password. Indeed, he left messages after his visits pointing out how lousy the Defense Department security systems were. McKinnon says he was looking for information on extra-terrestrial life and UFOs,  as well as something else called "free energy." The fact that he used the moniker "Solo" — the surname of the wise-cracking hero of "Star Wars" — underlines the strange place he was coming from.

McKinnon was arrested in 2002 by British authorities. In 2003, Britain and the United States signed a new extradition treaty. In 2004, it was approved by Parliament. In 2005, extradition proceedings were initiated by the Federal District Court for eastern Virginia demanding Britain hand McKinnon over for trial.

A cause celebre was created.

McKinnon's mother, Janis Sharp, made a compelling public case expressing fear for her son's life if he was transferred to an American prison. He suffers from Asperger's Syndrome, an autistic spectrum disorder, and also depression. She has organized a successful online information campaign.

The situation became a focus for anti-American sentiment that had been building in the United Kingdom as the post-war situation in Iraq went from bad to worse and the abuses of Abu Ghraib, Guantanamo Bay and extraordinary rendition became widely publicized.

Over the years the question has crystallized. Newspapers not normally critical of America, particularly when a Republican is in the White House, asked why this young man, suffering from illness, should be sent to a country that has torn up the rule book on due process? The Conservative Daily Mail organized petitions demanding the government resist pressure from the United States to send McKinnon for trial.

For lawyers and politicians there are serious issues at stake. The 2003 treaty has been exposed as badly flawed. Negotiated between the administrations of former Prime Minister Tony Blair and former President George W. Bush, it does not require the United States to make a prima facie case when requesting extradition of a British citizen. In other words, the United States does not have to show it has enough evidence to prosecute a case. It can just ask the British government to arrest and ship over someone it suspects of a crime.

Isabella Sankey, of the civil liberties lobbying group Liberty, says this makes extradition itself tantamount to a conviction because a British citizen could be held indefinitely while the U.S. authorities build their case. "Extradition is in and of itself punishment," she said. "You are removed from your family and community."

Sometimes it can take years to pull together a case, what happens to the extradited person in the meantime, experts ask? Would he have to be in prison, if he couldn't post bail?

In an another case, the NatWest Three, three British bankers accused of fraud as part of the Enron collapse were extradited under the treaty and confined to the Houston area and made to wear electronic monitoring tags so they would not flee the United States. But the bankers were wealthy and were even allowed to work. That's not an option for McKinnon, as his mother does not have large financial means and her son, because of his disease, cannot handle a dramatic change in his environment.

The 2003 Anglo-American treaty does require Britain to demonstrate a prima facie case to American authorities as part of an extradition request.

The McKinnon situation also focuses on a key dilemma facing international law in the cyber-age: Who has jurisdiction when a criminal act is initiated in one country via the web but the crime itself takes place in another? Which country is the appropriate forum for the trial, as the crime began in one place and finished in another?

"In political circles there are deep misgivings about this," said Carlile.

In fact, on Tuesday the House of Commons' Home Affairs Select Committee held hearings on the case. The committee is purely advisory, but following testimony from the former Home Secretary David Blunkett and McKinnon's mother it is likely to advise the government to re-negotiate the treaty.

The committee's chairman, Labour Member of Parliament Keith Vaz, said, "The case of Gary McKinnon has served to highlight the problems that exist with the U.S.-U.K. Extradition Treaty — principally that it does not provide U.K. citizens with the same level of protection as U.S. citizens. The Home Affairs Committee found previously that Gary McKinnon should face his punishment in the U.K., particularly in light of his diagnosis with Asperger’s syndrome."

Vaz added, "To insist that Gary is extradited is, in my view, disproportionate to the damage caused by the offense committed and one of the main concerns in this specific case is the harm and distress that extradition will cause Gary.”

There is not likely to be much political will for extradition. As Carlile said, rather than commit a crime McKinnon did the United States a favor by exposing flaws in the Pentagon's cyber-security.

"They're very lucky it was not the Chinese government or Iranian government that hacked into the system," Carlile said. "I believe that the coalition will dig its heels in on this."

The United States' persistance in seeking McKinnon's extradition has led to wild speculation, including that it is payback for Scotland releasing convicted Lockerbie bomber Abdelbasset Ali al-Megrahi.

Asked "Why, given the fact that Britain has been America's staunchest ally in the decade since 9/11, is the Justice Department pursuing this?" and " Is there any sense that Attorney General [Eric] Holder is reconsidering the position he inherited on McKinnon, and allowing the guy — who suffers from Asperger's — to serve his time in Britain?" the Justice Department had a short answer.

It would provide no comment given the ongoing investigation.