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Britain resists extraditing cause celebre Gary McKinnon, who accessed Department of Defense computers.
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.