Geoffrey Robertson asks whether new Home Secretary Theresa May (and indeed new Deputy PM Clegg) will see reason on Gary McKinnon’s behalf, following her party’s and the Lib Dems’ long opposition to his extradition:
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 Asperger’s syndrome, whom the Home Office wants to send to lengthy imprisonment and likely suicide in a US jail? His courtroom cruelty is scheduled to begin again on 24 May: the time has come to end it, once and for all.
So, over to May, then. 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 unrealistic: the Obama administration is unlikely to challenge a decision of the new British government. And even if it does, it is unlikely to be successful. And even if that happens, parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition) Act (2010).
Of course the truth is even simpler than that. Alan Johnson admitted that he did have the power to stop McKinnon’s extradition – he was just loath to use it for fear of setting an unwelcome precedent. Theresa May has an enormous task on her hands, not just to prove to a sceptical public about her suitability to be Equalities Minister, but to prove that she’s less of a hostage to the (as Robertson puts it) ‘uncivil servants’ in her department than her immediate two (if not four) predecessors. If this coalition is to mean anything, if its civil liberties agenda is going to have any believability whatsoever then at the very least Gary McKinnon’s extradition should be halted. Given that what evidence there is wouldn’t stand up in court (and none is needed to extradite him to the US) no further action should probably be taken against him.
Gary McKinnon’s appeal to the nascent UK Supreme Court against extradition to the United States has already been turned down:
The High Court ruled the case was not of “general public importance” to go to the UK’s highest court.
Glasgow-born Mr McKinnon, 43, of Wood Green, London, is accused of breaking into the US’s military computer system.
Mr McKinnon, who has Asperger’s syndrome, insists he was just seeking evidence of UFOs.
In July he lost a High Court bid to avoid extradition.
Giving the court’s decision on Friday, Lord Justice Stanley Burnton, who heard Mr McKinnon’s latest appeal earlier this year with Mr Justice Wilkie, said extradition was “a lawful and proportionate response” to his alleged offending.
There was no real prospect of him succeeding with his claim under Article 8 of the European Convention of Human Rights that extradition would breach his right to a private and family life.
Nor did the court think, on the evidence it had seen, that he had an arguable case that extradition to the US would result in a breach of his Article 3 right not to be subjected to inhuman or degrading treatment.
What we have is a terrible situation where a man’s rights are being systematically violated by anti-terror legislation, which was never intended for cases such as this, and wasn’t even voted on by Parliament. We have a Home Secretary who admits he could block the extradition but who prefers not to set a precedent for genuine terrorists in the future. We have a High Court which believes that this situation doesn’t count as inhuman or degrading treatment for someone with Asperger’s Syndrome.
The US hasn’t made a case against him because they don’t have to under the 2003 Extradition Act, and the Department of Public Prosecutions itself doesn’t think the case would stand in the US (and that it definitely would not in the UK. So why is Gary McKinnon now forced to try the European Court of Human Rights to prevent this mean-spirited and entirely unnecessary extradition?
Home Secretary Alan Johnson has previously insisted that his hands were tied, that he was legally unable to intervene in the extradition of Gary McKinnon to the US. However in his meeting this week with David Davis, Michael Meacher and Chris Huhne he changed his tune:
“[Johnson] did accept that it would be possible for him to intervene and that it wasn’t unlawful for him to intervene, but claimed the limits of his discretion meant he had to be governed by law and precedents,” said [Meacher's] spokesman. “He was concerned that precedents would be set for terrorists.”
In a blog post on Wednesday, Meacher said Johnson felt his scope for intervention was narrowed by Article 3 of the Convention on Human Rights, which limits interference in extradition to cases where the subject is at real risk of execution, torture, or inhuman or degrading treatment.
The three politicians came away from the meeting feeling that Johnson had been prepared to listen to their case, and that it “wasn’t the end of the road”, Meacher’s spokesman said.
The group of MPs is now trying to meet the US Ambassador to try to get the US government to withdraw extradition proceedings on human rights grounds. The Department of Public Prosecutions believes McKinnon doesn’t have a case to answer in the UK and that the case won’t stand up in a US court; Johnson should use his powers to step in and end this circus. So he believes the precedent would aid terrorists, but I don’t accept for a moment that a UFO-obsessed computer hacker with Asperger’s Syndrome is a legitimate sacrifice to the continuing ‘war on terror’.
Home Secretary Alan Johnson may believe he doesn’t have the power to prevent Gary McKinnon’s extradition under the Extradition Act 2003, but many MPs believe otherwise and are working to change his mind:
A delegation of three Labour, Conservative and Liberal Democrat members will tell Mr Johnson in a meeting at the Home Office that he has the “power and the duty” to step in to prevent Mr McKinnon, who suffers from Asperger’s syndrome, a form of autism, being sent for trial in the United States.
David Davis, the former Shadow Home Secretary, the Liberal Democrat home affairs spokesman Chris Huhne and Michael Meacher, the former Labour minister, are joining forces to urge a rethink.
They will present Mr Johnson with a detailed legal opinion challenging the Government’s claim that it has no power to intervene in the extradition which has already been agreed by the courts.
It appears Matrix Chambers believe that the courts have primary, but not exclusive responsibility in extradition cases. McKinnon’s extradition would clearly be unjust, considering his Asperger’s Syndrome diagnosis it would also be a breach of his human right, and conducted under a law never voted on by parliament. Johnson should block the extradition, and confirm an immediate review of this seriously flawed legislation.
The fight to stop Gary McKinnon’s extradition to the United States under the grossly unjust Extradition Treaty has escalated with the American Civil Liberties Union (ACLU) joining in the campaign, alongside the British human rights pressure group Liberty:
The American Civil Liberties Union, which has been backed in the past by stars like Al Pacino and Martin Sheen, wrote to David Miliband, the foreign secretary, expressing its concern about extradition arrangements between Britain and America.
In the letter, Anthony Romero, the union’s executive director, complained that Britons were “exposed to the risk of ill-founded extradition requests”.
This was because British prosecutors have to provide “enough information to provide a reasonable basis to believe that the person sought committed the offence”.
In contrast, American prosecutors need only detail the charges, which cannot be challenged, in a British court.
Mr Romero added: “We are concerned about the threats to the rights of British people and the unfair lopsided aspect of the treaty that means while Americans have basic constitutional protections…
“British residents can be subject to extradition without equivalent evidentary requirements being made out.”
Liberty’s director Shami Chakrabarti said:
“”The intervention of Liberty’s sister, the American Civil Liberties Union, proves that Britain’s Extradition Act is an international embarrassment. Vulnerable people like Gary McKinnon can be bundled off to other countries when they ought to be dealt with at home.
Janis Sharp’s campaign for fairness for her son Gary has touched the hearts of parents everywhere. If Parliament doesn’t amend Britain’s rotten Extradition Act to put discretion and common sense back into the system, other vulnerable sons and daughters are bound to suffer.”
You can join Liberty’s campaign to save Gary McKinnon from unjust extradition, and to face trial in the UK instead by going here. You can also join Gary’s mother’s Twitter account, which will keep you fully updated on all aspects of the campaign.