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.
It would be unthinkable to see laws passed in Washington or EU advocating the death penalty for homosexuality, but Uganda is rushing headlong into a homophobic abyss:
The proposed law is more a rant against homosexuality and the west than a workable piece of legislation intended for Uganda itself. Much of it consists of a list of unfounded claims, starting with the statement that “same sex attraction is not an innate and immutable characteristic”. Infamously, it calls for the execution of gay men found guilty of “aggravated homosexuality” – by which it means those who are HIV positive, or who have sex with someone who is under 18 or disabled. The bill may be amended during its passage through parliament to replace the death penalty with life imprisonment, but that change would be only a gesture to spare the blushes of Uganda’s aid donors. If passed – which looks likely, since its sponsor is a member of Uganda’s ruling party – the bill will continue to write hate into law.
To say that acceptance of homosexuality is a ‘liberal’ or ‘Western’ perspective is essentially to collude in the abuse of gay people around the world. Of course being gay is an innate and immutable characteristic, and to propose the death penalty for HIV positive men and jail for everyone else isn’t just immoral it’s backward. Some will say such a statement is racist, but when was it true that all Ugandans, Africans or black people were homophobic? On the contrary, considering the wide-ranging dangers the bill poses, should we not be allying ourselves with Ugandans opposed to this hate law?
David Bahati, Ndorwa County West minister of parliament, tabled the Bill saying Uganda needed comprehensive legislation to prohibit any form of sexual relations between people of the same sex.
The Bill, according to Bahati, seeks to plug gaps in the Ugandan constitution, and stipulate that marriage is between a man and a woman only. Other unions will not be recognised. And if same sex couples are married abroad, they face life imprisonment.
Practising homosexuality has been illegal in Uganda and is listed in the penal code, though police say it is hard to investigate this crime because “homosexuals operate under cover”.
But the new Bill now forces people in authority to report offences to the police within 24 hours, or they themselves will face fines or up to three years in prison.
Anyone found guilty of committing homosexuality, or advocating homosexuality to a group or assembly, will face a prison sentence. The penalties are up to 10 years in prison or a fine not exceeding $5,500 or both.
The Bill also seeks extra territorial jurisdiction and will apply to any Ugandan involved in a LGBT relationship outside of the country. The Bill also seeks to extradite any Ugandan guilty of the offences it lists.
Under the terms of Britain’s Extradition Act Uganda is covered as a category 2 territory, which, whilst not allowing the extradition of an HIV positive Ugandan, would certainly allow for the extradition of any other Ugandan covered by the country’s gay hate legislation. Should it pass, the Home Office must make it clear that the Act will not be used to allow the infringement of human rights by the Ugandan government, and separately that gay asylum seekers will under no circumstances be returned to Uganda.
This is a law attacking basic human rights and should it pass it must have consequences. The Coalition on Human Rights and Constitutional Law (CHRCL) acknowledges the scope of this attack:
“In reality this would involve Uganda withdrawing from the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its protocols, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the African Charter on Human and People’s Rights.”
The Swedes, who currently hold the rotating EU presidency, and who donate $50 annually to Uganda, have said they’ll rescind their annual contribution should the law pass. Britain should not just call for the country to be immediately suspended from the Commonwealth, but she should follow Sweden’s lead.
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.
Computer Weekly has discovered that the evidence in support of the US government’s extradition request against Gary McKinnon is fundamentally flawed:
Evidence supplied by the US authorities to the UK to support legal proceedings against Pentagon Hacker, Gary McKinnon, relies on hearsay and may be impossible to prove in court, according to an internal Crown Prosecution Service document.The document obtained by Computer Weekly calls into question the forensic evidence supplied by the US to link McKinnon to hacked US military systems. It casts doubt on claims that McKinnon’s activities damaged thousands of US military computers.
The document, Review Note 3 – 26 February 2009, was complied by Russell Tyner, lawyer for the CPS’s Organised Crime division for the Department of Public Prosectutions.
The DPP used the review to support its decision of 26 February not to prosecute McKinnon in the UK. It concluded that there was not enough evidence.
The gaps include:
- Proof identifying each of the computers hacked
- An image of each computer
- A forensic report of each computer, linking access and file modifications to McKinnon
- Evidence to prove that accusations made against McKinnon were not merely hearsay,
- Evidence that McKinnon’s activities caused impairment of US systems
- Evidence that his activities left computers vulnerable to intrusion.
I know that the Extradition Act 2003 doesn’t require that any of this has to stand up at the point of the extradition request (in the UK), but surely if the evidence is already known not to stand up under US law then why bother with all this? If the Deparment of Public Prosecutions feels that the evidence wouldn’t stand up in an American court (and that it doesn’t in a British one), I find it even more amazing that there is still no legal remedy to preventing this mean-spirited extradition, which still appears to be pursued out of the US government’s embarrassment more than anything else. The Home Office is refusing to disclose the legal advice it continues to cling to, in its refusal to intervene.