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.
After a first week with Labour and the Conservatives (henceforth Labservatives) refusing to talk about civil liberties and human rights, both completely ignoring issues around the government’s authoritarian agenda, the Lib Dems have finally created an opening with the release of their manifesto:
Speaking to the Guardian, the Lib Dem leader said he was shocked by the lack of reference to civil liberties in the Labour manifesto, and highlighted his own plans to scrap the next generation of biometric passports, and its communication base.
He said: “It’s a measure of the authoritarian streak of the Labour party that it didn’t refer once to liberty in its own manifesto.
“Civil liberties and individual freedoms are part of the DNA of the Lib Dems. It makes a compete mockery of the claim by Gordon Brown that he can speak for progressive voters in other parties when his own party has turned its back on one of the cornerstones of progressive politics.
The manifesto, part of which has been seen by the Guardian, proposes to set up a “stop unit” inside the Cabinet Office responsible for preventing anti-libertarian legislation, including the creation of new criminal offences.
Now that really is a clear blue line between the parties. I fully accept that many outcomes of the authoritarian project have been accidental – the RIPA legislation for example hasn’t been used remotely as intended, and nor for that matter has Section 44 of the Terrorism Act, although it’s probably debatable whether either piece of legislation was ever necessary. Joined up thinking like this is what we were promised in 1997, but it never happened.
The Liberal Democrats claimed scrapping biometric passports could save £3bn over the course of a parliament, the first time the party has mentioned this saving. It also calls for regulation of closed-circuit television, measures to stop councils spying on people, and new guidelines to prevent unfair extraditions to the US.
The manifesto says the Lib Dems would stop children being fingerprinted at school without their parents’ permission and promises to restore the right to protest by reforming the Public Order Act to safeguard non-violent protest.
Restrictions would be introduced to narrow the scope of injunctions and there are proposals to protect free speech and investigative journalism.
Very nice. It’s something which was discussed last night at the Hostile Reconnaissance event. Grand principles are being brushed aside in the name of ‘security’, and it’s time particular protections such as these were itemised, codified and legislated for.
The party is in favour of reforms to the English and Welsh libel laws: corporations would have to show damage and prove malice or recklessness to mount a successful court challenge against journalists. The party also calls for a £10,000 cap on individual donations, down from its previous pledge to impose a £50,000 cap.
More like it yet again. Just what were Labour promising again?
At the manifesto launch on Wednesday, Clegg will promise to scrap control orders, which can use secret evidence to place people under house arrest, as well as reduce the maximum period of pre-charge detention to 14 days. The second-generation biometric passport, which includes fingerprints, is not due to be scrapped by the Tories, even though they do propose to drop the national identity register.
What’s clear here is that the Lib Dems are committed to rolling back the authoritarian agenda itself. The Tories are promising to make tweaks here and there and changes of focus, but the agenda itself under them would without question remain. These commitments give voters a reason to vote for them actively, rather than just voting against the other main parties. I wonder though what pressures they would find themselves under if they really were in government, given that (again as came out in the Hostile Reconnaissance event last night) the party is wedded to neoliberal economic policies? So much of Labour’s agenda has arisen from that reality, and I wonder what any Lib Dem’s views on this are.
But the Lib Dems will argue it is not necessary to spend billions of pounds on storing fingerprints in passports, and say Britain already has a type of biometric passport known as an e-passport, which stores 16 facial measurements (along with your name and passport number) in the chip at the back.
Clegg said he would also scrap the communications database for which companies would be paid to store information about everyone’s email and internet use, including storing data about what you do on social networking sites such as Facebook and online computer games.
It sure sounds good. Is it now incumbent for as many of us as possible to vote Lib Dem at any cost in order to express our feelings on this vitally important issue?
So China did the obvious and executed Briton Akmal Shaikh anyway:
Gordon Brown and other senior British politicians have angrily condemned China for executing a British man said to have had mental problems. Akmal Shaikh, 53, was killed early this morning by lethal injection after being convicted of drug smuggling.
Despite frantic appeals by the Foreign Office for clemency, Shaikh was executed at 10.30am local time (2.30am British time) in Urumqi. Campaigners believe he is the first European in 58 years put to death in China.
Shaikh, a father of three from Kentish Town, north London, was found with 4kg of heroin in his suitcase in September 2007. His supporters say he had suffered a breakdown, was delusional and was tricked into carrying the drugs.
Shaikh learned only yesterday that he would be killed today. He was informed by two cousins, who flew to China seeking a reprieve.
“We are deeply saddened, stunned and disappointed at the news of the execution of our beloved cousin Akmal,” said Soohail and Nasir Shaikh in a statement.
The two men said they were “astonished” that the Chinese authorities refused to investigate their cousin’s mental health on the grounds that the defendant ought to have provided evidence of his own fragile state of mind.
“We find it ludicrous that any mentally ill person should be expected to provide this, especially when this was apparently bipolar disorder, in which we understand the sufferer has a distorted view of the world, including his own condition.”
Amid an angry exchange of words between London and Beijing, the British prime minister said: “I condemn the execution of Akmal Shaikh in the strongest terms and am appalled and disappointed that our persistent requests for clemency have not been granted. I am particularly concerned that no mental health assessment was undertaken. At this time our thoughts are with Mr Shaikh’s family and friends and I send them our sincere condolences.”
Of course it’s appallling that anyone has been executed for any reason. The state has no more right to take an individual’s life than another individual – it’s barbaric. But consider Brown’s words and then think for a moment about Gary McKinnon – apparently it’s ‘concerning’ that no mental health assessment was undertaken by China of Akmal Sheikh, yet one was conducted on Gary McKinnon – he has Asperger’s Syndrome. For some reason that makes it perfectly ok to extradite him to an uncertain future in the US penal system, despite what effect that is already having on his mental health. It’s a disgusting double standard which says more about Brown and his government’s public support for, and private indifference to human rights, than China’s longstanding disregard for them. Foreign Office Minister Ivan Lewis said:
it was “reprehensible” and “entirely unacceptable” that the execution had gone ahead without any medical assessment. “This execution makes me personally feel sick to the stomach but I’m not going to make idle threats.
“This morning is not the time for a kneejerk reaction. It’s true we must continue to engage with China but it needs to be clear as that country plays a greater role in the world they have to understand their responsibility to adhere to the most basic standards of human rights. China will only be fully respected when and if they make the choice to join the human rights mainstream and incidents like this do not help the international community’s respect or relationship with China.”
It isn’t even an idle threat – it’s an idle remark. China is now so powerful it can disregard any other’s country’s disapproval of its behaviour. China is currently only concerned about increasing its influence and its wealth, not its international respect – it can easily afford to ignore Britain’s diplomatic attack, particularly considering its desperate, self-serving nature; if the British government really cared about Akmal Shaikh they’d prove it by blocking Gary McKinnon’s extradition, but I assure you that won’t happen. Amnesty International said:
Shaikh’s execution again highlighted the “injustice and inhumanity of the death penalty, particularly as it is implemented in China”. Amnesty estimates China executes at least three times as many people as every other country put together.
Sam Zarifi, Amnesty’s Asia programme director, said: “Much information about the death penalty is considered a state secret but Mr Shaikh’s treatment seems consistent with what we know from other cases: a short, almost perfunctory trial where not all the evidence was presented and investigated, and the death penalty applied to a non-violent crime.
“Under international human rights law, as well Chinese law, a defendant’s mental health can and should be taken into account, and it doesn’t seem that in this case the Chinese authorities did so.
“It’s simply not enough for the Chinese authorities to say ‘we did the right thing, trust us’. Now there can be no reassessment of evidence, no reprieve after a man’s life has been taken.
Foreign Secretary David Miliband said of the execution:
“it is a reminder of how different can be our perspective. We need to understand China (and the massive public support for the execution). They need to understand us.”
They’d do that a lot better if we weren’t sending out such a disgustingly hypocritical message. Gary McKinnon’s extradition must be stopped and he should be tried in the UK (except he wouldn’t be because the Department of Public Prosecutions acknowledges there isn’t enough of a case to answer).
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.
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.