MOSCOW, October 17 - RAPSI, Ingrid Burke. Much to the chagrin of her US counterparts, UK Home Secretary Theresa May announced a decision Tuesday to block the extradition to America of Gary McKinnon, a mentally ill hacker who brought the US Army Computer Network to its knees in the immediate aftermath of the September 11, 2001 terrorist attacks.

Background: the attack and its perpetrator

US authorities have sought the extradition of McKinnon, a 46-year-old who suffers from Asperger’s syndrome and depression, for the better part of the past decade. In an elaborate scheme, the facts of which McKinnon has not contested, he hacked into 97 government computers and installed software granting him remote access to the government computers from his own home computer in London.

According to a 2008 House of Lords opinion, of the 97 computers, 53 belonged to the Army. The others belonged to the Navy, the Air Force, the Department of Defense, and NASA. He used this access to delete a great deal of information, including critical data which caused the US Army’s entire Military District of Washington computer network to shut down for more than 24 hours. According to the opinion, deletion of these files rendered “the Base’s entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001 and thereafter leaving the network vulnerable to other intruders.”

McKinnon has claimed responsibility for the attack, but not for the monetary damages - upwards of $700,000 - caused to the US government as a result. He professes to have been motivated by a genuine concern with regard to what the government is hiding. In a BBC interview, he explained, ““I was in search of suppressed technology - you know, laughingly referred to as UFO technology. I think it’s the biggest kept secret in the world because of its […] value. But it’s a very important thing - we’ve got old-age pensioners can’t pay their fuel bills; we’ve got countries being invaded to get […] oil contracts to the West. And meanwhile secretive parts of the secret government is sitting on suppressed technology for free energy.”
The US requested McKinnon’s extradition to the US in October 2004.

May’s decision with regard to McKinnon

In a move that sent shockwaves through the US and provoked praise among her own compatriots, May announced Tuesday that she had withdrawn the extradition claim against McKinnon.

Clarifying that the only legal question before her was that of whether McKinnon’s pending US extradition posed any human rights issues, she asserted, “After careful consideration of all of the relevant material, I have concluded that Mr. McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr. McKinnon’s human rights.” Shortly beforehand, she had described McKinnon as “seriously ill” in reference to his Asperger’s and depression diagnoses.

She noted that the case will next be assessed by the director of public prosecutions, who will consider whether any of the charges lodged against McKinnon give rise to a cause of action within the UK court system.

The broader implications of May’s decision

May expanded on the broader concerns that have surfaced in connection with the UK’s various extradition treaties over the past several years, including both the European Arrest Warrant and the UK’s extradition treaty with the US. May noted that in a parliamentary debate last December, a unanimous agreement was reached that there were problems with the UK’s extradition treaties with both the US and the EU.

The introduction of a forum bar

Stating her belief that, “extradition decisions must not only be fair, they must be seen to be fair,” May urged the imperative of letting the judiciary decide - in open court sessions - on extradition issues, noting that in such a setting these decisions can be challenged and explained.
Thus she introduced a forum bar, meaning that when prosecution is possible both in the UK and in the state requesting extradition, “the British courts will be able to bar prosecution overseas, if they believe it is in the interests of justice to do so.”

Noting that the current legislation provides only for a less than efficient form of forum bar, May vowed to advance new, specifically tailored legislation as soon as feasible.

Opting out of the European Arrest Warrant?

May announced Monday the UK government’s present consideration of opting out of all police and criminal justice measures predating the Lisbon Treaty. She added Tuesday, “[t]he government will give very careful consideration to these measures, including the European Arrest Warrant, and will then seek to opt back into those individual measures where it is in our national interest.”

British concerns May noted with regard to the EAW were that of its disproportionate use for trivial offenses as well as offenses that are not considered criminal under UK law, and of the lengthy pre-trial detention process endured by British citizens abroad.

The Framework Decision on the European arrest warrant and the surrender procedures between Member States was adopted in 2002 in order to replace the extradition systems that previously governed the transfer of criminal defendants within the European Union (EU). The purpose of the law was “to simplify and accelerate surrender procedures for persons between member states… by putting in place a system of free movement of judicial decisions based on mutual recognition.”