Gary McKinnon: A Plea For Reason

It's my usual policy on this site to keep entries to below 1000 words, and ideally to about 500. You're busy people and I'm a great believer in the power of editing. This one, for all my efforts, is about 1800. I can only plead special circumstances and pledge that normal service will shortly be resumed.

The arrival of a new government seems to have raised hopes that Gary McKinnon might be spared extradition to the United States on computer hacking charges. His latest application for judicial review has been adjourned to allow the new Home Secretary, Theresa May, time to consider the latest medical evidence. It is a welcome development. McKinnon’s case has been the subject of a highly charged publicity campaign ever since he was diagnosed with Asperger’s Syndrome and fears were raised that incarceration in a foreign jail would have catastrophic consequences for his health. Sadly, publicity comes at a price, and in this case the price seems to be the abandonment of the usual standards of compassion that apply to the disabled.

The strident campaign in support of McKinnon by the Daily Mail has sparked a backlash from commentators who instinctively believe that if the Daily Mail is in favour of something, it must be wrong. These arguments are summarised concisely in a blogpost by the Labour MP Tom Harris, misleadingly titled ‘The case for McKinnon’s extradition.’ In fact Harris makes no such case; he merely sets up a row of straw men and begins firing like a hick with a blunderbuss and a bad case of hiccups. Most of the ‘arguments’ he cites in support of McKinnon simply don’t exist. Take the idea that ‘Computer hacking is not a serious crime’. It most certainly is; we have laws against it in this country. Gary McKinnon accepted that he broke those laws and admitted his guilt when interviewed. He was prepared to accept whatever punishment the court saw fit. What he wasn’t prepared for was for lawyers from another jurisdiction to sweep in and threaten to incarcerate him in a maximum security jail for a decade or longer if he didn’t co-operate.

Here’s another issue: ‘Asperger’s sufferers shouldn’t be extradited – why not?’ Again, this wilfully misunderstands the opposing view. Nobody is calling for a blanket exemption from extradition for people with AS. The contention, voiced by several medical experts including Professor Simon Baron-Cohen, is that McKinnon’s mental health would be adversely affected, possibly to the point of suicide, if he were to be extradited. It is one of the most basic principles of justice that people should not be punished or made to suffer as a result of acts committed through mental incapacity. Harris asks: ‘Would this argument be made in favour of an Asperger’s Syndrome sufferer who had committed a less “acceptable” crime, like murder or child abuse?’ The straight answer is yes, it would. It wouldn’t be a conclusive argument in itself – just as it isn’t in McKinnon’s case – but AS has been successfully used in a defence of diminished responsibility in cases such as this one about a man who killed his stepmother.

At this point we ought to leave the low-hanging fruit such as Tom Harris for the wasps and address more pertinent accusations, such as those put forward on the Socialist Unity website. It’s argued here that the threat to McKinnon’s well-being has been exaggerated to the point of hysteria by a media seeking to whip up anti-American feeling. To quote: ‘McKinnon’s spin doctors have also created an entirely fictitious narrative of him being pursued under anti-terrorism legislation, and facing 60 years in Guantanamo or a hell-hole penitentiary.’ I’m not sure where the reference to Guantanamo Bay stems from, but there were certainly concerns raised that McKinnon might wind up in a maximum security jail. And these claims were well-founded. As narrated by the Court of Appeal (an institution unconnected, as I understand it, to the Daily Mail), McKinnon was offered a plea-bargaining arrangement by US prosecutors that would see him serve six to 12 months of a four-year sentence in the States before being repatriated. If, on the other hand, he resisted: ‘no substantial remission would be 'earned': he would serve a substantial sentence in a US prison, possibly a high security prison, with, at best a 15% 'remission'.’ The ‘substantial sentence’ was described as ‘8-10 years or possibly longer’.

Like it or not, it is impossible to detach the request to extradite Gary McKinnon from the political climate in which it was made. McKinnon’s extradition was sought during the days of the Bush administration, which was strident and unapologetic in its determination to ‘get tough’ on anyone who impinged on national security. The Court of Appeal mentions a widely reported statement by a New Jersey prosecutor that the authorities wanted to see McKinnon ‘fry’. Since this was presented in court by the defence and I have been unable to find the original attribution, I am sceptical as to whether it was ever actually said, but it is typical of the kind of language that was customary in the Bush era. The Canadian Supreme Court considered a case of 89 people whose extradition was sought on mail fraud charges. The American prosecuting authority appeared on Canadian television and issued this threat to those who refused to give themselves up voluntarily: ‘I have told some of these individuals, 'Look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions' and described those conditions to them.’ Pressed further on what those conditions might be, he replied: ‘You're going to be the boyfriend of a very bad man if you wait out your extradition.’

This kind of bullying rhetoric almost certainly coloured the plea bargain offered to Gary McKinnon. It doesn’t matter that, as many commentators have pointed out, he couldn’t really ‘fry’ or spend 60 years in a maximum security jail for the offences for which he was charged, or that being raped in prison is not in the gift of a state prosecutor. The message was blunt and clear: surrender to us or we will make your life hell. To someone with Asperger’s, who is prone to taking things literally, it would have been a shocking proposition. Tell a child with Asperger’s that you’ll shoot them if they don’t behave and they’ll think you mean it. Say to an adult you want them to ‘fry’ in your prison system and they’ll be similarly terrified. Professor Baron-Cohen noted that one of the things McKinnon feared most about incarceration in the US was the prospect of being raped. The threat, in his mind, was real.

What underpins many of these counter-arguments, I fear, is a suspicion that Asperger’s Syndrome is not a serious condition and that McKinnon has ‘played the Asperger’s card’ in order to get off lightly. In dismissing his appeal for judicial review*, the Court of Appeal cited the previous Home Secretary's remarks that ‘despite having had AS in childhood his condition has, so far, not necessitated any type of treatment or medical intervention. He is aged 42. He faced arrest and interview by the police, arrest on an extradition warrant, an extradition hearing, the order for his extradition, and litigation in the High Court and House of Lords, all no doubt deeply stressful events without this leading to any acute events requiring intervention.’ This seems a strange conclusion, given that McKinnon is known to have suffered depression for several years. The fact that he has not sought treatment or medical intervention for his Asperger’s does not mean that he didn’t need it or wouldn’t have benefited from it. Like many people with AS, he muddled through life for about 40 years, drifting in and out of work, filling his leisure time with strange obsessions, struggling to form friendships and relationships and assuming he was just a bit of an inadequate individual. He was coping, but he was hardly thriving.

Asperger’s Syndrome, like all forms of autism, is a lifelong condition. That applies backwards in time as well as forwards. It’s not a condition like cancer, which presents itself in a previously cancer-free individual, sometimes after decades of unblemished health. It occupies the whole space between birth and death. If the law is unable to accommodate this basic truth, the law needs to be changed. Before you’re diagnosed with Asperger’s Syndrome, you have a similar but materially different condition: undiagnosed Asperger’s Syndrome. It’s distressing, bewildering and soul-destroying, and it’s completely untreatable because nobody can tell you what you’re suffering from.

Certainly McKinnon’s case is a complicated one. There is no suggestion that he is unfit to stand trial or incapable of understanding the charges he faces. But the implication that he is seeking to avoid prosecution or belittle the seriousness of his crimes is simply false. McKinnon has admitted committing offences that were indictable in this country. He accepts that he should be punished. He is challenging extradition, not prosecution. It is a distinction that his detractors need to understand. It has not helped at all that his extradition was sought by an administration that sought to make him comply by means of grotesque and exaggerated threats. On this, at least, there is hope: the language of the US prosecuting authorities has changed dramatically in the last few years, whether because of regime change or in light of McKinnon’s diagnosis. On February 23, 2009, the US Department of Justice wrote a detailed letter to the Home Office outlining what treatment McKinnon could expect if he were to serve his sentence in the US. It is quoted at length in the Court of Appeal’s judgment and is a far cry from the earlier promises of 15 years or more in a ‘supermax’ prison.

There is a sound legal case for why Gary McKinnon should be tried in the United States: his crime was to sabotage the US military computer network. But there is also a solid legal case why he should be sentenced (not tried, if he pleads guilty as expected) in England: he committed the offences from his flat in London, and the means exist for the English courts to impose an appropriate sentence. On top of that, there are strong humanitarian grounds for not placing someone in a situation that is likely to be detrimental to their mental health. Even allowing for the benign conditions now being offered by the Americans, the effect of being removed to an alien territory by force would be alarming and distressing to someone with Asperger’s and, in McKinnon’s case, the disorienting effect could well trigger a depressive episode or worse. It is unjust and inhumane to put someone who has admitted his guilt through this kind of additional trauma unnecessarily. You have to ask, finally: if Gary McKinnon had any other kind of disability, would he be treated in this way?

* I am indebted to the estimable Jack of Kent for gathering together the links to these court documents.