The home secretary's decision not to extradite the Crouch End Asperger's sufferer has caused others to raise questions
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Gary McKinnon will not be extradited to the US following a decision by Theresa May. Photograph: Rex Features
On balance I was glad that Theresa May decided that Pentagon computer hacker, Gary McKinnon, will not be extradited to the United States to face charges that could have seen him sent to prison for up to 70 years. But you can't please everyone. The US government is cross, so is former Labour home secretary, Alan Johnson. As for the friends of recently deported terror suspects such as Barbar Ahmad, and of allegedly dodgy British businessmen, they are accusing May of double standards.
Who's right? Mostly May, I think. McKinnon seems to be a pretty inoffensive computer nerd who from 1995 to 2002 fooled around with the US defence network – and damaged a lot of kit in the process – out of innocent curiosity, looking for UFOs and also trying to show how poor the encryption was. But instead of being grateful to the Londoner, the Yanks threw the book at him. I could have told you that, Gary, if you'd only asked.
In the years which followed 9/11 when the US introduced what amounts to a state of emergency (still in place) successive Labour home secretaries like Johnson, who don't come out of this very well, were obligingly prepared to let McKinnon go. I remember one of them explaining that he had to let the law, including the 2003 extradition treaty, take its course. A bit fatalistic, I'd say.
Egged on by the Daily Mail, whose civil liberty record is strong but very selective, May has found the obvious loophole. McKinnon, whose life has been on hold since his first arrest out of the blue at home in Crouch End in 2002 by a detective from the National Hi-Tech Crime Unit, suffers from Asperger's syndrome, a form of autism (common among computer geeks, say some) and the risk of a suicide attempt in the US is strong.
As with the European arrest warrant, also under attack in Britain, the extradition treaty has been accused of being one-sided in the US's favour – though Mr Justice Scott-Baker's review concluded that the accusation is wrong. May however has decided to raise the bar on which forum – ie court, British or US – a case should be held in and to remove future home secretaries from intervening in the same way. A muddled decision as Tuesday's Guardian leader notes.
The real problem is two-fold; three-fold if we count the cost as the Sunday Telegraph did here and hereat the weekend.
Britain has good courts, strong traditions of legality and a lot of lawyers with time on their hands who are good at upholding due process, so that we tend to process requests from overseas and also take them to all available appeals. That means both here and in Europe, where the court of human rights takes on too much and also gets involved in local issues of no general importance, cases it should leave to local courts, its backlog grows by the day.
In addition, some jurisdictions have some very odd habits. A British man was sought by Portugal quite recently on the charge – some years after the incident – of murdering a man who was still alive. The Sunday Telegraph unearthed a costly extradition process over a £70 stolen wheel-barrow. To add insult to injury, some unpleasant characters who are here illegally and have committed nasty crimes, use our laws – notably the Human Rights Act, – to stay here instead of being sent home when they leave prison.
May, whose government is always sounding off against the act (let's see if they ever find a practical way to curb its excesses without doing much more harm to human rights), was happy to use article 3 to rescue McKinnon. The Human-Rights-Act-bashing Mail was happy to praise her for doing so on Wednesday over seven pages, and talked about her as a future leadership contender – a sweetie often handed out in Fleet St, but rarely wisely.
Hats off to the Mail for this campaign, but hats on again for its selective outrage. McKinnon is luckiest of all to have a tough mum in Janis Sharp, who wrote in the Guardian this week following the decision.
The American case is different from the European one. As accused business executives like the NatWest Three and Chris Tappin – he's now on bail in Houston, tagged and banned from the internet, awaiting charges of selling ship missiles to Iran (like the Reagan administration did) – discovered when indicted, American prosecutors love to plea bargain. "Admit this lesser offence or you may go to jail for 50 years." It's efficient and they get more results on financial crime than we do, but it's also rough justice. But remember, just because they're Brits doesn't automatically make them innocent. We simply don't know.
There is also the US federal prison system. When Abu Hamza was finally sent west after gaming the despised British justice system – and its despised benefit system too – the Mail wrote a slightly gleeful account of how grim American prisons can be. It can't be said too often that there are too many people in US prisons, that half of them are black or ethnic minority and that the country has taken a regrettable wrong turn on penal policy. Alas, Britain has followed a similar path since the mid-90s.
Be that as it may, the US was spectacularly destablised by the 9/11 attacks and its badly executed responses under the Bush administration – its assault on civil liberties not confined to non-Americans. Some of it may well be justified in anguished circumstances. So, naive or not, McKinnon has a case to answer and should answer it in a British court since he was on British soil when he hacked those military computers.
The director of public prosecutions, Keir Starmer, a clean-cut, lantern-jawed fellow in the best Hollywood traditions, should arrange for it to be done. It may slightly appease hurt feelings in Washington and New York, though US hypocrisy on extradition ("No, you can't have those patriotic IRA bombers back") is in a class of its own. Former Bush White House counsel, David Rivkin, sounded like an angry bully on Radio 4's World at One on Tuesday. The US was taking a sledgehammer to crack a nut.
But what about the terror suspects whose families feel aggrieved that they were flown out with Abu Hamza the other day, to face fearful unknowns. Are they nuts under the American sledgehammer too? It's not so easy, is it?
As you will not have read in most newspapers, the family of Babar Ahmad, arrested on terrorist conspiracy related charges in 2004, issued a dignified statement on Tuesday:
"We strongly welcome the decision not to extradite Gary McKinnon. We would not want his family to experience the pain and suffering we have all been enduring since Babar was extradited.
"However, questions do need to be asked as to why, within the space of two weeks, a British citizen with Asperger's accused of computer related activity is not extradited, while two other British citizens, one with Asperger's, engaged in computer-related activity, are extradited. A clear demonstration of double standards.
"That Theresa May felt compelled to postpone both the McKinnon decision on several occasions and the introduction of the forum bar (which would have prevented Babar's extradition) demonstrates her willingness to make vulnerable individuals like Gary suffer in her determination to extradite others.
"Many of our supporters are angry at what appears to be blatant old-fashioned racism under which all British citizens are equal but some are more equal than others."
Some fair points, well made, there. But from what little we know – look at that Wiki summary again or the official website Tooting-born Babar Ahmad is not quite the Crouch End computer nerd with no political agenda that Gary McKinnon is, though he was an engineer working in IT before his arrest. He's charged with computer-related offences too and certainly had interesting website material at home.
All the same, the British authorities decided that there was insufficient evidence on which to charge him. The US, in whose politics paranoia has been a constant theme, thinks otherwise.
Guardian veteran, Victoria Brittain wrote an impassioned comment piece you may have missed here which accuses the UK and EU legal systems of all sorts of things, not least of stereotyping Muslims, of bundling up some very different cases and of justifying the bulk deportation behind the singular and unappetising figure of Abu Hamza. One of those deported, Talha Ahsan, also suffers from Asperger's, so Brittain notes.
All now face long pre-trial detention and an uncertain fate. US courts do not convict to order as courts in Russia and China have recently shown themselves to do in political cases – the Pussy Riot trial in Moscow, the Bo family affair in provincial China – but the prospects look bleak. It's hard to tell the extent to which one or any of the accused may be seriously compromised by terrorist-related activity or just caught up in the wrong place or company at a bad time, as some Guantanamo Bay detainees were.
It's troubling and I can appreciate the anger of families who will support their loved ones, whatever the facts may be. But it's not quite the same as the Crouch End One.