Above the law

06Aug09

Gary McKinnon. I’m finding this case mighty peculiar. He’s the hacker facing extradition to the US for, well, breaking into highly sensitive computers and having a jolly good poke around. This, understandably, has riled the Americans and now they want to extradite him to stand trial in the States. A couple of appeals later and the courts here are saying yes, he has to go.

Several things have attracted my attention. First off, he did it. He says he was only looking for info on UFOs. Well, I don’t really care what he was looking for. He did it, he’s not an idiot, he knew it was wrong and he did it anyway.

His mother says he’s got Asperger’s so he would find it very distressing going to jail in the US. Humph. I haven’t got Asperger’s but actually, so would I. Asperger’s is the condition that features disproportionately heavily among very high-functioning spods. We all know someone with Asperger’s. It often affects people who are very clever at maths and physics and the like; indeed, the very people who are well suited to hacking. It doesn’t mean you don’t understand the law. Sorry.

Plus, who’s to say that a US jury is going to be more hardhearted and less rigorous than a British one? Or that the sentencing judge – if McKinnon was found guilty – wouldn’t take into consideration the particular circumstances? It is for the court to decide whether he was only looking for information on UFOs, and whether that makes him pretty harmless in the grand scheme of things. That’s the whole purpose of a court. Another complaint is that it will be a show trial. Yes, but a show trial with an awful lot of people watching, and a White House keen to get away from all that War on Terror rubbish.

The fact is that our gutless government signed an agreement with the US saying that we would allow them to extradite whoever they damn well pleased, as long as the US claimed that the perp had some murkily nefarious intent to harm America’s murkily defined ‘national security.’ No reciprocal agreement is in place. However you feel about it (and I’m absolutely bloody furious), the agreement was signed. Judges have to honour that, however moronic or naïve or weak they might consider the agreement and the politicians who signed it.

To me, the really interesting point in all of this comes to light when you strip away the particulars. Whatever about UFO hunters and lily-livered foreign policy, this case is forcing the courts to decide where a crime has been committed. What is the essence of a crime? Is it where the injurious act was initiated, or is it where the victim was hurt? McKinnon says he should stand trial in the UK because that’s where he did the hacking. The US says the damage occurred in their jurisdiction, so the crime was committed there. The internet makes it possible for crimes to be committed remotely, and this case has huge potential impact.

The outcome of these extradition hearings could, theoretically, open the way for all kinds of prosecution: Spanish boiler rooms, investment frauds, those nice Nigerians needing to lodge a squillion quid in your bank account. And let’s imagine if we could extend it overseas. What about firing ground rockets onto foreign territory? That would mean you, Hamas, having to stand trial in Israel. And Israel, having to stand trial in Gaza. But not the US, of course, because nowadays they tend to launch missiles from planes within a nation’s airspace, or simply invade with ground troops.

Though, wait, no, silly me. It’s academic. America is above the law, internationally at least. It refuses to allow any of its citizens to stand trial in any foreign country. Well done us for letting that one slide.

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