Wednesday, 16 June 2010
Further thoughts on Gary McKinnon
I have changed my mind on the extradition of Gary McKinnon; let me explain why.When I decided to write a series of blogposts on this well-known and controversial case, my primary intention was simply to explore the difference between a source-based approach and the version of the case familiar from mainstream media.There was, to my mind, a complete mismatch between the media construct of the "Free Gary" campaign and the information one could obtain from a close reading of the judgments and from an accurate understanding of the applicable law.I thought such an exploration would be best done by a blogger rather than a journalist, as a blogger can freely link to sources and take time to "get it right" in a way that a journalist under the constant crunch of deadlines would just not be able to do.I also thought my background as a serious legal blogger with a strong liberal bias would mean that my exercise would not be seen as a hatchet job.In my summary blogpost here (which links to the other blogposts), I was able to show that a source-based approach would indicate that any extradition of Mr McKinnon would not be either unjust or illegal.There is nothing whatsoever in a source-based approach to substantiate the popular media version of this case being a miscarriage of justice in action.In particular: the alleged offences are serious and were sustained over a lengthy period; the allegations went beyond unauthorised access to substantial file deletion and copying; there had been allegedly significant operational damage; the unauthorised access had been admitted and Mr McKinnon's legal team had indicated that he would also admit the damage; the US can evidence the damage; the US can thereby show a prima facie case; UFOs play no part in the litigation, and indeed Mr McKinnon's original case was that his political opinions should be taken so seriously that he should not be allowed to be extradited on those grounds; Mr McKinnon had wrongly rejected a highly advantageous plea bargain; the disparities in respect of the UK/US extradition arrangements were not relevant in this case; the CPS had provided detailed reasons as to why they would not (and probably cannot) prosecute Mr McKinnon in the UK; and, perhaps most importantly of all, the US has provided detailed assurances as to how Mr McKinnon's condition of Asperger's Syndrome will accommodated should he be extradited and have also stated that they have no principled opposition to Mr McKinnon applying to serve his sentence in the UK.(For sources to all of these, follow the references at my summary blogpost.)
In short, there is a case to answer at the trial which would follow extradition.
But in my summary blogpost I urged that - even though a source-based approach showed it would be neither unjust nor illegal to extradite Mr McKinnon to answer the case against him - mercy should still be applied.After all, eight years is an unacceptably long time for an extradition, especially as the facts were admitted and documented back in spring and summer 2002.This plea for mercy shocked some of those who had followed my series; it was almost as if I had let them down.But it was my liberal inclination asserting itself having dismantled the central elements of the "Free Gary" campaign. I do not want to see Mr McKinnon extradited and I feel desperately sympathetic for his predicament.(For me, skepticism (a source-based approach combined with open, detailed, and critical reasoning) is what one employs to get to the facts, and liberalism is what one applies to the facts once you have got them. In this way one can try and avoid the usual progressive problem of sentimental wishful thinking.)
And what happened after my plea for mercy was perhaps instructive.The Free Gary campaigners continued to troll and be confrontational (and indeed repeatedly abuse me on Twitter). They did not seem to care that I had come down on "their side". They seemed more concerned about defending their narrative as being "true".On the other hand, others who followed my blog, especially the estimable Dr Brian Blood, sought to grasp my point about mercy and apply critical thinking to it.And I can now say I have changed my mind.
The application of mercy in this case should go to sentencing not the extradition decision. That is the correct point for such mitigation to be considered.This must be right, and I stand corrected.I still want Mr McKinnon to be free of this extradition and this case. But I am now convinced that whatever my personal feelings about his predicament, and my general loathing for custodial sentences (unless they are to protect the public), my plea for mercy was procedurally premature.I wish I could at a stroke release Mr McKinnon both from his situation and from the misconceived legal strategy he has followed. I rather hope the Home Secretary can find some plausible pretext. But that is not enough to objectively set aside an extradition process which, on proper examination, has actually been neither unjust nor illegal.I do so wish it was otherwise; but I am afraid - on reflection - it is not.
In short, there is a case to answer at the trial which would follow extradition.
But in my summary blogpost I urged that - even though a source-based approach showed it would be neither unjust nor illegal to extradite Mr McKinnon to answer the case against him - mercy should still be applied.After all, eight years is an unacceptably long time for an extradition, especially as the facts were admitted and documented back in spring and summer 2002.This plea for mercy shocked some of those who had followed my series; it was almost as if I had let them down.But it was my liberal inclination asserting itself having dismantled the central elements of the "Free Gary" campaign. I do not want to see Mr McKinnon extradited and I feel desperately sympathetic for his predicament.(For me, skepticism (a source-based approach combined with open, detailed, and critical reasoning) is what one employs to get to the facts, and liberalism is what one applies to the facts once you have got them. In this way one can try and avoid the usual progressive problem of sentimental wishful thinking.)
And what happened after my plea for mercy was perhaps instructive.The Free Gary campaigners continued to troll and be confrontational (and indeed repeatedly abuse me on Twitter). They did not seem to care that I had come down on "their side". They seemed more concerned about defending their narrative as being "true".On the other hand, others who followed my blog, especially the estimable Dr Brian Blood, sought to grasp my point about mercy and apply critical thinking to it.And I can now say I have changed my mind.
The application of mercy in this case should go to sentencing not the extradition decision. That is the correct point for such mitigation to be considered.This must be right, and I stand corrected.I still want Mr McKinnon to be free of this extradition and this case. But I am now convinced that whatever my personal feelings about his predicament, and my general loathing for custodial sentences (unless they are to protect the public), my plea for mercy was procedurally premature.I wish I could at a stroke release Mr McKinnon both from his situation and from the misconceived legal strategy he has followed. I rather hope the Home Secretary can find some plausible pretext. But that is not enough to objectively set aside an extradition process which, on proper examination, has actually been neither unjust nor illegal.I do so wish it was otherwise; but I am afraid - on reflection - it is not.
