Cameron and Clegg must now do their moral duty - and save Gary McKinnon
Last updated at 7:58 AM on 27th May 2010
The first acid test for Britain's new government is not the economy, but whether it is capable of an act of simple humanity.
Can it deliver on its repeated promise to end the torment inflicted by the state on Gary McKinnon, the hacker with Asperger's syndrome, whom the Home Office wants to send to lengthy imprisonment and likely suicide in a U.S. jail?
The courtroom cruelty was scheduled to begin again on Monday this week. But Gary has been granted a temporary reprieve by the new Home Secretary Theresa May, who has agreed to reconsider medical evidence on his mental state.
Will Prime Minister David Cameron and Deputy Prime Minister Nick Clegg be able to do their moral duty and save Gary McKinnon?
The reprieve is, of course, welcome. But it is not enough. There is a moral duty - not least on Prime Minister David Cameron and his deputy Nick Clegg, both of whom argued so vociferously on Gary's behalf before the election - to honour that promise and ensure that Gary is never extradited to endure ten years in a U.S. jail.
Last year, Mr Cameron was unequivocal: 'Gary McKinnon is a vulnerable young man, and I see no compassion in sending him thousands of miles away from his home and loved ones to face trial.
'If he has questions to answer, there is a clear argument to be made that he should answer them in a British court.'
Before the election, Damian Green, Cameron's Immigration Spokesman (now Immigration Minister) said psychiatrists believe the extradition 'will amount to a death sentence'. He pointed out that 'it would be illegal to send someone to another country to face an explicit death sentence'.
Nick Clegg rightly made the Gary McKinnon case one of his core campaigning issues. he joined Gary's mother Janis Sharp at demonstrations outside the Home Office and wrote articles in this newspaper arguing for clemency on Gary's behalf. 'The life of a vulnerable man is on the line. Gary McKinnon's case is as serious as that,' he wrote.
Gary McKinnon, who suffers from Asperger's syndrome, is facing extradition to the U.S. on charges of hacking into highly sensitive military computers
'It is the basic duty of a government to protect its citizens. Despite what the U.S. authorities say, Gary McKinnon is no cyberterrorist. He is a computer whiz with a serious medical condition.'
Just five months ago, Nick Clegg stood outside the Home Office alongside Gary's mother, urging the government to halt the extradition.
'It is simply a question of doing the right thing,' he said, 'It is wrong to send a vulnerable young man to his fate in the United States when he could and should be tried here.'
On the strength of argument from these politicians and campaigns like those run in the Daily Mail, many decent people who would otherwise have voted Labour cast their vote for Cameron or Clegg.
Now is the moment for these men of mercy to stand by their fine words and do their democratic duty.
To understand why, let us go back to examine the true injustice of the charges against the so-called cyber-terrorist Gary McKinnon.
In 2002, from a council flat and with a battered first generation laptop, McKinnon hacked into U.S. army computers with a gusto and brilliance attributable to his Asperger's.
He left a polite message of political protest against the post-9/11 Bush administration: 'U.S. foreign policy is akin to government-sponsored terrorism these days.'
He did not realise that the damage he was causing would amount to £350,000. He could have been tried for criminal damage in Britain, where he would have received a compassionate sentence - in all probability a suspended one.
Instead, the Virginia state prosecutors lay in wait for two years until the extradition Act was changed and then demanded Britain surrender McKinnon for what the courts accept will be an eight to ten-year prison sentence.
From any view this punishment would be cruel and disproportionate, but the Home Office was unmoved. The then Home Secretary Jacqui Smith quite disgracefully refused to give McKinnon even the benefit that Britain insisted upon for the NatWest Three, namely bail when extradited to the U.S., and the right to serve part of the sentence in the UK.
It was then that a leading expert on Asperger's, Dr Simon Baron-Cohen, diagnosed McKinnon's condition and reported that he was likely to commit suicide if extradited.
But that did not bother the Home Office either. It was not that Smith's successor Alan Johnson was incapable of doing the right thing, he was just incapable of working out how.
Mr Clegg with Janis Sharp, mother of Gary McKinnon, at a protest last December
In the 2003 Extradition Act, Parliament had limited the Home Secretary's discretion to refuse extradition to the U.S. to punishment that was 'inhuman and degrading'. These are the weasel words of the European Convention, which cannot apply to Americans (who are not inhuman) or to their prisons (which are no more degrading than ours).
But the uncivil servants intent on harrying McKinnon out of the country have forgotten that Britain has its own Bill of Rights, forged in the Glorious Revolution of 1689 and forbidding punishment that is 'cruel and unusual'.
This law should today protect UK citizens against sanctions that are overly severe by British standards. A ten-year sentence in a foreign jail, imposed on a suicidal man whose crime would, if prosecuted in the UK, probably receive a suspended sentence, is about as cruel and unusual as it can get.
Nick Clegg was not the only Lib Dem to say so: before the election, Chris Huhne (who is now Energy Minister) asked Alan Johnson whether he was ready to 'accept the real risk that you will have the life of a man on your hands'.
Indeed, last year, virtually all the senior Tories and Lib Dems agreed that they saw no compassion in sending Gary McKinnon to America.
So, over to the new coalition government, then.
Its main difficulty will be to override Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother.
They will, perhaps, tell their Ministers that if they reverse the decision, the Americans might take them to court for judicial review.
But this is unrealistic: the Obama administration is unlikely to challenge a decision of the new British government. And even if it does, it is unlikely to be successful.
And even if that happens, Parliament is sovereign and can sweep away any adverse court decision simply by passing the Gary McKinnon (Freedom from Extradition) Act (2010).
McKinnon is a rare and talented individual with Asperger's, just like Stieg Larrson's heroine in The Girl With The Dragon Tattoo, who should have been compassionately dealt with eight years ago for reckless hacking.
Yet Home Office officials - Orwell called them 'the striped-trousered ones who rule' - are still out to get him.
In court they intend to argue that because 'he has no history of serious self-harm or suicide attempts', European law cannot save him from ending his life in an American prison.
That may be so.
But British tradition, infused with Portia's admonition in Shakespeare's The Merchant Of Venice that mercy must always season justice, demands that his torment end.
If they do not have the humanity to free McKinnon, this government was elected under false pretences.
Geoffrey Robertson QC is author of the Justice Game.
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