Sunday, August 3rd, 2008
For some editors, it’s a dream story. It includes a British computer hacker who took down US military computer networks, taunted the American military, threatened to “continue to disrupt at the highest levels” and alleged that the security “stand-down” before 11 September was no mistake. As if that wasn’t enough, the hacker admitted to breaking into the systems, but only because he was looking for evidence of alien technology.
It’s the kind of story that sounds too good to be true. Unfortunately, most of the coverage in the British media has played fast with the truth and have left many claims by the hacker, Gary McKinnon, and his legal team unchallenged.
McKinnon has spent years fighting extradition. He and his legal team claim that he will be sent to Guantanamo and that American officials have said that they want him to ‘fry’. They said that US officials threatened him if he didn’t plead guilty and accept a plea deal, a claim that US officials denied in affidavits. In actual fact, some claims of threats of harsh treatment were based on an unrelated case in Canada in which a prosecutor said on Canadian television when asked to describe ’stringent conditions’ a person might face if they didn’t agree to a plea bargain responded: “You are going to be the boyfriend of a very bad man if you wait out your extradition”. McKinnon’s legal team never claimed that such threats were made to McKinnon, but the insinuation successfully upped the ante.
The story also feeds into popular upset in Britain over what is widely seen as an unfair extradition treaty with the United States. This is despite the extradition request being made in 2002 under a previous treaty and not the contentious Extradition Act of 2003. CORRECTION: While the proceeding began before the treaty came into force, the filing came under the Extradition Act of 2003. Some have argued that the US government purposefully waited although the accusation is not supported by any reporting. Under the 2003 treaty, to approve extradition, the judge must be satisfied that the request contains admissible evidence of the offence sufficient to establish a prima facie case against the person. This requirement does not apply in respect of extradition requests from the USA, Canada, Australia and New Zealand. (emphasis added)
Public upset over the treaty reached a fever pitch in 2006 when the US succeeded in extraditing three bankers who were charged with fraud relating to the collapse of Enron. After initial hostile coverage towards the bankers, their legal and PR team crafted a strategy to focus on the treaty. Ex-Guardian journalist Nick Davies explained the PR stragegy:
Fleet Street must stop talking about the alleged guilt and extravagance of these three men and must focus instead on one single aspect of their case, the new Extradition Act under whose terms the three men now faced trial in Texas. The act had been rushed through Parliament in 2003 as an aide to the extradition of terrorist suspects and yet here it was being used against businessmen.
The PR firm pushed the angle that the three bankers would never receive a fair trial in Texas, and the coverage traded on stereotypes about American ‘rough justice’.
After the case, it came to light that the British Financial Services Authority provided American authorities with the evidence to charge the bankers. The uproar over the treaty in Britian led officials to press for approval of the treaty by the US Senate. The US Senate ratified the treaty unanimously on 30 September 2006. (Some British journalists might want to update their reporting on the subject.)
Gary McKinnon’s legal team have followed much the same route, now claiming that his civil rights would be violated by serving time in terrible American jails. After losing his appeal before the Law Lords, he told The Independent:
All the time you hear about the rapes and beatings. Just the other month I read an Amnesty International report about how prison guards were using their stuns guns too much. As someone accused of supposedly attacking their country, I can’t imagine I’d be too welcome, either.
There is a popular view that Gary McKinnon should be tried in British courts as a British citizen. It’s a similar argument made by conservatives in the US against extradition and international criminal bodies like the International Criminal Court. It is an argument that claims that extradition infringes on the sovereignty of a nation and imposes the law of one nation on another’s citizens. McKinnon stated a not uncommon view of US-UK relations in The Independent interview:
“I’m very angry,” he says. “I genuinely believe that we are the 51st State. You see it everywhere you go, not just our foreign policy, but in our schools, our hospitals and now our courts. The British Government simply bends over backwards for America.”
I think a more compelling question raised by the case is whether a person accused of computer crimes should be charged where he or she was when the crime was committed or where the ‘victim’ of the crime was. That’s a fair question in this virtual age in which a person can commit a crime half-way around the world with the click of a mouse.
Myths in the Media
I’m a bit surprised and disappointed that after falling for the PR campaign by the NatWest Three, that the British media would fall for the same approach by McKinnon, aka the Crouch End One.
Let’s take this point by point.
Myth 1: McKinnon is going to be declared an enemy combatant and disappear into George W Bush’s extra-judicial black hole, Guantanamo.
The Indy says: “Even worse, because Mr McKinnon’s hacking adventures targeted military computers, America could chose to prosecute him as an ‘enemy combatant’ – the same status given to those left in legal limbo at Guantanamo Bay”. ITV is even more sure of his fate: “But he could be sent to Guantanamo Bay as a terror suspect if the US succeeds in extradition proceedings.”
Facts: He has been indicted in US federal court with seven counts of computer fraud and related activity. This is a civilian court. ZDNet.co.uk says that former FBI legal attaché Ed Gibson wrote a letter in April 2003 saying that the US retained the right to try McKinnon under US military law. UPDATE: A source close to the case has disputed claims by the defence team that the letter reserved the right of the United States to try McKinnon under military law. The issue of military trials would only have come up, the source says, in the context of clarifying that McKinnon would not be tried under military jurisdiction.
However, at the extradition hearing in 2006, US officials gave the judge assurances that this case would remain in civilian jurisdiction. The BBC reported:
Receiving this guarantee meant, (District) Judge (Nicholas) Evans said, that “any real - as opposed to fanciful - risk” of Mr McKinnon being sent to Guantanamo had receded.
Furthermore, the US Supreme Court has been chipping away at the legal framework that allows Guantanamo. As the judge said, the idea that Gary McKinnon might end up in Guantanamo is ‘fanciful’. Yet, that angle still appears routinely in reporting here. British commentators keep repeating that he’s no terrorist, but the US hasn’t accused him of being one. They’ve only accused him of breaking into US military networks and causing hundreds of thousands of dollars of damage. (For the curious, the damage estimates are calculated by multiplying the hourly rate of military staff by the number of hours it took them to repair the alleged damage.)
Myth 2: The US is angered at his resistance to extradition. The US military is embarrassed by the intrusion and ‘want to make an example of him’. They will give him the maximum sentence, a ‘life’ sentence, condemning him to die in a US prison.
Facts: Gary McKinnon was offered a plea deal, standard practice in the American justice system. While British audiences might find such deals unseemly, they are common in the US. By offering a guilty plea, criminals also are often seen as taking the first step towards taking responsibility for their crime. They also save the costs of a trial, and as the Lord Brown noted:
No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant’s timely guilty plea.
On this basis it was likely that a sentence of 3-4 years (more precisely 37-46 months), probably at the shorter end of that bracket, would be passed and that after serving 6-12 months in the US, the appellant would be repatriated to complete his sentence in the UK. In this event his release date would be determined by reference to the UK’s remission rules namely, in the case of a sentence not exceeding four years, release at the discretion of the parole board after serving half the nominal sentence, release as of right at the two-thirds point. On that basis, he might serve a total of only some eighteen months to two years.
McKinnon told the BBC this week that the Americans would not put the plea deal in writing. He said that he initially agreed to the deal, but that US officials wouldn’t guarantee it. In his words: “They said: ‘No we can’t put it in writing.’ Only a fool would have gone across.’” (Listen to the 5Live interview.) He told Jon Ronson in the Guardian:
“They said, ‘If you incur the cost of the whole extradition process, be a good boy, come over here, we’ll give you three or four years, rather than the whole sentence.’ I said, ‘OK, give me that in writing.’ They said, ‘Oh no, we can’t do that.’ So they were offering a secret trial, no right of appeal on the outcome, no comment to the newspapers, and nothing in writing.
That’s not true. The Lords said the deal was in a ‘lengthy document’.
Supporters, including his mother, have said that in the UK he would face a lesser sanction, possibly nothing more than community service. This also isn’t true. In the ruling denying his extradition appeal, Lord Brown said:
As the Divisional Court itself pointed out, the gravity of the offences alleged against the appellant should not be understated: The equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment.
Why hasn’t he been charged in the UK? At least one reporter said the British Crown Prosecution Service dropped the charges because McKinnon didn’t illegally access any British computers.
McKinnon also said that he would gladly serve in a few years in a British jail but not ‘60 in an American prison’. He has consistently played on the idea that he would face ‘disproportionate’ punishment in the US, saying that he would spend the rest of his life in a maximum security prison where he might face reprisals from patriotic prisoners. Even if he was successfully extradited and convicted, the Associated Press (UPDATE: see bottom of story, the link to the original AP story on Google had expired), quoted one of the prosecutors who filed the original charges as saying:
A 60-year sentence is “extraordinarily unlikely,” according to Scott Christie, who was the lead prosecutor in the case in New Jersey before going into private practice. …
“His general exposure would be in the range of between three and five years,” he said.
I have yet to see a British report includes that quote from the Associated Press. In US coverage, reporters often include the top figure for sentencing, but always put it in terms of a more realistic sentence considering the particulars of the case.
Myth 3: Unnamed American officials have said that they want McKinnon to ‘fry’.
Facts: This is irrelevant. Even if an American official said this, he’s not charged with a capital offence. He is in no risk of being executed, and again, it plays into popular upset about capital punishment in the US. This allegation is meaningless in this case.
Why am I so exercised by this?
I started with a general unease about the coverage of this case, but after a few days of digging, this unease has given way to upset. I’ve worked for British journalism organisations for 10 years. I’ve been cheered by the more critical coverage they have given of the US, coverage that comes from a distance that would be difficult for an American journalist covering his or her own country. But occasionally, I’m also disappointed when they get basic facts wrong because they are dealing with a different government or justice system that they don’t always understand.
Living in London for three years, I am familiar with some of the tensions between the United States and Britain. There is legitimate upset over Guantanamo, especially the fact that British citizens have been locked up there. There is disgust in some circles about the continued practice of capital punishment. There was and still is legitimate upset about the Extradition Act of 2003. It was seen as forced through Parliament in the wake of the 11 September attacks and a capitulation to George Bush’s War on Terror. I can understand all of this.
As is often said, journalists are entitled to their opinions, but not their own facts. The general coverage of this story has been appalling. It has been fed by legitimate issues that some Brits have with the United States, but it’s now being used to feed anti-American sentiment. I’m more than happy to take my country to task for its failings, including when it abuses the ’special relationship’ with Britain. I can understand British journalists who are sceptical of the American government, but the coverage of this story is factually inaccurate and antagonistic.
If only the shortcomings in coverage of the US were isolated to this. I become frustrated when journalism with an agenda relies on stereotypes and prejudice instead of solid reporting. I was shocked by domestic reporting in the US in the lead up to the war in Iraq that poked fun at European countries who would not support the war. I thought it was a particular failing of the American media. Unfortunately, I was saddened to discover that such sensationalist and derisory coverage is all too common in the British media in coverage of the US. It makes me feel decidedly unwelcome in my adopted home.