Judicial rendition — the UK-US extradition treaty is a farce

Some­times I sit here read­ing the news —  on sub­jects in which I take a deep interest such as the recent police invest­ig­a­tion into UK spy com­pli­city in tor­ture, where the police decided not to pro­sec­ute — and feel that I should com­ment.  But really, what would be the point?  Of course the police would not find enough con­crete evid­ence, of course no indi­vidu­al spies would be held to account, des­pite the fact that the Brit­ish gov­ern­ment has already paid massive set­tle­ments to the vic­tims.

BelhadjNow there are reports that the police will be invest­ig­at­ing MI6 involve­ment in the extraordin­ary rendi­tion and tor­ture of two Liby­ans.  The case appears bang to rights, with doc­u­ment­ary evid­ence that high-rank­ing MI6 officers and gov­ern­ment min­is­ters were involved in and approved the oper­a­tion.  Yet I’m will­ing to bet that the plods at Scot­land Yard will still not be able to find the requis­ite evid­ence to pro­sec­ute any­body. 

The inev­it­able (and prob­ably wished-for out­come on the part of the author­it­ies) is that people become so weary and cyn­ic­al about the lack of justice that they stop fight­ing for it.  And they can tem­por­ar­ily suc­ceed, when we suc­cumb to cyn­ic­al burnout.

But the case repor­ted in today’s Daily Mail, that of a young Brit­ish stu­dent facing extra­di­tion to the US des­pite hav­ing broken no laws in the UK, suc­ceeded in rous­ing my wrath. 

Richard_ODwyerThe hap­less 23-year old Richard O’Dwyer faces 10 years in a max­im­um secur­ity Amer­ic­an pris­on.  His crime, accord­ing to the US, is that he set up a UK-based web­site that provided links to oth­er inter­na­tion­al web­sites that allegedly hos­ted copy­right mater­i­al.

This case is so troub­ling on so many levels it is dif­fi­cult to know where to begin.  There are issues around the crack­down of US cor­por­ate copy­right law, issues around the inequal­ity of the uni­lat­er­al Extra­di­tion Act 2003, and his­tor­ic ques­tions of US hypo­crisy about extra­di­tion.

So let’s start with the unsup­por­ted alleg­a­tions against poor Richard O’Dwyer.  He is a stu­dent who built a web­site that col­lated a list of sites in oth­er coun­tries that host films, books and music for free down­load.  O’Dwyer did not him­self down­load any copy­righted mater­i­al, and the web­sites he linked to were appar­ently with­in jur­is­dic­tions where such down­loads are not illeg­al.  Provid­ing a sign­post to oth­er leg­al inter­na­tion­al sites is mani­festly not a crime in the UK and he has nev­er been charged.

How­ever, over the last couple of dec­ades the US enter­tain­ment lobby has been fight­ing a vicious rear­guard action against copy­right infringe­ment, start­ing with the music, then the film, and now the pub­lish­ing industry.  The lob­by­ists have proved vic­tori­ous and the invi­di­ous SOPA and PIPA laws are soon to be passed by the US Con­gress.  All well and good you might think — it’s one of those mad US issues.  But oh no, these laws have glob­al reach.  What might be leg­al with­in the UK might still mean that you fall foul of US legis­la­tion.

Gary_McKinnon2Which is where the Extra­di­tion Act 2003 becomes par­tic­u­larly threat­en­ing.  This law means that any UK cit­izen can be deman­ded by and handed over to the US with no prima facie evid­ence.  As we have seen in the appalling case of alleged hack­er Gary McKin­non, it mat­ters not if the “crime” were com­mit­ted on UK soil (as you can see here, McKinnon’s case was not pro­sec­uted by the UK author­it­ies in 2002.  If it had been, he would have received a max­im­um sen­tence of 6 months’ com­munity ser­vice: if extra­dited he is facing up to 70 years in a US max­im­um secur­ity pris­on).

The UK gov­ern­ment has tried to spin the egre­gious Liby­an cases as “judi­cial rendi­tion” rather than “extraordin­ary kid­nap­ping” or whatever it’s sup­posed to be.  So I think it would be accur­ate to call Gary McKinnon’s case “judi­cial rendi­tion” too, rather than bor­ing old extra­di­tion.

Richard O’Dwyer appar­ently didn’t com­mit any­thing that could be deemed to be a crime in the UK, and yet he is still facing extra­di­tion to the US and a 10 year stretch.  The new US laws like SOPA threaten all of us, and not just with judi­cial rendi­tion. 

As I have men­tioned before, digit­al rights act­iv­ist Cory Doc­torow summed it up best: “you can’t make a sys­tem that pre­vents spy­ing by secret police and allows spy­ing by media giants”.  These cor­por­ate inter­net laws are a Tro­jan horse that will threaten our basic civil liber­ties across the board.

So now to my third point.  The hypo­crisy around the Amer­ic­an stance on extra­di­tion with the UK is breath­tak­ing.   The UK has been dis­patch­ing its own cit­izens off at an alarm­ing rate to the “tender” mer­cies of the US judi­cial sys­tem since 2004, with no prima facie evid­ence required.  In fact, the leg­al proof required to get a UK cit­izen extra­dited to the US is less than that required for someone to be extra­dited from one US state to anoth­er. 

The US, on the oth­er hand, delayed rat­i­fy­ing the law until 2006, and the bur­den of proof required to extra­dite someone to the UK remains high, so it is unbal­anced not only in concept but also in prac­tice.  And this des­pite the fact that the law was seen as cru­cial to facil­it­ate the trans­fer of highly dan­ger­ous ter­ror­ist sus­pects in the end­less “war on ter­ror”.

Why has this happened?  One can but spec­u­late about the power of the Irish lobby in the US gov­ern­ment, as Sir Men­zies Camp­bell did dur­ing a par­lia­ment­ary debate about the Act in 2006.   How­ever, it is well known that the US was remark­ably coy about extra­dit­ing IRA sus­pects back to the UK to stand tri­al dur­ing the 30-year “Troubles” in North­ern Ire­land.  We even have well-known apo­lo­gists such as Con­gress­man Peter King, the Chair­man of the Home­land Secur­ity Com­mit­tee attempt­ing to demon­ise organ­isa­tions like Wikileaks as ter­ror­ist organ­isa­tions, while at the same being a life-long sup­port­er of Sinn Féin, the polit­ic­al wing of the Pro­vi­sion­al IRA.

UK_poodleThe double stand­ards are breath-tak­ing.  The US dic­tates an extra­di­tion treaty with the UK to stop ter­ror­ism, but then uses this law to tar­get those who might poten­tially, tan­gen­tially, minutely threaten the profits of the US enter­tain­ment mega-corps; and then it delays rat­i­fy­ing and imple­ment­ing its own law for poten­tially dubi­ous polit­ic­al reas­ons.

And the UK gov­ern­ment yet again rolls over and takes it, while inno­cent stu­dents such as Richard O’Dwyer must pay the price.  As his moth­er is quoted as say­ing: “if they can come for Richard, they can come for any­one”.

The Case of Gary McKinnon

Gary_McKinnon_Bow_Street_Magistrates_24_Nov_2005_600-thumbI’ve been fol­low­ing the extraordin­ary case of Gary McKin­non for years now in a long range kind of way, but we are now in the final throes of his pro­longed fight against extra­di­tion to the USA, and he needs all the sup­port we can give him.  The Daily Mail recently star­ted a cam­paign against his extra­di­tion:  it’s not often I agree with the Wail, but I’m whole­heartedly in favour of this ini­ti­at­ive. 

For those of you who have been liv­ing in a bunker for the last 7 years, Gary McKin­non is the self-con­fessed geek who went look­ing for evid­ence of UFOs and ETs on some of America’s most secret com­puter sys­tems at the Pentagon and NASA

And, when I say secret, obvi­ously I don’t mean in the sense of encryp­ted or pro­tec­ted.  The Yanks obvi­ously didn’t feel that their nation­al defence war­rants even curs­ory pro­tec­tion, as Gary didn’t have to hack his way in past mul­tiple lay­ers of pro­tec­tion.  Appar­ently the sys­tems didn’t even have pass­words.

Gary, who suf­fers from Asperger’s Syn­drome, is no super hack­er.  Using a basic PC and a dial-up con­nec­tion in his bed­room, he man­aged to sneak a peek at the Pentagon com­puters, before kindly leav­ing a mes­sage that the US mil­it­ary might like to have a think about a little bit of basic inter­net secur­ity.   Hardly the work of a malig­nant, inter­na­tion­al cyber-ter­ror­ist.

UK police invest­ig­ated Gary soon after this epis­ode, way back in 2002.  All he faced, under the UK’s 1990 Com­puter Mis­use Act, would have been a bit of com­munity ser­vice if he’d been con­victed.  Even that was moot, as the Crown Pro­sec­u­tion Ser­vice decided not to pro­sec­ute.

And that, as they say, should have been that. 

How­ever, in 2003 the UK gov­ern­ment passed yet anoth­er dra­coni­an piece of law in response to the “war on ter­ror” — the Extra­di­tion Act.  Under this invi­di­ous, one-sided law, the US author­it­ies can demand the extra­di­tion to Amer­ica of any Brit­ish cit­izen, without present­ing any evid­ence of the crime for which they are wanted.  Need­less to say, this arrange­ment only works one way: if the Brits want to extra­dite a sus­pect from the US they still have to present prima facie evid­ence of a crime to an Amer­ic­an court.  The Act also enshrines the ques­tion­able European arrest war­rant sys­tem in Brit­ish law.

So how on earth did the half-wits in Par­lia­ment come to pass such an awful law?  Were they too busy tot­ting up their expense fiddles to notice that they were sign­ing away Brit­ish sov­er­eignty?  This law means that it is easi­er for a US court to get a Brit in the dock than it is for them to get a US cit­izen from anoth­er state.  In the lat­ter case, evid­ence is still also required.

Let’s get this straight.  The UK author­it­ies decided not to pro­sec­ute in this coun­try.  Even if they had, Gary would prob­ably have been sen­tenced to com­munity ser­vice.  How­ever, if he is extra­dited, he will get up to 70 years in a max­im­um secur­ity pris­on in the US.

So a year after Gary’s bed­room hack, and after the CPS had decided there was no case to answer, the US author­it­ies deman­ded Gary’s extra­di­tion ret­ro­act­ively.   The UK gov­ern­ment, rather than pro­tect­ing a Brit­ish cit­izen, basic­ally said “Yes, have him!”.  Gary has been fight­ing the case ever since.

Janis_SharpHe has not been alone.  Many people from across the polit­ic­al spec­trum see this uni­lat­er­al law as invi­di­ous.  And the gov­ern­ment reckoned without his mum.  Janis Sharp has fought vali­antly and indefatig­ably to pro­tect her son from this unjust extra­di­tion. She has lob­bied MPs, talked to news­pa­pers, gained the sup­port of many pub­lic and celebrity fig­ures.  She even recently met the PM’s wife, Sarah Brown, who was reportedly in tears for Gary.  Yet still the major­ity of the par­lia­ment­ary half-wits refuse to do any­thing. 

In fact, it gets worse.  Over the last few years many MPs have signed Early Day Motions sup­port­ing Gary’s fight against extra­di­tion.  But in a recent debate in the House of Com­mons about the need to revise the pro­vi­sions of the Extra­di­tion Act, 74 of these MPs betrayed him and voted for the gov­ern­ment to keep the Act in place.  Only 10 Labour MPs stuck to their guns and defied the party Whip.  One Labour MP, Andrew MacKin­ley, will stand down at the next elec­tion in protest at this hypo­crisy.

This week is crunch time: on Fri­day a final judi­cial rul­ing will be made about the case.  It was the last throw of the leg­al dice for Gary.  If this fails, he will have to rely on polit­ic­al inter­ven­tion, which is pos­sible, to pre­vent his harm­ful, unjust and unne­ces­sary extra­di­tion to the USA.  Please vis­it the Free Gary web­site and do all you can in sup­port.