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Tuesday, October 16, 2012 

The hacker and the hacked off.

At times, it's nice to be reassured that, despite everything going on in the world, whether it be our politicians telling us unless we give away all our hard won employment rights we'll be back in the economic dark ages, men jumping from the edge of space and not splattering themselves over a wide area, or one-trick ponies still being cheered on for performing their one trick, much is exactly the same as it has always been and it seems destined to stay that way.

Take the case of Gary McKinnon, for instance.  If you put aside for a moment the quite brilliant campaign ran in his favour, so successful that it drew in support from across the political spectrum, it seems an open and shut case.  McKinnon did hack into almost a hundred separate computers operated by various arms of the American state, although mainly military ones.  He has never denied doing so.  It's likely that their security was appalling lax rather than McKinnon was some kind of master hacker, and it's also dubious that he caused anywhere near the amount of damage they claimed that he did, which supposedly cost $700,000 to put right.  At worst, he seems likely to have put a few computers offline for about a day, until their operating systems were repaired, as one of the key claims made against him was that he deleted key system files, and might have also, as the US prosecutors claim, temporarily rendered over 300 US Navy computers inoperable in the aftermath of 9/11.

Nonetheless, the Crown Prosecution Service repeatedly decided that since the investigation into McKinnon's activities had begun in the US, and most if not all of the evidence of McKinnon's wrongdoing had been collected in the US, with most if not all of the witnesses also based there, it made perfect sense for the case to be tried there too.  It's also highly doubtful whether, if convicted, he would have been sentenced to anything like the lengthy term his campaign often referred to.  A plea bargain which McKinnon rejected would have resulted in a three year sentence, with the possibility that the majority if not the whole term could have been served in the UK.

All of which brings back memories of the "Natwest Three", those other oppressed innocents, all of whom are now back free in the UK despite the many hysterical claims about the treatment they would also face in the US.  McKinnon's case is different, firstly in that by any reasonable yardstick his is not as serious, as he didn't break any law to personally enrich himself (nor did he cause any significant damage to the US), and secondly in that no one denies he does have Asperger's syndrome.  It's also now clear that his mental health has suffered to such an extent that his extradition to the US could well result in his suicide, as five eminent psychiatrists have all found.  Theresa May is therefore quite right to decide that his deportation has the potential to breach his article 3 rights to protection from inhuman or degrading treatment or punishment.

Understandably then, the relatives of both Bahar Ahmad and Talha Ahsan, who also has Asperger's syndrome, are more than a little miffed, and wondering whether they were always at a disadvantage.  Barely 2 weeks after their deportation to the US, and someone who has effectively admitted his guilt and unlike Ahmad hasn't spent the last 8 years of legal process in prison has been saved on what looks suspiciously political grounds.   

The charges against Ahmad in particular have long been controversial.  While Ahmad admits to having operated Azzam.com, one of the earliest English language websites to become well-known for supporting various jihads across the globe, whether he was breaking any British law at the time seems dubious in the extreme.  Indeed, like with McKinnon, the Crown Prosecution Service found that there was insufficient evidence for him to be tried here, the difference being that the US only applied to extradite Ahmad after the CPS had decided not to bring charges.  The charges he now faces there also include "conspiring to kill people in another country", which seems to refer to his possession of details of the passing of the US Fifth Fleet through the Strait of Hormuz, and money laundering.

Ahmad is undoubtedly not as vulnerable as McKinnon, but that doesn't begin to justify the difference in treatment they've received.  Regardless of the truth of what happened when Ahmad was arrested, having received £60,000 in compensation courtesy of the Metropolitan police for the numerous injuries he suffered, only for a court to acquit the officers accused of inflicting them when it emerged that an MI5 bug in Ahmad's house picked up none of the shouting Ahmad claimed had taken place (the jury were not told of the payout by the Met), it seems bizarre that the government is prepared to stand up to the US for one British citizen with a campaign behind him and not for a couple of others when their case is highly similar.

May's decision to invoke the Human Rights Act in this case also brings into focus the government's determination to deport Abu Qatada to Jordan to face trial there in spite of the ruling by the European Court of Human Rights that the evidence against Qatada was almost certainly the product of torture.  Currently appealing once again to the Special Immigration Appeals Committee, we've learned that the evidence against Qatada in one of the plots he's accused of being involved in "is a bit thin", and that ministers sought a pardon for Qatada only for this to be rejected by the Jordanians.  More astonishingly, it seems one of the witnesses called for the prosecution accepts that the evidence against Qatada since struck out by Jordan was obtained through torture, meaning we were perfectly happy with sending someone back to an authoritarian state to face what would have been an unfair trial.

And with her move today, May seems determined to ensure nothing quite like this happens again.  From now on it will for the High Court to decide on appeals against extradition under the HRA, and not a minister.  While that removes any possibility of decisions being made on the basis of politics rather than the facts of the case, the introduction of a "forum bar" allowing the courts to block deportations if it would be fairer for trials to be held here seems to conflict with the difficulties the CPS will have with prosecuting cases when much of the evidence has been collected overseas and the witnesses live abroad.  Also a cause for concern is May's apparent intention to limit legal aid in such cases, especially worrying when it seems as though the government now accepts Qatada was justified in claiming he wouldn't face a fair trial in Jordan.

We also shouldn't rejoice much in the fact that May had to rely on the very act she and the Conservatives want to scrap to block McKinnon's deportation.  Those determined to repeal legislation which their friends in the press have for so long derided as only protecting criminals and terrorists have never let the facts get in the way before, and are unlikely to do so now.  A British Bill of Rights will, they'll tell us, protect us in the same way while ensuring that never again will we be taken for a ride.  Perhaps Babar Ahmad's family can testify as to how that feels.

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