The British government today announced that Gary McKinnon, a British hacker with a condition that has been diagnosed as Asperger's syndrome, will not be extradited to the United States. But while the decision is nominally about his human rights, it may also be a byproduct of a longstanding debate over the US-Britain extradition treaty, which British critics say is weighted too much in favor of US interests.
British Home Secretary Theresa May today told the House of Commons that she had withdrawn the extradition order against Mr. McKinnon after determining that extraditing him would violate his human rights, BBC News reports.
Mr McKinnon is accused of serious crimes. But there is also no doubt that he is seriously ill. He has Asperger's syndrome, and suffers from depressive illness. The legal question before me is now whether the extent of that illness is sufficient to preclude extradition.
After careful consideration of all of the relevant material, I have concluded that Mr McKinnon's extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon's human rights.
Ms. May said that it would now be up to the director of public prosecutions to determine whether McKinnon would face charges in Britain.
McKinnon is accused of breaking into nearly 100 NASA and US military computers between 2001 and 2002, causing hundreds of thousands of dollars in damage, and is charged in Virginia and New Jersey on eight counts of computer fraud. Lawyers for McKinnon said that he was merely looking for evidence of UFOs and did not have any criminal intent. The Daily Telegraph reported in 2009 that McKinnon's supporters say he is being made a scapegoat for US failures to secure its computers, which McKinnon has called "ridiculously easy" to hack.
US lawyer David Rivkin, an adviser to the Reagan and Bush administrations, told the BBC that the decision to deny extradition for McKinnon on health grounds was "laughable" and that "under that logic, anybody who claims some kind of physical or mental problem can commit crimes with impunity and get away with it." British solicitor Edward Fitzgerald told The Guardian that he felt McKinnon's case turned on his alleged high suicide risk.
While May said in her statement that the "sole issue" before her was McKinnon's human rights, her decision not to extradite McKinnon comes amid public debate in Britain over the country's extradition responsibilities, particularly those in its treaty with the US.
Critics say that the US-Britain treaty, enacted in 2003, favors US interests over British ones. The Guardian's Owen Bowcott points out that between January 2004 and October 2012, 92 people have been extradited from Britain to the US, while only 43 have made the opposite trip. He also notes, however, that between January 2004 and December 2011, Britain made 57 requests for extradition and 40 extraditions took place, while the US made 134 requests during that same period, and only 75 extraditions occurred.
In announcing her decision on McKinnon, May called the US-Britain treaty "broadly sound," reports The Guardian. But May added that she would introduce a new "forum bar" to the extradition process, which would allow a court to deny extradition if it deemed a British trial more fair to the accused than a trial overseas, reports The Guardian. May also said that she planned to end the home secretary's ability to deny extradition on human rights grounds – the very grounds she used to bar McKinnon's extradition – arguing that such discretion would be better placed in the courts than in the government's hands.
May's proposed reforms to the US extradition process are just part of a broader overhaul by the British government to its approach to international justice. The Washington Post reports that May also announced that Britain would be opting out of more than 100 criminal justice measures with the European Union and reinstating selected measures. The Post writes that the move "appeared aimed at satisfying Conservative lawmakers who have grown increasingly skeptical of the E.U.’s reach in British affairs."