The Register has a decent report about Gary McKinnon's House of Lords hearing yesterday:
Pentagon hacker vows to take extradition fight to Europe
McKinnon begins nail-biting Lords wait amid claims of US threats
By Chris Williams
Published Monday 16th June 2008 17:54 GMT
Gary McKinnon's legal team said they will take their fight against his extradition all the way to the European Court of Human Rights on Monday, as the highest court in England began deliberations on whether to turn him over to US authorities.
The London hacker now faces an anxious wait for the judgment on his latest appeal, which is expected to take about two weeks.
It is hard to believe that they will make a decision in "only" two weeks, that would be swifter than all the lower courts and appeals.in this case.
During a day-long session of legal nit-picking, five Law Lords heard McKinnon's barrister, David Pannick QC, argued that the US had abused process by trying to strong-arm his client into accepting extradition and pleading guilty.
'Play by our rules'
Pannick told the hearing: "If the United States wish to use the processes of English courts to secure the extradition of an alleged offender then they must play by our rules."
It emerged that in exchange for compliance, US prosecutors offered to withdraw a threat to block any application for McKinnon to be repatriated to serve most of his time in a UK jail. This threat is central to his lawyers' claims of abuse of process.
The bargain offered by the US Embassy's Ed Gibson (who is now Microsoft UK's chief security adviser) for a guilty plea would reduce his sentence from eight-to-ten years, to between three and four years. Combined with the UK's more generous parole system, that would mean that McKinnon might have served only two years in prison.
In her evidence, McKinnon's solicitor Karen Todner said that in their correspondence the US had told her that failure to play ball would mean "all bets were off" and that repatriation to the UK "would not occur". This threat, charged McKinnon's team, "sought to impose pressure to accept extradition and plead guilty", and represented an unlawful abuse of the court process that was "disproportionate [and] reprehensible".
Prosecutors exaggerated their influence over the repatriation process, said Pannick, in a bid to secure McKinnon's co-operation, and that had "made it all the worse". Edward Fitzgerald QC, who provided supporting intervention at the hearing on behalf of the civil liberties charity Liberty, said: "What the prosecution [was] saying is 'I have immense powers and I will use them against you'."
McKinnon has admitted taking advantage of lax security in US systems to install covert software that gave him control of settings and access to files. He was looking for evidence of UFOs. He has not admitted causing hundreds of thousands of dollars of damage, a claim at the heart of the US government's allegations.
Clare Montgomery QC, acting for the US government, disputed this, saying if McKinnon had refused to cooperate he would have still been considered for a return to the UK. "This was very close to the type of plea bargaining that might occur here... this was not a case of 'we [US prosecutors] can give or withold the right to transfer [to the UK]'" she told the Lords.
Montgomery also echoed comments from one of the Lords sitting, Baroness Hale, who had suggested that the deal offered to McKinnon might simply have been "the facts of life", rather than a threat, and that it offered him significant benefits. She scorned calls for Gary McKinnon to face trial in the UK, saying: "He must have appreciated as he hacked into American computers that he was committing an act that would have had repercussions in America."
What exactly did the Law Lord, Baroness Hale actually say, rather than what the barrister acting for the US Government "echoed" ?
On a knife-edge
In the Palace of Westminster corridors after the hearing, the consensus among the gathered legal minds was that the case is poised on a knife-edge. Nevertheless, McKinnon's team were cautiously upbeat.
McKinnon himself attended only the morning session of the hearing, flanked by family and supporters. Win or lose, the saga is set to continue for some time.
Defeat would be a major blow, but McKinnon's team said outside the hearing that it would be by no means the last stand. The precedent set by the European Court of Human Rights in the Babar Ahmad case makes a challenge there likely, said solicitor Karen Todner.
And that can take years.
The Babar Ahmad case is still awaiting a decision by the Grand Committee of the European Court of Human Rights, even though he was refused the right to appeal to the House of Lords, and applied to the ECHR, in June last year.
The Register's IT News rival ZDnet reports more details about the disputed "plea bargain" session held at the US Embassy
At a meeting with Mr Gibson and Mr Stein [in April 2003], Mr McKinnon was told that if he did not agree, then all bets were off," Pannick said. "Eight to 10 years [per count] or possibly longer was indicated."
Moreover, in a letter to McKinnon dated 9 April, 2003, Gibson said the US authorities would reserve the right to prosecute McKinnon under US military law, which carries much more stringent penalties, Pannick told the court.
"Mr Gibson is threatening that if you do not co-operate, [the US] will reserve the right to rely on that," said Pannick.
However, court documents submitted by the prosecution on behalf of the US authorities reject the assertion that the legal team led by Gibson was threatening McKinnon, and maintain that Gibson was informing McKinnon of statements of fact.
"Your respondent maintains that it has never 'threatened' the appellant as alleged," stated the documents.
Gibson was unavailable for comment at the time of writing. He became Microsoft's chief security advisor in the UK in 2005.
Ed Gibson, was an FBI special agent and Legal Attache at the US Embassy in London.
Scott Stein was the Assistant U.S. Attorney for the Eastern District of Virginia, i.e. the prosecutor who pushed through their Grand Jury indictment of Gary McKinnon in November 2002, and who also now seems to be on the Microsoft payroll, as a senior attorney in their cybercrime unit.
These former US Government officials (and one other) are basically claiming that Gary's legal team, including the eminent barrister Edmund Lawson QC, are lying about the meeting which took place at the US Embassy in London, something which is quite extraordinary, and which might perhaps influence the law Lords against the US Government.
This is hardly going to dampen down conspiracy theories about the case, or help to win friends for the US Government.