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13 June 2008, 17:06

McKinnon's last ditch appeal to be heard by Lords

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Monday June 16 will be a make or break day for Gary McKinnon. His appeal will be heard by the UK's highest Court against extradition to the US on charges relating to penetration of NASA and US Defense Department computers between February 2001 and March 2002. The Americans alleged that his activities hampered national security measures in the aftermath of 9/11 and estimated that he caused damage valued at around $700,000. That sum opens up the possibility of a 60 year sentence at worst.

Arrested in 2002 in one of the NHTCU's early successes, the London ex-sysadmin has always claimed that although he did break into the computers he caused no damage, but merely nosed around among records relating to UFO sightings. He has also maintained that he was never a master hacker, but found numerous administrative accounts on US government computers with default – or no – password. However he cannot use either of these arguments on Monday. The Law Lords can only hear matters relating to points of law or abuse of legal process, so McKinnon has had to restrict his appeal to the apparent lack of ratification for the extradition treaty the US is relying on. He also maintains that the process has been abused via threats of extreme severity on the part of the US if he did not co-operate with them. He claims that on one occasion he was told the US "wants to see him fry".

He was apparently offered a plea bargain with a four year sentence attached, but refused the offer as they would not put it in writing. Other inducements to co-operate have apparently included an unsigned note from the US Embassy, presented at McKinnon's first extradition hearing, claimed to be a guarantee that McKinnon would not be tried under Military Order Number One – used against suspected terrorists to try them under military law, or hold them indefinitely without trial. His defence argued it was not legally binding as it was unsigned. There have been rumours that the US might incarcerate McKinnon at Guantanamo Bay.

In view of the contentious nature of McKinnon's allegations concerning abuse of process, the US lawyers may challenge his evidence on Monday. The Law Lords would then have the option of referring the case back to Bow Street Magistrates Court, where McKinnon's original extradition hearing took place.

McKinnon gets two hours to present his appeal on Monday, and must then wait around three weeks for a decision. If the Law Lords decide against him he says he will take his case to the European Court of Human Rights. However the backlog in that court is so great that McKinnon would have long been resident in the US before his case could come up for hearing.


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