Ever heard of Gary McKinnon? If you are not a hacking-geek or a computer-geek, chances are you never have. But you’ve heard of Julian Assange, right? While Assange has captured headlines and wangled posh lodgings out of gullible idiots for two years while fighting extradition to Sweden to answer questions in two rape investigations – all the time insisting that the United States was behind the extradition and was going to kill him – there has been a six year fight to extradite a British hacker for breaking into our military and security systems in 2001.
McKinnon is charged with hacking into our military systems, shutting down hundreds of computers and causing almost $1 million in damages. He is also, inadvertently, the reason the United States doesn’t want Assange’s skinny ass. The protections put in because of McKinnon make it implausible that WikiLeaks hacked into our military databases and our State Department. Bradley Manning was able to download secret files to a Lady Gaga disc to mail to WikiLeaks because he was inside the system.
The six-year delay in extraditing McKinnon stem from his medical condition. He has Asperger’s syndrome, a form of autism. His lawyers say he is “too ill” to stand trial in the United States. Therein lies the argument. What is “too ill” with Asperger’s?
Asperger’s is a set of behaviors, including inability to interact socially, repetitive behaviors, focused interest in a narrow subject, one-sided conversations and physical clumsiness. It is not a mental handicap and Asperger’s patients can be high intelligence with restricted ability to communicate that intelligence. Being incarcerated in a general prison population would be horrific for such a person, and place the Asperger’s patient at great risk. But, “too ill to stand trial”?
McKinnon isn’t alone. The autism defense has arisen in one of the Lulzsec cases in relation to whether or not the suspect would be extradited. In McKinnon’s case, the Home Secretary, Theresa May, is carefully reviewing the medical evidence, but at present is supervising the security for the Olympics, so it will be October before there is a ruling from her. McKinnon’s mother, Janis Sharp, is complaining loudly, saying “If Theresa May had got an ounce of compassion she would make her decision now, before the Olympics, because she has any number of medical reports – these delays are destroying my son’s life.” The “delays” are destroying his life? How about his actions destroyed his life? McKinnon, by the way, is 46 years old.
McKinnon was arrested in 2005, and six years is three times what it took for the entire extradition process for Julian Assange to work its way through the entire British court system. There are obviously issues involved in this extradition beyond those in the Assange case. Part of the delays stem from the belief in Britain that the extradition treaties signed after 9-11 were lopsided in America’s favor, and President Obama and Prime Minister David Cameron have held conversations about this issue. A Parliament committee in March said that the treaty needs to be re-negotiated because it makes it easier to extradite a Briton to America than an American to Great Britain. But, last October, a judicial review found the treaty fair, with “no practical difference” in the evidence that must be provided to justify an extradition.
In dealing with cyber crimes, there will probably be a variety of mental health issues raised in extradition proceedings and in trials. Yes, I know, that feeds into the stereotype that hackers are social loners lurking in their parents’ basements with only their computers connecting them to the world. But, it is a stereotype that we can expect lawyers to use in the defense of their clients, and to prevent extradition.
There is such a wide range of behaviorial and mental issues currently lumped together as autism, that using the word “autism” in a criminal defense can and will be a smoke-screen to create the image that the defendant is a Rainman, and incapable of cyber crime. The first thing that is necessary in these cases is a very clear definition of what the defendant suffers from and how it impacts their ability to assist with their defense. That is the judicial standard for dealing with emotional and mental disorders – ability to assist with their defense. Everything else is irrelevant in the eyes of the judicial system.
But it would be to everyone’s benefit for the United States and Great Britain, and possibly all of the members of the United Nations, to create protocols for dealing with autistic defendants during the pre-trial period, during trial and if convicted and sentenced to imprisonment. It is not necessary to abandon our humanity to attain justice.
And as for Secretary May, well, the Olympics end on August 12. There really isn’t any reason it should take an additional two months beyond that to reach a decision, unless she is engaged in discussions with our Department of Justice to work out some of those needed protocols.