07/19/2009 05:12 am ET Updated May 25, 2011

The Curious Incident of a US Extradition in the Night-Time

Gary McKinnon of Crouch End, North London, was branded a 'cyber-terrorist' by the US government. In 2002 he was arrested for hacking into Pentagon and NASA computers. The US Justice, Defence and Homeland Security Departments have been fighting a seven-year long extradition battle to the USA under the 2003 UK Extradition Act. They want him brought to the USA to stand trial in New Jersey Federal Court. If convicted on terrorism charges, he could face up to 60 years locked-down 23-hour per day in a US SuperMax prison. While many differ on likely length of sentence, this is the same kind of prison convicted shoe-bomber Richard Reid sits on a hunger strike hoping to kill himself. Gary openly admits his guilt of computer mischief and he did hack into US government computers.

Now before jumping to the obvious conclusion thinking "a (then) 36-year old man should know the difference between right and wrong" and setting your "fry him" righteous jaw (and mind) firmly shut, you need to look, Paul Harvey-style, at "The Rest of the Story."

At 43, Gary has lived with an until recently undiagnosed case of high-functioning autism known as Asperger's Syndrome. The disease was 1st discovered and labeled in the late 1990s and was made famous in the 2003 best-selling novel, "The Curious Incident of the Dog in the Night-Time" by British author Mark Haddon. Until that book, in which a low functioning Asperger's sufferer teenager sets off on a journey to find his dead mother, most had not heard of this syndrome. Famous Aspergers sufferers include American actor Dan Ackroyd and acclaimed Scottish artist Peter Howson (both of whom have spoken out on Gary's behalf).

Gary McKinnon

Aspergers sufferers such as Gary make diagnosis more difficult because they often possess very high intelligence in specific areas such as maths, computer science and/or physics. They are mostly reclusive and can become hyper-obsessive. One thinks of the Dustin Hoffman character Raymond from the Oscar winning film 'Rain Man' as an example. Raymond was a brilliant mathematician but socially unable to adapt, free himself from the safety of daily routine or understand the consequences of his actions.

Gary's mother Janis Sharp spoke of a Christmas dinner party where he put a large computer on the family dining table and could not understand why everyone was so upset. His logical but insensitive response was "well it's my holiday party too isn't it?" Indeed it is the honesty of an Asperger's sufferer, "often to a fault" as Janis said, "that can be to their own detriment."

When Gary spoke to UK computer crimes authorities in 2002, he could only speak truth. This is also why plea deals are abhorrent because it means admitting guilt to something he feels is untrue. He freely, without a lawyer present, admitted he was looking around in government computers of all kinds to UK police because, "they were very nice to him."

At the center of the growing row between the UK and US governments is a demand to have Gary stand trial in the US despite this diminished capacity. Many in the UK want him to stand trial here. They launched a quite successful UK campaign that Kevin Anderson, blogs editor of The Guardian, took exception to the media blindly taking McKinnon's side in their handling and coverage of the case. He objected to the myths of imprisonment in Gitmo, Portrayal of US anger at his extradition fight and widely reported belief that US authorities wanted McKinnon to "fry" (and Anderson's commentary was before the Asperger's diagnosis).

No one is suggesting he is innocent.

They are talking degrees of punishment and the curious use of the 2003 Extradition Act. This Act gives the Crown Court little leeway and they must extradite UK nationals on 'suspicion' of terrorism whilst anyone the UK seeks for extradition whilst residing in the US requires probable cause. Too, cases involving extradition normally involve someone who has committed a crime and has fled that jurisdiction and must be forcibly brought back to stand trial. Gary McKinnon never left the UK.

The problem is the Act has been used in the non-terror cases of: Alex Stone (an alleged child abuser whose charges were dropped after spending 6 months in a US jail), Ian Norris of Morgan Crucible (whose original price-fixing charges were dropped but still faces extradition on obstruction of justice charges) and The NatWest 3 (bankers extradited and found guilty of wire fraud - the government's old mafia conviction standby charge. They currently serve 37 month sentences in US prisons).

Even David Blunkett, UK Home Secretary when the Act was negotiated and passed, never foresaw this level of interpretation and believes it should not b used in Gary's case. There was a tendency after 9-11 in the Bush Administration to label anything they could terrorism. Politicians here and in the US were not keen to attack these cases for fear of looking soft on crime or terrorism. Too this issue grabbed its biggest headlines after the Spanish and 7-7 London Tube terrorist bombings so the issue was high on everyone's mind.

Little Green Men

Gary McKinnon is completely obsessed with the existence of UFOs and convinced the government covered them up. He is a self-described "bumbling computer nerd" who wanted to know more about them in those Pentagon files. He was a big fan of the 1983 feature film 'War Games' where a youthful Matthew Broderick accidentally breaks into a Pentagon computer and nearly converts a war simulator into a real global thermonuclear war.

As a 17-year old boy, Gary wondered, could that really be done? When he and many others proved it indeed could be, especially after 9-11, McKinnon became the poster child for lax DoD computer security.

Many of the DoD and NASA computer systems lacked firewall protections and as he has repeatedly said, "one could easily see the IP addresses of other hackers from China, Russia and other places around the globe whilst in there." US Defence Secretary Robert Gates noted that the Pentagon has thousands of cyber attacks daily on its systems. Gary became upset when he could not find what he was looking for and started leaving notes and traces of his entry calling the US government 'liars' for discrediting the existence of UFOs and lax 9-11 air security.

His original UK charge in 2002 was not for an extraditable offence. After passage of the Extradition Act and showing an unwillingness to plea bargain to a lesser offence, then New Jersey federal prosecutors Scott Christie and Ed Gibson upped the ante claiming McKinnon caused more than $700,000 in damages, deleted passwords and put a Naval defence system at risk (all denied by Gary and his defence team). He was re-charged as a cyber terrorist when extradition prospects were seemed automatic under this new treaty.

Appeals to The UK House of Lords and EU Court of Human Rights were denied or not heard. This left Gary's defence team with very few options.

The Asperger's diagnosis though did two things: it opened the door for a judicial review of both the Crown Prosecution Service's handling of the case (which was heard last week) and the Home Office's recommendation of accepting such an unbalanced treaty (to be heard by the same panel of judges on 14 July).

Karen Todner of Kaim Todner serves as Gary's QC (Queen's Counsel - US readers would call her his public defender). Mrs. Todner was tenacious on Gary's behalf and hired leading human rights solicitor Edward Fitzgerald. In his brief Fitzgerald said, "the decision (to extradite) is procedurally flawed and unlawful for it wrongly fails to consider and analyse important expert medical evidence concerning the effects of extradition on the claimant and his mental health."

And this is the real game changer.

In many ways Gary's disease reveals an intellectually and emotionally naïve child locked in a man's body. There his mind is both his biggest friend and greatest enemy. As Scottish artist Peter Hoswon said in a Scotsman interview with Gerri Peev: "Gary has the more anxiety-prone form of Asperger's, which I fear means he will not be able to survive life in an American prison. I have to be blunt: he will not be able to cope and will turn suicidal. He is not a terrorist, nor a threat to national security, but just a vulnerable Asperger's man whose complex mind caused him to make a mistake. Individuals like Gary should be protected by us and nurtured, not made a scapegoat for the sins of our police state society."

Gary's curiosity took him to the place of trying to see if he could do it. Aspergers sufferers tend to believe what they read or hear and their desire for truth is so strong it overcomes all other rational thoughts and emotions. Indeed as he became more and more obsessed with the UFO conspiracy, his then girlfriend became very concerned for his well-being as Gary stopped caring for himself, eating and even stopped bathing, all hallmarks of Aspergers.

The legions of supporters for Gary include: Peter Gabriel, Sting, US Shuttle Commander Clark McCleland, David Gilmour of Pink Floyd, Terry Waite former Iranian hostage, Peter Gabriel and Graham Nash of Crosby Stills and Nash (who let supporters use lyrics from his 1968 protest song Chicago) along with dozens of MPs and celebrities.

The USA has a flawed history of understanding or even admitting mental illness in court. There are dozens of cases where diminished capacity is not allowed. Because of this lack of understanding, prosecutors fight it tooth and nail. A defendant found not guilty by reason of insanity goes down in the loss column.

That taints a prosecutor's record to have someone sent to an institution or psychiatric prison facility. A federal prosecutor speaking on condition of anonymity said: "having a defendant found not guilty by reason of temporary or true insanity hurts the prosecutor. We need big winning records in high profile cases to move up the ladder politically or find top security positions when we leave..." (Indeed Gibson and Christie now run security across the UK for Microsoft Corporation). "It's tough to become a top paid white shoe firm white collar criminal defence attorney or be elected as a District Attorney or state Attorney General without a solid record of conviction in high profile cases."

As his mother Janis said, "people with Aspergers are highly intelligent but cannot cross a busy road because it is so terrifying for them. Aspergers is invisible in many ways and its sufferers can seem incredibly normal. The Pentagon had no firewalls or security, that's an insult to the people who died on 9-11. How could the biggest superpower in the world not have firewalls? Gary was stupid, he left notes on the system but why extradite him because of a sense of embarrassment?"

And if convictions are the yardstick upon which a prosecutor can strut, the question becomes should an impaired person be extradited to face horrific charges where a sentence in the UK would be more proportional?

As Paul Harvey would close, "and now you know, the rest of the story."