Extradition from the United Kingdom to the United States—Gary McKinnon

One of the more infamous extradition cases in the United Kingdom right now is that of Gary McKinnon. When we last mentioned Mr. McKinnon, in mid-February, British District Judge Nicholas Evans had told the prosecution that he “will not be extradited to the US if guarantees about his safety cannot be made.”^[1] The issue of safety arose because Mr. McKinnon feared being sent to Guantanamo Bay or a similar institution.^[2] This is because he is accused of causing roughly US$700,000 of damage to military and NASA systems by hacking into them n 2001-2002.^[3] Mr. McKinnon doesn’t really deny the intrusions (which could be a problem if he is eventually extradited), but maintains that he “had been trying to expose lax computer security and access what he believed was withheld information about UFOs.”^[4]

The fears of military detention do not seem to have been alleviated much. At a Bow Street hearing yesterday, those same fears were repeated in court, and the hearing involved “argument over whether Mr. McKinnon would be subject to Military Order Number One—a legal procedure which enables the president to specify that suspects can be detained indefinitely.”^[5] The US maintains that it has provided sufficient assurances that Mr. McKinnon will not be sent to Guantanamo, but rather will be tried in a federal court.^[6] Mr. McKinnon’s defense, however, said that “the US Embassy in London had provided an ‘unsigned and anonymous’ diplomatic note and said that Mr. McKinnon was still ‘vulnerable’ to such an order.”^[7] Judge Evans refused to make a decision and remanded Mr. McKinnon on bail until May 10 when he will rule whether the extradition will go ahead.”^[8]

This is an interesting decision that Judge Evans will have to make. For one thing, there is no requirement in the UK’s Extradition Act of 2003 that prevents a document that is not duly authenticated from being received in evidence.^[9] (A duly authenticated document is one that is either signed by a judge, magistrate, or other judicial authority, or is authenticated by the oath or affirmation of a witness.^[10] On the other hand, a letter of assurance can be seen as some type of contract, one in which the United States is promising to keep the individual out of Guantanamo in exchange for the prisoner; there is consideration on both sides. However, contracts typically must contain a signature or some other form of acknowledgement that the party making the promise is bound by the terms of the contract. Breaching that contract will not result in any sort of financial penalties, and the individual can not raise any sort of cause of action under the assurance, but it completely disrupts principles of international comity.

On the flip side, however, the UK does not necessarily want to fall into the situation seen with the Republic of Ireland. That country is notorious for refusing extradition when paperwork is not perfectly in order. Such behavior has angered the United Kingdom in the past, and Judge Evans may feel pressure to order the extradition. If he does order the extradition, there will certainly be an appeal based on the lack of a signature on the letter of assurance.

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[1] See Bobbie Johnson, US Guarantees Sought Over Alleged Hacker, The Guardian, Feb. 15, 2006.
[2] Id.
[3] British “Hacker” Fears Guantanamo, BBC News, Apr. 12, 2006.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Extradition Act of 2003, § 134(3).
[10] Id. § 134(2).