GARY McKINNON, PR, SPIN AND THE RULE OF LAW
The Home Secretary has ruled that he has no standing to overturn the decision of the courts to extradite Gary McKinnon to the USA. This is a good decision on his part.
Alan Johnson has, under law, no general discretion to stop an extradition; and although McKinnon’s campaign are making much of his medical condition, there is apparently nothing substantially different in the recent medical report from that heard by the High Court earlier this year.
I know my concerns are not widely held on the left, but there is something very wrong in the way Gary McKinnon’s campaign has sought to mobilise public opinion through tabloid sensationalism to avoid a trial for a criminal offence. As Kevin Anderson, blogs’ editor of the Guardian has argued, the reportage of the case in the British press has almost no connection with reality.
McKinnon’s case has been presented by PR professionals from the Bell Yard agency, working pro bono . They have presented a highly distorted argument, with little basis in fact, that relies on anti-Americanism, the bruised ego of British nationalism, and blatant disregard of either the actual legal position, or what McKinnon did.
As former hacker, Kevin Poulson explains the facts of the case:
Federal prosecutors in New Jersey and Virginia have been trying to extradite the 42-year-old Londoner for six years to put him on trial for penetrating over 90 unclassified Pentagon systems in 2001 and 2002 — and allegedly crashing some of them. In interviews, McKinnon has admitted the hacking spree (though not the damage), which he says was a search for evidence of a military UFO coverup.
Apparently he was stoned through a lot of it, which explains why most of the intrusions were into Army computers, when everyone knows the Air Force is hiding the UFOs. McKinnon’s noble quest for the truth about extraterrestrial life also obliged him to leave this message on an Army computer in 2002: “U.S. foreign policy is akin to government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels.”
Only after the event did McKinnon, or perhaps his PR spin-doctors, come up with the story of looking for UFOs. The evidence of his motive is a question of fact that should be decided by a jury having heard the evidence in a trial in a court of law, not decided by political pressure following a tabloid campaign.
Much is also made of McKinnon’s Asperger’s condition, however he apparently sought this diagnosis only after the US authorities sought to prosecute him. The issue of whether he knows the difference between right and wrong, and whether or not any medical condition contributed to poor judgement are legal questions that can be decided by a court. It is surely a novel legal principle to argue that people should not be prosecuted for crimes if they have Aspergers.
The distortion and misrepresentation of the issues also embrace the alleged inequality in the extradition treaty between the US and UK. This is largely a British nationalist, and right-wing populist argument.
The argument runs that Britain has bowed to American pressure to allow British citizens to be deported without evidence to the USA, but that Britain cannot seek extradition from the USA on the same basis; and this shows our essentially subordinate role to the USA. This is bollocks. The difference in process derives from the US constitution’s Fourth Amendement which will not allow extradition without “probable cause” first being established to an American court; but what is rarely acknowledged is that neither can the USA seek extradition from another country without probably cause being shown to a US court. (Channel Four’s fact check is a useful summary. )
The 2003 extradition Act was not brought in due to American pressure, but due to domestic British considerations following the difficulties in extraditing General Pinochet to Spain. Prior to the 2003 Act, an extradition request had to be accompanied by a prima facie case, that could be challenged in the British courts. Pinochet exploited this to thwart extradition to Spain by draggng out the process while increasing political pressure was brought to bear on Britain not to extradite him. The Extradition Act 2003 was designed to streamline the process to make high profile cases less susceptible to political and diplomatic pressure.
The 2003 Act did not make special arrangements for the USA, this Act allows extradition to most countries in the world from Britain without evidence, provided due legal process has been followed in the country seeking extradition; the only way that the USA is different is because the USA cannot reciprocate, and always requires evidence before extraditing anyone to the UK, or even when extraditing between American states.
There still is some form of reciprocity, because both extradition into and out of the USA must satisfy the same burden of probable cause before an American court. It is important that the UK does have an extradition treaty with the USA, otherwise serious crime would be impossible to stop across national borders.
The 2003 Extradition Act was not brought in to deal with terrorism, and was not brought in at the request of the USA, yet McKinnon’s mother is enthusiastically quoted by the Daily Telegraph today saying:
“Where are the ‘very real safeguards’ that the Government consistently hid behind when forcing this appalling Act through Parliament.
“The only people who won’t get extradited are terrorists facing the death sentence, the very people the Act was meant to be about. “
McKinnon’s spin doctors have also created an entirely fictitious narrative of him being pursued under anti-terrorism legislation, and facing 60 years in Guantanamo or a hell-hole penitentiary. In fact, the prosecutions are for computer fraud, and carry a maximum tariff of ten years; McKinnon was offered a plea bargain that would have given him 3 to 4 years, eligible for parole after 18 months, and at most 6 months of that would need to be served in the USA, which would be in a federal prison . Not San Quentin, but a low security facility for white collar criminals, where they play ping-pong and watch TV. Of course any incarceration is traumatic, but populist anti-American myths are being peddled here.
Does this matter? Am I just being contrary?
I think it is important for two reasons. We should not accept that the criminal justice system can be by-passed by PR spin machines. Although McKinnon is not rich himself, his case has been taken up because of reactionary British nationalism, and assumptions of our superiority over the Americans. He has a case to answer about a crime allegedly committed in the USA; and he admits to the actual facts of the case, but is seeking to by-pass the justice system through a largely fictionalised political narrative.
But secondly, we need to look at the social damage of computer hacking. The Marxist legal theorist, Evgeny Pashukanis, argued that crime and punishment should be thought of by socialists in terms of “social harm” and “social defence”, thus stressing the collective impact of crime, rather than focusing on individual guilt or innocence.
Computer and security professionals point out two problems: firstly that the enormous social damage caused by computer misuse is not recognized; and secondly that deliberate computer misuse through hacking is not regarded as the serious crime that it is. Lack of social recognition that computer hacking is deeply anti-social and damaging contributes to the perpetuation of sub-cultures that share hacking tools and knowledge.
Why I have so little sympathy for McKinnon is that he and his campaign are deliberately playing on the idea that computer misuse doesn’t matter. Most hackers exploit attack software that has been written for them and placed into the public domain, these “script kiddies” exploit security vulnerabilities without much skill, but can cause immense mischief. A sub-culture exists among hackers, sharing information and tools, providing a virtual community, and providing esteem for high profile hackers like McKinnon. He will be a role model for many others. The hacking sub-culture also provides a platform that is exploited by serious organised crime. Suggesting that McKinnon’s behavour should not be treated as criminal just encourages the hacking sub-culture which already refuses to accept that they are doing anything wrong.
Of course some people may have sympathy for McKinnnon because his target was the US military, some others may just be concerned for him out of compassion. But it does matter that the criminal law is administered with due process, otherwise we live in a jungle. It should not be for PR firm, Bell Yard, to sway the workings of the criminal justice system based on manipulating public opinion.
See Tom Harris MP for more sensible comment on this
Please tell me what is wrong with hacking into US military computers? How can any socialist oppose bringing down the US imperialist war machine by this or any other means? Anyone who tries to this is a hero.
Please explain all this alleged Brit nationalism stuff? I have not heard Gary McKinnon say anything that could be interpreted as such. Obviously the gutter press have their own agenda but that doesn’t mean that this man should be extradited.
Comment by paddy garcia — 27 November, 2009 @ 10:14 am
the campaign has not been fought on the basis of justification for a attempt to interfere with US military computers. Had McKinnon taken that tack, then the politics would be very different.
BUt the instrumentaist view of the law you are promoting is highly problematic. Legal process and trials based upon eveidenc eare an importnat part of our social fabric, and the idea that we should make matters of the criminal law be decided by tabloid rabble rousing is worrying.
The British nationalism is all related to the aggreived sense of national sovereignty, and reactionary forms of anti-Americanism informed by Empire nostalgia. hence the mythology about the extradition treaty.
Do you really think that the Daily mail and daily telegraoh are on the same page as you about anti-imperialism?
Comment by Andy Newman — 27 November, 2009 @ 10:25 am
Aspeger’s is difficult to diagnose, it is no surprise that it wasn’t done until late.
Probable cause doesn’t need to be shown to a British court. So you are talking bollocks when you say the extradition treaty isn’t one-sided.
If he tries to commit suicide some of the blood will be on your hands.
Comment by tyresome points — 27 November, 2009 @ 10:26 am
‘But it does matter that the criminal law is administered with due process, otherwise we live in a jungle.’
Spoken like a true adherent of the flog em and hang em school, Andy.
Zero class analysis. Zero progressive politics of any sort.
A very poor and disappointing post in every way.
US justice is the most barbaric and punitive of any industrialised nation. Gary McKinnon is looking at 60 years in a US dungeon. He has a mother and family. He didn’t kill or rape anyone. And if he did leave antiwar messages on a US army computer, in my book he’s a hero. Where is the connection between the US military and the 1 million bodies in Iraq, between the US imperialism and global poverty, between US hegemony and the suffering and dislocation it has caused millions around the world.
Yet you go after an individual who would dare defy this veritable Roman Empire.
Very sad, mate.
Comment by John — 27 November, 2009 @ 10:26 am
“Gary McKinnon is looking at 60 years in a US dungeon”
No, he can still accept a plea, and serve 18 months, mainly in the UK.
Comment by Andy Newman — 27 November, 2009 @ 10:29 am
Thank you Andy for saying exactly what I’ve been thinking.
Computer hacking is anti-social and there is no evidence that McKinnon had any broader political involvement or motivation - his stupid and self-glorifying message aside.
BTW - I note that one of McKinnon’s most high profile backers, green hobbyist Trudie Styler (wife of Sting) has just been revealed as a Tory Party donor.
Comment by Charlie — 27 November, 2009 @ 10:32 am
#3 “Probable cause doesn’t need to be shown to a British court. So you are talking bollocks when you say the extradition treaty isn’t one-sided.”
Do you think that the Fourth Amendment in the US law shoudl be allowed to prevent the English legal system from removing its own domestic requirement for a prima facie case to be shown to an English court? that would be a ridicuous abdication of the British parliaments’ rights to make laws for our own country.
So you think there should be no extradition treaty with the USA?
Or that britain should be required to import the Fourth Amendment into Uk law?
Comment by Andy Newman — 27 November, 2009 @ 10:32 am
#7
I’m not sure the point you’re attempting to make here. The fact is that under the provisions of the current treaty the US justice system does not have to present prima facie evidence to a British court in order to request and be granted the extradition of a British citizen, whilst the British legal system does vis-a-vis the request for the extradition of a US citizen. Doesn’t this strike you as constituting an imbalance?
In the BBC news report on their website, there’s a quote from Shami Chakrabati, director of Liberty.
“The shoddy treatment of this vulnerable man should demonstrate that our rotten extradition laws need urgent reform.”
I don’t think anyone could accuse her of pandering to British nationalism when it comes to this issue. I think, on the contrary, like most right thinking people, she’s voicing the gross injustice that lies at the root of this case, along with the iniquity of the current extradition treaty.
Comment by John — 27 November, 2009 @ 10:46 am
I am totally aghast at the Home Secretary’s decision. It flies against all manner of decency and justice. Gary McKinnon knows he did something wrong. To be tried in the American courts (that is, to be dragged for years through the US system) would be a gross act of abuse against him.
Comment by Passing Leftie — 27 November, 2009 @ 10:49 am
#8 the British parliement decided, for domestic British political considerations following the debacle of the failed Pinochet extradition, to streamline extradition so that there was no preliminary trial in the UK to establish a prima facie case.
the onus was shifted to the country seeking extradition, and the bilateral treaties by which the British government establishes extradition relationships only with states which follow legal process.
It was a decision by the British state to revise Britain’s own laws.
the complication is that Britan’s laws could not be reciprocated by the USA, due to the 4th amendment.
So either we accept that the American 4th amendement places a constraint on the soveriegn power of the britsh parliement to change our own domestic laws; or we accept that there cannot be full reciprocity between the USA and UK.
What we cannot do is change british law, and then require the Americans to change their constituion to fit in with us. They fought and won a war to establish that the british parliement does not have that power over them.
The issue didn’t arise before 2003 only because the requirement for prima facie evidence in English and Scottish law required a higher burden of proof than the the probable cause test in Us law.
Actualy the arrangements between 1973 and 2003 were also unequal, but were tilted against the USA, and no one n britain complained then.
Comment by Andy Newman — 27 November, 2009 @ 10:54 am
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Don’t see anything unreasonable about that, wish it was part of British law.
“Do you think that the Fourth Amendment in the US law shoudl be allowed to prevent the English legal system from removing its own domestic requirement for a prima facie case to be shown to an English court? that would be a ridicuous abdication of the British parliaments’ rights to make laws for our own country.”
It is a ridiculous idea you have that the British parliament taking away British citizens rights is a positive move,
[CONTENT DELETED]
Comment by tyresome points — 27 November, 2009 @ 10:58 am
Shami Chakrabati is talking bollocks here: “The shoddy treatment of this vulnerable man should demonstrate that our rotten extradition laws need urgent reform.”
had the extradition arrangements that existed prior to 2003 still obtained, than the USA would have had no difficulty in establishing a prima facie case that an offence had been committed under the Federal Computer Misuse Acts, given that McKinnon admist what he did.
It is not the American’s fault that we have changed the law so that they no longer need to do so.
Comment by Andy Newman — 27 November, 2009 @ 10:58 am
#11 “It is a ridiculous idea you have that the British parliament taking away British citizens rights is a positive move,”
Where did i say that the 2003 act was a positive move? Whay makes you think that the 2003 act applies only to British citizens?
Although had we had the 2003 act in force when Pinochet was disputing his extardition, he would have faced trial for mass murder in Spain.
Comment by Andy Newman — 27 November, 2009 @ 11:01 am
It is shameful that the word ’socialist’ is even associated with this reactionary garbage.
Comment by Eddie Truman — 27 November, 2009 @ 11:13 am
Blimey!
This is the worst argument I have ever seen on a socialist blog written by someone who (though frequently wrong imo) usually argues a case from thought out liberal left principles.
A chap has hacked and disrupted US military computers. The first response from anti-imperialists should be to cheer. The might of the US Imperialist machine wobbled and tickled by a lone eccentric!
Your legalistic argument rests on an idea that The Law protects us from the ‘jungle’. (Now leave aside the flaw in attributing negative characeristics to a vital part of the Earth’s eco system, or to the people who live in ‘jungles’ without aid of a police force). The idea that the Law, including (or especially?) US law and British law, protects us all and is unbiased and needs to be defended is not an idea that should sit happily on a socialist blog.
What about compromising the law about unofficial strikes? What about compromising injuctions against mass pickets? What about harbouring ‘illegal’ immigrants?
The principles, (and these are liberal principles, you don’t have to be a revolutionary or class warrior to defend these)of no trial without evidence needs to be defended. And if the law currently allows extradition without clear evidence the law is as wrong as the anti-trade union legislation.
There is a law against punching someone in the face. But do we feel as strongly against a punch in the face of a fascist as we do an assault against a pensioner as part of a robbery? And would we support an anti-fascists defence of ‘I didn’t do it’ in order to avoid a sentence? You have argued that the law is the law and crime is crime whether the US military or a pensioner is victim.
btw I know a little about asperger’s and find it sad that you can dismiss this in such an off hand manner. Very often this is not diagnosed until there is a pressing need to do so because a person has done something considered to be beyond the pale by others.
The nationalist press have their own agenda, but just as when the Daily Mail called for action to be taken against the likely murderers of Stephen Lawrence, it doesn’t mean the issue has to be dropped by socialists (even though the Mail linked their position to an argument for more powers to the police!)
Finally you argue that computer ‘misuse’ should be treated more seriously. It is not misuse in my opinion to disrupt the US military, it is a perfectly good and valid use of this technology. The use the US and British secret services put computers to counts as misuse more dangerous than any hacker’s activities in my book.
Comment by Groucho — 27 November, 2009 @ 11:17 am
I like the way a quote from some obscure Marxist is inserted here, about crime being thought of in terms of ’social harm’ rather than individual guilt or innocence. Is this meant to give this argument a left wing gloss?
Admittedly I haven’t been following this case that closely, and I haven’t seen any of the tabloid coverage. But from what I gather here, he hacked into some Pentagon computer systems, caused some of them to crash, and caused a great deal of embarassment for the US military. So where’s the social harm? And if there is,how does it balance against the social harm to which the US empire puts its computer systems to use?
Of course, you’re entitled to your opinion that this guy should be extradited to face ‘justice’ in a US court. But don’t pretend that it’s an opinion informed by any sort of Marxist understanding of how society either works or should work.
Comment by dennis — 27 November, 2009 @ 11:44 am
Evgeny Pashukanis “some obscutre marxist” ????
the author of “marxism and the general Theory of law” obscure???
Can you thnk of a more well known marxist theorist on law and jusisprudence?
Comment by Andy Newman — 27 November, 2009 @ 11:47 am
The Marxist Evgeny Pashukanis argued that crime and punishment should be thought of by socialists in terms of “social harm” and “social defence”, thus stressing the collective impact of crime, rather than focusing on individual guilt or innocence.
Remind us how that worked out in actual practice.
Comment by Ken MacLeod — 27 November, 2009 @ 12:03 pm
Why has Andy Newman got it in for this poor fellow? Hasn’t he suffered enough? The extradition treaty is unbalanced and favours the USA, that is very clear. Why does Andy focus on Gary McKinnon, this is at least the second piece and identicle to the first?
Andy - use your word patterns on worthy causes not on this poor chap, hasn’t he got enough on his plate?
Comment by Anonymous — 27 November, 2009 @ 12:05 pm
IMO, if people break the law in genuine furtherance of a cause we believe in:
1. We should look at whether they have a genuine defence that they were trying to prevent a crime, protect someone (including themselves) against worse harm etc, and ensure that this is used by their defence team.
2. We should assist them financially in terms of their legal defence, support for them and their families if they go to prison, raise awareness of the reasons they have committed the crime.
3. We should promote and celebrate them as martyrs for the cause.
4. We should campaign to have the law they have broken repealed if it is an unjust law.
What we should not do is dismiss the concept of the rule of law.
The alternative in a socialist society would be arbitrary arrest and disposal of anyone who happened to do or say something that the party didn’t like, based on random criteria.
Lenin didn’t like the concept of rule of law and neither did Trotsky. And didn’t it just show!
Comment by Armchair — 27 November, 2009 @ 12:27 pm
#18
Pashukanis was actually a defender of the rule of law, so the implication that his views should be tarred wth the reality of Red terror would be unfortunate.
perhaps an article summarising the arguments from “marxism and the genral theory of law” would spark a good debate.
Comment by Andy Newman — 27 November, 2009 @ 12:30 pm
#20
Excellent points Armchair.
I was a big defender of the fairford Five, and turned up for many of their court appearnces: all reports here:
http://www.socialistunity.com/?cat=18
Worth seeing the contrast, insofar that they explicitly argued that they were justified in damaging US military equipment, morally and legally.
And they accepted that if they lost the legal argument, then they were prepared to go to prison.
This allowed the issue to be entirely focussed on the political issues.
As far as I can see it, the fact that McKinnon’s target was the US military is manily incidental to the politics of the case; because like it or not the mainstream political aganda associated with McKinnon is being driven by Tory tabloids.
Comment by Andy Newman — 27 November, 2009 @ 12:35 pm
“the reportage of the case in the British press has almost no connection with reality.”
Just so and not for the first time witness the idiotic ‘Blair will be first European President’ campaign - everyone outside the UK knew it was bollix.
On Gary McKinnon I don’t dispute what your saying but do feel compassion for him. He is obviously terrified.
“It is not misuse in my opinion to disrupt the US military, it is a perfectly good and valid use of this technology.” A fine arguement Groucho but do you think Gary McKinnon was ready for the consequences of doing so? I think you might be crediting him with motivations that were not there.
Comment by Christy — 27 November, 2009 @ 12:42 pm
Oh dear, Andy’s off on this wierd anti-McKinnon obsession again!!
We’re all wondering why Andy’s got it in for this poor guy, but has anyone considered that maybe McKinnon’s a secret SWP member - one of the “left-platform” perhaps??
Comment by Karl Stewart — 27 November, 2009 @ 12:48 pm
#23
“feel compassion for him. He is obviously terrified.”
For sure.
But his PR campaign, and his mother in particular, are elevating him into a political pawn with very high stakes.
They have advised him to turn down the offered plea bargain that would have seen him serving just 18 months of soft gaol time, and have instead gone for publicly taunting the US prosecutors.
And they are raising the stakes with the political issue of extradition, allowing the couts and Home Secretary very litte wiggle room; they have also allowed david cameron to jump on the band wagon, making this a party political issue.
Comment by Andy Newman — 27 November, 2009 @ 12:50 pm
Whilst in the SWP Andy, like many others, will probably have become sick of hearing the stock in trade ‘Don’t moralise to me comrade!’, so I’ll try not to here. But this really is the most contrived nonsense I have ever come across on this blog, quite extraordinary. All morning I have been feeling angry that the most contemptible and pusillanimous of New Labour politicians like Alan Johnson and Denis MacShane – he denounced Gary McKinnon Aspergers in Parliament as a ruse in part of a wider character assassination - have engineered this man’s extradition.
For me the issue is fairly straightforward: Irrespective of the man’s defence (something I think his mother has run), the legal extradition issue is that Mckinnon hacked into US military computer systems. Should any kind of a sympathetic human being, not necessarily a socialist, seek to see a man – clearly in the case of McKinnon a pretty mixed up one - extradited to rot in a US gaol because he did so? And should he only be supported in his campaign if it is a ‘anti-imperialist’, i.e. not one that relies on an insidious British nationalism/Tory anti-Americanism?
Think again Andy.
Comment by Sam64 — 27 November, 2009 @ 1:04 pm
I think there is a danger of politicising this issue and some people on here are clearly pandering to anti-Americanism. We should let the courts decide before making any judgement. I am also of the view that computer hacking is a potentially serious crime, although its impact is not widely understood at the moment. In addition to this if the crime alleged effects American then they should have the right to extradite. I’m also scepticalof the moral relavtism that runs through a certain strand of thought here which asserts that because the US is an ‘evil empire’ then we are not obliged to follow the rule of law?
Comment by Owen — 27 November, 2009 @ 1:08 pm
This is the same government of britain, that has been providing shelter and asylum to none-British altaf…a pakistani national for years.
This is the same terrorist altaf, who has 71 cases against him in his own country including 31 cases of murder and 11 attempts to murder.
The terrorist altaf cannot be extradited from britain under British law,
But, Gary McKinnon can be,
Is this an open discrimination or western democracy???
Is this greed or loyalty???
Is this a shame or honor???
Comment by hussain mehdi — 27 November, 2009 @ 1:10 pm
#27 `…some people on here are clearly pandering to anti-Americanism’.
Poor defenceless America though I see what you mean, they can’t even build a military computer system that cannot be hacked by a stoned loner with Aspergers.
`Justice’ in America? Ask Mumia or the thousands of blacks that are framed everyday then given state lawyers who failed primary school. What a coward Johnson is. The Home Office should be giving him a job not sending him off to die.
Comment by David Ellis — 27 November, 2009 @ 1:23 pm
If Andy thinks that the American legal system works and delivers just outcomes, maybe someone should buy him The Wire box set for Christmas
Comment by chjh — 27 November, 2009 @ 1:31 pm
Was it not old Charlie Marx who wrote “Bourgeois law is not law but the sanction of lawlessness”
Comment by Scot in London — 27 November, 2009 @ 1:40 pm
Andy’s been here before, several times - back in August the effervescent karen Elliott had this to say:
‘the logic of Andy’s position is that we should also accept the opinions of Pentagon ‘military experts’ regarding the future of Iraq and Afghanistan - because they’re the experts when it comes to questions of military hardware, strategy and tactics, yes? It makes just as much sense.
I can see it now: (another commentator) and Andy fighting off the mob trying to storm the Bastille, laying down their lives in defence of ‘the majesty of the law’.
This just in: “Admittedly, only fools and innocents would have remained blind to the real power of the bourgeois state. The great distinction between revolutionary Marxists and pseudo-Marxist opportunists consists in the fact that… the latter regard the state as an institution standing above the classes and the proletariat and the bourgeoisie conduct their war in order to gain control of it.”
G**rg* L*k*cs, Legality and Illegality, 1920
If Andy has a clean record , I’m sure he could become a Magistrate - socialist justice would be one step forward…
Comment by Seabiscuit — 27 November, 2009 @ 2:00 pm
#30
Are you suggesteing that Britain should have no extradition treaty with the USA?
McKinnon was offered a plea of 3 to 4, serving only 18 months, most of it in the UK, and no hard gaol time.
That doesn’t sound such a terrible injustice to me for a serious crime that he admits having committed.
He has turned it down, and is prepared to risk a trial, that is his call, but a risky one. He could do a lot lot longer if he chooses to deliberately goad the American courts.
Due to cynicism by his PR campaign, they have spun it that he is facing 60 years hard gaol. A claim that the British mainstream press unthinkingly run with.
I don’t see whay you want to base your position on the PR spin pcked up by the Daily mail and the daily Telgrah, rather than basing it on the facts.
Comment by Andy Newman — 27 November, 2009 @ 2:12 pm
I must confess I find it bewildering that there is this obsession with putting some computer geek behind American bars. After all, an actual war criminal nearly became EU President or something similar.
Comment by Mark Victorystooge — 27 November, 2009 @ 2:21 pm
I don’t care about mcKinnon
I do care about the issue of a PR company running a load of populist spin to thwart the rule of law. Tory papers trying to bounce the government, and a political sense of injustice and indignation being based upon a pack of lies.
Comment by Andy Newman — 27 November, 2009 @ 2:24 pm
The Marxist Evgeny Pashukanis argued that crime and punishment should be thought of by socialists in terms of “social harm” and “social defence”, thus stressing the collective impact of crime
…
Why I have so little sympathy for McKinnon is that he and his campaign are deliberately playing on the idea that computer misuse doesn’t matter.
I think some of his defenders are putting a different argument, which is that hacking the Pentagon in no way constitutes ’social harm’. I think Pashukanis would probably have agreed.
Comment by Phil — 27 November, 2009 @ 2:29 pm
#36
Phil
You could indeed argue that damaging US Army systems is a political act, an fight extradition on that basis.
But that is not McKinnon’s argument. He is claiming he did not do any harm (again a dangerous approach, because this is a question of fact that should be decided by a Jury).
McKinnon and his campaign are seeking to make an argument based on fact via the newspapers, as a way of avoiding a trial.
McKinnon is not arguing the same as the Fairford Five, that they did damage US military equipment. But that they had no illegal intention becasue they beleived that they had lawful excuse of seeking to prevent a greater crime. Their was a complex argument that went to the House of Lords to clarify whether this argument about Mens Rea could be put to the jury, and then crown court trials that were as much about the politics and legality of the war, as about the criminal damage.
The obvious difference is that the Fairford five did not seek to avoid a trial - they handed themselves in!
Comment by Andy Newman — 27 November, 2009 @ 2:44 pm
Doesn’t really answer the point in #36 though, does it Andy?
Comment by KrisS — 27 November, 2009 @ 2:46 pm
Obscure or not, the fact remains that your arguments have nothing in common whatsoever with any Marxist understanding of law or justice, how it operates under capitalism or how it would be likely to operate in a socialist system. That’s fine, you can be a liberal if you want. But don’t go quoting genuine marxists, especially not the eminent author of ‘Marxism and the General Theory of Law’, to justify an essentially bourgeois liberal point of view. ‘Cos that’s just annoying.
Comment by dennis — 27 November, 2009 @ 2:47 pm
#38
In your fantasies you can imagine that the dominant political context surrounding the McKinnon extradition is anti-imperlaism, and a blow against the Empire.
In the real world it is a reactionary campaign that is essentially seeking to manipulate tabloid journalism to avoid the proper process of the legal system. If this approach succeeds this is not a victory for justice, it is a victory for MIght is Right, and the idea that those who can access professional spin doctors are above the law.
Comment by Andy Newman — 27 November, 2009 @ 2:51 pm
Righto.
I was just wondering if you had a reply to Phil’s point.
Comment by KrisS — 27 November, 2009 @ 2:52 pm
#39 Not at all.
My argument is based upon the fact that the rule of law matters, and we should not accept the idea that tabloid journalists shoud decide whether or not someone is guilty of a crime. The proper place to do that is a court of law.
I quoted Pashukanis simply because he accepted the idea that crimes do matter, and society needs to dfend itself from criminality.
His argument is that the bourgeois legal system is flawed becasue the state pretends impartiality, and punishes individuals for social transgressions where the state assumes the role of society. So far so good. But that doesn’t mean that crimes which cause social crime shoudl be tolerated.
What is needed is a social investigation designed to determine how such socially harmful behaviour can be prevented in future; and seek a resolution on that basis. Exemplary punishment was certainly part of the legal world that Pashukanis inhabited. rather too much so.
Now if we are discussing social harm, a key strand in McKinnon’s argument is that it was all harmless fun. For this view to prevail is itself damaging to the public interest, asit is a philistine and essentially libertarian, as well as technologically illitreate argument.
Computer hacking is a very serious social problem, and McKinnon and his campaign’s failure to acknoweldge that he has done anything wrong should be combatted as contrary to the public good.
Perpetuation of the idea that the seriously anti-social and damaging sub-culture of computer hacking is benign is itself a social harm.
Comment by Andy Newman — 27 November, 2009 @ 3:00 pm
#41
KrisS
I think where we part company is that i do not see politics as a set of essentially individual acts to make the participants feel better about themselves.
The McKinnon extradition case is only peripherally about the damage to US military computers, the social impact of the case is different, it is about i) using PR to avoid a trial; and ii) minimising the degree to which compouter misuse is a social harm.
Defending McKinnon solely on the basis that his target was US military is concentrating not on the bigger social context of the case, but on your own personal subjective attitude to the US military.
Outside of the far-left and assorted peaceniks, I doubt whether there is much traction for the argument that his attacks wrre justified because of the target he chose. This must certainly be the view of his campaign, who have played down that aspect at every opportunity.
Personally, i think that he could have made that case, and we would have had a very interestig campaign to oppose his extradition on political grounds, and I would have fully endorsed that campaign.
So you need to take a less individualist and subjective view about how to judge social harm, and instead think about what the overall social consequences would be for McKinnon to beat extradition:
i) it would set back those trying to shift social attitudes to recognising the damage caused by hacking, and that this is serioulsy anti-social , criminal behaviour
ii) it would be a set back for justice, that Tory PR firms can by-pass the legal process by feeding spin too the tabloids to bounce politicians into not following the law
Comment by Andy Newman — 27 November, 2009 @ 3:10 pm
That does seem to involve shifting the “social harm” from the “crime” itself, to your perception of the possible impact of not punishing the “crime”.
Comment by KrisS — 27 November, 2009 @ 3:13 pm
#44
Exactly, that is a Marxist approach to criminal law and jurisprudence, following my interpretation of Pashukanis.
A shift away from seeing criminal law as reactive based on individual guilt and innocence, and punishments based upon tarriffs, and towards proactively identifying forms of behaviour that threaten “social harm” and then constructing “social defence” mechanisms (including but not restricted to punishment for individuals found guilty) to seek to gradually educate society away from behavours liable to cause social harm
As a question of social policy, computer hacking shoud be regarded as a serious crime, until there is a shift in popular attitiudes to recognise that it is not harmless fun, but seroius anti-social criminality.
Note controversially that Pashukanis also defends administrative preventionary detention of individuals thought dangerous to society. Before people throw their arms up in horror, this is something that we already do in the Uk, and all Western democracies in the case of people who are a danger to themselves and others due to mental distress.
But what is important is an approach to crime that looks at social defence mechanisms that seek to remove the context that creates the crime.
Tough on crime, tough on the causes of crime, as Lenin said.
Comment by Andy Newman — 27 November, 2009 @ 3:20 pm
Andy, you come across as really seriously wierd on this subject mate.
I think you must be the only person in the world - apart from the Pentagon -who’s at all bothered about this guy’s activities.
Come on mate, you’re just making a prat of yourself here.
Comment by Karl Stewart — 27 November, 2009 @ 3:43 pm
#46
No - the various parts of the trade press, covering the IT & computer practitioners, communictations industry and security professinals have reported far more responsibly and accurately what the issues are than the mainstream press.
Computer hacking simply is a very serious social problem
Comment by Andy Newman — 27 November, 2009 @ 3:45 pm
Thank you for writing this!
As a computer security professional who happens to be based in the United States, I have been dumbfounded by how the nature and severity of McKinnon’s crimes have been minimized by the UK press. Letting McKinnon go without prosecution sends a very bad message to computer criminals, and endangers the safety & security of everyone who uses online services.
It is obvious to me that McKinnon’s mother and others have orchestrated this campaign in the press, and used every PR angle possible. I don’t blame his mother for trying to defend him via any means possible. The problem is, like many PR campaigns, the angles being pushed have emotional resonance but no real basis in reality. Much of the UK press has lapped it up uncritically, playing right into the hands of his defense to the detriment of us all.
Comment by Tim Farley — 27 November, 2009 @ 3:48 pm
Beyond parody!!
Comment by Karl Stewart — 27 November, 2009 @ 3:55 pm
I’m normally a lurker, but to see Pashukanis’ name being invoked to defend what is a reactionary argument has provoked me. No Andy, Pashukanis was a not a defender of the law. His “General Theory” argued for the withering away of law - a socialist society without law, where law had been replaced by regulation. In that sense, he was referring to not talking about individual guilt and punishment but social responsibility etc - in a socialist society - not about the need to extradite some poor fellow for mildly harming the mainframe of US imperialism.
Pashukanis was later (under Stalinist pressure, and before being disappeared by the Stalinists) a defender of the law. But even then (as an apologist for the Stalinist bureaucracy), in fairness, he was talking about “socialist law” (an anachronism to me and the earlier Pashukanis).
The notion of socialists defending “the rule of law” within a capitalist society is ridiculous. It is a myth that doesn’t exist. The rules are made for the bosses’ benefit in general. Where there interests are involved and the rules aren’t in their favour, the rules will be bent to their interests. Socialists should aim to expose this - not to assist in building an ideological myth.
Comment by Isaac Blank — 27 November, 2009 @ 4:21 pm
Most of Pashukanis’ writings are concerned with the development of a revolutionary new law to replace that inherited from before 1917. He was particularly concerned that the fledgling state was merely adopting the niceties and norms of bourgeois law, about which he was utterly scathing as a tool for organised class repression.
To find him used in this way is staggering. You may as well use him to argue in favour of ASBOs.
Actually, can you show me where he uses the term “social harm”? I don’t remember seeing that anywhere - it is a much more modern concept and is used to attack the limitations of an approach focused solely on criminal justice, not back it up.
But if you want to talk about social harm, how about the billions that have been siphoned out of the public sector by undelivered IT projects which are woefully specified and incompetently and corruptly managed. No one responsible for those failings will get extradited - at worst they might not get their full bonuses. How about the diversion of resources into these military systems in the first place at the expense of social welfare? How about the institutional failures in large corporations and government bodies which mean that the vast majority of lost and compromised data isn’t as a result of hacker activity but managerial incompetence which simply leaves information lying around for anyone who wants to go looking for it or sends it around by privatised courier service.
I am a professional web developer. I’m acutely aware of the need to lock every window and bolt every door to secure my sites. If only the US military took the same precautions as little old me in my office, then we wouldn’t even be having this discussion.
So what if the Mail have their own agenda? The computer security industry certainly has one too and needs security scares and bogeymen like McKinnon, just like drugs companies need diseases. It’s also the same industry that brings surveillance into the workplace and can often be as much about managing internal threats as external. Monitor your staff emails, record keystrokes per minute in call centres, lock down internet access…
I could go on, but I’ve got a web installation to secure against those who would bring society to its knees.
Comment by Mike — 27 November, 2009 @ 4:24 pm
Isaac #50
Pashukanis is open to that ultra-left interpretation.
But preciesly because he was writing about law in a socialist society, his arguments about law in a caitalist society are more general and theoretical.
But it is ot true that the “rule of law” doesn’t exist under capitalist society, it is just that under cpaitalism the specific social relations that take legal forms are ones based upon social inequality, partally negating legal equalities.
The withering away of law is when society has no need for crime and punishment, but Pashukanis is explicit tht he sees bouheos legal norms existing under socialism, and that this is necessary. If they are needed under socialsim, then I believe they are also needed under cpaitalism.
Whatt is your solution to computer hacking, wait until the socialist millenium, and anti-social behaviour will wiither away?
Comment by Andy Newman — 27 November, 2009 @ 4:29 pm
#50 the extent to which the rule of law exists in capitalist society is a variable, as is democracy. It certainly existed a lot less in Nazi Germany than it does in today’s Britain (or today’s Germany for that matter.
The same applies to both post-and pre- capitalist societies. Magna Carta predates capitalism by a good few hundred years.
Comment by Armchair — 27 November, 2009 @ 5:29 pm
Actually Pashukanis argued that capitalism and the rule of law went together - the law had developed together with (and was infused by) capitalist property relations, and hence the establishment of socialism would be accompanied by a move beyond law.
But I don’t see what any of this has to do with Gary McKinnon hacking the Pentagon. Your argument seems to be that his actions should be punished not because of their direct effect but because of the need to deter other people from doing something similar which would be more harmful. I don’t think that’s a generalisable argument or not without justifying the punishment of an awful lot of behaviour.
Comment by Phil — 27 November, 2009 @ 5:39 pm
Oh dear. A lot of incoherent, not-thought-through arguments here. First let me say I obviously oppose extraditing anyone to the US, under any circumstances. If you want to talk about “social harm” then the US “justice” system dwarves all the hackers in the world combined by orders of magnitude. It does not deserve the support of any socialist.
That said, there’s bad arguments being made on both sides here. Let me point some out:
McKinnon didn’t do anything wrong: not a good argument. I don’t care if he did or didn’t. He should not be extradited, period.
McKinnon is a hero of the aznti-imperialist struggle: Oh come on. Really now. This is bullshit.
Look at all the “social harm” from hacking combined with yes, the US justice system is bad but McKinnon could have plead and gotten off lightly: Andy’s contradicting himself. On the one hand, he says it doesn’t matter that McKinnon’s hacks didn’t actually hurt anyone - it’s the “social harm” that counts. On the other hand, he wants to dismiss the (infinitely greater) social harm produced by the US justice system because in this specific case, it’s not so bad. Can’t have it both ways, comrade.
McKinnon is sympathetic/a creep: So? What’s that got to do with anything?
But but but: Rule of Law!!!!!! Liberal nonsense. There’s no such thing. This is precisely what Pashukanis was on about, and to quote him in defense of the opposite position is an insult to his memory.
Also: if I see Andy use the word “anti-social” one more time, I’m going to come over to the UK and picket his street personally [disclaimer: this is obviously a joke, not a threat].
Comment by christian h. — 27 November, 2009 @ 5:47 pm
“I’m going to come over to the UK and picket his street personally”
You are welcome to pop in and have a cup of tea if you get cold out there
Comment by Andy Newman — 27 November, 2009 @ 6:09 pm
#54
“Actually Pashukanis argued that capitalism and the rule of law went together - the law had developed together with (and was infused by) capitalist property relations, and hence the establishment of socialism would be accompanied by a move beyond law.”
Correxct, but he also provided a general theory of law, which I think can inform the approach that socialists take to legal maters in capitalist societies.
But I think we should park the discussion about thid particular dead Russian and come back to it on another occasion more specificaly dedicated to it.
Comment by Andy Newman — 27 November, 2009 @ 7:35 pm
#55
“First let me say I obviously oppose extraditing anyone to the US, under any circumstances. “
Ahhh, bless.
What would that mean in practice? especiallly for an wenglish speaking country like the UK.
We would have American child molestors coming to britain and raping children, and British child molestors going to the US for the same. Safe in the knowledge that no crime had been committed in their own country, and they could not be extradited to where the crime had been committed.
We would have organised crime in britain run from the USA, and American mobs run from London.
What a marvellous vision of sicialist utopia that is!
Comment by Andy Newman — 27 November, 2009 @ 7:38 pm
Wow! And would some of the posters here be happy if he had hacked into your ‘capitalist’ online bank accounts? Would you want recourse to the rule of law?
Comment by Mick — 27 November, 2009 @ 7:53 pm
Mick he hasn’t hacked into bank accounts.
Comment by Karl Stewart — 27 November, 2009 @ 8:03 pm
Yeah! And what if he had murdered your kids, eh? Think on, you ultra-lefts!
Comment by KrisS — 27 November, 2009 @ 8:04 pm
Very enlightening to read a detailed examination of the truth behind the talk about the extradition treaty. A valuable contribution to this debate.
Shame so many commenters are letting ideology get in the way of the facts.
Comment by John Self — 27 November, 2009 @ 8:25 pm
‘Am I just being contrary?’
Anyone who asks that questions knows they’re being contrary. We could play ‘What If’ all year children but the point remains why should we as socialists be kowtowing to an American system that favours the death penalty? We should repeal this extradition treaty. Preferably through the European constitution. And those who liken this to the NatWest four wankers are waaaay of teh mark. These guys (the wankers that is) were NEVER going to get the full whack of the law in the good ole USA. It was ENRON ffs. Bush family enterprises.com. To compare it with Gary McKinnon is sad, very very sad.
Comment by maggie — 27 November, 2009 @ 8:29 pm
#55- Yes, when I read people like you on the left disparaging the rule of law it makes me feel really comfortable about living in the type of society you would create if you had your way.
Of course, if we took on board your argument, as well as being somewhere where you could be arrested at whim for offending the local people’s committee or playing the wrong music, it would also be jam packed with American child molesters and rapists.
Comment by Armchair — 27 November, 2009 @ 8:34 pm
Haha, yes, it would. You wouldn’t be able to move for them.
Comment by KrisS — 27 November, 2009 @ 8:36 pm
“We would have organised crime in britain run from the USA, and American mobs run from London.”
Isn’t that sort of how both countries ended up in Iraq?
Comment by redbedhead — 27 November, 2009 @ 8:36 pm
rbh - we’re talking about real, serious bad stuff here, not wars. A man played on his computer and upset AN AMERICAN GENERAL!
Comment by KrisS — 27 November, 2009 @ 8:39 pm
What?! Holy cow, if I’d have known, I never would have brought world events into this discussion.
If you’ll excuse me now, I have to go to the execution of a shoplifter down the end of my street.
Comment by redbedhead — 27 November, 2009 @ 8:42 pm
I would like to say that I agree with Andy about the efficacy and fairness of the US justice system. We can easily measure its success, for instance, by the fact that it is the only growth industry in the US right now (well, outside of the new stock bubble and the military). Justice is a booming industry in the states and that’s why I think we have to support this extradition because the economy could use any boost it can get. Just look at these impressive numbers from the Bureau of Justice.
They make a socialist blush with pride, don’t they?
Comment by redbedhead — 27 November, 2009 @ 8:48 pm
But redbedhead, according to Andy’s logic, we’ve got to excecute shoplifters, because what if they’d comitted an armed robbery?
Maybe you and I are just a lilly-livered namby-pamby liberal commies?
Comment by Karl Stewart — 27 November, 2009 @ 8:49 pm
Ultra-left lily-livered namby-pamby liberal commies.
Comment by KrisS — 27 November, 2009 @ 8:52 pm
Ultra-left, namby-pamby, lilly-livered, liberal-commie, lousy-limeys who want people to get away scot-free with playing around on their computers wily-nilly.
Comment by Karl Stewart — 27 November, 2009 @ 9:04 pm
#63- My understanding is that it is not possible for anyone to be extradited from this country to anywhere if there is a possibility they will face the death penalty.
If this extradition treaty is an exception then that is something that needs correcting. Could someone confirm the position?
Comment by Armchair — 27 November, 2009 @ 9:10 pm
Andy, are you kidding? Is the US the only country in the world that can prosecute crimes? Or is molesting children legal in the UK? I am genuinely baffled.
As for Armchair, you are obviously welcome to fool yourself and believe that there’s such a thing as a “rule of law”. If it makes you feel better. On the other hand, you could try to think a bit, about what that term even means. How can “law” rule? Isn’t it made by the “men” that are supposedly not ruling, and doesn’t it stand to reason that this law made by certain men reflects their interests? You might look at how this “rule of law” works out in practice - given that the hacker is being extradited, while the war criminals walk free. You might crack a book or so and realize that the Stalinist machine of oppression actually functioned… through laws, not as you stupidly suggest through unaccountable “popular committees”.
I stand by my comment: there is no such thing as a “rule of law”. You seem to think (or maybe you are just deliberately misrepresenting what I wrote, under the infamous “cover of anonymity”) that this implies I think the way law actually functions and is created and implemented doesn’t matter. It doesn’t. All I suggest is that “rule of law” is yet another liberal term suggesting some super-human, impartial and rational system, when all it is in reality is an expression of existing structures of power and material relations in society. Kind of similar to the way liberal democracy isn’t, you know, democracy - nevertheless it surely matters how it is implemented in practice.
Comment by christian h. — 27 November, 2009 @ 9:12 pm
Armchair (73.), so you are saying that US child murderers (death penalty candidates in all states that have it) are descending upon the UK in droves to hide from the long arm of the law, and live their heinous lives unpunished?
Comment by christian h. — 27 November, 2009 @ 9:15 pm
There’s about twenty of them living in the flat upstairs.
Comment by KrisS — 27 November, 2009 @ 9:16 pm
Karl S- what do you think should have been done with someone who hacked into the Red Army’s computer system from the DDR?
KrisS- same question to you.
Comment by Armchair — 27 November, 2009 @ 9:20 pm
nothing
Comment by KrisS — 27 November, 2009 @ 9:23 pm
No-one could have ever hacked into the computer system of the glorious Red Army comrade!
Comment by Karl Stewart — 27 November, 2009 @ 9:25 pm
#79 What about the bloke out of the Hunt for Red October?
Comment by Armchair — 27 November, 2009 @ 9:29 pm
But that was fiction written by bourgeois hyenas.
Comment by Mark Victorystooge — 27 November, 2009 @ 9:31 pm
Generally speaking Armchair, I wouldn’t punish anyone for playing around harmlessly on a computer.
And the argument that says we should punish this man - who’s done nothing - because others might commit crime by computer is utter rubbish.
It’s a bit scary that otherwise intelligent people like Andy can - apparently seriously - argue such shite.
I do, however, think that people should be punished for real crimes and I also think there are circumstances when extradition - yes, even to the US - would be right.
However, this is not one such case.
Comment by Karl Stewart — 27 November, 2009 @ 9:34 pm
the Stalinist machine of oppression actually functioned… through laws, not as you stupidly suggest through unaccountable “popular committees”.
True - and it’s one of the paradoxes of Pashukanis’s work that he reinstated the law in socialism - retreating from his earlier work, under pressure from Stalin - but was then purged himself. All the same, I think we should recognise that ideas of social defence/social hygiene as the supersession of law are extremely problematic.
The rule of law isn’t only an ideal - it’s an ideal which people consistently try and live up to, & an ideal with institutions dedicated to maintaining it. At the same time, it’s a deeply flawed ideal, which reproduces the assumptions of the liberal capitalist order. But I don’t think socialists anywhere have managed to supersede that ideal - to that extent Pashukanis was wrong, or at least over-optimistic.
Comment by Phil — 27 November, 2009 @ 10:42 pm
Well said.
Comment by Stephen — 27 November, 2009 @ 10:59 pm
There are 2 issues I have with this case:
1) the British law not now requiring evidence to be judged in this country before an extridition.
2) the crime was committed in this country even though the computers were in the USA. It should therefore be judged and punished in this country.
Thanks to this post, I can see why we’ve ended up with what I see as a bad law that doesn’t require a case to be made in the UK before extridition, but I don’t agree with it - it seems now to be a bad idea.
Point 2, again, I don’t see how a crime can be deemed to have taken place in the USA when the perpetrator was elsewhere. The computer they hacked didn’t commit the crime, the person did. Under this definition, I’m currently in many places in the world at this very moment, and may be infringing laws in countries I’ve never even heard of without even being aware of it. I live in the UK under uk law and unless I travel, or deliberately enage in international agreements which deem a specific jurisdiction, I expect to be accountable and judged under UK law. If the law currently says otherwise then I would want that changed.
I do have a third issue but only based on the sensationalist reporting - the extent of the ‘damages’ being claimed to have been inflicted. When an insecure system is exposed and needs remedial work to secure it, that work required is not ‘damage’ it’s work the admins of the system should have been doing already. I do not condone malicious hacking activity, and it does need to be punished, but that punishment needs to be proportional. If someone runs a simple script and a poorly secured system is exploited and all that person then does is snoop a little without any profit or further exploitation of what is seen and they leave a message making their activities obvious, it’s akin to me to a kid ducking under a rope and writing a bit of graffiti on a postit in a secure area of a bank. The bank should have had a much better barrier in place even before the incident, and they couldn’t claim that the costs of building a vault and putting in cameras and guards etc are the responsibility of the kid that duked under a rope.
By accounts, the systems exploited in this instance were poorly secured, the guy did little ‘damage’ and the crime should be judged accordingly. Equally, there should be a crime of negligently maintaining a government system - in the same way that leaving a secret file on a train would be an offence, leaving a system wide open to easy exploitation shoud be punished to focus attention on computing proffesionals responsibilities in cases like this.
Comment by Nick Sharratt — 27 November, 2009 @ 11:07 pm
#73 Armchair this on the then proposed extradition treaty is worth reading. Its a bit dated (2003) but things have only got worse since.
http://www.statewatch.org/news/2003/jul/25ukus.htm
Comment by DuncanB — 27 November, 2009 @ 11:23 pm
~63
“These guys (the wankers that is) were NEVER going to get the full whack of the law in the good ole USA. It was ENRON ffs. Bush family enterprises.com. To compare it with Gary McKinnon is sad, very very sad.”
It is gary McKinnons’s choice to keep that compamy.
He and the Nat weat three al use the Bell yad PR agency to fight extradition.
Comment by Andy Newman — 27 November, 2009 @ 11:44 pm
#75
“Armchair (73.), so you are saying that US child murderers (death penalty candidates in all states that have it) are descending upon the UK in droves to hide from the long arm of the law, and live their heinous lives unpunished?”
They would be extradited subject to an undertaking that they wouldn’t face the death penalty.
Comment by Andy Newman — 27 November, 2009 @ 11:46 pm
#82
“Generally speaking Armchair, I wouldn’t punish anyone for playing around harmlessly on a computer.
And the argument that says we should punish this man - who’s done nothing - because others might commit crime by computer is utter rubbish.”
This is rubbish and offensive rubbish.
Coputer hacking is serious crime that costs society hundreds of millions of dollars, and causes damage and misery.
Just because you are ignorant of the issue, doesn’t mean it dosn’t exist.
inded this is the type of attitude that is leading to pressure from the industry fr exemplary sentancing.
Comment by Andy Newman — 27 November, 2009 @ 11:49 pm
#85
“I don’t see how a crime can be deemed to have taken place in the USA when the perpetrator was elsewhere. The computer they hacked didn’t commit the crime, the person did. ”
Jurisdidiction is a tricky area in computer crime.
the law was changed to provide jursdiction in the USA after a multi-million dollar bank fraud by organised crime working out of Germany, but attacking banks i the USA. It was found that neither cuntry had jurisdiction to prosecute the crime.
Where the damage is done strikes me as a fair system.
Comment by Andy Newman — 27 November, 2009 @ 11:52 pm
#74
“Is the US the only country in the world that can prosecute crimes? Or is molesting children legal in the UK? ”
Englsh law would have no jurisdiction to prosecute for a crime committed abroad, except in a very limited number of statutory exceptions. And possibe one or two common law exceptions like treason.
Comment by Andy Newman — 27 November, 2009 @ 11:55 pm
“My argument is based upon the fact that the rule of law matters, and we should not accept the idea that tabloid journalists shoud decide whether or not someone is guilty of a crime. The proper place to do that is a court of law.”
It’s a shame Paul Foot isn’t around today and could be arsed to read this nonsense Andy. Imagine if he’d obeyed your so-called “rule of law” then a number of innocent men would still be in prison.
As for McKinnons act of civil disobedience there have been much more serious cases that the left have supported so your claim that McKinnons campaign is a right wing nationalist plot doesn’t stand up.
And since when has campaigning against the US military and government equated to anti-Americanism? I suppose Galloways magnificent stand against the US Senate was also anti-Americanism was it?
Comment by Ray — 28 November, 2009 @ 12:26 am
Phil (83.): valid points; I don’t think that we are at all far apart, in fact. What you seem to be objecting to is a view of socialist regulation that abolishes the idea of individual agency including the idea of personal responsibility and on the other hand the idea that a person should know in advance what is and is not permitted. Well, good. The fact remains that all the vast machines of oppression in the 20th century abided by these basic “rule of law” tenets. Nazi justices, prosecutors, theorists of law hid behind the “rule of law” and continued without any self-reflection after the war. So my point stands: there is no such thing as a “rule of law”. There’s many many “rules of law” with many different practices depending on material - social and political - realities. Maybe Andy will put up a post on Pashukanis’ work separate from this particular contentious case and we all can discuss these issues.
Andy (88.): So you agree that child murderers have a big incentive to come to the UK. Yet, in fact, they don’t. Because your whole “England is going to be flooded by child molesters” - panic is rubbish from the start.
Andy (89.): You are doing it again. Karl Stewart was not speaking about “computer hacking”. He was speaking about one very particular case, this one. It’s clear your whole interest in this case stems from your obsession with computer crime. Do you work with computer systems professionally?
Andy (91.): You are just making up a non-existent problem. There are, and always have been, countries that do not extradite to other countries. The world-wide population of child molesters on the lam is, however, small. It contains Roman Polanski and not many other people. However, I take your point. Making an immovable principle out of this would be wrong. Let me attack Oceania, which I’ve always been at war with, ie, change my mind a bit: as a default rule, a socialist should not do anything to support the US injustice system; this includes support for extradition. I presume there are countries the UK does not extradite to, and that there is in fact a procedure in place to deal with real crimes committed in those countries by people currently resident in the UK - that procedure could apply to the US as easily as it does to North Korea.
Comment by christian h. — 28 November, 2009 @ 12:29 am
Also, Andy (56.): thanks. Coming from L.A. I’d probably be freezing in a minute in cold Britannia… it’s torture keeping you guys there.
Comment by christian h. — 28 November, 2009 @ 12:30 am
Andy, you’re still not getting the point are you?
At (89) you claim: “Computer hacking is serious crime that costs society hundreds of millions of dollars, and causes damage and misery.”
Maybe it is a means by which serious crime could be committed, the possibility has certainly got you hysterical, but what’s utterly beyond doubt is that McKinnon - i.e. the person we’re talking about here - has done nothing wrong.
All you ever do on this subject is make wild claims about potential crimes that might or might not be committed - but then insist that this man should be extradited to the US to face a lengthy prison term for playing around on his computer.
Andy, McKinnon did no harm to anyone - and you’re being unbelievably foolish on this.
Comment by Karl Stewart — 28 November, 2009 @ 12:33 am
#74 - Sorry only just noticed this contribution. Christian H I didn’t mention Stalinism. The lack of concern for the rule of law began with Lenin and was fully supported by Trotsky.
Btw I don’t hold political or any other beliefs on the basis of what makes me feel better which is just a tiny bit patronising but I’ll let that go as I was a bit out of order myself.
You say, “I stand by my comment: there is no such thing as a “rule of law”. You seem to think (or maybe you are just deliberately misrepresenting what I wrote, under the infamous “cover of anonymity”) that this implies I think the way law actually functions and is created and implemented doesn’t matter. It doesn’t. All I suggest is that “rule of law” is yet another liberal term suggesting some super-human, impartial and rational system, when all it is in reality is an expression of existing structures of power and material relations in society. Kind of similar to the way liberal democracy isn’t, you know, democracy - nevertheless it surely matters how it is implemented in practice.”
I apologise if I have misrepresented your views, with which as quoted above I have little difficulty, but I refute the idea that the concept of rule of law is “liberal”.
As long as class society has existed there have been forms of organisation (eventually the modern state) that play a repressive role to some extent in the interests of society as a whole, but ultimately in the interests of the dominant class. It is vastly preferable to say the least that there is an understanding that the manner in which those repressive functions are carried out is constrained and regulated according to recognised principles.
What we argue for in capitalist society has a great deal of bearing on what we would help create in a society in transition to socialism IMO, which is clearly relevant as such institutions will continue to be necessary, albeit in a different form.
#74- Andy has answered your point.
In any event, leaving aside the hyperbole, the idea that you would never support extraditing anyone to the USA full stop does actually beg the question what do you think should be done with someone wanted for a crime in the USA that you DO regard as serious.
Comment by Armchair — 28 November, 2009 @ 1:18 am
#96 Now I realise that Christian has made another comment that appears to have partially dealt with mine. Anyway I’m leaving this now as unlike Christian my time zone means that it’s long past my bedtime.
Comment by Armchair — 28 November, 2009 @ 1:23 am
#86- Sorry Duncan just seen this as well. Will read it tommorrow. Thanks.
Comment by Armchair — 28 November, 2009 @ 1:29 am
#95
“Maybe it is a means by which serious crime could be committed, the possibility has certainly got you hysterical, but what’s utterly beyond doubt is that McKinnon - i.e. the person we’re talking about here - has done nothing wrong.”
Well what he did is a question of fact that should be decided in a court of law, but he seems to have admitted (and therefore there is a prima facie case that woudl have satisfied the pre 2003 extradition arrangemnts), that he made unauthorised access to computer systems, maybe deleted files, and will certainly have raised question marks over systems integrity.
As a professional engineer with a background in security I regard that in its own right as a serious crime; and personlly I would favour a custodial senatance for all such behaviour.
i don’t think you appreicaite the degree to which comuter hacking, viruses, and other forms of computer isuse seriously complicate the entire technological foundation of our civilisation; and the ignorant statements that hackers don’t do any harm, or are even doing their victims a favour by exposing weaknesses are forms of ignorance that are not supported by any informed opinion from within the industry itself.
As security guru Bruce Schneier explains in his 2000 book Secrets and Lies : “some systems are frangible and simply looking around can inadvertently cause damage. And once an unauthorized person has been inside a system, you can’t trust its integrity. You don’t know the intruder didn’t touch anything”). Literally hundreds of millions of dollars are diverted into the security business to defend society from hackers, virus writers, and other cyber attackers. Important data is lost, time is lost, privacy is compromised.
Comment by Andy Newman — 28 November, 2009 @ 12:04 pm
#93
“Andy (88.): So you agree that child murderers have a big incentive to come to the UK. Yet, in fact, they don’t. Because your whole “England is going to be flooded by child molesters” - panic is rubbish from the start. ”
Christian, you don’t understand how the restriction of jurisdiction works.
Currently, if someone murdered a child in a US state with the death penalty for such a crime, then they could flee to canada, which does not have the detah penalty, and which will not extradite to the USA if there is a death penalty.
However, they would still be extradited from canada on an undertaking that death penalty was off the table.
I am talking about a different case. If there ws no extradition treaty at all, then a UK citizen could go to the USA, molest a child, and return to the UK. No crime would have been committed within the jurisdiction of the British courts; and they could not be sent to the USA where the courts have jurisdiction.
The only solution would be to extend the jurisdiction of the british courts to the whole world for all crimes. This would have diplomatic complications regarding the sovereignty of other nations; and particular legal problems if it made a distinction betwen acts by British citizens or non-Britiosh citizens.
How could you do it? If the british courts had jurisdiction in say Algeria, would this apply to only british citizens committing criminal acts in Algeria. What if the behaviout is a crime in Algeria but not in Britan? What if the behaviour is a crime in Britain but not Algeria? What about Agerian citizens dimiciled in the UK but visiting Algeria? It becomes a minefield.
And if your position is that you don’t thikn anyone should ever be extradited to the USA, then you are effectively saying that if all the witnesses and evidence are in the USA, then they could never be prosecuted.
But why only make a distinction of people being extradited to the USA? Surely the only consistent way you position holds if you also think US citizens and people domiciled in the USA should not be prosecuted either?
Comment by Andy Newman — 28 November, 2009 @ 12:19 pm
#93
“I presume there are countries the UK does not extradite to, and that there is in fact a procedure in place to deal with real crimes committed in those countries by people currently resident in the UK ”
No there isn’t.
Look at Ronie Biggs; becasue there was no extradition treaty he was able to live a completely normal life in Brazil. Later when an extradition treaty was introduced the Brazilians wouldn’t extradite him ebacsuie he had a Brazilian son born after he entered the country.
The lack of an arrangement to prosecute is why there is a push to have extradition arrangements. with as many countries as possible.
Comment by Andy Newman — 28 November, 2009 @ 12:22 pm
Ray:
“It’s a shame Paul Foot isn’t around today and could be arsed to read this nonsense Andy. Imagine if he’d obeyed your so-called “rule of law” then a number of innocent men would still be in prison.”
How silly.
Paul foot didn’t seek to organise gaol-breaks to get innocent people out.
he campaigned for their cases to be reopened in courts of law; and indeed much of his argument was based upon the fact that prosecuters and the police had acted outside the law in the original prosecutions.
If there was no concept of rule of law, then there could be no such concet as a miscarrriage of justice, because MIght would be Right.
Comment by Andy Newman — 28 November, 2009 @ 12:24 pm
And is this madness the policy of the Respect Party too?
Comment by Karl Stewart — 28 November, 2009 @ 12:36 pm
#103
Karl, perhaps Respect should introduce a streamlined procedure whereby all my thoughts and opinions are automatically adopted as policy
Sadly, some of the other Respect party members have their own opinion, and are not simply empty vessels for me to pour my wisdom into. I also have to admit that there are members of Respect with greater expereince and knowledge than I. So i suspect your excellent idea will never come to fruition.
So as it stands, Respect party still goes through the old system of making policy by conference
Comment by Andy Newman — 28 November, 2009 @ 12:43 pm
#103 Yes Karl you are as equally free in Respect to believe in the rule of law as you are to believe that the cause of socialism would have been served by the armed forces of the DDR crushing the 1989 demonstrations, on the subject of madness (or to believe that the collapse of the DDR was a great socialist victory).
Comment by Armchair — 28 November, 2009 @ 1:11 pm
Phew, so this “get McKinnon” obsession is just a fairly harmless eccentricity of your own then - that’s a relief!
Comment by Karl Stewart — 28 November, 2009 @ 2:08 pm
I see we’re back to ‘hang and flog Gary McKinnon’. Christ, what a shower. A few points on this:
Using ‘hacking’ as a carry-all term is horribly unhelpful. Most of the hacking going on is carried out by governments or the attached state, big corporations, banks and the big media. They are the ones who should be prosecuted, but instead Andy can’t resist attacking a man with a learning disability and an obsession with ufos.
Not only this, he is insisting on defending the american ‘justice’ system, a land where the owners of private prisons bribe judges to hand out longer sentences. And in any case, Andy does not always seek to defend his bizarre concept of ‘the rule of law’. For example, he doesn’t think anyone should be prosecuted for the murder of Jean Charles de Menezes. Because for Andy, the rule of law should only be used to target the vulnerable and oppressed. Doubtless he thinks the Ratheon 9 should also be locked up.
Or, more likely, Andy doesn’t believe any of this crap and is only doing this to appear contraversial and, most importantly of all, to be seen to hold the opposite view to the SWP.
Comment by Keith Watermelon — 28 November, 2009 @ 2:37 pm
I don’t think, in this case, it does have much to do with the SWP. But it is rather strange.
Comment by johng — 28 November, 2009 @ 2:47 pm
#108 So the SWP are officially denying any involvement in this matter?
Interesting.
Comment by Armchair — 28 November, 2009 @ 3:46 pm
#107
“Using ‘hacking’ as a carry-all term is horribly unhelpful. Most of the hacking going on is carried out by governments or the attached state, big corporations, banks and the big media. ”
No it isn’t.
I would be interested if you could find a single technical expert in the field who would agree with that.
It seems you get your technical information from watching “spooks”
Comment by Andy Newman — 28 November, 2009 @ 4:44 pm
I can hardly believe I’m saying this, but what Andy said… right down to his correct way of spelling gaol.
Comment by Alec — 28 November, 2009 @ 6:37 pm
Andy Newman:
“I know my concerns are not widely held on the left”…
Andy, you should try arguing for a two-state solution to Israel/Palestine, or pointing out that “left” anti-semitism exists. Then you’ll know what it’s like when your “concerns are not widely held on the left”, even though they are sane and rational.
But I fear that your refusal to support McKinnon is neither sane nor rational.
Comment by Jim Denham — 29 November, 2009 @ 1:16 am
Armchair just WHAT are you implying?
Comment by johng — 29 November, 2009 @ 2:56 am
There are lots of child killers and rapists in both the UK and US. They are called the military.
But what is all this Mr. Newman?
Over here we have good people like 70 year old Lyn Stewart being thrown into prison. People have spent DECADES on death row and been left to rot in prison.
There IS NO justice system in the US.
How many times do people have to tell you that Mr Newman?
I sincerely hope you are not thinking of moving to the US.
I think you should change the name of your blog to ‘Zubatovschina’
Comment by Peter Hine — 29 November, 2009 @ 6:32 am
With the exception of the likes of Jim Denham, the clarion opposition to Andy’s position seems to be borne out of control and the writers’ separate opinions of American foreign policy. My misgivings about this case is the one-sidedness of the extradiction treaty, not any desire to mitigate McKinnon’s actions: I assume Andy’s personal stake is due to his working in an industry which is at especial risk to hackers.
>> Over here we have good people like 70 year old Lyn Stewart being thrown into prison.
Call me old fashioned, but I think that subverting the legal process and committing professional gross misconduct is not a good action. Especially when it involves individuals like Omar Abdel-Rahman.
Furthermore, Stewart received less than 10% of the maximum sentance (McKinnon will likely receive even less), and was able to use the court system to delay her imprisonment by over four years. Hardly suggestive of an authoritarian system.
The American criminal justice system, like any other, is to serve the relevent public… not the conceits of Lyn Stewart or Josh Wolfe.
>> People have spent DECADES on death row and been left to rot in prison.
I disagree with the death penalty, but - in principle, at least; and quite often fact - the convicted individuals have committed quite horrific murders. There is a difference here between this and stuff like detention-without-trial.
Furthermore, the reason for their extended incarcerations is the use of the appeals system, which you would have say doesn’t exist, to prevent their executions.
Comment by Alec — 29 November, 2009 @ 10:27 am
It isn’t clear to me that McKinnon has “spin doctors”, who are they? He has on his side some believers in the fact that US extra-territoriality is in danger of becoming all pervasive. I am one of those.
Basically this guy did some irresponsible stuff. I know lots of geeks capable of doing the same. When they are discovered, they should be dealt with. We have a UK law and legal system that is capable of dealing with this, so why “export” him to a legal system that just seemingly wants retribution?
He didn’t commit these offences in USA - he did it from a bedroom on south=east London so far as I recall. If the USA doesn’t trust us - a major ally - to deal with this according to our own standards, then that’s a problem in its own right.
McKinnon is guilty by his own admission of dabbling with stuff that was dangerous to do. The fact that THEIR system allowed it to occur is more of a crime on their part than it is on McKinnon’s. If you build secure systems with flaky components, then expect the worst. And the “SOLO” escapade was by no means the worst that they could have got.
Solution: Try him here. If he’s found guilty, lock him up in a secure establishment and have him use his supposed “super-hacker” skills on terrorist-proofing our own systems and if the US think he’s so good, then lend his services as a penetration tester to them free of charge.
If he’s not found guilty, then give him a job anyway, doing exactly the same thing. This guy is no terrorist AND he’s no “super-hacker” either. I know a few dozen people who’d eat him for supper in the UK IT security community. I just don’t want the US thirst for retribution to destroy him AND I don’t think we should stand by while New Labour government treaties that were conceived in a hurry and born in a hurry, eat away at our own civil rights.
The US has apparently said in ANOTHER case, that if the defendant is found innocent, they’ll snatch him when he’s not in the UK. Can that be TRUE?
Comment by mikejulietbravo — 29 November, 2009 @ 11:18 am
johng- it was an attempt at a joke to relieve some of the factional tension.
You responded to Keith Watermellon saying you didn’t think the issue had much to do with the SWP. I did a tabloid journalist thing on you to have you officially denying SWP involvement- and everyone knows that if a politician or party denies something that they haven’t been accused of this means that they really ARE involved.
As everyone also knows, if you have to explain a joke, it probably wasn’t funny. Fortunately I’m not looking for a career as a comedian.
You may of course have been playing a double bluff by pretending you didn’t understand me to wind me up. That would be a typical underhand state cap trick.
Comment by Armchair — 29 November, 2009 @ 11:45 am
It was I’m afraid a typical underhand state cap trick Armchair. The vicious stalinist attempt to allege that Trots have no sense of humour has also been noted however. Its the kind of thing which could run and run.
Comment by johng — 29 November, 2009 @ 3:01 pm
its excellent article i really like it so much……
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An update
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