February 16, 2007 10:49 AM PST

U.S. 'threatened' alleged NASA hacker, defense says

The fate of Gary McKinnon, the alleged NASA hacker, is hanging in balance after his appeal against extradition to the U.S. was adjourned at the Court of Appeal in London on Wednesday evening.

Over two days in court, McKinnon's defense team presented new evidence that it said meant the judges should reject his extradition to face charges of breaking into and damaging U.S. government computers.

The Court of Appeal is the court of last resort under U.K. law, and usually it will only find for or against the appellant. But the defense argued on Tuesday and Wednesday that evidence brought to light by the McKinnon case raised serious questions about the U.S. government's case.

Gary McKinnon
Gary McKinnnon

The defense has urged the Court of Appeal to consider referring McKinnon's case back to the U.K. government, or to allow a further appeal to the European Court of Human Rights, if it will not reject the extradition outright.

The evidence centered on what was or was not said to McKinnon when he was being offered a plea bargain. More well-known in the U.S., and now also used on an informal basis in the U.K., a plea bargain is when the prosecution offers a reduced sentence or other incentive, in return for a defendant's agreement to cooperate.

In this case, if McKinnon agreed to cooperate with them, the U.S. authorities said they would agree to a reduced sentence of three years or less. They would also let him serve the sentence in a U.K. prison and not in an American "super high-security prison," as Edmund Lawson, a lawyer appearing for McKinnon's defense, put it.

All parties appear to agree on that part of the description of what happened. But what was said next became the main source of controversy in court. According to McKinnon and his counsel, a U.S. member of the prosecution team then "threatened" McKinnon that if he did not agree to the bargain, they would push for the highest possible penalties and that he would be "turned over to New Jersey authorities to see him fry."

And the defense further alleged that the U.S. said that if McKinnon did not agree to the deal, there would be no chance of his serving his sentence in the U.K. near his friends and family.

This quickly became known as the "fry" statement. The defense said it could be taken to mean a threat on McKinnon's life, should he be handed over to New Jersey rather than Virginia, the two states where McKinnon was alleged to have damaged IT systems.

In fact, if it was a threat, it may be something of an idle one. Although both states have the death penalty, New Jersey has not executed anyone in 20 years, while Virginia is still active in executions. In any case, under European law, McKinnon cannot be extradited from the U.K. to the U.S. if there is a risk of execution.

Despite this, Lawson argued that the overt nature of the threat was an infringement on McKinnon's human rights. If so, it could be a matter for the European Court of Human Rights, as could be the threat to withdraw the possibility of serving his sentence in the U.K.

The prosecution lawyer, Max Summers, dismissed the points immediately. None of the evidence on the "frying" allegation could be allowed into court since any words spoken during the alleged offer were only done so in confidence, he said.

There is no automatic right for an extradited prisoner to serve a sentence back in his own country and the majority do not, especially those extradited from the U.K. to the U.S. As it was, the U.S. was in no position to refute the allegations over "frying," since none of the relevant American staff involved are currently in the U.K., let alone in court this week.

If this evidence was to be considered at all, Summers argued, then the U.S. government would need notice and time to get witnesses organized, and so a recess would be required.

The defense and prosecution teams and the two judges hearing the appeal discussed the legal consequences of taking the McKinnon case into new legal territory for an extradition hearing for an hour. The court was adjourned at 4:20 p.m. on Wednesday for the Appeal Court judges to consider the options.

They could find in favor of the U.S. authorities, meaning McKinnon would soon travel to the U.S., or they could uphold the appeal and allow McKinnon to go free. Alternatively, they could refer the case back to British Home Secretary John Reid, who decided in July 2006 that the extradition should go ahead, or reject McKinnon's appeal but allow a further appeal to the European Court of Human Rights. A decision is expected next week.

McKinnon himself did not attend the appeal, and saw a doctor on Wednesday following heart palpitations.

Colin Barker of ZDNet UK reported from London.

See more CNET content tagged:
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16 comments

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Wouldn't it be better...
if he sued NASA for using an insecure system (Windows)?
Posted by Graham Fluet (31 comments )
Reply Link Flag
Poor baby...
the US should appologize and walk away with their tail between their legs. Forgive me, but if more people were threatened with their butts being beat in, maybe criminals would think twice.
Posted by ferreiae (2 comments )
Reply Link Flag
Perhaps,
But a death threat is still a death threat (even if a bogus one).
To prove my point - try to make a death threat against the President, even in jest. Then see how seriously people take it; it?s a line you don?t want to cross.
Posted by Marcus Westrup (630 comments )
Link Flag
Crook
The only thread is people like him..........lock him up with the killer and rapist. People like him make me sick.
Posted by Pauldsu (83 comments )
Link Flag
This is so sad
First the government websites are so poorly secured that a self confessed "bumbling computer nerd" can walk right in.

Then THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA Alexandria Division publishes the indictment as a pdf with all the server ip addresses "hidden" with a black layer. All you have to do is copy the pages and paste them into a text file to read everything.

It's enough to make you wonder if the inmates might be running the asylum.


<a class="jive-link-external" href="http://news.bbc.co.uk/2/hi/technology/4715612.stm" target="_newWindow">http://news.bbc.co.uk/2/hi/technology/4715612.stm</a>
Posted by rcrusoe (1305 comments )
Reply Link Flag
Death penalty for hacking????
Ummmm... You can't get the death penalty for hacking/cracking! I assume his lawyer was present for the negotiations, and the lawyer should have known that.

You can't even get the death penalty for run-of-the-mill murder. It requires "special circumstances". If you kill the teller while robbing a bank, that is NOT bad enough!

Here in California, the list of special circumstances includes things like murder for hire, mass/multiple murder, murder of a child, and murder by torture (and probably some others).
Posted by DougDbug (62 comments )
Reply Link Flag
Probably
Well, in Texas at least you could. Even though that isn't premeditated murder, I think it has to do with committing murder while commiting a felony or violent crime or something. These crimes are state laws so really it would depend on what state the crime was committed in.
Posted by jdbwar07 (150 comments )
Link Flag
Bitter government
Seems to me like the government is just bitter and embarassed about the fact that a company like NASA suffered a security breach. What does that say about the US Government?

Here's an article you can read about Government security, or lack thereof...
<a class="jive-link-external" href="http://www.essentialsecurity.com/news.htm?id=200" target="_newWindow">http://www.essentialsecurity.com/news.htm?id=200</a>
Posted by mveronica (40 comments )
Link Flag
hmmm
Should Not have done the crime if he is unwilling to face the music in US court !!!
Posted by Oldwolf63 (1 comment )
Reply Link Flag
NASA Hacker Mckinnon
Just the fact that the US is offering a reduced sentance proves that the damage done was minimal, if they wern't so anal about witholding information which the people have every right to know this kind of stuff might not happen, maybe the Network Administrators at NASA should do jail time for not protecting these alleged secrets.
Posted by dogbreath99762 (1 comment )
Reply Link Flag
Right to know?
Weren't so anal about witholding information people have a right to know? Could you be any more stupid?

Please explain and answer the following because it's the reader's right to know:
Sexual orientation
Total annual income
Number of flushes per day and average GPF
Felonies alledged and convictions

Very quickly the vapidity of your post reveals that you are in more jeapordy than the NASA administrators.
Posted by Schratboy (122 comments )
Link Flag
Let's split the difference...
How about he deploys to Iraq for a year and helps the Iraqi government setup their networks?
Posted by ejevo (134 comments )
Reply Link Flag
 

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