Sunday, October 23, 2005

Readers write in

A few interesting queries from readers this week. There's very little that the Vol Abroad loves more than to be asked her opinion. (I also like to be asked "Can I get you a drink?")

Sam asks:

Hope at Appalachia Alumni poses the question that if Miers supports a constitutional amendment against abortion, does that mean she recognizes a constitutional right for abortion less an amendment? It's a good question. Any thoughts?

I say: I don't have sufficient confidence that Harriet Miers has thought through that question herself. She doesn't appear to be a constitutional scholar, and that's why she's just not qualified for the post. I imagine that she probaby is anti-choice, but is perhaps a great enough respecter of precendent to accept Roe v. Wade as it stands "as the law of the land". But it's a law that she probably feels needs changing - i.e. she feels there's no inherent 'right' or as I would prefer to say 'liberty' to have an abortion.

The Vol-in-Law and Sam go further in the comments section of my original Miers post arguing the merits of Roe and when a fetus becomes a human.

Then I got this query... not sure what to make of it exactly, but I'll bite. I couldn't reasonably answer in the comments section because I didn't really know enough about this case - though I had heard of it, vaguely:

And FG asks in the comment section of one of my older posts:

What do you think of the Gary McKinnon case ? He is a British national first arrested in November 2002 and released without charge, but now through the Extradition Act 2003 (who says we do not have retroactive legislation here in the UK ?) is facing extradition to the USA for allegedly "hacking" into over 90 US military computer systems, before and after the supposed high state of alert caused by the September 11th 2001 attacks.

No prima facie evidence has been presented in his case either, and he too fears a Miltary Tribunal, after all, unlike Babar Ahmad, he actually did "attack" the US Military.

The list of computer systems includes some at Pentagon, the NSA Fort Meade, the US Army, the US Air Force and the US Nabvy, NASA etc, all in hiis pursuit of pursuit of "UFO" information and the activities of the School of the Americas in Fort Benning, Georgia, and because of the criminally negligent computer security procedures in place at the time, for several years previously.

Surely he too should be tried for his alleged crimes here in the UK ?


for more details

I say: First of all, I can see this is a transparent effort to raise publicity for this case - perhaps you were not aware of how few readers I have. Or perhaps you don't care. But clearly you didn't read my post on Babar Ahmad very carefully. Although the fast track extradition law doesn't require prima facie evidence - I believe that the conditions for prima facie evidence in that case have been met. Prima facie (as Vol-in-Law, the lawyer, tells me) just means that "on the face of it, there's a case to answer", in the US that might mean there's enough to bring to the Grand Jury - it certainly does not mean that it has to be enough to convict.

And although Gary McKinnon was sitting in Britain when he allegedly committed his crime, the crime itself took place in the US. That's where the criminal damage ocurred. I'm still not sure exactly how I feel about the jurisdiction of internet crimes. For example, I have no idea where this site is hosted. And though it's not my intention to commit any crimes, in some places, some of the things I might say, might be against the law.

But if he did indeed do what he was accused of, hacking into Pentagon, US Navy, etc it seems to me that he would know exactly where the damage was being done, so maybe it's fair enough that he's tried in the US. I would say that the internet jurisdictional issue is actually a little trickier in Ahmad's case.

...and finally, re. inadequate computer security - just because my neighbour leaves his door unlocked doesn't give me the right to walk into his house, even if it's just to have a look around.


fg said...

Thanks for taking the time to comment on these legal cases.

"I believe that the conditions for prima facie evidence in that case have been met. Prima facie (as Vol-in-Law, the lawyer, tells me) just means that "on the face of it, there's a case to answer", in the US that might mean there's enough to bring to the Grand Jury - it certainly does not mean that it has to be enough to convict."

Neither in the Babar Ahmad case, nor in the Gary McKinnon nor the "Enron/Nat West 3" cases etc. has any prima facie evidence been produced before a UK court, only the fact that they are wanted by the US authorities on various charges.

What used to happen under the old system, was that some actual evidence, such as that which would be presented to a US Grand Jury. would be presented before a UK Court, which would be fair enough, but, under the Extradition Act 2003, this no longer happens.

This presentation of some evidence is still exactly what would happen in reverse, if someone was being extradited from the USA to the UK.

Some of the stuff in Babar Ahmad's US Indictment is plain rubbish, e.g. the "highly suspicious" brochure of the Empire State building brought home by his father from a tourist trip to New York, before Babar was even born.

Similarly there is the totally unsubstantiated claims for the amount of financial "damage", $900,000 or so, which Gary McKinnon's activities are alleged to have caused. This is mostly a result of the US federal authorities policy, of not getting involved in Computer Crimes, unless there is a claim of at least $5,000 "damage".

To take your trespassing analogy, you should not be able to claim the cost of a brand new house, just because your neighbour has trespassed and had a look around inside your old one without your permission.

Surely the actual legal jurisdiction from where you commit a crime, and where you are arrested, takes precedence over foreign legal systems ?

Gary admits that he has done some illegal things, but what he is charged with in the USA is totally disproportionate - he is facing longer in prison than any murderer would in the UK.

Internet legal jurisdiction is certainly worth worrying about, even more so, once the UK Terrorism Bill 2005 gets passed, as you will be liable for up to 7 years in prison if you fail to remove what, in the opinion of a UK police constable (not the initial opinion of a Court), considers to be "anything" which might be of even indirect use to, or support for "terrorism", anywhere in the world.

If you do not respond to such a censorship order within 2 days, taking no account of weekends and bank holidays, for say, a dubious blog comment, you will be deemed to be in agreement and in support of the dubious web content and will be liable to arrest (which in the UK now means that you will be photographed, fingerprinted - all ten fingers, both palm prints and have DNA samples taken from you, all of which gets retained forever, even if you are not charged or if you are found not guilty in court)

Thanks for your attention

Vol-in-Law said...

I agree it's a bad treaty and there should have to be prima facie evidence presented. I guess it would be less of an issue if there wasn't the fear that the quality of US justice may have been substantially eroded over the past 4 years.

I do think that in practice though at least for pre-2003-revision cases the UK has if anything been far too reluctant to extradite persons from the UK to (eg) France. The swift extradition of the suspect from Italy back here should be possible vice-versa.

As far as McKinnon's case, I don't think his sentence should exceed what he could get for similar acts against the UK MoD's computers.

Vol Abroad said...

If you read the Babar Ahmad request for extradition, that is in essence a request for indictment. It is pretty thorough and I don't remember any mention of "brochures of the Empire state building".

I agree that prima facie evidence should be a requirement for extradition and that powers can take advantage of terrorism acts to loosen the law.

You're right to question that.