NASA hacker Gary McKinnon has lost his appeal at the High Court against his extradition to the US to face a trial by prosecutors who allegedly told him he "would fry". McKinnon's lawyers will seek leave to appeal to the House of Lords.
McKinnon hacked into US military and NASA computers in 2001 and 2002 and admitted to the incident when arrested in November 2002. He was told by UK prosecutors that he faced community service, but US prosecutors sought his extradition.
Prosecutors in the US have said they believe McKinnon could be jailed for 70 years, could face a military and not a civil court and could even be interred at Guantanemo Bay.
McKinnon does not deny that he hacked into computers, but says he was only able to gain access because of lax security in the systems, which he says were using default passwords. He was using an ordinary computer and a dial-up internet connection and says he has only very rudimentary hacking skills.
Lawyers for McKinnon argued in the appeal hearing against his extradition that he would not receive fair treatment in the US because of earlier plea bargaining negotiations. His team said that US prosecutors had offered him the chance to be repatriated and serve much of his sentence in the UK if he went to face a US trial voluntarily.
They said that he was told that if he fought extradition he would not be permitted the opportunity to serve his sentence in the UK, a threat which McKinnon's lawyers believe violates his human rights.
"We argued that that was coercive plea bargaining, that his rights to repatriation and therefore his rights under Article 8 of the Human Rights Act, which is the right to a private and a family life, could be breached because they have already said before he even gets there that he won't be repatriated," said Karen Todner, McKinnon's solicitor.
"Gary has the right to have his repatriation to this country considered fairly and not arbitrarily and prosecutors have already said that because he objected to the extradition they will not allow his repatriation to take place, and we have argued that that is an abuse of the extradition process," said Todner.
Lord Justice Maurice Kay and Mr Justice Goldring said in the High Court that they could find no grounds for appeal in the case. Home Secretary John Reid had already signed McKinnon's extradition order last summer.
McKinnon, whom lawyers say has been made ill by the stress of the process, was searching the computer networks for evidence of devices in the hands of US authorities which he said had been reverse engineered from alien technology. He claims to have seen evidence of that in NASA's machines.
Lawyers for McKinnon recently told OUT-LAW Radio that they would appeal directly to the Home Secretary should court appeals fail because the nature of their case rested on McKinnon's human rights.
"The Secretary of State has an inherent discretion to consider someone's human rights under the new Extradition Act," Todner said. "We are now going to go back to the Secretary of State and ask him to reconsider his position in relation to Gary."