Gary McKinnon's legal team said they will take their fight against his extradition all the way to the European Court of Human Rights on Monday, as the highest court in England began deliberations on whether to turn him over to US authorities.
The London hacker now faces an anxious wait for the judgment on his latest appeal, which is expected to take about two weeks.
During a day-long session of legal nit-picking, five Law Lords heard McKinnon's barrister, David Pannick QC, argued that the US had abused process by trying to strong-arm his client into accepting extradition and pleading guilty.
Gary McKinnon at Infosec 2007
'Play by our rules'
Pannick told the hearing: "If the United States wish to use the processes of English courts to secure the extradition of an alleged offender then they must play by our rules."
It emerged that in exchange for compliance, US prosecutors offered to withdraw a threat to block any application for McKinnon to be repatriated to serve most of his time in a UK jail. This threat is central to his lawyers' claims of abuse of process.
The bargain offered by the US Embassy's Ed Gibson (who is now Microsoft UK's chief security adviser) for a guilty plea would reduce his sentence from eight-to-ten years, to between three and four years. Combined with the UK's more generous parole system, that would mean that McKinnon might have served only two years in prison.
In her evidence, McKinnon's solicitor Karen Todner said that in their correspondence the US had told her that failure to play ball would mean "all bets were off" and that repatriation to the UK "would not occur". This threat, charged McKinnon's team, "sought to impose pressure to accept extradition and plead guilty", and represented an unlawful abuse of the court process that was "disproportionate [and] reprehensible".
Prosecutors exaggerated their influence over the repatriation process, said Pannick, in a bid to secure McKinnon's co-operation, and that had "made it all the worse". Edward Fitzgerald QC, who provided supporting intervention at the hearing on behalf of the civil liberties charity Liberty, said: "What the prosecution [was] saying is 'I have immense powers and I will use them against you'."
McKinnon has admitted taking advantage of lax security in US systems to install covert software that gave him control of settings and access to files. He was looking for evidence of UFOs. He has not admitted causing hundreds of thousands of dollars of damage, a claim at the heart of the US government's allegations.
Clare Montgomery QC, acting for the US government, disputed this, saying if McKinnon had refused to cooperate he would have still been considered for a return to the UK. "This was very close to the type of plea bargaining that might occur here... this was not a case of 'we [US prosecutors] can give or withold the right to transfer [to the UK]'" she told the Lords.
Montgomery also echoed comments from one of the Lords sitting, Baroness Hale, who had suggested that the deal offered to McKinnon might simply have been "the facts of life", rather than a threat, and that it offered him significant benefits. She scorned calls for Gary McKinnon to face trial in the UK, saying: "He must have appreciated as he hacked into American computers that he was committing an act that would have had repercussions in America."
On a knife-edge
In the Palace of Westiminster corridors after the hearing, the consensus among the gathered legal minds was that the case is poised on a knife-edge. Nevertheless, McKinnon's team were cautiously upbeat.
McKinnon himself attended only the morning session of the hearing, flanked by family and supporters. Win or lose, the saga is set to continue for some time.
Victory will override the extradition treaty between the US and UK, and mean the case goes all the way back to Magistrate's court. In that scenario, unlike during the process seen so far, judges will consider US evidence against McKinnon. The treaty has not been ratified by Congress so does not allow the UK to reciprocally extradite suspects from the US without evidence hearings.
Defeat would be a major blow, but McKinnon's team said outside the hearing that it would be by no means the last stand. The precedent set by the European Court of Human Rights in the Babar Ahmad case makes a challenge there likely, said solicitor Karen Todner.
And that can take years. ®