Sovereignty Principles & Extradition Aberrations

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THE SWISS FEDERAL PACT OF 1291 (full text ¦ Originalversion)
In the name of God, the Almighty, amen.
    It is accomplishing an honorable and beneficial action for the public well-being to confirm in the established forms the conventions aimed at peace and security.
    [1.] Let it be known to everybody, considering the prevailing evil and in order to better defend and maintain, in their integrity, their families and their property, that the People of the valleys of Uri, Schwyz and Unterwalden, in good faith, have pledged to assist each other with help, with advice and with all favors, persons and goods, inside their valleys and beyond, with all their power and resourcefulness, against all and against anybody nourishing bad intentions or who committed a crime, an offense or an injustice against any one or more of them, or concerning their property. ...
    [4.] After joint consultations, we have also unanimously agreed, set and ordered that the People of the above-named valleys will, under no circumstances, receive or accept a judge who is not one of us [i.e. a resident Citizen], or who has bought his judgeship with money or any kind of favor on any way. ...
   [7.] He who, with intent, by day or in the dark of the night, sets fire to the property of a Confederate, shall have lost forever his rights as a member of our Communities, and he who shelters and protects this offender shall in our valleys compensate the injured.
    [8.] Moreover, the property in the valleys of any Confederate who, by way of robbery or otherwise, inflicted any damage on the property of any other Confederate, shall be sequestrated in as much as is needed to compensate said damage in due course.
    [9.] Also, nobody among ourselves shall seize the other's property without a valid public title or a guarantee, and then only with a special authorization from his [the competent] judge.
    [10.] Each one shall be obedient to his judge and if that becomes necessary, shall indicate the judge which he is prepared to recognize.
    [11.] Whoever opposes or refuses obedience to a [competent] court and thus causes damage to anyone among us, shall be liable to render satisfaction which is to be enforced by all other Confederates. ...
*        *        *
«Should the Court fail in its obligation to afford the protections accorded to the citizens
of The Bahamas and even strangers within our gates and to ensure that the constitutional rules
governing the law-making process are adhered to strictly, our society will not long prevail.
The Court must perform the role placed upon it by the Constitution as the guardian
of the fundamental human rights contained therein and cannot abrogate its responsibility
and allow the Executive or Parliament to determine themselves what is or is not constitutional.»
Bahamas Supreme Court, overturning extradition order based on
unapproved assymetric 1990 Treaty with U.S., 10 May 05, p.55
25.Apr 12    Deutsche verhaften falschen Swiss Banker zur Sofortausweisung in die USA, insideparadeplatz
15 Aug 10   NatWest Three claim guilty plea was extracted under duress, Guardian, Observer, Andrew Clark
17 Jul 10   Why, really, Switzerland refused to extradite Polanski, ASDI/SIPA, Anton Keller
26 May 07   Ten British executives face long arm of US justice, Sunday Telegraph, Helen Power
26 jan 07    Française détenue arbitrairement en Suisse?, Le Temps, Valérie de Graffenried
26 Jan 07   Extradition inequality, Financial Times,Editorial
26 Jan 07   Norris faces extradition after losing appeal,, Russell Hotten
13 Dec 06   "It takes only a few good men to do nothing for evil to succeed", SIPA, Anton Keller
16 July 06   We are far too soft on City villainy, Observer, Will Hutton,Comment
12 July 06   Emergency debate on extraditions, BBC NEWS
12 July 06   U.S. Shifts Policy on Geneva Conventions, Washington Post, C. Babington & M. Abramowitz
12 July 06   Terror and Presidential Power:  Bush Takes a Step Back, NYT, SCOTT SHANE
11 July 06   Why take the risk of doing business in London?, ASDI/SIPA, Anton Keller
8 July 06   UK trial for Enron trio rejected, BBC NEWS
7 July 06   Go-ahead for hacker's extradition, BBC NEWS
5 July 06   Free the Three British Bankers!, Daily Telegraph, Editorial
5 July 06   Blair refuses to halt extradition of NatWest Three, Daily Telegraph, George Jones
2 July 06   Pressure mounts on RBS to break silence on NatWest Three, Daily Telegraph, Iain Dey
2 July 06   NatWest Three should be tried in a British court, The Independent, Abigail Townsend, comment
28 June 06   An unequal treaty, Financial Times, Editorial
28 June 06   NatWest Three's last-ditch appeal against extradition to US fails, Guardian, H. Kundnani
21 Feb 06   British bankers lose Enron battle, CNN
14 Feb 06   'Hacker' extradition case reopens, BBC
14 Jan 06   NatWest extradition fight key to Norris ruling, say judges, Daily Telegraph, Russell Hotten
12 Jan 06   Government defies business lobby over US extradition treaty, The Independent, Julia Kollewe
9 July 05   Game over, The Guardian, Jon Ronson
25 May 05   Bankers should be extradited says Clarke, Daily Telegraph, Christopher Hope
25 May 05   Bankers' extradition to US approved by Clarke, Daily Telegraph, Philip Johnston
15 Feb 05   Why not charge us here? say Enron case bankers, Daily Telegraph, Andrew Cave
15 Feb 05   It's not Kafka ... it's reality for NatWest Three, Daily Telegraph, Neil Collins, comment
14.Jan 05   Ulrich Schlüer: Der EU-Haftbefehl, Schweizerzeit
16 Oct 04   NatWest bankers must face Enron charges in the US, Daily Telegraph, Tessa Thorniley

Daily Telegraph      16 October 2004

NatWest bankers must face Enron charges in the US

By Tessa Thorniley

A judge yesterday ruled that three former NatWest investment bankers can be extradited to the United States to face charges of conspiring in an Enron-related fraud. District judge Nicholas Evans said there is "a good and proper basis" for prosecuting the trio in Houston, home of the notorious energy company.

David Bermingham, Giles Darby and Gary Mulgrew could face bankruptcy and up to 22 years in jail if they are found guilty. They also face two years in a high security US federal penitentiary before their case gets to court.

Their wives broke down at Bow Street magistrates court as Judge Evans rejected all the defence's arguments for a trial in Britain. He told the court: "The US wants to prosecute them in the US. The process of extradition is necessary in a democratic society and proportionate. The alleged fraud could not have got off the ground without the involvement of former US Enron executives Andrew Fastow and Michael Kopper."

Alun Jones QC, the defence counsel, claimed the trio will not receive a fair trial in Texas because of their alleged links to Enron. He said they would be denied bail and would be unable to prepare their defence from behind bars. The judge dismissed the claims. The three have vowed to appeal against the ruling "not just for ourselves, but also for others who will inevitably also be caught up by the Government's extradition law changes".

The controversial ruling is the first under the new Extradition Act, brought in by the Home Secretary, David Blunkett, to trap suspected terrorists. The Act has been described as a "one-sided treaty" which requires Britain to hand over suspects to the US although the same rules do not apply in America when Britain applies for extradition.

Speaking on the steps of the court, Mr Bermingham, said: "We are three British citizens, accused of defrauding a British bank, the alleged misconduct took place mostly in the UK and most of the witnesses that would need to call for a fair trial are here. The only US element to this entire case is our accusers."

The Serious Fraud Office has refused to investigate proceedings against the three. It claims the interests of justice are better served if they are tried in the US. Mr Bermingham said it would take just "one phone call" from the US authorities to have the trial transferred to the UK.

The US Department of Justice has charged the three with seven counts of wire fraud. They are accused of conspiring with senior Enron executives in 2000 to sell a stake in a Cayman Island company for $1m (£560,000) when the true value was much higher. A month later the company was re-sold and allegedly the trio each made £1.5m profit with the former Enron executives pocketing $12m (£7.6m) each.

They deny the charges. Mr Fastow and Mr Kopper have already admitted involvement in the alleged scheme as part of a plea bargain. The three bankers were released on conditional bail yesterday and have surrendered their passports.

Daily Telegraph     15 February 2005

It's not Kafka ... it's reality for NatWest Three

Neil Collins

Now for a story about a respectable bank functionary abruptly arrested without being told his alleged crime. No, it's not The Trial, Franz Kafka's classic about the terror state. But what David Bermingham,, Gary Mulgrew and Giles Darby are alleged to have done wrong is almost as mysterious as the supposed crimes of Joseph K.

This trio unwittingly started the proceedings two-and-a-half years ago by volunteering information about Enron to the Financial Services Authority. The watchdog was not interested and neither were the Serious Fraud Office, the Crown Prosecution Service or Director of Public Prosecutions. Then came the Extradition Act of 2003, legislated by the British Government to help America enforce the war on terror. Instead, it is being used to strike fear into the hearts of three bankers who have never been investigated in the UK, let alone accused by British authorities of any crime here.

For all the dark satire, this is hardly a laughing matter. The US has never produced prima facie evidence against the three. However, they face up to 22 years in jail if found guilty of conspiring with Enron executives to sell a Cayman Island company for a fraction of its worth, sharing the profits when it was sold on for a much higher sum a month later. If extradited, they will have to work on their case from the comfort of a US penitentiary.

The question is why the case cannot be investigated here and the SFO's answer that the US authorities had too much of a head start is hardly convincing. It could take years before this one is resolved so the men are effectively bringing their own action against the SFO for failing to prosecute them. Kafka would be proud of such a twist. Unfortunately for the NatWest Three, this is reality.

Daily Telegraph      15 February 2005

Why not charge us here? say Enron case bankers

By Andrew Cave, Associate City Editor

Three former NatWest investment bankers facing possible extradition to the US over Enron-related fraud charges are to make legal history by challenging the Serious Fraud Office for failing to prosecute them in Britain.

David Bermingham, Gary Mulgrew and Giles Darby yesterday lodged an application for a judicial review in the High Court to question the decision of SFO head Robert Wardle not to investigate them.

Their action comes as the men, all aged 42, await a decision by Home Secretary Charles Clarke on whether to extradite them to the US.

Last October, the men's wives broke down at Bow Street magistrates court as district judge Nicholas Evans ruled there was "a good and proper basis" for prosecuting them in Enron's former home of Houston.

Prosecutors in the US claim they conspired with senior Enron officials Michael Kopper and Andrew Fastow to defraud Greenwich NatWest by secretly investing in an "off-balance sheet" Enron partnership. They could face bankruptcy and up to 22 years in jail if found guilty.

Mr Bermingham said: "Over the past 2½ years, we have been trying unsuccessfully to get anybody or everybody to look at our case here and investigate it to see if we have a case to answer.

"We have tried everyone from the Financial Services Authority to the SFO, Crown Prosecution Service and DPP.

"We are charged by a foreign government, without it producing evidence, with committing a crime here in the UK against a UK bank.

"If the charges are true, we are the biggest UK bank robbers ever but no one in the UK is interested in investigating it. The UK investigatory authorities must have an obligation to consider whether the case should be tried here when it concerns UK companies and UK victims.

"I cannot imagine that anyone has ever taken the SFO to court before for not investigating them."

The case is a test of new UK extradition laws that allow British citizens to be extradited to America without US authorities being required to present prima facie evidence against them. It is alleged the trio worked with Mr Kopper to persuade Greenwich NatWest to sell its stake in the off-balance sheet partnership for $1m (£530,000) when it was worth much more.

The US Department of Justice's indictment alleges the partnership was sold a month later for $20m, with the three British men sharing profits of about $7.3m. It has charged the three with seven counts of wire fraud. Most of the work on the alleged fraud is claimed to have been carried out in the UK and the Cayman Islands.

Mr Bermingham said he and his former colleagues took the matter to the FSA in November 2001, saying they wanted to help with the Enron investigation.

"We gave them a huge stack of information, which ended up being used against us," he said.

Mr Clarke was due to rule on the extradition request by today but has applied to defer his decision until end-March.

SFO spokesman David Jones said: "I cannot comment on what our reaction is to the judicial review.

"The investigation proceedings by the American authorities were well under way and it was not in the public interest for the possibility of a separate SFO inquiry to proceed."

Daily Telegraph      25 May 2005
Bankers should be extradited says Clarke

By Christopher Hope, Business Correspondent

Home Secretary Charles Clarke yesterday ordered that three British bankers should be extradited to America to face trial on fraud charges.

David Bermingham, Giles Darby and Gary Mulgrew are accused of joining with two executives from failed US energy giant Enron to defraud a subsidiary of NatWest bank out of millions of pounds.
Gary Mulgrew, Giles Darby, and David Bermingham

The US government wants the trio to be extradited to face a total of seven counts of wire fraud in a Texas court. The men can appeal against the decision within 14 days.

The move was widely expected following a ruling by a district judge last October that the three could be sent to America under the Extradition Act 2003.

A Home Office spokesman said Mr Clarke had approved the extradition because the three would not face the death penalty, had not been extradited from another country, and were not going to be tried on different charges.

The three have racked up large legal bills fighting the action.

Mr Bermingham, 42, said: "It is a sad day when the Government is prepared to put political expediency ahead of the protection of its own citizens."

Mr Bermingham said he expected the case to be challenged in the High Court, and if necessary to the House of Lords and then the European Court of Human Rights, potentially taking years.

He said: "Luckily and despite the best efforts of this government, we still have an independent judiciary to provide checks and balances. I feel sorry for Charles Clarke. He is reaping what David Blunkett sowed."

The Extradition Act was intended to make it easier to extradite suspected terrorists to the US by removing the need to test evidence in a British court. However, half of the 45 requests made by the US since January 2004 have been for white collar crime.

Mr Bermingham added: "People are finally waking up to the Trojan Horse that this Government has allowed into our back yard. "Mind you, even in Troy at least the Trojan leaders weren't conspiring with Odysseus against their own citizens."

The bankers are accused of hatching a plot with Enron executives Andrew Fastow and Michael Kopper to persuade their then employer Greenwich NatWest, a subsidiary of NatWest, to sell its stake in a Cayman Islands firm at a knockdown price.

NatWest was allegedly paid around $1m (£570,000) for its stake in LJM Swap Sub. Enron, which was unaware of the alleged scheme, is believed to have paid out around $20m for the investment.

The three British bankers are accused of helping to cream off the balance - although most of the cash allegedly went to Mr Kopper and Mr Fastow.

Mr Bermingham, Mr Darby, 42, and Mr Mulgrew, 43, deny the charges.
15 February 2005: Why not charge us here? say Enron case bankers

Daily Telegraph     25 May 2005

Bankers' extradition to US approved by Clarke
By Philip Johnston, Home Affairs Editor

The extradition to America of three British bankers on fraud charges was approved by Charles Clarke, the Home Secretary yesterday, in the first test of a new treaty intended to make it easier to bring alleged criminals to justice.

David Bermingham, Giles Darby and Gary Mulgrew are accused of joining two executives from Enron, the failed US energy giant, to defraud a subsidiary of NatWest Bank, now part of Royal Bank of Scotland, out of millions of pounds.

They deny the charges and intend to appeal against Mr Clarke's decision. The American justice department sought their extradition last year to face seven counts of "wire fraud" in a Texas court, which could result in a 22-year jail term.

The request was made under a treaty that allows Americans to seek the extradition of Britons without having to produce evidence.

It was introduced principally to combat terrorism but covers so-called white collar crime and money laundering.

Of the 43 requests received from American prosecutors, 22 relate to white-collar crime, and three to terrorism.

Last October, a court ruled that there was a "good and proper basis'' under the terms of the treaty for a prosecution of the bankers in America.

But they say they should be tried in Britain, since they are British and the offences were allegedly committed against a British company.

A judicial review of the decision not to prosecute them in this country - which would take precedence over any extradition - is expected next month.

Mr Bermingham, 42, said: "It is a sad day for Britain when the Government is prepared to put political expediency ahead of the protection of its own citizens."

The Guardian    July 9, 2005

Game over

Jon Ronson

Gary McKinnon has been accused of committing the 'biggest military computer hack of all time', and if extradited to the US faces up to 70 years in jail. So how did this techno geek from north London end up cracking open the Pentagon and Nasa's systems? He talks exclusively to Jon Ronson as he awaits his fate
In 1983, when Gary McKinnon was 17, he went to see the movie WarGames at his local cinema in Crouch End, north London. In WarGames, a geeky computer whiz kid hacks into a secret Pentagon network and, inadvertently, almost instigates world war three. Sitting in the cinema that day, the teenage Gary wondered if he, too, could be a hacker.

"Really," I say to him now, "WarGames should have put you off hacking for life."
"Well," he replies, "I didn't mean it to actually come true." WarGames ends with the Pentagon telling the young nerd how impressed they are by his technical acumen. He's probably going to grow up to have a brilliant career at Nasa or the department of defence. This is an unlikely scenario for Gary McKinnon. He currently faces 20 charges in the US, including stealing computer files, obtaining secrets that might have been "useful to an enemy", intentionally causing damage to a protected computer, and interfering with maritime navigation equipment in New Jersey. Last month he attended extradition proceedings at Bow Street magistrates court - he had, the American prosecutors said, perpetrated the "biggest military computer hack of all time". He "caused damage and impaired the integrity of information ... The US military district of Washington became inoperable and the cost of repairing the shutdown was $700,000 ... These [hacking attacks] occurred immediately after 9/11 ..." And so on.

This is Gary's first interview. He called me out of the blue on the Monday before last, just as I was screaming at my child to stop knocking on people's doors and running away. "Your son sounds like a hacker," he told me. Then he invited me to his house in Bounds Green, north London. He is good-looking, funny, slightly camp, nerdy, chain-smokes Benson & Hedges, and is terrified. "I'm walking down the road and I find I can't control my own legs," he says. "And I'm sitting up all night thinking about jail and about being arse-fucked. An American jail. And remember, according to them I was making Washington inoperable 'immediately after September 11'. I'm having all these visions of ... " Gary puts on a redneck prisoner voice, "'What you doing attacking our country, boy? Pick up that soap.' Yeah, it is absolutely fucking terrifying. Especially because a friend of mine was on holiday in America once and was viciously attacked and ended up killing the guy who attacked him - he did 10 years in an American prison. He's quite a tough guy, and he said he had to fight tooth and nail every single day, no let up at all. And I'm thinking, 'I'm only a little nerd'."

The prison sentence the US justice department is seeking - should Gary be successfully extradited - is up to 70 years. What Gary was hunting for, as he snooped around Nasa, and the Pentagon's network, was evidence of a UFO cover-up.

Gary McKinnon was born in Glasgow in 1966. His father ran a scaffolding gang, but his parents separated when he was six and he moved to London with his mother and stepfather, a bit of a UFO buff. "He comes from Falkirk," Gary says, "and just outside Falkirk there's a place called Bonnybridge, which is the UFO capital of the world. When he lived there, he had a dream that he was walking around Bonnybridge seeing huge ships. He told me this and it inflamed my curiosity. He was a great science fiction reader. So, him being my second father, I started reading science fiction, too, and doing everything he did."

Gary read Isaac Asimov and Robert Heinlein - "the golden age of science fiction" - and he joined Bufora, the British UFO Research Association, when he was 15. Bufora describes itself as "a nationwide network of around 300 people, who have a dedicated, noncultist interest in understanding the wide-ranging extent of the UFO enigma".

"So you began to believe in UFOs," I say.
"To hope," says Gary, "that there might be something more advanced than us, keeping a friendly eye on us. Hopefully a friendly eye." Then he saw WarGames, and he thought, "Can you really do it? Can you really gain unauthorised access to incredibly interesting places? Surely it can't be that easy." And so, in 1995, he gave it a try.

He sat in his girlfriend Tamsin's aunt's house in Crouch End, and he began to hack. He downloaded a program that searched for computers that used the Windows operating system, scanned addresses and pinpointed administrator user names that had no passwords. Basically, what Gary was looking for - and found time and again - were network administrators within high levels of the US government and military establishments who hadn't bothered to give themselves passwords. That's how he got in.

His Bufora friends "were living in cloud cuckoo land", he says. "All those conspiracy theorists seemed more concerned with believing it than proving it." He wanted evidence. He did a few trial runs, successfully hacking into Oxford University's network, for example, and he found the whole business "incredibly exciting. And then it got more exciting when I started going to places where I really shouldn't be".

"Like where?" I ask.
"The US Space Command," he says.

And so, for the next seven years, on and off, Gary sat in his girlfriend's aunt's house, a joint in the ashtray and a can of Foster's next to the mouse pad, and he snooped. From time to time, some Nasa scientist sitting at his desk somewhere would see his cursor move for no apparent reason. On those occasions, Gary's connection would be abruptly cut. This would never fail to freak out the then-stoned Gary.

He sounds to me like a virtuoso hacker, although I am someone who can barely download RealPlayer. I nod blankly as he says things like, "You get on to easy networks, like Support and Logistics, in order to exploit the trust relationship that military departments have between each other, and once you get on to an easy thing, you find out what networks they trust and then you hop and hop and hop, and eventually you think, 'That looks a bit more secretive.'"

When I ask if he is brilliant, he says no. He's just an ordinary self-taught techie. And, he says, he was never alone.
"Once you're on the network, you can do a command called NetStat - Network Status - and it lists all the connections to that machine. There were hackers from Denmark, Italy, Germany, Turkey, Thailand ..."

"All on at once?" I ask. "You could see hackers from all over the world, snooping around, without the spaceniks or the military realising?"
"Every night," he says, "for the entire five to seven years I was doing this."

"Do you think they're still there? Are they still at it? Or have they been arrested, too?"
Gary says he doesn't know.

"What was the most exciting thing you saw?" I ask.
"I found a list of officers' names," he claims, "under the heading 'Non-Terrestrial Officers'."

"Non-Terrestrial Officers?" I say.
"Yeah, I looked it up," says Gary, "and it's nowhere. It doesn't mean little green men. What I think it means is not earth-based. I found a list of 'fleet-to-fleet transfers', and a list of ship names. I looked them up. They weren't US navy ships. What I saw made me believe they have some kind of spaceship, off-planet."

"The Americans have a secret spaceship?" I ask.
"That's what this trickle of evidence has led me to believe."

"Some kind of other Mir that nobody knows about?"
"I guess so," says Gary.

"What were the ship names?"
"I can't remember," says Gary. "I was smoking a lot of dope at the time. Not good for the intellect."

This was November 2000. By now, Gary was hooked. He quit his job as a systems administrator for a small business, "which hugely pissed off my girlfriend Tamsin. It was the last straw. She dumped me and started seeing this other bloke because I was such a selfish waste of space. Poor Tamsin. And she was the one paying the phone bill because I didn't have a job. We were still living together. God, have you ever tried living with someone after you've split up? It's bad."

So while Tamsin was trying to get on with her new relationship, Gary was in the living room of her aunt's house, hacking. He snooped around all the Forts - Fort Meade, Fort Benning, etc - reading internal court martial reports of soldiers getting imprisoned for rape and murder and drug abuse. At the Johnson Space Centre he spied on photographs of cigar-shaped objects that might have been UFOs but - he says - were probably satellites. "You end up lusting after more and more complex security measures," he says. "It was like a game. I loved computer games. I still do. It was like a real game. It was addictive. Hugely addictive."

It was never really politically motivated. The most political he's ever got is to attend a Noam Chomsky lecture. A John Pilger book sits on the coffee table next to his bed. Yes, he was hacking in the immediate aftermath of September 11, but only because he wanted to see if there was a conspiracy afoot. "Why did the building fall like a controlled series of explosions? " he says. "I hate conspiracy theories, so I thought I'd find out for myself."

"And did you find a conspiracy?" I ask.
"No," he says. He strenuously denies the justice department's charge that he caused the "US military district of Washington" to become "inoperable". Well, once, he admits, but only once, he inadvertently pressed the wrong button and may have deleted some government files.

"What did you do then?"
"I thought, 'Ooh, bloody hell,' " he says. "And that's when I stopped for a while. And then my friend told me about Darpa. And so I started again."

Darpa is the Defence Advanced Research Projects Agency, an intriguing collection of brilliant military scientists, funded by the Pentagon. Darpa has been widely credited with inventing, among other things, the internet, the global positioning system, the computer mouse, and - somewhat more boneheadedly - FutureMAP, an online futures market designed to predict assassinations and bombings by encouraging investor speculation in such crimes. The US Senate once described FutureMAP as "an unbelievably stupid idea". Darpa has long been of interest to conspiracy theorists because it is semi-secretive, bizarre (they have put much effort into creating a team of telepathic spies) and occupies that murky world that lies between science and war.

Gary heard from a friend that Darpa might have invented a robot soldier, so he hacked in and claims he found evidence of "an autonomous machine that would go in and do the dirty work. These things could go upstairs and look for bombs. You wouldn't have to send in real people. And I also found these awful special forces training videos of guys running around, doing close-quarter battle. It was ridiculous. These yellow words would flash on to the video: 'BRUTALITY! REMEMBER BRUTALITY! SHOCK! DOMINATION!' You're thinking, 'Oh my God!' It was like Batman."

I tell Gary that I've seen videos like that - incredibly fierce special forces training videos - when I was researching my book about US psychological operations.
"It's as if investigative journalism has died," he replies. "That's all I was doing. The only difference between you and me was that you were invited."

Gary was caught in November 2002. He says it was inevitable, in retrospect, because he was "getting a bit sloppy". He pauses. "I'd never have envisaged this happening to myself, but I did get a bit megalomaniacal as well. It got a bit silly. I ended up talking to people I hacked into."

"Saying 'I'm a hacker'?"
"No," he says, "I'd instant message them, using WordPad, with a bit of a political diatribe. You know, I'd leave a message on their desktop that read 'Secret government is blah blah blah.' " They found Gary in the end because he'd used his own email address to download a hacking program called RemotelyAnywhere. "God knows why I used my real email address," he says. "I suppose it means I'm not a secretive, sophisticated, checking-myself-every-step-of-the-way type of hacker."

On the night before his arrest, Gary had been up playing games. "Maybe I'd been doing a bit of weak, fun hacking, too," he says. "I'd had one hour's sleep, and I woke up completely muddled, and suddenly at the bottom of my bed there was this voice: 'Hello, my name's Jeff Donson from the National High Tech Crime Unit. Gary McKinnon, you're under arrest!' They put Tamsin and me in the meat-wagon. They took my PC, Tamsin's PC, three other computers I was fixing for friends. They went upstairs and took my girlfriend's auntie's daughter's computer."

Gary was kept in a police station overnight. Then the Americans offered him a deal, via his British solicitor. "They said, 'If you incur the cost of the whole extradition process, be a good boy, come over here, we'll give you three or four years, rather than the whole sentence.' I said, 'OK, give me that in writing.' They said, 'Oh no, we can't do that.' So they were offering a secret trial, no right of appeal on the outcome, no comment to the newspapers, and nothing in writing. My solicitor, doing her job, advised me to take it, and when I said no, she was very, 'Ooh, they're going to come down heavy.' "

In return, Gary offered a somewhat hare-brained counter deal, via a Virginia public defender. "I made a sort of veiled threat to them. I said, 'You know the places I've been, so you know the stuff I've seen' kind of thing." He pauses and blushes slightly. "That didn't work."

"So you were saying, 'If you go heavy on me, I'll tell people what I found'?"
"Yeah," he says. "And I found out that my landline was being bugged, so every time I was on the phone talking to a friend about it, I made sure I'd say, 'All I want is a quiet life, but if they really want to drag me through it, I'll drag them through the shit, too.' "

"And what would you have dragged them through the shit about?" I ask.
"You know," says Gary, "the, uh, Non-Terrestrial Officers. The spaceships. 'The whole world thinks it's cooperating in building the International Space Station, but you've already got a space-based army that you refer to as Non-Terrestrial Officers'."

There is a silence. "I had very little evidence," he admits. "It's not a very good bargaining chip at all, really, is it?"

Given that the justice department has announced that the information Gary downloaded was not "classified", and he was stoned much of the time, perhaps we can assume that Nasa is not too worried about his "discoveries".

I ask Gary what's he's going to do next. He says on Friday he's off to the Trocadero in Piccadilly Circus, for the London 2600 meeting. He explains that they're known as a hacking group, but really they're a bunch of "unqualified experts who drink lots of beer and tell you all the funky undocumented things you can do with your mobile phones. They wire up PlayStation 2s and X-Boxes to dance mats. They play with technology and bend stuff without breaking it."

I ask Gary if they see him as some kind of mythical hero, now that the US government has described him as the biggest military hacker of all time. He says, no, they see him as a complete idiot. And, in some ways, he is indeed a complete idiot. Well, he is a likable and intelligent geeky man who did many, many idiotic things. What he is not, his friends and supporters reckon, is someone who deserves extradition and 70 years in an American jail. They've set up a Free Gary McKinnon website (

Gary's never spoken publicly before, but now, with the extradition proceedings, he says there's nothing left open to him. For a while, it crossed his mind he might end up like the computer nerd from WarGames, having a brilliant career working for them. "They need people like me," he says. But that's not going to happen.

He's also chosen to talk now because his chances of getting a job have diminished to practically zero. "For the first time in the past few years, I just had a solid work offer," he says. "Game-testing. Which would have been a dream for me. I'm still a big kid like that. I'd love to do that for a job. But now, as a condition of this bail, I'm not allowed to touch the internet. So that was out of the window. So. Yeah. I thought, fuck it."

He and Tamsin have split up. He no longer lives in Crouch End but in the nearby, slightly more down-at-heel Bounds Green, and has given up smoking dope. He is not allowed near the internet, not allowed a passport, and spends a lot of time reading and sitting in the pub, awaiting his fate.

Nothing much happened in the years since his arrest in 2002 under the Computer Misuse Act - no charges were brought against him in the UK. Then on June 8 this year, he suddenly found himself in front of Bow Street magistrates, the target of extradition proceedings. That's when the panic attacks kicked in again, the horror visions of life in an American jail. He had poked around, he says, but he hadn't broken anything, besides that one inadvertent mistake. He thought he was going to get a year, max. Now they're talking about 70 years.

"You know," he says as we finish the interview, "everyone thinks this is fun or exciting. But it isn't exciting to me. It is terrifying."

His next extradition hearing is on July 27

The following correction was printed in the Guardian's Corrections and clarifications column, Saturday July 23 2005

In the following article we incorrectly referred to a piece of software called RemotelyAnywhere as a hacking programme. The programme, made by 3am Labs, is designed for remote access and administration. It is used by thousands of enterprises worldwide. We apologise for the unintended misrepresentation.    12 January 2006

Government defies business lobby over US extradition treaty
By  Julia Kollewe

    The Government has rebuffed pleas from business leaders that businessmen should not fall prey to legislation drawn up to combat terrorism, as the former Morgan Crucible chief executive Ian Norris begins his High Court appeal against extradition to the United States today.
     Sir Digby Jones, the director-general of the CBI, has protested against the way the US government is "abusing" an extradition treaty between the two countries. He has met the Home Secretary, Charles Clarke, and the US ambassador to Britain, Robert Tuttle, to lodge his protest. Sir Digby is concerned that the Extradition Act 2003, which came into force on 1 January 2004 and was designed to fast-track terrorism cases, is being used to target alleged white-collar criminals.
     The Home Office said yesterday that white-collar crime was like any other type of crime, rejecting pressure from business for different extradition procedures. It said it fully trusted the US legal system to deal with the cases before it.
     Since 2004, Britain has received 45 extradition requests from the US, 23 of which were for financial offences (fraud, forgery, theft and robbery). That compares with nine requests from Britain to the US, three of which are financial cases. The legislation has speeded up proceedings considerably. Previously, the US had to wait 30 months on average for Britons to be extradited (it took Britain five months to get US citizens) - and that has now been cut to six months.
     Under the new laws, US authorities are not required to present a prima facie case and so it takes very little for them to make an extradition request. UK citizens have been stripped of the protections that previously enabled them to fight such requests on UK soil.
     Mr Norris's lawyer, Alistair Graham, a partner at the law firm White & Case, said: "The key difference between requests made by the US and the UK is that the US may weigh up or challenge the evidence put forward in requests, whereas UK citizens who are the subject of an extradition request have no such right to challenge the evidence." The balance will remain tipped in favour of the US until it ratifies its side of the extradition treaty, which is a long way off.
     If extradited, Mr Norris faces seven counts of fixing the price of industrial carbon products between 1989 and 1998 and two counts of attempting to pervert the course of justice. He denies the charges. Today is the start of the four-day High Court hearing in which Mr Norris's lawyers will appeal against the decision of Bow Street Magistrates' Court in June to extradite him. They have applied for a judicial review of the imbalance in the UK-US extradition arrangements.
     Sir Digby recently launched an impassioned plea on behalf of Mr Norris, who has prostate cancer, saying: "This is totally unacceptable. It might be acceptable for the bloke who wraps Semtex around his body but not for a 62-year-old executive with prostate cancer. The process of justice is being abused. America is being an ignorant bully." He said he had come under pressure from CBI members for action. "Some of our members are asking why they should have anything to do with the US. They say, 'Why should I trade with America or invest in America if I might myself be banged up on remand with a bunch of
     The legislation leaves UK executives vulnerable to a crackdown on white-collar crime in the US, after the collapse of Enron. Other cases concern Nigel Potter, the former chief executive of the gaming company Wembley, who went to the US voluntarily and was jailed for three years, but has lodged an appeal. Three former NatWest bankers are fighting extradition to the US over Enron-related fraud charges. The High Court may make a ruling tomorrow.
    In a House of Lords debate last summer, Lord Hodgson of Astley Abbots said the imbalance in the US-UK treaty arrangements was "unprecedented." He said the Government had given assurances that Britons would not be liable for extradition to the US for financial crimes.    January 14 2006

NatWest extradition fight key to Norris ruling, say judges
By  Russell Hotten

    A High Court hearing into whether retired British executive Ian Norris should be sent to America for trial has been adjourned for a ruling in another case in which the US wants to extradite three UK businessmen.
     Home Secretary Charles Clarke has ordered that Mr Norris, former chief executive of Morgan Crucible,
should be extradited to face charges of conspiracy to defraud and pervert the course of justice. But yesterday, the two judges hearing his appeal against extradition said they could not continue until the High Court ruled on the case of the so-called "NatWest Three", who are wanted in America in connection with the Enron scandal.
     A judgment on the appeal of the three - investment bankers David Bermingham, Gary Mulgrew and Giles Darby, who are accused of defrauding Greenwich NatWest, a subsidiary of NatWest Bank, of $7.3m (£4.2m) - could come next week. Its outcome will effect Mr Norris's case, which is now unlikely to restart until the end of February.
     Mr Norris, 62, denies US claims he conspired to fix prices of manufacturing components from 1989 to 2000. His QC, Alun Jones, argued Mr Clarke's extradition order was "unlawful and irrational" because the US had wrongly been designated as a country which could extradite suspects from Britain without producing evidence of a crime. Conversely, the UK could not extradite Americans in the same way, creating "imbalance and lack of reciprocity". Mr Jones said the UK/US extradition arrangements were "hopelessly lopsided in favour of the US authorities".
     But Khawar Qureshi, appearing for the Home Office, said Mr Norris's bid to block extradition was "unsustainable". "Far from creating a lopsided arrangement, the US and UK are affording each other extradition assistance on a basis which is practically equivalent," he said. Edmund Lawson QC, appearing for the US government, said the extradition arrangements were not open to judicial review and reflected the respect and trust shown between the two countries.

BBC    14 February 2006

'Hacker' extradition case reopens

     The extradition hearing of a British man accused of hacking into the US military computer system has resumed.
     Gary McKinnon, 40, is accused of causing damage to 97 US government computers estimated at £370,000. His lawyers want US authorities to give reassurances he will not get a military order and face being sent to Guantanamo Bay with no prospect of parole. Mr McKinnon, of Wood Green, north London, is contesting extradition at Bow Street Magistrates' Court.
     He is alleged to have infiltrated the military system from his home computer between February 2001 and March 2002. In total, Mr McKinnon is said to have accessed 53 US Army computers, 26 US Navy computers, 16 Nasa computers, one US Department of Defence computer and one US Air Force computer.

     Intimidation claim
     The entire network of more than 300 computers at US Naval Weapons Station Earle, in New Jersey, is said to have been left inoperable after Mr McKinnon deleted files. The prosecution alleges that his ultimate goal was to gain access to the US military classified information network. At a hearing last July, Mark Summers, representing the US government, claimed Mr McKinnon's conduct was "intentional and calculated to influence and affect the US government by intimidation and coercion".
     Computer programmer Mr McKinnon, who was granted bail at the July hearing, could face more than 45 years in prison in the US. Mr McKinnon was first arrested in 2002 but action against him was discontinued before extradition proceedings began.

UK 'hacker' fights US extradition  27 Jul 05 |  UK
Military 'hacker' freed on bail  08 Jun 05 |  UK
UK 'hacker' wanted by US  13 Nov 02 |  Americas

CNN    21 February 2006

British bankers lose Enron battle

LONDON, England -- Three British bankers are reported to have lost a legal battle over the U.S. government's attempt to extradite them from the UK on fraud charges related to the Enron scandal.

Former NatWest investor specialists David Bermingham, Gary Mulgrew and Giles Darby failed on Tuesday in their challenge to the legality of extradition orders made by a Bow Street district judge and confirmed by Home Secretary Charles Clarke, the UK's Press Association reported.

The trio, all UK citizens, are accused of defrauding Greenwich NatWest, a subsidiary of British parent company NatWest, of $7.3 million (£4.2 million).

The alleged offenses came to light after the collapse of the U.S. energy company Enron, and prompted the U.S. government to issue extradition requests in February 2004.

Lawyers for the four bankers had fought extradition on two fronts. Firstly, they argued the UK's Serious Fraud Office, not the Americans, should investigate the case -- and any trial should take place in the UK.

Secondly, they said the charges were not extradition offenses and that forcing the bankers to stand trial in the U.S. would be unjust and incompatible with European and British human rights law.

Washington fought back by pointing out that, even though the harmful effects of the alleged illegal conduct were intended to be felt by a company incorporated in the UK, part of the fraud occurred in the U.S.

The U.S. government's legal team described it as a classic trans-national crime, with some of the conduct occurring in the UK, some in the U.S. and some in the Cayman Islands tax haven.

Enron founder Kenneth Lay and former chief executive Jeffrey Skilling are currently on trial in Houston, Texas, charged with several counts of fraud and conspiracy. If convicted, they could spend the rest of their lives in prison.

Financial Times    28 June 2006

The UK should suspend its extradition pact with the US
An unequal treaty

    The US is not so popular these days that it can lightly afford to alienate the group most naturally disposed to be pro-American in the country most disposed to be so. Yet a band of UK business executives are expected to hold a low-key march on the Home Office tomorrow to protest that ministry's complicity in Britain's one-sided extradition treaty with the US. Under this treaty three former Natwest bankers are imminently to be extradited to the US to face Enron-related charges. This comes after the European Court of Human Rights yesterday followed the House of Lords in refusing to stay their extradition and to allow them to be tried in the UK.
    The problem with the US-UK extradition treaty of 2003 is not really that the US is using anti-terrorist legislation to fast-track extradition of suspected white collar criminals, though most of its requests focus on business executives and the US metes out tougher sentences to white collar criminals than Britain does. The 2003 treaty was in negotiation before 9/11. The issue is plain unequal treatment of the two countries' extradition cases. This arises partly because Britain has fully implemented the new treaty since 2004, while the US Senate has refused to ratify it. Such inaction benefits the US, which under the new treaty does not have to present a prima facie case to get someone extradited from the UK, but when presented with a UK extradition request can fall back on an earlier treaty requiring UK authorities to show "probable cause".
    Implementation of the 2003 treaty is unequal, so is its one-sided requirement that any UK request of the US must show a "reasonable basis" for extradition. The argument for this - which UK offlcials tamely accept - is that the US has to demand extra safeguards because of its constitution, which is supreme above all international law. This is, of course, an argument that is at the root of so much of the international community's difficult dealings with the US, ranging from Iraq to the World Trade Organisation. One expression is the extra-territorial application of its law that the US traditionally asserts. Yet even close allies of Washington have stood up to this in the past, as Margaret Thatcher, prime minister, did in 1980 when she passed the Protection of Trading Interests Act ordering UK companies not to comply with US extra-territorial sanctions.
    Surely Tony Blair, her closet disciple, could take a similar stand on the right of his citizens to be tried in their own country, unless the US can show good cause to the contrary. His government has been quite ready to warn that it will back out of its joint strike fighter programme with the US without assurances on technology transfer from Washington. It is at least time now for the UK to suspend the 2003 extradition treaty unless and until the Senate approves it. That might give Senators an incentive to act.

The Guardian    June 28, 2006

NatWest Three's last-ditch appeal against extradition to US fails

Hans Kundnani

    Three former NatWest bankers, wanted in the United States in connection with the Enron scandal, face extradition after their last ditch appeal to the European Court of Human Rights failed. The court decided yesterday not to grant an interim stay of extradition. It will examine the merits of the case but will not stop the removal of the so-called NatWest Three to the US.
    With the failure of their last possible legal challenge, David Bermingham, Gary Mulgrew and Giles Darby can be extradited to the US immediately and are expected to be tried in Houston, Texas. They are accused of conspiring with senior Enron executives in a $20m (£11.5m) profit-skimming fraud.
    In February, the High Court rejected their lawyers' argument that the offences were not extraditable. Last week, the law lords also rejected an appeal. If convicted, the three could face a sentence of 28 years and legal costs of $1.5m each.
Their appeal to the European Court of Human Rights centred on a challenge to Britain's "fast-track" extradition procedure to the US. Under the procedure - introduced in 2003 to deal with terrorist suspects - the US is not required to produce evidence in an application for extradition from the UK.
    It has been criticised by both business, and by civil liberties campaigners as one-sided.
    "Remarkably, the UK has made a treaty which allows the US to obtain the return of suspects from Britain without producing any evidence of guilt but requires such evidence to be produced to a US court before an American suspect can be extradited to Britain," said Michael Birnbaum QC, a barrister specialising in extradition cases.
    Business leaders, including CBI chairman Sir Digby Jones, will march through London tomorrow in protest against the extradition procedure. Mr Jones said the three men "represent no threat to society, yet they will still be banged up in a US prison with rapists and drug addicts, deprived of their liberty for up to two years even while a case is compiled".
    Liberty director Shami Chakrabarti said: "I cannot think of a better case of 'first they came for the white collar worker, then they came for me'."

The Independent    2 July 2006

countries, at their most basic level, exist to protect their own citizens
NatWest Three should be tried in a British court
These white-collar extraditions will damage our trade links with the US

Abigail Townsend

Chatting to a New York lawyer recently, I was struck by something he said: how countries, at their most basic level, exist to protect their own citizens. It's an obvious truth, but one that has been forgotten, woefully, by the Government when it comes to the NatWest Three.

David Bermingham, Gary Mulgrew and Giles Darby last week exhausted their options and will be flown to the US to face seven counts of "wire fraud". The former Greenwich NatWest executives are accused of conspiring to defraud their employers of $7.3m (£4m) in an Enron-related deal. They deny all wrongdoing.

Do not mistake me. These men should face trial, and be punished if found guilty. But being dragged to the US - where the alleged crimes were not committed - through the one-way Extradition Act is not justice. Nor is it fighting terrorism, the reason this repellent piece of legislation was agreed to.

Once there, they face up to two years in a medium-security jail while the trial is prepared. Foreign nationals rarely get bail, but these three dared to fight extradition so they are likely to be judged a flight risk.

And if found guilty, it's back to that medium-security jail. Most white-collar criminals end up in minimum security. But these three face imprisonment at a higher level because they are foreign. And if they are found guilty, their sentences are likely to be harsh - not helped by the extradition fight, despite the fact they were pursuing legitimate avenues.

Our pandering to the US can only be damaging for business. Already companies are reluctant to list in New York and face wading through Sarbanes-Oxley legislation. And now there is a very real personal risk to doing business in the US. In the old days of conglomerates, Hanson proudly used the tag line, "the company from over here that's doing rather well over there". I doubt it would go down so well these days.

But there is only so much individuals can do, as the NatWest Three have found. The Government may not be able to change US regulation or the severe sentences handed down to white-collar criminals. And anyway, if that's how Americans want to do things at home, so be it. But the extradition of businessmen to be dealt with by a foreign justice system is something it can and must address.

One final thought. I can't help but wonder whether the Government would have sat back to the same extent if this hadn't been white-collar crime. It smacks of that rather tired assumption that anything to do with business is not worthy of our sympathy.

Fair trade, not aid

Much attention has been given to the first anniversary of Live8 and whether the G8 made good on its promises, made during the sort of groundswell of public opinion no politician can resist.

Bob Geldof was not happy. A report by his pressure group Data (Debt, Aid and Trade for Africa) said debt relief was improving but trade talks were going backwards. Which means politicians have got it back to front. An agreement to write off Africa's debt is great. But that alone is not going to revitalise the continent. The key for Africa is trade. It needs to develop on a level playing field as a respected part of the global economy.

I am not opposed to trade restrictions. But currently they are largely set up to benefit the wealthy. Until developed nations remove the shackles, nothing lasting will be achieved.

Or will it? Investec last week pointed to the interesting fact that bilateral trade between China and Africa has grown 43-fold to $39bn in 15 years, and nine-fold to $9bn between India and Africa. It's a nice thought: while the West offers half-hearted attempts to help the world's poorest nations - often in the most patronising terms - Africa is getting on with business. And that maybe, one day, it could bite the hand that refused to feed it.

a.townsend@    2 July 06

Pressure mounts on RBS to break silence on NatWest Three
By Iain Dey

Pressure was growing on Royal Bank of Scotland last night to release a document that might prevent the extradition of the NatWest Three to the US, amid signs of growing political support for moves to change the controversial legislation. Gordon Brown, the chancellor, is understood to have tried to persuade John Reid, the Home Secretary, to intervene in the past two weeks.

David Bermingham, Giles Darby and Gary Mulgrew must leave Britain on or before midnight on July 17 to face trial in the US on fraud charges linked to the collapse of Enron.

The charges being brought against the three men relate to allegations that they defrauded NatWest in a deal with Enron, by selling a stake in a Cayman Islands-based company for less than it was worth.

Fred Goodwin: fair price
But according to correspondence between the Financial Services Authority (FSA) and the Serious Fraud Office, RBS, NatWest's parent company, has reviewed the transaction, and indicated that it got a fair price in the deal.

The three men believe the report could see the case against them dismissed. Last night they made a final plea to Sir Fred Goodwin, the chief executive of RBS, to release the valuation report produced for the FSA. They have previously made several requests to Goodwin to ask him to bring charges in the UK if he believes there is a case to be answered.

"If RBS stepped in now, we could get the indictment dismissed. They could step in and say they were not defrauded and the whole thing would be over," said Bermingham.

"What we do know is that the FSA told us last year that they asked Royal Bank of Scotland to revisit the facts in 2002. Royal Bank of Scotland then said they had looked at it again, and that they sold it at the right price. So we know that there must be a report in RBS showing that the asset was sold at the right price, contrary to the American cases," said Alun Jones, the QC for the NatWest Three.

Sir Digby Jones, the former director-general of the CBI, said: "RBS is the party that is supposed to have been defrauded. I would like to think that because RBS have not said anything publicly that they are putting pressure on the Government to do something behind the scenes."

The Sunday Telegraph has also learned that Gordon Brown and Ed Balls, the economic secretary to the Treasury, have been lobbying Reid to take emergency measures to change the extradition rules.

In a private meeting with Sir John Sunderland, the president of the CBI, two weeks ago Brown revealed he had raised the case of the NatWest Three with Reid. "Brown and Balls are taking an interest in the NatWest issue. It's not clear that there's any scope to intervene … as the process is too far advanced. But Ed is looking at the broader issue and will be holding further meetings with the CBI," said a source close to Brown.

A spokeswoman for RBS said: "We will co-operate with all the relevant authorities and robustly defend our case. We continue to reserve our rights against the NatWest Three."

The three men are being extradited under the 2003 Extradition Act, which was drafted as part of the fight against terrorism, but has been primarily used to target white collar crime. So far, there have been only four extradition requests made relating to terrorist offences, which has led to one extradition.

The treaty does not require prima facie evidence of a case to be produced for the extradition to be valid. Businessmen across the country are concerned that they could be extradited over any number of allegations that have not been fully proven.    5 July 06

Blair refuses to halt extradition of NatWest Three

By George Jones, Political Editor

Tony Blair was resisting mounting pressure last night to halt the extradition of three former NatWest bankers to the United States. Downing Street indicated that it was washing its hands of the three, even though Washington has not ratified the treaty allowing similar treatment for Americans.

Sir Menzies Campbell, the Liberal Democrat leader, said it was a "constitutional disgrace" that the men, who are accused of Enron-related fraud, were to be sent to America without evidence having been produced. David Bermingham, Gary Mulgrew and Giles Darby are expected to be extradited this month after losing legal appeals.

Under the treaty, no prima facie evidence has to be produced and it does not matter that the alleged offence happened in Britain and is not being pursued here.

Interviewed on Radio 4's Today programme, Sir Menzies demanded action to halt the extradition. He said the Government should rush through an Act of Parliament, suspending any obligations under the treaty until the US Senate ratified the treaty.

The three men deny any criminal conduct and have always insisted that, if there was a case against them, it should be tried in England.

Free the Three
Business: Trio set for rapid extradition

Today, The Daily Telegraph publishes an open letter to the Home Secretary in protest over the planned extradition of the NatWest Three. The case that this newspaper has made against the bizarre anomaly of allowing three British businessmen, accused of a crime that allegedly took place in Britain, to be handed over to the American criminal justice system, would appear to be unassailable.

The three financiers, David Bermingham, Gary Mulgrew and Giles Derby, whose activities were caught up in the Enron case, are threatened with extradition under the terms of a treaty devised after the 9/11 terrorist attack. It was intended to simplify the transfer of terrorist suspects from Britain to America.

Ironically, this treaty was never ratified by Congress, because it might have required the transfer of IRA terror suspects from America to Britain. So the agreement under which the Government appears ready to offer up these three men to be tried in a foreign court for an alleged fraud committed against a British bank does not even offer reciprocity.

There seems not even to be any substantive allegation that their activities impinged on the Enron scandal itself, which would be the only legitimate grounds for American prosecution. However, that they deny the charges is not the issue. This extradition itself is, in principle, unacceptable.

The only possible justification for the American demand, and the British Government's acquiescence to it, is that this country has been notoriously poor at prosecuting financial crime. The incompetence of prosecutions, the arcane detail that causes fraud trials to collapse in confusion, or even the snobbery and complacency that dismisses "white-collar crime" as inconsequential are all to blame.

It remains true that America takes such crime very seriously, whether it be insider dealing, price-fixing cartels or the defrauding of shareholders. If Britain is to retain the right to police its own business community in a world of global capital, then it must do so wholeheartedly.

BBC NEWS    July 7, 2006

Go-ahead for hacker's extradition

A US request to extradite a British computer hacker accused of the "biggest military hack of all time" has been granted by Home Secretary John Reid. Gary McKinnon, who is accused of breaking into US government computer networks, has been fighting extradition since his arrest in November 2002.

His family says he has 14 days to appeal against the extradition. Mr McKinnon told the BBC he was "very worried and feeling very let down by my own government". In May, a district judge sitting at Bow Street Magistrates' Court in London recommended Mr McKinnon be extradited - but the final decision rested with the home secretary.

'Order signed'
A Home Office spokesman said: "On 4 July the secretary of state signed an order for Mr McKinnon's extradition to the United States for charges connected with computer hacking. "Mr McKinnon had exercised his right to submit representations against return but the secretary of state did not consider the issues raised availed Mr McKinnon. "Mr McKinnon now has the opportunity, within 14 days, to appeal against the decisions of the district judge/secretary of state."

Mr McKinnon was first arrested in 2002 by the UK's National Hi-Tech Crime Unit for hacking into a series of computer networks used by the US army, navy, air force, and Department of Defense. The US, in its case for extradition, said Mr McKinnon caused more than $700,000 (£375,235) of damage while exploring the computer networks at various US military institutions. It said one attack at the Earle Naval Weapons Station took place soon after 11 September 2001 and made it impossible to use critical systems.

The US Department of Justice said it took a month to get systems working in the aftermath of this attack. Mr McKinnon has admitted that he spent almost two years exploring these networks but has said he was motivated by a search for what he called "suppressed technology". His lawyers had argued he could be sent to Guantanamo Bay as a terrorist suspect.

Story from BBC NEWS:
Published: 2006/07/06 19:13:09 GMT    © BBC MMVI

BBC NEWS    8 July 2006

UK trial for Enron trio rejected

The attorney general has rejected calls for three British bankers wanted in the US over the collapse of energy giant Enron to be tried in the UK. Lord Goldsmith said he saw no basis for the Serious Fraud Office to re-consider its decision to leave the ex-NatWest bankers' case to the US authorities.

David Bermingham, Gary Mulgrew and Giles Darby are accused of a fraud allegedly involving millions of pounds. The men have said they are innocent and should be tried by a UK jury. It is alleged that in 2000 they advised their then employer NatWest to sell part of an Enron company for less than it was worth. Prosecutors say the trio then left NatWest, bought into the firm themselves and sold it off for a much higher fee, pocketing about £1.5m ($2.7m) each in the process.

Tory warning
Enron collapsed in 2001 after admitting inflating profits and hiding debts. The men deny any criminal conduct and have always insisted that any case against them should be tried in England because that is where they live and where the alleged offences took place.

Shadow attorney general Dominic Grieve wrote to Lord Goldsmith warning that their threatened extradition risked bringing the criminal justice system into disrepute.

But in a letter to Mr Grieve, Lord Goldsmith pointed out that the alleged fraudulent benefit derived from funds paid by Enron, a US company. He said: "Where allegedly criminal conduct occurs in more than one country, as will often be the case with fraud, it inevitably happens that proceedings are commenced in one country rather than the other. "In this case, investigations had begun in the USA and there had been no complaint by anyone in this country."

Controversial case
Outlining his stance, the attorney general said the Serious Fraud Office decided not to launch an investigation because "the main evidence was in the USA" and "the alleged fraud could not have occurred without the complicity of the Enron executives". He concluded: "The American case was advanced and it was in the overall interests of justice for it to be dealt with by one court." He also rejected claims by Mr Grieve that the defendants could be denied bail if they were deported.

The case has proved to be controversial because the men are set to be sent to the US under an agreement sealed in 2003 but not yet ratified by the American authorities. The agreement allows US courts to secure the extradition of British subjects without providing evidence they have a case to answer.

Story from BBC NEWS:
Published: 2006/07/08 00:49:53 GMT    © BBC MMVI

    July 12, 2006

Terror and Presidential Power: Bush Takes a Step Back


WASHINGTON, July 11 — From the outset, President Bush declared that the battle against Al Qaeda would be a war like no other, fought by new rules against new enemies not entitled to the old protections afforded to either prisoners of war or criminal defendants.

But the White House acknowledgment on Tuesday that a key clause of the Geneva Conventions applies to Qaeda detainees, as a recent Supreme Court ruling affirmed, is only the latest step in the gradual erosion of the administration’s aggressive legal stance.

The administration’s initial position emerged in 2002 only after a fierce internal legal debate, and it has been revised in the face of international opinion, Congressional curbs and Supreme Court rulings. Two central ideas of the war on terror — that the president could fight it exclusively on the basis of his constitutional powers and that terrorist suspects had few, if any, rights — have been modified repeatedly.

Scholars debated the meaning of a Defense Department memo made public on Tuesday that declared that the clause in the Geneva Conventions, Common Article 3, “applies as a matter of law to the conflict with Al Qaeda.”

Administration officials suggested that the memo only restated what was already policy — that detainees must be treated “humanely.” But what was undeniable was that the president’s executive order of Feb. 7, 2002, declared that Article 3 did not apply to Al Qaeda or to Taliban detainees, and that the newly released memo, written by Deputy Defense Secretary Gordon R. England, said it did.

After the Pentagon released the memo, the White House confirmed that it had formally withdrawn part of the 2002 order and accepted that Article 3 now applied to Qaeda detainees. That article prohibits “humiliating and degrading treatment” of prisoners and requires trials “affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

“This is an important course correction, and there are political ramifications to it,” said Scott L. Silliman, an expert on the law of war at Duke University. Top defense officials “never really clarified when Geneva applied and when it didn’t,” he said.

Richard H. Kohn, a military historian at the University of North Carolina, said the administration might have anticipated that it would have to adjust its policies, formed under immense pressure after the Sept. 11, 2001, terrorist attacks.

“They were going to reach as far as possible to prosecute this war, and if they were forced to scale back, they’d scale back,” Mr. Kohn said. “Almost from the beginning, the administration has had to back away and fuzz up the issues.”

If there has been a retreat, it may partly reflect a change in the perceived threat from Al Qaeda since the disorienting days after Sept. 11. As months, then years, passed without a new attack in the United States, the toughest measures seemed steadily less justifiable.

“As time passed, and no more buildings were blowing up, it was no longer an emergency, and the rules had to be renegotiated,” said Dennis E. Showalter, a professor of history at Colorado College.

In retrospect, all the contradictions that have emerged in the last four years were present in embryo in the 2002 presidential order.

The order began by noting that “our recent extensive discussions” had shown that deciding how Geneva rules would apply to Qaeda prisoners “involves complex legal questions.” It said that the conventions’ protections did not apply to terror suspects, but also that “our values as a nation” nonetheless “call for us to treat detainees humanely, including those who are not legally entitled to such treatment.”

In 2003, the administration decided that Article 3 would be applied to all prisoners captured in Iraq — even non-Iraqi members of Al Qaeda. But the May 2004 revelations of abuse of prisoners at Abu Ghraib showed that the policy had not always been followed, and in response, the Defense Department repeatedly whittled down the list of approved interrogation techniques.

In 2004, the Justice Department reversed course as well, formally withdrawing a 2002 opinion asserting that nothing short of treatment resulting in “organ failure” was banned as torture.

In late 2005, the administration was forced to accept legislation proposed by Senator John McCain, Republican of Arizona, to ban “cruel, inhuman or degrading treatment” of prisoners held by the United States anywhere in the world.

In the meantime, the Supreme Court was knocking down some of the administration’s key assertions of presidential power in the battle against terror.

In Rasul v. Bush in 2004, the court ruled that American courts had the authority to decide whether foreign terror suspects held at Guantánamo Bay, Cuba, had been rightfully detained. And on June 29, in Hamdan v. Rumsfeld, the court rejected the administration’s rules for military commissions set up to try Guantánamo detainees, saying it had failed to seek Congressional approval and had fallen short of the standards set by law and the Geneva Conventions.

It was the Hamdan ruling that prompted Mr. England’s memo. “It is my understanding,” he wrote, that all current Defense Department rules were already in compliance with Article 3.

But Mr. England’s wording suggested that after all the policy adjustment since 2002, he was not certain everyone was operating from the same playbook: “I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standard of Common Article 3.”

Mr. England’s uncertainty was not surprising, Mr. Silliman said. Mixed messages over exactly which rules applied where, and which Geneva protections were to be honored and which ignored, were at the root of prisoner abuse scandals from Guantánamo to Iraq to Afghanistan, he said.

“It’s clear when you look at Abu Ghraib and everything else that there was a tremendous amount of confusion,” Mr. Silliman said.

Even as legal experts parsed Mr. England’s memo, confusion lingered. The American Civil Liberties Union welcomed the memo as “a first big step” toward ending “four years of lawlessness” on detainee issues. But it also noted that in testimony Tuesday, other administration officials suggested that Congress simply adopt as law the proposed military commissions in exactly the form that civil libertarians say falls far short of Article 3.

That skepticism was shared by Martin S. Lederman, a former Justice Department official now at the Georgetown University law school.

“The administration has fought tooth and nail for four years to say Common Article 3 does not apply to Al Qaeda,” Mr. Lederman said. “Having lost that fight, I’m afraid they’re now saying, ‘Never mind, we’ve been in compliance with Article 3 all along.’ ”

Washington Post     July 12, 2006

U.S. Shifts Policy on Geneva Conventions
Bowing to Justices, Administration Says It Will Apply Treaties to Terror Suspects

By Charles Babington and Michael Abramowitz

The Bush administration has agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's recent rejection of policies that have imprisoned hundreds for years without trials.

The Pentagon announced yesterday that it has called on military officials to adhere to the conventions in dealing with al-Qaeda detainees. The administration also has decided that even prisoners held by the CIA in secret prisons abroad must be treated in accordance with international standards, an interpretation that would prohibit prisoners from being subjected to harsh treatment in interrogations, several U.S. officials said.

The developments underscored how the administration has been forced to retreat from its long-standing position that President Bush be given extensive leeway to determine how to interrogate and prosecute terrorism suspects captured in Iraq, in Afghanistan and elsewhere. Until recently, the White House and Defense Department have pursued such anti-terrorism policies with little interference from Congress and the courts, but that has begun to change.

Since 2002, the administration has contended that the Geneva Conventions would be respected as a matter of policy but that they did not apply by law to terrorism suspects held at Guantanamo Bay, Cuba, or in U.S. military custody elsewhere. Administration officials have voiced concern that the conventions are too vague and could expose the military to second-guessing about appropriate treatment.

But the Supreme Court rejected that view in a 5 to 3 decision last month, ruling that a Yemeni detainee at Guantanamo Bay could not be tried by a special military commission established by the Bush administration. The court held that the commissions violate U.S. law and the Geneva Conventions.

More than 400 such detainees are being held at Guantanamo Bay. None has been brought to trial, and some say they are innocent civilians mistakenly swept up in U.S. military raids.

Administration officials indicated that they had little choice but to act in the aftermath of that Supreme Court ruling. They disputed the suggestion that the new Pentagon policy represents significant change, because the administration already said that it treats detainees humanely.

"We strongly believe that terrorists picked up off the battlefield -- who don't represent a nation, revel in killing the innocent, and refuse to wear uniforms -- do not qualify for protections under Geneva," White House counselor Dan Bartlett said. "Five members of the Supreme Court disagreed. As the president said, we will comply with the ruling."

The new Pentagon policy -- detailed in a July 7 memo from Deputy Defense Secretary Gordon England -- called on defense officials to ensure that military personnel adhere to Common Article 3 of the Geneva Conventions, which provides a base-line level of protections for all terrorism suspects picked up on the battlefield.

The practical impact of the policy is uncertain. Legislation approved last year over Bush's objections bars the use of cruel, inhumane or degrading treatment against detainees, approximating what is in the Geneva Conventions. Some military lawyers, however, said they think the memo will remove a certain ambiguity about what military interrogators may do in the name of extracting information.

Many involved in the debate, especially those representing detainees and military lawyers who have fought the administration's policy, see symbolic significance in the new order, coming as it did after five years of intense battling within the administration over the applicability of the Geneva Conventions.

Bush declared in the months after the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon that al-Qaeda members were not entitled to the formal protections of the Geneva Conventions, siding with White House and Defense Department lawyers over objections from the State Department. But he said the prisoners would be treated humanely.

"At a symbolic level, it is a huge moral triumph that the administration has acknowledged that it must, under the Supreme Court ruling, adhere to the Geneva Conventions," said David Remes, a lawyer who represents 17 Yemeni detainees at Guantanamo Bay. "The legal architecture of the war on terror was built on a foundation of unlimited and unaccountable presidential power, including the power to decide unilaterally whether, when and to whom to apply the Geneva Conventions."

The release of the England memo, first disclosed by the British newspaper the Financial Times, came as Congress began hearings responding to the June 29 Supreme Court ruling. The court essentially invited Congress to establish a system of justice for the detainees, and lawmakers plunged into debate yesterday over the level of access that such prisoners should have to lawyers, evidence and cross-examination of accusers.

At a Senate Judiciary Committee hearing yesterday, the administration urged Congress to pass a law allowing it to resume practices that deny to military detainees some of the key rights provided in courts-martial or civil courts. Administration officials are worried that without such practices, such as permitting certain hearsay evidence, it might be difficult to obtain convictions for some detainees.

"The court-martial procedures are wholly inappropriate for the current circumstances and would be infeasible for the trial of these alien enemy combatants," said Steven Bradbury, acting assistant attorney general in the Justice Department's Office of Legal Counsel.

Top Republican lawmakers said it is unlikely that they will accept the administration's position, predicting that Congress and the administration will find a middle ground between Bush's positions and the rights allowed in court-martial proceedings.

Committee Chairman Arlen Specter (R-Pa.) told Bradbury: "I doubt very much that Congress is going to be disposed to leave these issues to the Department of Defense." He said lawmakers will wrestle with "what is appropriate evidence, whether hearsay should be allowed" and what are detainees' appropriate "right to counsel, the right to classified information" being used against them.

Democrats were more direct and critical. "I find it hard to fathom that this administration is so incompetent that it needs kangaroo-court procedures to convince a tribunal of United States military officers that the 'worst of the worst' imprisoned at Guantanamo Bay should be held accountable" for crimes, said Sen. Patrick J. Leahy (Vt.), the committee's ranking Democrat. "We need to know why we're being asked to deviate from rules for courts-martial." Leahy described Bush's record on detainees as "five years, no trials, no convictions."

Bradbury and Daniel Dell'Orto, the Defense Department's principal deputy attorney general, repeatedly urged lawmakers to limit the rights of detainees captured in what the administration terms its war on terror. Dell'Orto said Congress should not require that enemy combatants be provided lawyers to challenge their imprisonment.

When Specter asked, "How much evidence should be presented to keep people detained in Guantanamo in enemy-combatant status?" Bradbury replied: "We think that it doesn't necessarily have to be a 'preponderance of the evidence' standard" but rather a "substantial evidence" standard.

U.S. officials said planned changes in policy would bring the CIA in line with the military, which has gone through wrenching internal and public debate since the Abu Ghraib prison scandal came to light in 2004. In contrast to the military, neither the CIA nor the administration has ever publicly acknowledged that detainees are being held.

Some officials said the CIA decision was firm; others described it as preliminary.

Just as the Pentagon issued guidance last weekend to employees on the Supreme Court decision, the CIA is expected to come up with its own clarifying guidance, reflecting the new decision. But there is resistance to the idea of bringing the CIA prisoners into public scrutiny.

A CIA spokesman declined to comment.

Staff writers Dana Priest and Robin Wright and researcher Julie Tate contributed to this report.

© 2006 The Washington Post Company

BBC NEWS    12 July 2006

Emergency debate on extraditions

The row over UK/US extradition laws are to be debated by MPs as three British bankers prepare to be sent to the US for trial over an alleged fraud. Critics say it is easier to extradite people from the UK than the US because the US have not yet ratified the new extradition treaty drafted after 9/11. But US ambassador Robert Tuttle said "roughly" the same standards applied.

The decision to hold an emergency debate in the House of Commons (from about 1240BST) is highly unusual.

On Tuesday the government was defeated in the Lords, when peers called for extraditions to the US to be suspended.

The Speaker of the House of Commons, Michael Martin, then agreed to Liberal Democrat Nick Clegg's request for an emergency debate.

Mr Clegg, Lib Dem home affairs spokesman, said: "I think it is a very substantive, lop-sided difference between the obligations on both sides and, of course, you need to place this in the wider context. "This was a treaty that was negotiated in utmost secrecy, subject to minimal parliamentary scrutiny - that's why I was so pleased I've secured this debate today in full in the House of Commons - and, of course, it hasn't been ratified at all by the US Congress."

Critics say the extradition laws are unfair because British citizens can be sent to the United States without proof of the case against them - but there is no reciprocal arrangement.

They add that Britain should not enforce a treaty which the Americans have failed to ratify.

But the government argues that the arrangement means both countries have to produce an equivalent level of legal evidence when seeking extradition from the other nation.

Mr Tuttle said he was hopeful the US Senate would ratify the treaty and insisted the that though new arrangements had shifted the balance of advantage away from the UK it had only gone as far as creating similar conditions for both countries.

"What's important is the White House has tried very hard with the Senate to get the treaty ratified and we're going to continue to do that throughout the remainder of this legislative session," he told BBC News.

Extradition on Thursday
Asked about a difference in levels of evidence he said: "The evidentiary standards are roughly the same in the United Kingdom as they are in the United States."

But the barrister representing the three bankers said the UK had to provide "evidence of sufficient basis" while all the Americans had to do was "state what they allege".

"Only the UK has to provide an evidentially sufficient basis - the US does not. All they have to do is state what they allege and that is the imbalance," Alan Jones QC said.

He added that all the Americans had to do was satisfy a US sheriff there was enough evidence to issue a warrant - Britain was not allowed to make a judgement on the issue.

Labelling the legislation "draconian" Mr Jones added: "The real question I think the ambassador should be addressing his mind to here is what business is it of the United States to be prosecuting three UK citizens accused of defrauding their own bank in London when that bank has never alleged it's been defrauded and never commenced criminal proceedings?"

Home Office minister Baroness Scotland said much of the criticism of the arrangements was based on myths.

She is flying to Washington on Wednesday to appeal for the Senate to ratify the extradition treaty, which was agreed in 2003.

The three ex-NatWest bankers - David Bermingham, Gary Mulgrew and Giles Darby - are being extradited to the US on Thursday in relation to the collapse of the energy giant Enron.

They deny any wrongdoing but have lost their court battles to face trial in the UK.

Story from BBC NEWS:
Published: 2006/07/12 08:50:51 GMT    © BBC MMVI

Letter to the FT Editor    11 July 2006

Why take the risk of doing business in London?

Dear Editor,

Foreshadowing things to come when, in the event, the SEC will at least de facto have taken control over foreign, including Swiss stock markets ("Warning of regulatory switch if US exchange acquired LSE", Financial Times 6/13/06; "Auch Schweizer Börsen unter SEC-Oberaufsicht? What next? Switzerland, the 54th State?", .../swissbanks.htm#54th), and long before 9/11, in his classic WSJ editorial "A Swiss Mistake" of 22 February 1985 (, Seth Lipsy, on insider and other civil matters essential to free markets, sternly warned against Swiss complacency in accomodating ill-considered, unwise and myopic US bureaucratic thirsts on the back of fundamental freedoms and Swiss specialties:
"This, however, has quite a few Swiss worried and promises to be a hot issue in the future. The Swiss Investors Protection Association, most assiduously, has been arguing that the government in Bern will jeopardize a business climate that has served the country well - even spectacularly - for generations. It's easy to understand its worries. Let the American regulators get a foot in the door on insider trading and they'll jump in with both feet on antitrust cases. Soon there'll be a stampede on tax cases, and before you know it, there won't be all that much difference between Switzerland and America. The theorists will call that a "level playing field." But the market may start to wonder why it needs to do business in Switzerland at all."

Today, I, for one, feel obliged to publicly join the fight of British lawmakers and newspapers by publicly raising my voice against the extradition of three British Bankers to America on unsupported Enron fraud allegations (.../extradition.htm). Indeed, the apparently imminent extradition of the three British Bankers is seen to undermine confidence in London as a finance center based on fully respected fundamental sovereignty principles and the Rule of Law. For if foreign investors, bankers and visitors can no longer rely on British authorities and courts to recognize and heed one of their principle obligations and sources of legitimacy, namely to protect British citizens against foreign aggressions, be it physical or financial, why should they, as foreigners, expect to fare any better. The market needs reliable, predictable and stable conditions and expects the British authorities to distinguish themselves from those who have yet to learn that the earth isn't flat. Lapdog conditions are expected in client states. And it would be reassuring if the British Authorities were to draw inspiration from the Bahamian Supreme Court's principled refusal of an extradition order, as handed down on May 10, 2005 and setting a precedent which is applicable ever since wherever British law still applies. If that were no longer the case, visitors of the British Islands have reasons to worry. And, particularly after 9/11 and 7/7 where seemingly everything goes under the pretxt of anti-terrorism, they would be wise to ask themselves first whether its worth to take such personal risks by going to British shores for doing business?


Anton Keller, Secretary
Swiss Investors Protection Association

THE SWISS FEDERAL PACT OF 1291 (full text ¦ Originalversion)
In the name of God, the Almighty, amen.
    It is accomplishing an honorable and beneficial action for the public well-being to confirm in the established forms the conventions aimed at peace and security.
    [1.] Let it be known to everybody, considering the prevailing evil and in order to better defend and maintain, in their integrity, their families and their property, that the People of the valleys of Uri, Schwyz and Unterwalden, in good faith, have pledged to assist each other with help, with advice and with all favors, persons and goods, inside their valleys and beyond, with all their power and resourcefulness, against all and against anybody nourishing bad intentions or who committed a crime, an offense or an injustice against any one or more of them, or concerning their property. ...
    [4.] After joint consultations, we have also unanimously agreed, set and ordered that the People of the above-named valleys will, under no circumstances, receive or accept a judge who is not one of us [i.e. a resident Citizen], or who has bought his judgeship with money or any kind of favor on any way. ...
   [7.] He who, with intent, by day or in the dark of the night, sets fire to the property of a Confederate, shall have lost forever his rights as a member of our Communities, and he who shelters and protects this offender shall in our valleys compensate the injured.
    [8.] Moreover, the property in the valleys of any Confederate who, by way of robbery or otherwise, inflicted any damage on the property of any other Confederate, shall be sequestrated in as much as is needed to compensate said damage in due course.
    [9.] Also, nobody among ourselves shall seize the other's property without a valid public title or a guarantee, and then only with a special authorization from his [the competent] judge.
    [10.] Each one shall be obedient to his judge and if that becomes necessary, shall indicate the judge which he is prepared to recognize.
    [11.] Whoever opposes or refuses obedience to a [competent] court and thus causes damage to anyone among us, shall be liable to render satisfaction which is to be enforced by all other Confederates. ...

«Should the Court fail in its obligation to afford the protections accorded to the citizens of The Bahamas and even strangers within our gates and to ensure that the constitutional rules governing the law-making process are adhered to strictly, our society will not long prevail. The Court must perform the role placed upon it by the Constitution as the guardian of the fundamental human rights contained therein and cannot abrogate its responsibility and allow the Executive or Parliament to determine themselves what is or is not constitutional.» Bahamas Supreme Court, overturning extradition order based on unapproved assymetric 1990 Treaty with U.S., 10 May 05, p.55

Observer    July 16, 2006

We are far too soft on City villainy
The British should emulate the Americans' vigorous fraud-busting approach

Will Hutton

    Last week three bankers - the NatWest Three - became almost national heroes, resisting the long arm of American law which required them to face trial in the US over an alleged offence related to the Enron scandal. The extradition treaty under which they were being removed from Britain had not even been ratified by the Americans, it was said; the burden of proof there was lower; and not even their own British bank was pressing charges. The plane left Gatwick for Houston carrying these tribunes of liberty to a manacled future; businessmen demonstrated; there was a special debate in the House of Commons. A delegation is to be sent to Washington to press the Americans to ratify the treaty.
    You have to blink at the craziness. Only towards the end of the week did sanity emerge. The affidavit from the FBI agent in the bail hearings disclosed the email exchanges between the three, and the extent of their involvement in a series of offshore transactions apparently set up to throw up personal profits. 'We're going to get rich,' wrote one. The NatWest Three declare their innocence in the transactions, but there are questions to answer.
It is unusual for the British to witness fraud being taken seriously so long after the event and with such intent by the prosecuting authorities. This is the rule of law at work. The principle is surely right? If any government believes that British nationals may have been party to fraud against organisations under their jurisdiction then it should collaborate to see justice done. And if we don't want to prosecute, then we must stand aside and let others do it. The principle at stake is justice - and whether we want to ring-fence the City of London so that, in effect, anything goes.

Begin with Enron. Essentially this company created fictitious profits through myriad dodgy schemes (like the one created by NatWest), enriching a narrow coterie of directors at the top even while it was feted on all sides for its innovation. When the company collapsed tens of thousands of employees lost their pensions which had been invested in Enron stock. Enron became emblematic of the freewheeling capitalism of the 1990s.

The US, even under Bush, has reacted ferociously. The Sarbanes-Oxley Act made chief executives personally responsible for the integrity of their annual accounts with no excuses. Meanwhile, former Enron executives involved have been relentlessly and successfully pursued in the courts. The week before last, Ken Lay, Enron's founder, died before being sentenced; he would have faced prison without any prospect of release.

I cannot remember a successful fraud prosecution in Britain in such a high-profile case or such vigorous action - Guinness excepted. The record is a chapter of disasters, of failed prosecutions and, in the few occasions when we do succeed, forgiving sentences.

Britain, it is said, is just less corrupt. I'm not so sure. A significant part of the City's so-called 'financial services' are precisely about setting up offshore companies advantageously to manage tax, cash flow and profits which are frequently on the cusp of legality. Few acknowledge it; everyone knows it. And juries are said to get confused, hence fewer convictions.

The reality is that weaker British regulation delivers a weaker flow of high quality evidence which an uncombative and under-resourced public prosecution service cannot make stick against their well-financed defendants.

The real explanation of our track record is a lack of willingness to grasp the fraud nettle. In part, this is a rational if unedifying desire to keep our dirty linen hidden, but the reaction of some of the business community betrays another less laudable instinct. Business and the rich should not be subject to the rule of law as a matter of principle; it is an interference in 'wealth generation'. And the more private wealth has grown in Britain, the more our wealthy believe that the law should be different for them.

Some strands in American business think the same, but they are overwhelmed by the strong American belief that the US is a republic of laws where every citizen can and should be held to account.

There are elected officials, such as the formidable New York attorney general Eliot Spitzer who has made his name by being a fraud buster. Here you make your name by not rocking the boat. The US has the more vigorous democratic tradition and institutions.

American businesspeople are held to account for their actions, and it makes their businesses stronger. Accountability is good, not bad, for business. The US has a long history of taming business, which springs from republican institutions ... imposing competition, imprisoning fraudsters and breaking up monopolies. Arguably, its economic dynamism comes from this tension between markets and democracy - rather than the usual story that it is a free-market paradise.

One of the worst aspects of last week was the crude anti-Americanism. Where the US gets it wrong - over climate change or Iraq - the criticism should be tough. But over this the US is in the right, as is becoming obvious.

Cold American legal steel going after crime in the City because Britain is too limp-wristed is good news. There is a collective shiver going down the spine of every London financier. It is long overdue.

Guardian Unlimited © Guardian Newspapers Limited 2006

SIPA    13 Dec 06

"It takes only a few good men to do nothing for evil to succeed" (Edmund Burke)
by  Anton Keller, SIPA, Geneva - 022-7400362 - - url:

After the sobering & upsetting US elections, with foreign adventures gone bad, & amid signs that America is "losing its grip on the world's money", a narrow window of opportunity avails itself for lost sovereignty, fiscal & privacy principles & rights to be recovered, fortified & implemented also in Swiss-US relations. Among Swiss lawmakers, political critical mass is obtainable for formulating & trumping the related signals urbi et orbi.. And among current & former key US lawmakers on both sides of the aisle, accomodating echos & implementation measures may be put into place before the 2008 presidential elections. Essentially on 3 conditions:
1. If you dont want to by-pass or overrule the official policy holders here & there, twist even a lady's arms in order for them to stop being part of the problem and become part of the solution.
2. Participate in a credible anti-terrorism monitoring system involving your bank's tresors.
3. Be prepared to support these special efforts with adequate coordination, feedback & funds.

    A    Currently, with regard to law novels affecting Swiss-US banking relations, the Swiss legislative pipeline contains at least three official projects which avail themselves for combining and stream-lining:
    1.    The National Council's Law Commission just approved - with 12 to 6 votes, with 2 abstentions and three minority proposals - the replacement of the secret administrative"Operative Working Arrangement" of September 4, 2002 with the Accord Suisse-Etats-Unis d’Amérique du 12 juillet 06 concernant "la constitution d’équipes communes d’enquête pour lutter contre le terrorisme et son financement"  (; message 06.069 du 6 sep 06: .../ch/f/ff/2006/7373.pdf). The new treaty would continue to provide, in Switzerland, for US police personnel to directly "review" and "analyse" notably documents covered by Swiss secrecy protections and extracted from banks, fiduciaries, etc. - even under "false flag" & totally unfounded claims, i.e. outside of treaty-based, constitutional & legal protections against privacy abuses. Instead - and fully compatible with our national interests of a self-respecting sovereign state - we could stop drifting by retaking the initiative with discreet & effective anti-terrorism measures of our own.
    2.    On November 27/28, 2006, the National Council's Economic and Tax Commission WAK continued consideration of the financial market surveillance law FINMAG. It approved most of it but has remained open for further changes if properly advised. Notably on our proposals for significant improvements regarding FINMAG's objectives, mandates & legal assistance provisions ( This appears indicated the more so as foreign investors' confidence in the Swiss legal system continues to be undermined by alarming legal assistance practices & court decisions which the PUK decried already in 1989 as "servile"  ("willfährig"; see: "Rechtshilfe oder Unrechtsbeihilfe", .../rechtsbeihilfe.htm, BGE 1A.99/2006, & critiques by Peter Popp, Dominique Poncet & Vincent Solari, and Martin Schubarth). Moreover, the SEC reportedly continues to blackmail American branches of Swiss banks into short-cutting treaty procedures. It is thus urgent to add a more effective protective layer against unwarranted disclosure of confidential bank client information, as was the purpose of the 1996 abandoned Consultative Commission. As suggested by Professor Schubarth, the FINMA might also be entrusted with that key oversight role. However, lawmakers are not here to do the bidding of subjects who are either unwilling or unable to competently define and defend their legitimate interests. Thus, in the absence of clear, timely, and determined signals from those mostly concerned in the financial community, even the most helpful, practical and indicated text improvements are not likely to attract the indispensable critical mass among divers lawmakers. Which holds true even if the lawmakers' original intent & purpose, as expressed in valid treaties, constitutional norms and legal provisions, is manifestly neglected or violated by both the Federal Administration and our Courts (.../autogoal.htm).
    3.    On July 31, 2006, the Federal Council accepted the WAK motion 06.3005 "Entraide administrative et judiciaire. Exigences et principe de la double incrimination" which - notwithstanding its shortcomings - was introduced as a substitute for the SVP's cantonal and federal initiatives for Swiss bank secrecy to be enshrined in the Swiss Consitution (.../eigentum.htm)
    B    "Authoritative" - and desinterested? - claims to the contrary notwithstanding, the still rising FATF/GAFI problématique (.../GAFI.htm) is all but inevitable, as demonstrated before ("OECD mission-creep & Piper of Hamelin bureaucratic lawmaking", .../oecdmandate.htm). Now is the time to stop lamenting, to show vision & leadership, and to seek effective alliances with US & other lawmakers - beyond those already on bord (Richard Rahn, Dan Mitchell, Phil Gramm, etc.). With the aim of turning off notably the US money spigot on the OECD until this & other anti-sovereignty, anti-privacy & anti-market bureaucratic cancers are either brought in line with OECD's statute & turned into a formal treaty or sent to the wastebin of history. Until then, Switzerland has every interest to competently play its significant cards at the OECD Council of Ministers, but not to strengthen this aberration by attenting FATF's meetings with more than a simple observer.
    C    For those not familiar with our successes in dealing with our US & French friends & OECD adversaries, remember our US court-induced stop of the RJR-Nabisco LBO until the Swiss bonds were fully securised, the CH/F tax treaty supported by SBA, Vorort, etc. but thrown onto the waste heap of history by Parliament as "diplomatic treason", and the cold-feet-induced non-derailment of the QI aberration. Also: "How not to react to US pressures on Bank Secrecy, Iran, Cuba, etc."(.../barbarians.htm ¦  .../diamantball.htm ¦ .../swissbanks.htm ¦ .../capitalism.html)!    26 January 2007

Norris faces extradition after losing appeal
By Russell Hotten

British businessman Ian Norris, 64, today lost his High Court appeal against extradition to America where he faces charges of price-fixing between 1989 and 2000. The former chief executive of UK engineering group Morgan Crucible denies the offences, which were not criminalised in the UK until 2003.

High Court judges today rejected his appeal that price-fixing was not an extraditable offence and that US attempts to remove him were a breach of his human rights. Mr Norris retired in 2002 due to serious ill health. Mr Norris must also faces charges that he orchestrated a cover-up when US authorities began investigating.

The businessman may attempt to take his case to the House of Lords, which would only consider the issue if it was felt to be a matter of serious public importance.

Mr Norris would be the first foreigner extradited to the US on price-fixing charges, after having been identified as a key target in the Department of Justice's decade-long bid to clamp down on international antitrust crime. He is being sought under the controversial "fast-track" extradition arrangements with the US, the same legislation used to send the NatWest former bankers to Texas to face Enron-related fraud charges in July.

Business leaders, lawyers, and civil rights groups argue that these rules do not protect British citizens from inappropriate or unlawful prosecutions. Introduced with the aim of dealing with terrorists and drug-dealers, the laws are being targeted at alleged white collar criminals.


Financial Times    January 26 2007  23:24

Extradition inequality

Making legal history is not always a voluntary activity. Ian Norris has the unwanted distinction of setting two unenviable precedents. The former executive at Morgan Crucible, a UK manufacturing group, was the first British citizen to be the subject of an extradition request from the United States that did not require the US to prove there was a case to answer. He is also the first example of America seeking to extradite a British citizen on anti-trust charges. The High Court on Thursday dismissed his appeal against extradition in a judgment with far-reaching consequences.

The charges, which Mr Norris strongly denies, relate to fixing the price of carbon products between 1989 and 2000. Thursday's judgment turned on whether a criminal offence of cartel activity was created only by the Enterprise Act that came into force in the UK in 2003, or whether such activity amounted to the long-standing criminal offence of conspiracy to defraud. The court ruled that if the evidence showed that price-fixing was dishonest, then it could be treated as conspiracy to defraud.

Mr Norris' predicament will heighten unease about the use of fast-track extradition arrangements to deal with white-collar crime. Since the US-UK extradition treaty was belatedly ratified by the Senate last year, the arrangements are more balanced than before. But they still contain an intrinsic inequality. A British request to the US must show "probable cause" that the person it is seeking to extradite committed the offence: an American request to the UK has to meet only a lower test. The UK government on Thursday published guidelines on making extradition work fairly. But this is peripheral compared with the failure to address the unfairness at the heart of the arrangement.

The clearer definition of when price-fixing constitutes a long-standing criminal offence is welcome. If the judgment had concluded that only the Enterprise Act criminalised cartel activity, it would have made it much harder for prosecutors to pursue those accused of price-fixing before that came into force. Instead, by ruling that sometimes price-fixing can be a conspiracy to defraud, it opened up the possibility that others in business may be on the receiving end of US Department of Justice interest in activities that pre-date the act.

Tough pursuit of organisations that engage in cartels is laudable. As well as punishing wrongdoers it can also be a useful deterrent. To command general support, the approach must clearly be based on certainty and fairness. The High Court ruling has helped on certainty, but the issue is serious enough to merit consideration by the House of Lords, to which Mr Norris has said he intends to appeal. As to fairness, the current unequal extradition arrangements make every case a cause célèbre. It is time to level the pitch.

Copyright The Financial Times Limited 2007

Le Temps    26 janvier 2007

Française détenue arbitrairement en Suisse?
Valérie de Graffenried
Justice Elena Arnaud Bonar est emprisonnée à Coire depuis le 18 octobre.
Les Etats-Unis l'accusent d'«enlèvement d'enfants».
Un tribunal a ordonné sa libération immédiate, mais l'OFJ s'y est opposé ':"

    L'affaire est compliquée et délicate. Richard Yung, sénateur représentant les Français établis hors de France, accuse la Suisse de détenir arbitrairement une de ses compatriotes. L'Office fédéral de la Justice (OFJ) dément formellement. En attendant que l'affaire connaisse son épilogue, la femme est emprisonnée à Coire, loin de ses enfants dont le dernier est âgé de deux ans. Décryptage d'une histoire kafkaïenne, aux nombreux rebondissements.

«Dans la plus grande illégalité»
    Elena Arnaud Bonar, une ressortissante franco-russe mariée à un Français et divorcée d'un Russe habitant aux Etats-Unis, est incarcérée en Suisse depuis le 18 octobre 2006. «Dans la plus grande illégalité», assure Richard Yung dans son communiqué de presse. Les autorités suisses l'ont interpellée à Coke suite à un signalement d'Interpol Washington daté du 18 juillet 2003. Elle était en train de rentrer en voiture en Russie avec son mari. Selon Interpol, Elena Arnaud Bonar a emmené ses enfants issus d'un premier mariage hors des Etats-Unis en 1997, en violation des dispositions sur le droit de garde. Et a refusé de les rendre à leur père.
    Le 29 novembre 2006, les Etats-Unis demandent formellement l'extradition d'Elena Arnaud Bonar à la Suisse. Mais «les Etats-Unis n'ont pas été capables de fournir un mandat d'arrêt pour enlèvement d'enfants juridiquement valable, étant donné qu'un jugement du Tribunal de l'Etat de Washington lui a accordé en décembre 1997 la garde de ses enfants», soutient le sénateur français. Il souligne que le jugement a été confirmé par le Parquet de Paris en janvier 2000.
Le 11 janvier, le Tribunal pénal fédéral de Bellinzone (TPF) accepte le recours d'Elena Arnaud Bonar et ordonne sa libération immédiate. Mais l'OFJ s'y oppose et fait recours auprès du TE Conclusion du sénateur: l'OFJ fait du «harcèlement ju-diciaire, en lançant procédure sur procédure pour maintenir Elena Arnaud Bonar incarcérée».

Deuxième mandat d'arrêt
    L'affaire n'est pas si simple. Contactée, l'OFJ précise tout d'abord que le mandat d'arrêt américain du 13 mai 1999 a bien été émis de façon correcte, mais qu'une décision de justice donnant le droit de garde au père a été rendue trois mois plus tard, le 20 août 1999. En raison de ce nouvel élément - dont Elena Arnaud Bonar n'aurait jamais eu connaissance, selon son avocate -, l'OFJ a donc demandé aux autorités américaines, par téléphone, de compléter leur demande d'extradition par un nouvel acte d'accusa-tion. Afin de pouvoir déterminer s'il s'agit d'un cas de droit de visite non respecté ou d'enlèvement d'enfants.
    Voilà pourquoi l'OFJ a déposé un recours au TF contre la décision du TPF, qui avait admis le recours de la Française contre le mandat d'arrêt de l'OFJ et ordonné sa libération, explique Folco Galli, porte-parole de l'Office. L'OFJ se défend ainsi de faire de l'«acharnement judiciaire».

Les enfants vivent à Saint-Pétersbourg
    Dernier épisode en date: le TF a jugé, dans un arrêt daté du 22 janvier, le recours de l'OFJ irrecevable, «faute d'objet et d'intérêt»). Car l'affaire se complique: la détention d'Elena Arnaud Bonar est désormais fondée sur un nouveau titre, venu se substituer au précédent. L'OFJ a en effet demandé un deuxième mandat d'arrêt. Doris Leuenberger, l'avocate d'Elena Arnaud Bonar, a du coup déposé un nouveau recours auprès du TPF, le 17janvier.
    «Cet acharnement de la part de l'OFJ pour empêcher la libération de ma cliente est vraiment incompréhensible», souligne Me Leuenberger. l'avocate estime que l'OFJ n'avait pas à demander un deuxième mandat d'arrêt aux Etats-Unis.
    A l'Ambassade de France à Berne, le ton reste serein. «Nous avons fait une démarche auprès des autorités suisses pour signaler le cas de Madame Arnaud Bonar parce que nous sommes préoccupés par la situation personnelle de cette mère d'un enfant de deux ans», nous signale-t-on. Le consulat général de France à Zurich lui rend régulièrement visite à la prison de Coire. Elena Arnaud Bonar a trois enfants: deux de son exmari russe vivant aux Etats-Unis et le petit dernier de son deuxième mari, un Français. Les trois vivent à Saint-Pétersbourg avec l'actuel époux de la détenue.
    La suite? Le TPF de Bellinzone devrait rendre sa décision par rapport au deuxième mandat d'arrêt la semaine prochaine. Fin de l'affaire? Pas forcément. «Il s'agit pour l'instant uniquement de la question de la détention. En ce qui concerne l'extradition, notre office n'a pas encore pris de décision. Une éventuelle autorisation de l'extradition vers les Etats-Unis pourrait être attaquée au TPF et au TF en dernière instance», précise Folco Galli.
    En attendant, l'état de santé d'Elena Arnaud Bonar se dégraderait de jour en jour.

Sunday Telegraph    26 May 2007    11.55 BST

Ten executives face long arm of US justice

As many as 10 British businessmen face being extradited to America if, as feared, the industrialist Ian Norris loses his legal battle to remain in Britain in the next fortnight.
Ian Norris faces trial in America over price-fixing if his extradition appeal fails
 By Helen Power

The former chief executive of Morgan Crucible, the engineering company, is waiting to hear whether the House of Lords will hear his plea to avoid facing price-fixing charges in the US. This weekend, sources close to the process warned that a defeat would clear the way for the US Department of Justice to reopen up to 10 old cases of price-rigging and cartel fraud involving British citizens.

Top of America's most wanted list are Sir Anthony Tennant, the former chairman of Guinness and Christie's auction house, and other executives involved in the Morgan Crucible aluminium cartel.

A senior source involved in the Norris process said many more such extraditions might follow. "This will affect anyone else who was involved in price-fixing prior to when it was made illegal in the UK," he said.

The fate of the NatWest Three, the British businessmen extradited last year on charges related to Enron, has heightened concerns over the long arm of America's courts. Home Office figures show that six people were extradited from Britain for fraud last year, compared with just one in each of the three previous years.

There is also a chance that two executives implicated in price-fixing at BA, which is the subject of a joint investigation by Britain's Serious Fraud Office and the DoJ, could be extradited were the US to take the lead. Aside from cartel offences a British couple, the Tollmans, face extradition for alleged tax fraud and Gary McKinnon is facing extradition on computer hacking charges. All face much tougher penalties in the US than they would in Britain for the same offences.

This point has been taken up by Norris's defence team, which says that price-rigging is a much more serious offence in America than in Britain and that the UK's Extradition Act stipulates they must be comparable.

Tennant, who is being advised by a top London lawyer, has always denied any involvement in the transatlantic cartel. But Tennant's counterpart at Sotheby's, Alfred Taubman, was sent to jail in 2002, while Christopher Davidge, Christie's chief executive, won immunity from the DoJ by giving evidence about his co-conspirators.

The DoJ - which has thrown all its energies into the Norris case - has issued a US arrest warrant for Tennant, but has never attempted to extradite him. But he is very much on their radar.

Two years ago a DoJ official told a US legal conference about the Norris case: "What this means is you can't hunker down in your manor house in rural England as one fellow recently did and say, you know, 'come and get me - I know you can't' " - a coded reference to Tennant.

Meanwhile, Norris's appeal hangs on whether he can be extradited for price-fixing, which was not generally illegal in Britain until 2002 - after the US broke up the cartel. City sources said British executives from other companies involved in the aluminium components cartel were also at risk of extradition. At least one has instructed a white collar crime lawyer to advise him on a possible extradition request.

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August 15, 2010

NatWest Three claim guilty plea was extracted under duress
Extradited UK bankers blame plea on pressures of US justice system
by Andrew Clark, New York

The NatWest Three, Giles Darby, David Bermingham and Gary Mulgrew (l-r) outside the high court, 21 February 2006, after losing their battle against extradition to the United States. Photograph: Edmond Terakopian/PA

They became poster boys for City fraud when they confessed to stealing $7.3m in an Enron-related fraud. But the convicted British bankers once dubbed the "NatWest Three" are now recanting their guilty pleas, claiming that they were extracted under duress by a flawed American justice system.

Recently released from prison after serving half of their 37-month jail sentences for a scam dreamed up with corrupt Enron executives, two of the NatWest Three, David Bermingham and Gary Mulgrew, are far from remorseful. They have launched a ferocious attack on their controversial extradition from Britain to the US in 2005 and subsequent imprisonment, claiming that they only admitted fraud in order to get home as quickly as possible after frustrating delays in their criminal trial.

In a two-hour-long video on the website, which is dedicated to exposing "prosecutorial abuses" in the Enron saga, Bermingham has compared the US system of plea bargaining to "Stalinist Russia", while Mulgrew asserts his ordeal was akin to "torture".

"They ripped me away from my home country, away from my family and friends," said Mulgrew. "Torture takes many forms. They delayed the trial, delayed the trial."

Bermingham and Mulgrew, along with a colleague, Giles Darby, were at the centre of a furore over Britain's extradition treaty with the US that sparked questions in parliament and a march by business executives on the Home Office .

The trio persuaded their employer, Greenwich NatWest, to offload a stake in an Enron-related investment venture in the Cayman Islands for a rock-bottom price of $1m. Unbeknown to NatWest, they held a stake in the purchaser, through a deal cooked up with Enron's then finance director, Andrew Fastow, and the conspirators sold on the investment at a profit of $20m.

Pleading guilty in front of a Texas judge in February 2008, the British bankers delivered grovelling apologies. Bermingham said his conduct "fell well below the standards expected" while Mulgrew accepted that an offshore transaction in the Cayman Islands "lacked integrity", adding: "I apologise unreservedly for my actions."

But the men now say that their confessions were drawn out of them by the pressure of extradition to the US and a two-year hiatus in Houston with little money and minimal family contact.

Bermingham said he feared a mistrial if a jury failed to reach a majority verdict, further prolonging the trio's stay: "On the one hand, we were going to be able to show without any shadow of a doubt that the government's case was bullshit. On the other hand, we were three greedy foreign bankers who'd done a deal with Andy Fastow and made $7m bucks. And you've got yourself a mistrial."

He added: "The government made it clear to us that if we agreed to plead guilty, they would recommend that we got sent home under the prisoner transfer treaty so that we could spend a good proportion, if not a majority, of our sentences in the UK where would could be close to our wives and families. But if we went to trial and lost, they said they would ensure we spent all of our sentence here [in the US]."

As part of their sentence, the trio were obliged to pay back $7.3m to Royal Bank of Scotland, which now owns NatWest. An RBS spokesman said they had reached a settlement: "The dispute between the parties has been resolved pursuant to an agreement, the terms and conditions of which are confidential."

The US department of justice declined to comment on the bankers' remarks.

The trio are now trying to rebuild careers in Britain. The men's solicitor, Mark Spragg, said there were ongoing contentious cases of British business executives being extradited to the US, including a former boss of the Morgan Crucible engineering group, Ian Norris, who was sent to the US for trial in May.

"There's a real issue here that businessmen being sent to America are under immense pressure to plead guilty to something even if they don't feel they are guilty, because it's the quickest way to get out of the system," said Spragg.