There is a real and credible danger that hacktivist Lauri Love would commit suicide or be unable to defend himself in court should he be extradited to the United States to face trial on computer hacking charges.
That was the argument put forth by his defence counsel, Ben Goodson, during final oral arguments in the USA versus Love (extradition case) at Westminster Magistrates' Court yesterday.
Lauri Love faces extradition requests from three courts in the United States – the District of New Jersey, the Southern District of New York and the Eastern District of Virginia – for alleged offences related to the hacking of US government computer systems. He is alleged to have been involved in the #OpLastResort online protest over the death of computer scientist Aaron Swartz.
Lengthy closing statements by Love's counsel, Ben Goodson, and counsel for the US government, Peter Caldwell, addressed several issues:
Caldwell, arguing for the US government, told Judge Nina Tempia that the proper place for a trial of the charges was in the US because that is where the harm – comprising the costs of security to repair the vulnerabilities which were exploited and the harm to data subjects from the loss of their data – occurred, notwithstanding where the defendant was based at the time of the attack. He said the data subjects would want the case tried in their own country in the interests of seeing justice done.
Goodson, on behalf of Love, told the court that the US had presented no evidence during the hearing that the data breach victims would prefer a trial in the US, and he argued that, thanks to the international nature of the media, justice would be seen to be served no matter where it went to trial.
Caldwell observed that the defence had tried to show that Love would be unfit to plead his case if extradited to the US. The defence case is that Love's underlying mental illness, Asperger's Syndrome, would be compounded by the stress of being dislocated from his family and support network.
Caldwell observed that Love is able to defend himself ably, as witness his behaviour outside court and his frequent interventions and interjections from the dock during the hearing.
The defence argued that a trial in the UK would serve the interests of justice just as well as if it were held in the US – in fact, more so because Love would be in a better position to plead his case – but Caldwell rejected this idea, hinting that there was a witness in the case who may not be willing to cooperate with prosecutors from outside the US.
Goodson replied that Caldwell had presented no evidence to the court about any witnesses being unwilling or unable to testify in an English court and to suggest that this was the case amounted to “scaremongering”.
Referring to the principle that justice delayed is justice denied, Caldwell made the point that indictments had already been made in three jurisdictions in America which meant that a trial could begin within 70 days of extradition, whereas no charges had been filed in the UK and it might be a year before a trial could commence – assuming that the Crown Prosecution Service was to decide that a trial was in the public interest.
Goodson rebutted this point, saying that there was nothing to say that charges could not be brought against Love as soon as the extradition hearing was completed. To argue that the extradition case was causing a delay in the process of justice would be to deny Love his right to fight extradition.
Caldwell addressed the issue of the length of sentence that Love could expect if he were found guilty in a US court compared to the sentence he would receive in the UK. He conceded that the length of sentence may be relevant but said there was every likelihood that if imprisoned, there was a good chance that he would be allowed to transfer to an English prison to serve his sentence.
Goodson said there was a real risk that, if convicted, Love would receive a much harsher sentence in the US than in the UK. According to expert testimony, sentencing guidelines in American courts call for sentences what would result in decades of imprisonment while comparable cases in the UK had resulted in sentences of around three years or less.
Then there is the issue of Love's mental condition. Caldwell claimed that evidence of his mental illness prior to this case had been “scant” and that evidence for it had come from Love himself.
He said that any risk of self-harm would be communicated to US Federal Marshalls who would escort Love to the US and this information passed to the prison staff who would be especially mindful of his welfare because of his international notoriety.
He said the judge could not be swayed by threats of self-harm or suicide in making her decision.
Goodson, on behalf of Love, told the court that Love's risk of suicide had been assessed by experts and that the US team had failed to call any expert witnesses to contradict them. He added that there had been cases of individuals committing suicide pending extradition, undermining the US case that the prison services would be able to stop Love if he were so minded.
At the conclusion of the oral arguments, Judge Tempia ordered a small amendment to Love's bail conditions and set 16 September at Westminster Magistrates' Court for the reading of her judgement in the hearing.
If she rules in favour of extradition, her judgement would be given for consideration to the Home Secretary who would then have two months in which to approve or deny the extradition request.