On Monday, lawyers acting for the Home Office wrote to McKinnon's lawyers explaining why they thought his Asperger's condition, a form of autism, was no reason to stay his extradition to face 60 years in a US prison.
Home Secretary Jacqui Smith's skepticism of McKinnon's diagnosis was expressed somewhat insensitively in the course of the 11-page document, which the Home Office has refused to publish, but which British publication The Inquirer has obtained.
The Home Secretary was in a state of "considerable surprise" that no mention "of the mental problems which it is now said he suffers" was made earlier in the trail, it said.
"The failure to raise such points at an earlier stage... justifies considerable doubt as to whether such points were believed to have legal merit, " it said.
It went on expressing considerable surprise, but also considerable ignorance of Asperger's and even contempt for McKinnon's condition: "You have not explained why a psychiatric opinion was not sought in respect of Mr McKinnon at an earlier point in time, if in fact his behaviour was such as to warrant such an opinion being sought."
The reasons why McKinnon didn't know he had Asperger's should be readily available to anyone who cared to find out.
A spokeswoman for the National Autistic Society said that as autism was only fully discovered in the 1960s, and then only in a limited community of people, "We have a high proportion of the adult population who have not had an opportunity to get diagnosed. This is more true for Asperger's because its harder to pick up," she said.
It is not unusual for people with Asperger's to live well into their 30s or 40s before they discover that the problems they have had negotiating with the world are symptoms of a recognised condition.
Nevertheless, said the government lawyers, McKinnon is 42 and will have had Asperger's symptoms for years: it therefore seemed to the Home Secretary that it was not a "medical condition that has arisen for the first time after the House of Lords dismissed Mr Mckinnon's appeal". It was therefore not enough to interrupt his extradition proceedings.
Yet Lucy Clarke, Gary's girlfriend told THE INQ on Friday how Gary did, indeed, come to discover his own condition so late in the trial.
Simon Baron-Cohen, world-renowned director of Autism Research Centre at Cambridge University, happened to see Gary speaking on the television news after the House of Lords rejected his extradition appeal. He immediately got in touch. Experts in the field have a knack of spotting the condition. He put Gary through the tests and sent the evidence to the Home Office.
Ass burgers It didn't matter to the government lawyers. The Home Secretary had no "residual discretion" to consider the health of someone with an extradition order. And autism was no reason to prevent someone standing trial in the US anyway.
Autistics and prison go together like birds and cages. Dr Thomas Berney, another world renowned autism expert, said in a psychological report on McKinnon's condition he sent to the Home Office in the summer, that McKinnon would suffer a "longstanding deterioration of his mental health" if he was locked up in a US jail.
Baron-Cohen, the government lawyers noted, concurred, and said for that reason McKinnon should stand trial in the UK.
But this wasn't enough for Jacqui Smith to stay Gary's extradition. There wasn't enough evidence, her lawyers said. McKinnon's solicitor, Karen Todner, had said that the combination of his autism and his likely incarceration under the "extremely harsh regime" of the "super-maximum security" ADX Florence prison in Colorado, USA, could constitute torture under Article 3 of the Human Rights Act.
The government responded that Gary could only evade extradition under Article 3 if he was close to death. Asperger's wasn't good enough, especially as it is not guaranteed that McKinnon will be banged up in ADX Florence.
The Home Secretary said that it was OK for someone to suffer mental illness in a foreign prison as long as it was treated, and the US have particularly good mental health services, and if Gary had managed to withstand the pressure of an appeals process that went all the way to the House of Lords, then he should be able to cope with life in a US jail.
Smith dismissed the findings of a United Nations Committee that found conditions in some supermax prisons in the US were so bad that they breached Article 10(1) of the 1966 International Covenant on Civil and Political Rights, which states: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."
McKinnon's right under Article 8 of the Human Rights Act to a private and family life would also be infringed, Todner told the Home Office. But on balance, the UK's extradition Treaty with the US was more important than McKinnon's right to the support of his family, said the lawyers.
McKinnon has until Friday afternoon to file for a judicial review of his case.
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