As Julian Assange fights extradition to the U.S. while imprisoned in London’s Belmarsh high security prison, so too is Daniel Duggan fighting extradition to the US while imprisoned in Lithgow’s high security prison.
Duggan, aged 55, is a former US marine pilot who obtained Australian citizenship in 2012 and has renounced his US citizenship. He has been living in the regional town of Orange NSW with his Australian wife Saffrine since 2002. Together they have six children aged 6 to 18.
Arrest and extradition charges
At the request of US authorities, Duggan was arrested by the Australian Federal Police (AFP) on an extradition warrant. This took place in a supermarket car park in Orange NSW on 21st October 2022.
The warrant contains four charges: conspiracy to defraud the U.S. by conspiring to unlawfully export defense services to China, conspiracy to launder money and two counts of violating the arms export control act and international traffic in arms regulations.
These alleged charges relate to the time when Duggan was employed as a contractor by Test Flying Academy of South Africa between 2010 and 2012. Duggan strenuously denies all charges contained in the indictment. If convicted, he faces up to 60 years in a US prison, effectively a death sentence.
The #FreeDanDuggan Campaign argues that the US indictment is politically motivated. The website claims that Duggan “has become the unwitting victim in a geo-political war between the United States and China.” This claim is plausible, especially since the extradition order coincided with the Trump administration’s trade war with China.1
Recent hearing
A recent hearing in Sydney’s Downing Centre Local Court on 6th March 2024, considered Duggan’s application to postpone his extradition hearing currently scheduled for 24th May 2024.
The main reason for seeking this hearing relates to Duggan’s application for financial assistance from Legal Aid. This application was made as a result of a previous decision made by the NSW Supreme Court that upheld a request by US authorities to “freeze” the Duggan family’s main asset, a property in southern NSW. The family were planning to sell this property to fund Duggan’s escalating legal expenses, now purported to exceed $800,000.
Apparently, Legal Aid is currently seeking further information before assessing the merits of the application. The next hearing relating to Duggan’s request to delay his extradition hearing has been set down for 4th April 2024. However, there is no certainty that Legal Aid will have completed their assessment of Duggan’s application by this date.
Troubling aspects of the case
There are many troubling aspects to this case. A few of these are listed below.
Sale of property blocked
As indicated above, the Duggan family had planned to sell their Saddleback Mountain property on the NSW south coast to fund Duggan’s legal expenses. The property is owned by a company in which Duggan’s wife is sole director. However, at the request of US authorities, the AFP seized the property based on the allegation that it was purchased with the proceeds of crime. This refers to the allegation of ‘money laundering’ in the US indictment denied by Duggan.2
Subsequently, the NSW Supreme Court threw out a challenge from Duggan’s legal team on 6th December 2023 which sought to prevent the property seizure on the basis that the AFP affidavit contained two errors, including the mistake that Duggan, rather than his wife, was the owner of the property.
Barrister Greg O’Mahoney, acting on behalf of the AFP commissioner, told the court that there was no need for Duggan to be directly linked to the property under the mutual agreement Australia has the US concerning the seizure of proceeds linked to alleged crimes.
According to Justice Nicholas Chen, the reason for dismissing this challenge was because the AFP errors were “innocent” and at most of “peripheral evidential relevance.”3
This decision by the court has seriously jeopardised Duggan’s capacity to fund his legal defence. While Duggan’s application before Legal Aid NSW, lodged in December 2023, is still pending, there is no guarantee that this application will be successful. If unsuccessful, Duggan’s defence prior to and during his extradition hearing will be severely compromised.
“High risk” prisoner
Another troubling aspect of the case relates to Duggan’s classification as a prisoner. He has been classified as a “high risk” prisoner, held in solitary confinement in a 2m x 4m cell, and permitted to exercise outdoors for only one hour per day. It has been reported that these harsh conditions are having an adverse impact on Duggan’s mental and physical well-being.
It appears that Correctional Services NSW is responsible for this “high risk” classification and the imposition of solitary confinement. The grounds for making this classification have not been revealed. Certainly it is at odds with the fact that Duggan has no criminal record anywhere in the world.
Formal requests for Duggan be to released into home detention while awaiting his extradition hearing, have so far been rejected by the NSW State government. It is obviously the case that the restrictions associated with solitary confinement, including Duggan’s restricted access to his lawyers, primarily serves the interests of US authorities.
Lure of an ASIC card
Duggan’s legal team has asserted that their client was lured back to Australia after he was notified that ASIO had approved his eligibility to receive an Aviation Security Identification Card (ASIC) card. The ASIC card is much sought after, since it permits pilots to use Australian airports.
At the time, Duggan was managing a legitimate flight consultancy in the city of Qingdao in Shandong province in China. Upon his return to Australia in October 2022, he was informed that his eligibility for an ASIC card had been cancelled. His arrest by AFP officers in Orange immediately followed.
Conflicting accounts of the IGIS report
Following his arrest, Duggan’s legal team lodged a complaint with the Inspector General of Intelligence and Security (IGIS), asserting that ASIO had lured him back to Australia in order to arrest him. Such a stratagem is illegal under Australian law, but not under U.S. law.
Just prior to Duggan’s appearance in the local court on the 6th March 2024, the Director-General of ASIO, Mike Burgess, claimed in a Guardian podcast that IGIS had completed its inquiry into Duggan’s allegations and had cleared all of his agents of any “impropriety” or wrong-doing.4
However, the next day it was revealed that IGIS’ correspondence with Duggan’s legal team had identified an “impropriety” committed by ASIO in its dealings with Duggan. Since the IGIS report is classified, the nature of this “impropriety” remains a secret.
Nevertheless, the discrepancy between Mike Burgess’ account and IGIS’ correspondence remains. The ASIO chief has so far failed to satisfactorily address this discrepancy.
Treaty on Extradition between Australia and US
In relation to the Treaty on Extradition between Australia and the United States of America, it appears that there are at least two defences which Duggan’s legal team can mount against the US indictment.
The first defence relates to the requirement of dual criminality. This means that Australia must have the same or similar laws as the US with respect to the charges contained in the indictment. It should be noted, however, that there are no Australian charges against Duggan, nor have any Australians previously been charged with such offences.
The second defence relates to charges needing to be non-political in nature. However, it can plausibly be argued that the allegations contained in the indictment are political in nature. As noted earlier, while the charges are related to acts alleged to have occurred over 12 years ago, the serving of the indictment coincided with the escalation of technology and trade tensions between the US and China in more recent times.
Commentary on the extradition
In commenting on the case, international lawyer, human rights advocate and veteran, Dr Glenn Kolomeitz is quoted as saying:
Unfortunately, in the US they say that a grand jury will ‘indict a ham sandwich’. I’ve torn the indictment of the grand jury in this case apart. It is riddled with inflammatory and irrelevant statements and the word ‘conspiracy’ [appears] 178 times alongside the word ‘China’, such that of course a grand jury is going to indict. What it doesn’t have is evidence linking Dan to those words. In fact, the indictment has so many holes in it, it’s a Swiss cheese and ham sandwich.5
Dr Kolomeitz also claimed the following:
The extradition treaty is a disgrace, the Extradition Act is a disgrace, and the indictment is a disgrace. This is a very bad treaty and a very bad piece of legislation which is being exploited by the United States.6
Bid to delay the extradition hearing
For the reasons outlined above, Duggan is seeking to have his extradition hearing delayed until a response to his application for funding from Legal Aid is received.
This matter will be dealt with at the Downing Centre Local Court on 4th April 2024. If the court rules against this bid, Duggan will need to prepare as best he can for an extradition hearing currently scheduled for 24th May 2024.
Notes
1. Refer to #FreeDanDuggan Campaign website.
2. Catie McLeod, ‘Daniel Duggan: wife ‘devastated’ as court blocks bid to sell NSW property to fund defence of pilot wanted in the US’, The Guardian, Dec 6, 2023.
3. Ibid.
4. Daniel Hurst, ‘Asio cleared of unlawfully luring Daniel Duggan back to Australia, agency chief Mike Burgess says’, The Guardian, Mar 3, 2023.
5 & 6. Refer to #FreeDanDuggan Campaign website.