Australia Set to Extradite Dan Duggan to the US, Despite No Evidence  

When Australian citizen Dan Duggan appears before the Federal Court of Australia next month to argue against his extradition to the United States based on the assertions of a 2017 District Court of Columbia grand jury indictment and no clear evidence, the father-of-six Australian children will have been remanded for three years by the Australian government without any prospect of bail.

Duggan, 57, is a former US military fighter pilot, who, after 12 years in the US Marines, migrated to Australia in 2002, married his wife Saffrine and had kids. He became a citizen in 2012 and relinquished his US citizenship at that time. This was also the same year that he worked for some months at the Test Flying Academy of South Africa as a flight instructor, with three other Australians.

The US Department of Justice then secretly produced the indictment against Duggan, charging him with conspiring with other ex-military pilots from the west to provide US defence services in the form of flight training to Chinese military personnel in violation of a US International Traffic in Arms Regulations (ITAR) embargo, despite his asserting it involved Chinese civilians and non-military training.

The Australian federal police arrested Duggan in October 2022 in regional NSW. Then attorney general Mark Dreyfus approved the extradition process taking place in December that year and last December saw him give the final greenlight. Dreyfus was, however, replaced as chief lawmaker by Michelle Rowland in May, and the current AG had declared herself powerless to prevent extradition.

The question as to why the US might want to make a show of extraditing and prosecuting a former US Marine fighter pilot in respect of false claims regarding having trained Chinese military pilots and not mere civilians, the answer suggested by many legal professionals and crossbench politicians is that the cold war build up to a major military conflict with China can do with a few political pawns.

Any dual criminality in a storm

From the perspective of Duggan’s legal team, the father-of-six has been hauled up on false claims that he conspired to train Chinese military pilots, “without having first obtained the required licence” that would have permitted this, even though the training was not military in nature and therefore, did not require any licence.

According to his lawyers, Duggan was working alongside a range of other Australians and western ex-miliary pilots, who trained Chinese civilians and other foreign nationals, and have not been the subject of subsequent criminal proceedings themselves. Indeed, the US is attempting to charge Duggan with money laundering, when he was simply paid for his shifts teaching civilians how to fly.

The laws governing extradition are held in the Extradition Act 1988 (Cth). Subsection 19(2)(c) of the Act provides that the conduct the “extradition country” is attempting to extradite a local constituent over, must also be criminal in the part of Australia where the proceedings take place at the time the extradition request was provided in order for this process to proceed.

The United States based the dual criminality requirement as per its extradition request for Duggan on the offence of military-style training involving foreign government principal, under section 83.3 of the Criminal Code Act 1995 (Cth). However, the Australian government did not pass this offence into law until June 2018, the year after the 2017 indictment was sealed.

Duggan’s legal team assert that based on an affidavit that it received with the 2017 indictment, it is understood that the grand jury requested a tolling period, or a pause to the five-year statute of limitations applying to the crimes being considered, so that it could request some information from Australia, with the reply from our government having been issued on 14 March 2018.

The only inference to be made of this scenario, insist Duggan’s lawyers, is that the grand jury paused to ensure that the dual criminality requirement was made out in Australian law prior to their sealing of the indictment. So, the extradition request was predicated upon what lawyers assert was a purposefully “manufactured law”.

Further, another law that specifically governs White House extradition requests is the 1976 Treaty on Extradition between Australia and the United States of America. This law has been enacted in line with US constitutional guarantees, which include those against retrospective criminalisation, otherwise known as ex post facto laws.

Therefore, these US constitutional guarantees against retrospective criminalisation have been denied Duggan.

At our imperial master’s behest

Duggan was an Australian citizen at the time of his alleged criminal behaviour and had relinquished his US citizenship. All forms of training being provided by ex-military pilots from western nations was entirely legal under South African, Australian and international law in 2012. So, it would appear that the Australian government has capitulated to a US demand, rather than any broad criminality.

In light of Duggan’s stance on why he should not be extradited to the US, which will be reassessed by the Federal Court next month, the fact that the AFP assisted the US justice department in seizing a property owned by Saffrine Duggan, Dan’s wife, on the NSW southern coast, on the suggestion it had been bought by the proceeds of crime, is made all the more grave.

Saffrine had been attempting to sell the house to cover the cost of providing for six kids, as well as to finance the steep legal costs her husband is facing whilst being held for almost three years based on no locally tested evidence.

So, the Australian government is punishing the entire Duggan family at present in respect of what was completely legal behaviour.

The Albanese government, for its part, considered that AG Mark Dreyfus had the power to agree or deny extradition when he granted it right on Christmas last year, so as to ensure maximum lack of constituent attention. Now, the official line is AG Michelle Rowland is completely powerless in this situation. And this move by federal Labor is certainly reminiscent of Pontius Pilot washing his hands.