US Case Against Duggan Is “Vague, Embarrassing and Oppressive” Lawyers Tell Dreyfus

As she stood before the press at Sydney’s Hyde Park Barracks on Monday morning, Saffrine Duggan asserted that the US can’t “just snatch Australians off the street and send them to the US based on” flawed evidence and questionable process.

“We pray and respectfully ask the attorney general to take the time to properly review this case, and the strength to make the right decision to allow my husband to come home to me and the children,” the mother-of-six continued, as she referred to the US extradition request relating to her husband and their father, Dan Duggan, who long ago was a US marine.

Dan is currently on remand and uncharged in a NSW maximum security prison and has been detained in prolonged isolation since 21 October 2022 – almost two years –at which point the Australian Federal Police took him into custody in the NSW town of Orange, where he lived with his family, following the White House request for extradition.

Attorney general Mark Dreyfus agreed to the US request on 9 December 2022. And after 19 months of proceedings that dealt with a raft of anomalies, NSW Magistrate Daniel Riess greenlighted extradition on 24 May, which has left one last opportunity to bring this injustice to an end, and that was to lodge a submission with the chief lawmaker outlining why extradition it should be refused.

And on Monday, three weeks after the Duggans submitted their claim against extradition to Dreyfus, Saffrine told the press that the AG is currently deliberating upon a submission prepared by renowned barrister Bernard Collaery and a team of lawyers, that clearly shows the US case is full of holes and an abuse of process.

Doesn’t add up

“I’m here to talk to you today,” Saffrine said on Macquarie Street on the morning of the 16th of September, “because on August 23rd Dan’s legal team presented an 89-page submission asking for the attorney general to halt Dan’s extradition to the US.”

“It includes months of research, background and expert opinion on Dan’s case. It is the most detailed examination into the allegations against Dan, and it revealed glaring errors in process and in fact in the US case,” she continued, “key pieces of evidence have not been produced, examined or requested, including basics like Dan’s flight logbook.”

The US wants to extradite Duggan to prosecute him over five charges contained in a 2017 Trump era indictment that claims the Australian citizen was involved in a conspiracy with eight others “to export or attempt to export and propose the exportation of defence services to the People’s Republic of China in violation of an arms embargo”.

The allegations against Dan, which include a money laundering charge, are in relation to the former US marine pilot of 13 years, finishing up in 2002, having trained Chinese pilots to landing jets on aircraft carriers back in 2012 at the Test Flying Academy of South Africa (TFASA).

Ex-military pilots teaching flying post service was common back then. But it is fast becoming an outdated practice across the Anglosphere, due to the attempt to extradite Duggan as the cold war climate mounts between the US and China, with the government and mainstream media having raised the China threat in 2017, at the same time Duggan’s indictment was produced.

“The case is described, in the submission, as vague, embarrassing and oppressive,” Saffrine outlined on Monday.

“It also includes opinions of psychologists and paediatricians, who detail the damage that 22 months of maximum-security without charges have done to Dan and his children.”

Full of holes

Under the Extradition Act 1998 (Cth), Dan’s case cannot be argued in the Australian courts. The year and a half of court appearances that have transpired have deliberated upon local matters related to extradition and not the merits of the case the US has built against Dan. However, the family does have the right to argue its case directly to the attorney general, who can still grant Duggan a reprieve.

Collaery and his team of legal experts have identified multiple factual errors throughout the 2017 indictment that refute several of the allegations against him, including the charge of conspiracy, which the submission asserts “is not only statute barred, but also vulnerable to strike-out as vague, embarrassing and oppressive”.

Other facts that don’t add up include a US grand jury having been told that Dan trained people to land upon the Chinese aircraft carrier Liaoning in March 2011, which is when the vessel is documented to have been 2,000 kilometres away.

Saffrine added on Monday that the grounds the Duggans have raised against the extradition include that the charges are politically motivated and lack dual criminality. And the primary charges against Duggan are alleged to have occurred in March, April and November 2012, which is after Dan had become an Australian citizen.

In terms of dual criminality, the 1976 Treaty on Extradition Between Australian and the USA requires that when one contracting party seeks extradition of an individual from the other nation, the laws that they are said to have broken and warrant the extradition request must be a crime in both jurisdictions.

Duggan was arrested in relation to charges that he’d broken a US ban on the exporting of defence services to China, while Australia had no equivalent to the US International Traffic in Arms Regulations (ITAR) laws in 2012, meaning the primary allegations against Dan were not a crime in Australia. ITAR laws commenced in 1976 in the US but have increased in severity since the 1990s.

Australia has since rolled out laws that mimic the US ITAR regime, when in March, the Albanese government passed the Defence Trade Controls Amendment Act 2024 and the Defence Trade Legislation Amendment Regulations 2024, and this new framework commenced operating on 1 September.

Reds under the bed

As for the political motivation for the US to launch such an extradition case against an Australian citizen, the AUKUS powers – the US, the UK and Australia – are currently involved in the buildup to war against China based on Beijing’s suggested rising desire to wield more power over the self-governing territory of Taiwan.

Former foreign minister Bob Carr told an anti-AUKUS meeting in Marrickville in March 2023 that he was aware of the change in pitch in the Australian media in 2017, when reports started to propagate China panic amongst the population, as the East Asian giant was suddenly being presented as the greatest threat in the Indo Pacific, whilst prior to that, it was our greatest trading partner.

Greens Senator David Shoebridge has long called out the geopolitical undercurrents at play in Duggan’s extradition case. And on Monday, he wrote to Dreyfus, pointing out that due to the restrictions of the Extradition Act, he is “the only legal office holder in Australia that is able to review the case in full under the legislation, and decide whether” Duggan will be sent to the US for trial.

Shoebridge “respectfully” requested that the AG pay special attention to inconsistencies in the US case, humanitarian issues regarding the six children, Duggan’s status as an Australian citizen, dual criminality and access to a fair trial for Duggan as an Australian.

The senator also highlights that Duggan’s incarceration has been the subject of a complaint to the UN Human Rights Council and the Joint Standing Committee on Treaties, and on being investigated by the Inspector General of Intelligence and Security it was found that one aspect of ASIO’s involvement in the Duggan extradition case had transgressed protocol.

“I urge you on behalf of the Australian people to undertake your duty with diligence and consideration for this Australian family and for the rights of Australian citizens,” Shoebridge said in signing off to Dreyfus on Monday.