Will Australian Leaders Extradite Dan Duggan to an Authoritarian USA?

Experts are describing the assault on the democratic institution of the separation of powers the newly incumbent Trump administration has embarked upon, via its executive order issuing bonanza over the last two months, as a “blitzkrieg on the rule of law”. But as it now stands, this country is still planning to hand over Australian Dan Duggan to the US to face dubious charges and a political trial.

The power grab that US president Donald Trump has been progressing since his 20th of January inauguration has further involved undermining the norms that underpin a democracy, as the executive has repeatedly been ignoring the rule of law and the courts.

The general understanding has been that once the White House ignores the authority of the judiciary then full blown authoritarian rule will be established, and with at least 37 court rulings attempting to block measures taken by Trump, having simply been ignored by the new administration, it now appears that authoritarianism has taken hold in the United States of America.

Despite these developments, however, former US marine Dan Duggan continues to be slated for deportation to the US, following Australian attorney general Mark Dreyfus having determined to provide the final greenlight right on Christmas 2024, with a court appeal currently the only thing standing in way of the father-of-six Australian kids being extradited to an authoritarian state.

Indeed, the Free Assange campaign prominently raised the potential for the then democratic US state to subject the WikiLeaks founder to an extreme prison regime whilst on remand awaiting trial, so clearly, with the concentration of power developing under the figure of Trump, Australian leaders can hardly guarantee that an extradited Duggan will be dealt in accordance with the rule of law.

Backroom diplomacy

Duggan has been remanded in prolonged isolation since the AFP arrested him in the NSW regional town of Orange in October 2022. A former US Marine pilot over the 12 years to 2002, Duggan was arrested on behalf of the US in relation to a 2017 Trump administration grand jury indictment, which charges him with having violated an arms embargo, conspiring to defraud and money laundering.

The indictment claims that the activities of now 56-year-old Duggan when working as a flight instructor at the Test Flying Academy of South Africa in 2012 were in breach of an International Traffic in Arms Regulations embargo on China, as he’d exported US defence services in the form of pilot training, which involved Chinese nationals, who are alleged to have been military personnel.

The extraordinary aspect to the Duggan extradition saga is the crime the White House charges him with was not a crime here at the time the jury sealed the indictment. Yet, section 19(2)(c) of the Extradition Act 1988 (Cth) requires dual criminality to progress extradition, which means the conduct constituting a criminal offence overseas must too be a local crime at time of the extradition request.

Duggan’s legal team led by renowned barrister Bernard Collaery has been raising the point that a US affidavit attached to the 2017 indictment outlines that the grand jury requested a tolling period, or a pause to the five-year statute of limitations relating to the alleged crimes, so that it could request evidence from the Australian government, and it was provided with a 629 day pause.

The tolling period commenced on 8 August 2016, and Australia provided its response on 14 March 2018. And as there is no explanation as to why this nation was consulted, the “reasonable inference”, according to Duggan’s lawyers, is that the pause was made to ensure that the necessary requirement of dual criminality was met under Australian law.

In the case of Duggan, dual criminality was met via section 83.3 of the Criminal Code Act 1995 (Cth), as it contains the crime of providing military-style training that involves a foreign principal, which is an offence that carries a maximum of up to 20 years imprisonment. However, this crime was not enacted into local law until 28 June 2018, long after the sealing of the 2017 US secret indictment.

Deterring democracy

A fundamental principle underpinning democracy is that of the separation of powers, which involves the different parts of government sharing power, whilst maintaining their independence, with each branch of government holding some authority over the other two branches to ensure that tyranny does not take hold.

The three branches of a government include the executive, which enforces the law. The Trump administration is the US executive. The second branch is the legislature, which makes the laws. In the US, the legislature is congress. And the third branch of the government is the judiciary, which is normally empowered to order the executive to reverse decisions, following judicial review.

The Trump administration continued to unlawfully deport 238 Venezuelan nationals on 15 March, claiming they were Tren de Aragua gang members. The deportees were sent to El Salvador to be held in the CECOT (Terrorism Confinement Centre) facility, via the Alien Enemies Act of 1798, after being ordered not to by the US courts and then refusing to reverse the decision after it was in progress.

The US president determined to deport the Venezuelan nationals despite a 15 March-imposed two week pause on the use of the Alien Enemies Act, in order to stop the deporting of people without any final removal orders from immigration judges, which was made by Washington-based US District Court Judge James Boasberg.

These developments have led commentators to state that the Trump administration has drifted into authoritarian rule, and if this general trend continues and he eventually has the loyalty of the judiciary, Trump’s rule may then be characterised as the more extreme concentration of power involved in a dictatorship.

And as Trump previously stacked the US Supreme Court with a majority in his favour during his last presidency, gaining the allegiance of the judiciary may not be so difficult for the new administration to achieve.

A re-evaluation of extradition necessary

The Albanese government greenlighted the Duggan extradition to the US whilst the Biden administration was still in office, and Trump, then president in waiting, was yet to reveal his authoritarian project in office.

AG Dreyfus gave his blessing to extradite Duggan, after the legal team led by Collaery had presented him with a submission detailing the tolling period evidence, which suggests that dual criminality was established long after the charges had been laid, with his final act in signing-off on the extradition being progressed after NSW Magistrate Daniel Reiss approved the procedure last May.

Assange’s lawyers repeatedly raised concerns over the potential for US authorities to incarcerate the Australian journalist under the extreme isolation and sensory deprivation of the SAMS (Special Administrative Measures) regime, which is supposed to be reserved for terror suspects, and the Free Dan Duggan campaign has too expressed its concerns that Dan could be placed under SAMS pretrial.

Duggan’s legal team commenced proceedings with the Federal Court of Australia in January, to appeal the recent attorney general decision to extradite the Australian father-of-six to the USA over the dodgy claims and suspect criminal charges contained within the secret 2017 Trump grand jury indictment.

The Free Dan Duggan campaign highlighted last week that as the Duggan’s continue to await the announcement of the appeal date, “there is still no clarity as to why the Australian government agreed to the US extradition request” and with stories now “circulating in the media about Guantanamo Bay, they are fearful of what could happen” to Duggan if released into US custody.

And the fresh question now emerging in respect of the Duggan extradition saga is that if the Trump administration continues to move down the path of authoritarianism, will Australian major party leaders, regardless of which side is in government, continue to consider it legitimate to hand over a local citizen to a nation undergoing a constitutional crisis, as it hurtles towards dictatorial rule.