Pearls and Irritations

The horrific incarceration of Australian Daniel Duggan, a political prisoner in his own country, will have lasted two years next week.

In that time he has been locked up in four different maximum security prisons, based only on untested allegations from the United States government. He has no charges against him in Australia and has never been in trouble with the law anywhere in the world; he has no history of violence.

The Duggan family as well as their friends and supporters now anxiously await the decision of Federal Attorney-General Mark Dreyfus to exercise his discretion to end this travesty of injustice and return Dan to his family so they can pick up the pieces of their lives.

Dan has unwittingly been caught up in the unacknowledged Cold War between China and the US and its close allies like Australia, a split super-charged by the AUKUS pact, apparently singled out from countless former military pilots plying their trade post-service. He has had his own human rights – as well as those of his wife and children – capriciously trampled by the Federal and New South Wales governments. He and his family have been forced to fight this case with one hand tied behind their backs after the US froze his wife Saffrine’s main asset, a NSW coastal property.

In late August, Dan’s legal team headed by barrister Bernard Collaery, filed a submission to Dreyfus under Section 22 of the Extradition Act. Collaery himself has been a well-known victim of injustice by Australia’s increasingly secretive and uncountable security apparatus and bureaucracy, with charges against him for acting for spy services whistle-blower Witness K.

Dan Duggan is fighting the extradition on a number of grounds, including a failure of due process by the United States, politically motivated charges and a lack of dual criminality which needs to be applied for the extradition to be validated.

The submission also presents evidence that Daniel Duggan was an Australian citizen when the alleged breaches of US law took place. United States citizenship lawyer, Rachel Self states that “on unchallenged facts Daniel Duggan lost his US citizenship on 26 January 2012.” His relinquishment of US citizenship was confirmed by a Certificate of Renunciation he received in 2016 that acknowledged he lost his US citizenship on 26 January 2012.

“The United States has provided no coherent argument in support of its claim to have sovereign control over Daniel Duggan as a sole Australian citizen after 26 January 2012,” the submission says.

It further notes that the US indictment that is the basis of the extradition request is based on 12 year old allegations that, even if proven, were not a crime in Australia. They also allegedly occurred at the time when our relationship (and that of the US) with China was very different than it is today.

After a thorough three month investigation, it has become increasingly obvious that the US case is seriously flawed and an abuse of process, and that key pieces of evidence have not been produced, examined or requested – including Dan’s flight log book.

Under Australia’s Extradition Act – written in haste by the Hawke government in 1988 against the recommendation of a bipartisan parliamentary committee, the allegations against Dan cannot be argued in the Australian courts.

The submission outlines multiple errors in the conspiracy count of the indictment, including categorisation of Dan’s motivational presentation “The Fighter Pilot’s Guide to Mission Success” delivered to corporates such as Toyota and Hewlett Packard.

The submission says “little if any of the claimed conspiracy is particularised. As matters stand, Count 1 is not only statute barred, but also vulnerable to strike-out as vague, embarrassing and oppressive.”

In order to sign off on an extradition dual criminality must be proven. But Dan’s legal team believe that the only equivalent crime in Australia that the Attorney-General may be able to rely on is a tentative and inaccurate link to a change to the criminal code in 2018, six years after the fact.

“This would mean that Dan is being retrospectively charged, that they changed the law years after the fact, essentially paving the way for Dan’s extradition. This is a worrying oversight in our Extradition Act with the US, that something only needs to be a crime when the US makes the extradition request, not when the alleged actions took place and not even when you are indicted for the crime,” the submission says.

Collaery says that the Attorney-General Dreyfus is “caught between the Hawke Government’s unquestioning Extradition Act, much criticised by the Law Council of Australia and US influenced Sinophobia.”

“No credible evidence in support of Washington’s ludicrous claims about Mr Duggan’s alleged Chinese aircraft carrier pilot training has been provided. The sinister aspect of Duggan’s two year detention in solitary confinement is that Australia agreed to give up one of its own citizens as part of secret AUKUS negotiations in which Australia reassured the US that Canberra can guard US secrets. The Duggan Case is about Australia’s increasingly flimsy national sovereignty,” he added.

In so many of these cases where individuals become pawns in geopolitical games, the families are all but forgotten.

Asked by the AG’s office to provide any further additions to the submission, Saffrine Duggan sent Dreyfus a heartfelt letter detailing the deep distress and damage caused to the family due to the government’s actions. She and the kids continue to live with her 80 year old father Rob on his property outside Millthorpe, near Orange in mid-west NSW. Their twin boys Rory and Finn, 18, are this week beginning their HSC exams under extremely sub-optimal conditions.

“Our (six) children range in age from our youngest, Ginger, aged 7, to Molly, our oldest at 20,” she wrote. “Words are not adequate to describe their distress at what has already happened to their father without any convincing explanations. The children are Australian, as I am. Dan is an Australian citizen. Their confusion that this could be happening here, and to a Dad like theirs, is matched only by their distress and fear. All now suffer from anxiety, panic, nightmares and a sense of grave insecurity about what it means to be Australian and to live in Australia.

“Our bright, loving children have unlimited potential to reach their dreams and live out their potential like any others. Please allow them to have this by growing up with their father. I grew up thinking how amazing Australia is. Please make the right decision and look after an Australian family – and Dan Duggan who took out citizenship here with such love for this country and for his Australian-born children.

“Removing their father will shatter their lives forever. I cannot express it more plainly than that. It will also destroy their faith in the justice system of Australia – as it will for so many who are bewildered by the “Dan Duggan story” and what possible purpose his incarceration and threatened extradition could serve.”

As the Duggans sweat on a decision from Dreyfus that his office has told people will “follow the process” but not be unnecessarily delayed, Collaery is understandably tight lipped on what happens if the government decides to sacrifice Dan to the US.

It’s also worth noting how long extraditions can drag on, referencing the case of Adriana Rivas, a retired Sydney nanny that Chile wants returned on charges of being one of former dictator Augusto Pinochet’s torturers but who remains here five years later. Cynics may say that Chile is not a major military power that pulls Australia’s security strings.

“We await the Attorney’s decision on our submission that comprehensively refuted the theatrical Trump era Grand Jury indictment that State Secretary Anthony Blinken should have had the good sense not to unseal. If the Attorney is obliged to bow to pro-US voices in Cabinet, a failing US democracy may be awakened by the power of our High Court to reassert the rule of law,” Collaery said.

Learn more about Dan’s case here

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