The increasingly shabby treatment of former United States marine Daniel Edmund Duggan by authorities has again shown the Australian passport is not quite worth the material it’s printed on.
In January, Sydney’s Downing Centre Local Court heard that Australian Attorney-General Mark Dreyfus accepted a request from the US before Christmas to extradite Duggan.
Duggan holds Australian citizenship, but Canberra has often regarded this as irrelevant when it comes to the US-Australian alliance.
In a 2017 indictment, unsealed on December 9, Duggan, along with eight co-conspirators working at a South African flight school, is accused by prosecutors of using his expertise to train Chinese fighter pilots to land on aircraft carriers.
It is also alleged that the US State Department warned him to apply for written authorisation to train a foreign air force in 2008 — a requirement of the International Traffic in Arms Regulations.
The allegation is that he went ahead without securing authorisation, thereby breaching trafficking and arms control laws between 2009 and 2012.
Duggan has been held since October. He is being confined in conditions that suggest presumed guilt. His lawyer, Dennis Miralis, has stated at various points that his client is “presumed innocent under US law”.
Duggan’s wife, Saffrine, insists that her husband is “a victim of the United States government’s political dispute with China”.
This presumption has also been sorely tested by Duggan’s detention in a two-by-four-metre cell at the Silverwater Correctional Complex, which also houses convicted terrorists. Miralis can only assume that the New South Wales Department of Directions has been all too willing to follow instructions, delivered from on high.
Earlier this month, lawyers for Duggan made a submission to the United Nations Human Rights Committee (UNHRC) challenging these conditions. Their submission argued that the authorities failed to protect Duggan from “inhumane and degrading” treatment, failed to segregate him from convicted inmates, violated his right to adequate facilities to enable him to prepare his legal defence and denied his right to confidential communications.
The submission also references the assessment of a clinical psychologist who visited Duggan in the Silverwater prison. “The psychologist described Duggan’s conditions as “extreme” and “inhumane”. He advised that Duggan was at risk of a “major depressive disorder”. Another condition causing him further discomfort is benign prostatic hyperplasia.
Regarded as nothing more than contingent paperwork, citizenship is feeble in prosecutions of Australians by other allied countries. Canberra has often aided and abetted the undermining of citizens’ rights with a “good riddance” attitude, glad to be rid of supposedly bad apples.
During the “war on terror”, a ghastly response to the attacks on the US on September 11, 2001, Australian citizens Egyptian-Australian national Mamdouh Habib and David Hicks found themselves captured, rendered and left to decay in detention.
Habib’s arrest in October 2001 in Pakistan and subsequent detention for three years on suspicion of having prior knowledge of the September 11 terrorist attacks was a fantasy, encouraged by both US and Australia.
Despite the US expressing the view in January 2005 that it would not lay charges against Habib, the then Australian attorney-general and minister for foreign affairs were still adamant that Habib had prior knowledge of the attacks, had spent time in Afghanistan and trained with al-Qaida.
Hicks was sent to Guantánamo Bay in January 2002, after being captured in Afghanistan by the Northern Alliance. He then became something of a judicial guinea pig, the victim of a military commission system initially deemed by the US Supreme Court to be unconstitutional, unfair and illegal.
Particularly striking were the instances of premature adjudication and Australian calls that the US authorities do all they could to try and convict Hicks.
Then Prime Minister John Howard worried that Hicks, were he not to face a military commission trial in the US, would escape charges in Australia. He did not “regard that as a satisfactory outcome, given the severity of the allegations that have been made against him”.
Then foreign minister Alexander Downer even dared to claim that Hicks be grateful for not having a longer spell in US captivity. “He would have been there for years if it hadn’t been for our intervention.”
The subsequent plea agreement, reached in March 2007, under which Hicks pleaded guilty for “providing material support for terrorism”, meant he received a seven-year sentence, most of it suspended.
The remaining seven months of the sentence was served in Australia, which the UNHRC held to be a “disproportionate restriction of the right to liberty” in violation of the International Covenant on Civil and Political Rights.
The UNHRC also noted that Hicks “had no other choice than to accept the plea agreement that was put to him”, were he to escape the human rights violations he faced in Camp X-Ray.
The US Court of Military Commission Review set aside Hicks’ guilty plea and sentence on February 18, 2015. The judges noted that the charge of providing material support for terrorism should be vacated, given the Supreme Court ruling in 2014 that being tried for such an offence by a military commission was an “ex post facto violation”.
Whistleblower and journalist Julian Assange’s continued persecution at the hands of the US Department of Justice (DOJ) in Britain crowns this appalling resume of achievements by the Australian government.
Facing a preposterously broad application of the Extradition Act 1917, thereby imperilling national security journalism, Australia’s calls to drop the case have been weak.
The trend was set by then Labor Prime Minister Julia Gillard, whose response to Cablegate in 2010 was to presume Assange was guilty for having breached some regulation, despite failing to identify a single law to that effect.
Given this record, the Duggan case has an all too familiar feel to it. The training of Chinese pilots by veteran personnel from a Western country would hardly have raised a murmur when relations between Washington and Beijing were less acrimonious.
Hicks had also found he was in the crosshairs for once wishing to throw in his lot with forces that were once the anti-communist darlings of the US intelligence community.
If the Australian Security Intelligence Organisation’s (ASIO) fevered assessments are anything to go by, the only thing missing in Duggan’s extradition is the welcome card for the US DOJ.
ASIO Chief Mike Burgess, in his annual threat assessment, was eager to justify his agency’s bloated budget: “More hostile foreign intelligence services, more spies, more targeting, more harm, more ASIO investigations, more ASIO disruptions. From where I sit, it feels like hand-to-hand combat.”
Burgess shows an inability to understand why much of this is overegging paranoia. Academics, business figures and bureaucrats, in suggesting he ease up on ASIO’s foreign interference and espionage operations, could only offer him “flimsy” justifications, such as: “All countries spy on each other” and “We were going to make the information public anyway”.
Facing such a jaundiced worldview, Duggan’s future is bleak.
[Binoy Kampmark currently lectures at RMIT University.]