Dan was provisionally arrested on 21 October 2022 and was held in solitary confinement for over 19 months. He remains in  maximum security.

Dan’s legal team did not formally receive any details of the indictment and why he was arrested until 22 December 2022 – the last working business day of the year and three days before Christmas and more than 60 days after he was provisionally arrested.

Dan himself did not receive any documentation about his charges until 28 December 2022.

While Dan and his legal team had no details of the indictment or allegations, aspects of the indictment were been leaked to the press in an apparent effort to manipulate the narrative.

The delay in receiving vital details of the indictment, which appear to be deliberate in nature, hindered his legal team to apply for bail.

During this entire time, Dan was held in harsh maximum security conditions and mysteriously and unprecedently was classified as an extreme high risk restricted inmate.  This severely limited Dan from contact with his family and legal team, making it nearly impossible to mount an efficient, unhindered and unmonitored legal defence.

Dan was held in solitary confinement until June 2024, in which he was then moved into general population. He remains in maximum security with convicted criminals.

Why is Dan being kept in the dark in such bad conditions?

Australian National University international law professor, Donald Rothwell said “a critical issue here is that the US is alleging offences against the state that extends to dealing with foreign interests. That is probably the basis on which the US has sought to have Duggan detained under these conditions.

“Nevertheless, it is ultimately for Australia to determine the conditions for detention for Duggan while he is in Australia, so that is a matter for Australian authorities and courts.”

When Dan’s remand conditions are questioned, a blame game ensues. The extradition is a matter for the Federal Government but the remand conditions are a matter for the NSW Government. Neither government wants to take responsibility for the fact that Dan is being held in conditions that breach United Nations rules.

Dan’s extradition fails several tests

The extradition request from US is based on the Treaty on Extradition between Australia and the United States of America treaty of extradition between the US and Australia. Most extradition treaties of this kind are criticized by legal professions the world over as being one of the most unfair areas of the law. 

The treaty does not require any evidence to be presented, only that the allegations come from law enforcement and that a formal administration process is followed.

These treaties are rarely used for allegations such as the ones levelled against Dan. Rather, they are designed to prosecute offenders of serious and violent crimes such as murder, rape and drug trafficking. Again, we believe this action is highly unusual, may be unprecedented and further raises suspicions about the political nature and timing of the arrest.

There are multiple arguments that Dan’s legal team will present to the Attorney-General, who will ultimately make the decision about Dan’s extradition:

1. There is a requirement of dual criminality which specifies Australia must have same law as the US that must be applied against Dan. In this aspect, there are no Australian charges against Duggan, nor have any Australians previously been charged with similar such offences. (For many years, Australian ex-servicemen  –  as well as their US colleagues – have supplied military services around the world. Most recently numerous Australians are currently in Ukraine)
2. Charges cannot be political in nature, which these allegations appear to be, as they are from acts alleged to have taken place more than 11 years ago. The charges coincide with the current political and strategic rift between the United States and China – back in 2010, Australia was participating in military exercises with China.
3. Daniel Duggan was an Australian citizen when the alleged training took place. The US indictment’s allegations of ITAR (International Traffic in Arms Regulations) breaches took place after March 2012. Dan became a sole Australian citizen in January 2012. ITAR does not apply to Australian citizens and the alleged conduct is not a crime in Australia.
4. There are fears that Dan may not receive a fair trial in the US due to his nationality. Julian Assange was granted an appeal in the UK based on this possibility (although it was untested) before his return to Australia.
5.  The US is NOT a signatory of OPCAT (Optional Protocol to the Convention Against Torture) like Australia. Their prison system and conditions have been widely criticised and have a poor record and high death rate. 

Australian National University international law professor, Donald Rothwell told the Sydney Morning Herald in February 2023 some of the crimes that Duggan is accused of are “very specific to US law and there is no Australian equivalent”.

“Double criminality is essential in all extradition matters,” Rothwell said. “It requires that the alleged crimes are ones mutually recognised in the requesting state and the requested state. The alleged crimes do not need to be exact duplicates in terms of the various elements of the offence and potential penalties. But they must bear similar core elements of the offence and potential penalties.”

International Lawyer, Human Rights advocate and veteran, Dr Glenn Kolomeitz said: “Unfortunately, in the US they say that a grand jury will ‘indict a ham sandwich’. I’ve torn the indictment of the grand jury in this case apart. It is riddled with inflammatory and irrelevant statements and the word ‘conspiracy’ 178 times alongside the word ‘China’, such that of course a grand jury is going to indict.

“What it doesn’t have is evidence linking Dan to those words. In fact, the indictment has so many holes in it, it’s a Swiss cheese and ham sandwich.”

“The extradition treaty is a disgrace, the Extradition Act is a disgrace, and the indictment is a disgrace.

“This is a very bad treaty and a very bad piece of legislation which is being exploited by the United States.”

On the allegation of money laundering, Canberra Barrister, Bernard Collaery said: “There is not a skerrick of evidence suggesting any concealed payments,’’ Mr Collaery said. “This is an opportunistic misuse of the term money-laundering as understood in the Australian legal system.”