Introduction and purpose:
This is the second post motivated by the Dan Duggan extradition proceedings. The first post was:
U.S. Australian Extradition Treaty: 1974 Original Treaty And 1997 – How Does It Apply To Dan Duggan?
Outline:
Part A – About U.S. Extradition treaties
Part B – Examples Of Using Extradition Treaties To Facilitate The Application Of U.S. Law:
Part C – Why countries really need to end their extradition treaties with the United States
Part D – The Dan Duggan Case – Why Australia Should Refuse Extradition
Appendix – Michael Lynch – AI – Who Would Have Imagined An Extradition Treaty Being Used In The Context Of A Private Contract?
Part A – About U.S. Extradition treaties
A principal purpose of U.S. extradition treaties is to facilitate the extra-territorial application of U.S. law. Significantly, Article II of the current U.S. Australia extradition treaty states:
“(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refuse extradition if a period of less than six months of imprisonment remains to be served.
(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.
(3) For the purpose of this Article, an offence shall be an extraditable offence:
(a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and
(b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.
(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all the other requirements of extradition are met.”
Clearly:
1. Whether an offence is extraditable is dependent on the length of the possible sentence.
2. The offence need NOT actually have been committed. Any of the incohate versions of the offence (attempts, etc) will suffice.
3. The alleged offence need NOT have been committed in either the requesting state or the requested state.
The Daniel Duggan indictment is framed in attempts, conspiracies, etc. that took place outside both Australia and the United States.
Note that – on the issue of “dual criminality” – Australia did NOT have a similar offence until 2018 (long after Duggan is alleged to have committed the extraditable offences.
Bottom line:
The U.S. uses extradition treaties to expand the extra-territorial reach of U.S. law. This is true in the Duggan case.
Part B – Examples Of Using Extradition Treaties To Facilitate The Application Of U.S. Law:
Conduct that took place in neither the U.S. or the “requested country”
– Victor Bout extradition (Russian arms dealer – arrested in and extradited from Thailand)
– Meng Whanzou extradition (arrested in Vancouver, BC for conduct that took place in Hong Kong)
Conduct that took place in the requested country
– Michael Lynch extradition (U.K. businessman)*
Part C – Why countries really need to end their extradition treaties with the United States
– the U.S. does not respect the spirit of the treaties (Anne Sacoolas)
– To comply with U.S. extradtion demands is to put the nationals of the requested state at risk (Dan Duggan, the two Michaels Michael Lynch)
– the extradition treaties disproportionately benefit the United States because the U.S. is the world leader in the extra-application of its laws.
– because of the penchant for the extra-territorial application of U.S. law, the extradition treaty partner will always give more than it receives
Part D – The Dan Duggan Case – Why Australia Should Refuse Extradition
Why the Australian government is entitled as a matter of law to refuse extradition …
Article I
Each Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offences mentioned in Article II of this Treaty committed within the territory of the other Contracting Party, or outside that territory under the conditions specified in Article IV of this Treaty.
JR Commentary: The 1997 protocol removed Article IV.
Article V
(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
(2) For the purposes of this Article –
(a) a reference to the executive authority of a Contracting Party shall, in the case of Australia, be construed as a reference to the Attorney-General of Australia;
(b) Australian protected persons shall be deemed to be nationals of Australia; and
(c) the nationality of a person shall be determined to be that which he held at the time when he was charged with the offence for which his extradition is requested.
JR Commentary: He was an Australian national at the time that he was charged. He was NOT a U.S. citizen when he was charged.
Article VII
(1) Extradition shall not be granted in any of the following circumstances:
(a) when the person whose extradition is requested is being proceeded against, has been tried and discharged or punished, or has been pardoned, in the territory of the requested State for the offence for which his extradition is requested;
(b) when the prosecution for the offence has become barred by lapse of time according to the laws of the requesting State; or
(c) when the offence in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offence of a political character.
(2) If any question arises whether a case comes within the provisions of subparagraph (c) of paragraph (1) of this Article, the requested State shall decide that question.
JR Commentary: Australia has the right to decide that the offence is of a political character.
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*Appendix – Michael Lynch – AI – Who Would Have Imagined An Extradition Treaty Being Used In The Context Of A Private Contract?
Michael Lynch, the former CEO of Autonomy, was acquitted in June of all criminal charges in a U.S. court related to the sale of his company to Hewlett-Packard (HP). The charges included wire fraud and conspiracy, and the case stemmed from HP’s allegations that Lynch misrepresented Autonomy’s financial health before the $11.7 billion acquisition. Following his acquittal, Lynch celebrated with a yacht trip, which tragically ended in a sinking and his death, along with several others.
Key details of the case:
The Allegations:
HP claimed that Lynch and his team engaged in fraudulent activities, including backdating contracts and inflating revenue, to deceive HP into overpaying for Autonomy.
Lynch’s Defense:
Lynch maintained his innocence, arguing that HP’s issues with Autonomy were due to their own poor integration and management of the company after the acquisition.
Acquittal and Celebration:
Lynch was acquitted on all charges after a lengthy trial, which he described as a “moment between two universes” according to the BBC.
Yacht Tragedy:
Following the acquittal, Lynch, his family, and friends were on a celebratory yacht trip in the Mediterranean when a severe storm caused the vessel to sink.
Civil Suit:
Despite the criminal acquittal, HP is still pursuing a civil case against Lynch’s estate for damages related to the acquisition
John Richardson – Follow me on X.com @ExpatriationLaw