Former Australian military lawyer David McBride has one notch in history to his name: he revealed that Australia’s special forces in Afghanistan allegedly committed atrocities in a chain of compromised command, within a culture of exhaustion and ethical corrosion, and in circumstances where decision makers were seemingly spared from administrative of criminal discipline. For that, he has paid a hefty price. On May 14, he was informed that he would serve a prison term of five years and eight months.
In the course of his prosecution, McBride explained that ‘Afghan civilians were being murdered and that Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour’. He also had another concern, one closer to his understanding of service: ‘soldiers were being improperly prosecuted as a smokescreen to cover [the leadership’s] inaction and failure to hold reprehensible conduct to account.’
235 documents were said to have been taken by McBride and passed on to the ABC. The Public Interest Disclosure Act 2013 (Cth), when most needed, proved useless in not shielding McBride’s efforts, largely due to government threats to restrict the production of sensitive material in court. The trick, as it were, is a known one in the realm of national security prosecutions: prevent the disclosure of vital material relevant to a case, and see your opponent’s position collapse for want of treasured material.
At trial, Trish McDonald SC, counsel representing the government, proposed a view isolated and alien to international jurisprudence, in so far as it suggested that officers and soldiers are meant to follow orders without qualification and equivocation in all circumstances. Her submission could even be described as nostalgic, a colonial throwback to duty.
The claim that McBride had an absolute duty to obey by virtue of his oath being given to the sovereign has a musty, monument feel to it. For anyone acquainted with the Nuremberg War Crimes trials held in the aftermath of the Second World War, this was most peculiar. ‘A soldier does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.’ To justify such a specious argument, authorities from the 19th century were adduced in court: ‘There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.’ The retort here is surely clear: There is something very dangerous about a disciplined army ready to violate the laws of war without question and heed to the consequences of doing so.
ACT Justice David Mossop agreed with the prosecution, declaring that, ‘There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order’. A valiant effort was subsequently made by McBride’s counsel, Steven Odgers SC, to test the matter in the ACT Court of Appeal. Chief Justice Lucy McCallum heard the following submission from Odgers: ‘His only real argument is that what he did was the right thing. There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?’ The answer from the Chief Justice was curt: Mossop’s ruling was ‘not obviously wrong.’
With few options, a guilty plea was entered to three charges. Left at the mercy of Justice Mossop, the punitive sentence was lacerating. The judge thought McBride of ‘good character’ but possessed by a mania with ‘the correctness of his own opinions’. He suffered from a ‘misguided self-belief’ and proved ‘unable to operate within the legal framework that his duty required him to do’.
'Australian military doctrine, not to mention the shambolic whistleblower laws covering the disclosure of national security information, require considerable airing and revision. The findings reached at the Nuremberg trials, and the operating doctrines at the International Criminal Court, need to be incorporated as a matter of urgency.'
The judge acknowledged the Commonwealth’s concerns that disclosing such documents would damage Australia’s standing with ‘foreign partners’, making them less inclined to share information on delicate subjects. Such grounds, however, are almost never verifiable, and ignore the constancy of diplomatic and security relations between allied partners.
He also rebuked McBride for copying the documents and storing them insecurely, leaving them vulnerable to access by those linked to foreign powers. Despite the lashings given to McBride, no identifiable risks had eventuated from his conduct. It was also confirmed that the Australian Defence Force had ‘taken no steps’ to investigate the matter.
Australian military doctrine, not to mention the shambolic whistleblower laws covering the disclosure of national security information, require considerable airing and revision. The findings reached at the Nuremberg trials, and the operating doctrines at the International Criminal Court, need to be incorporated as a matter of urgency. ‘We think it’s an issue of national importance, indeed international importance, that a western nation has such as a narrow definition of duty,’ argued his defence lawyer, Mark Davis.
Through the process, the Attorney-General, Mark Dreyfus, could have intervened under Section 71 of the Judiciary Act 1903 (Cth), vesting the top legal officer in the country with powers to drop prosecutions against individuals charged with ‘an indictable offence against the laws of the Commonwealth’. Dreyfus refused, arguing that such powers were only exercised in ‘very unusual and exceptional circumstances’.
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There are certain parallels with another whistleblower who, in disclosing the abusive acts of an agency, found himself being the only figure convicted for doing so. John Kiriakou, formerly of the Central Intelligence Agency, ran afoul of US national security law, not for torture inflicted by his colleagues during the clownishly named War on Terror, but for exposing the fact of its commission. To date, McBride is the sole individual to be convicted in exposing the nastiness of the Afghanistan campaign by Australian special forces. He joins, in that sense, a noble but atrociously persecuted line of individuals who have enabled the public, in whose name crimes are committed, to know that the emperor of war lacks clothes.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He currently lectures at RMIT University.
Main image: Chris Johnston illustration.