A Brutal Punishment: The Sentencing of David McBride
Sometimes, it’s best not to leave the issue of justice to the judges. They do what they must: consult the statutes, test the rivers of power, and hope that their ruling will not be subject to appeal. David McBride, the man who revealed that Australia’s special forces in Afghanistan had dimmed and muddied before exhaustion, committed atrocities and faced a compromised chain of command, was condemned on May 14 to a prison term of five years and eight months.
Without McBride’s feats, there would have been no Afghan Files published by the ABC. The Brereton Inquiry, established to investigate alleged war crimes, would most likely have never been launched. (That notable document subsequently identified 39 instances of alleged unlawful killings of Afghan civilians by members of the special forces.)
In an affidavit, McBride explained how he wished Australians to realise 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.” Furthermore “soldiers were being improperly prosecuted as a smokescreen to cover [the leadership’s] inaction and failure to hold reprehensible conduct to account.”
For taking and disclosing 235 documents from defence offices mainly located in the Australian Capital Territory (ACT), the former military lawyer was charged with five national security offences. He also found Australia’s whistleblowing laws feeble and fundamentally useless. The Public Interest Disclosure Act 2013 (Cth) provided no immunity from prosecution, a fact aided by grave warnings from the Australian government that vital evidence would be excluded from court deliberation on national security grounds.
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.”
At trial, chief counsel Trish McDonald SC, representing the government, made the astonishing claim that McBride had an absolute duty to obey orders flowing from the oath sworn to the sovereign. No public interest test could modify such a duty, a claim that would have surprised anyone familiar with the Nuremberg War Crimes trials held in the aftermath of the Second World War. “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 consulted: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”
ACT Justice David Mossop tended to agree, 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 shocked many of McBride’s supporters. 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 “was unable to operate within the legal framework that his duty required him to do.”
The judge was cognisant of the Commonwealth’s concerns that disclosing such documents would damage Australia’s standing with “foreign partners”, making them less inclined to share information. He also rebuked McBride for copying the documents and storing them insecurely, leaving them vulnerable to access from foreign powers. For all that, none of the identifiable risks had eventuated, and the Australian Defence Force had “taken no steps” to investigate the matter.
This brutal flaying of McBride largely centres on clouding his personal reasons. In a long tradition of mistreating whistleblowers, questions are asked as to why he decided to reveal the documents to the press. Motivation has been muddled with effect and affect. The better question, asks Peter Greste, executive director of the Alliance for Journalists’ Freedom, is not examining the reasons for exposing such material but the revelations they disclose. That, he argues, is where the public interest lies. Unfortunately, in Australia, tests of public interest all too often morph into a weapon fashioned to fanatically defend government secrecy.
All that is left now is for McBride’s defence team to appeal on the crucial subject of duty, something so curiously rigid in Australian legal doctrine. “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.
John Kiriakou, formerly of the Central Intelligence Agency, was the only figure to be convicted, not of torture inflicted by his colleagues during the clownishly named War on Terror, but of exposing its practice. McBride is the only one to be convicted in the context of alleged Australian war crimes in Afghanistan, not for their commission, but for furnishing documentation exposing them, including the connivance of a sullied leadership. The world of whistleblowing abounds with its sick ironies.
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10 comments
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Max Gross -
paul walter -
GL -
Lyndal -
Terence Mills -
leefe -
Lyndal -
Clakka -
Douglas Pritchard -
Clakka
Return to home pageJust one more reason I won’t vote Labor again
Dreyfus is less use than tits on a bull.
A nasty warning to other potential whistleblowers. Labor is slowly but surely turning into Liberal Lite. I suppose if Scummo and crew had been in power McBride’s sentence would have been a lot harsher (not that that is much consolation to the man).
I don’t see the relevance of comments declaring “I won’t vote Labor” because of this. I presume that all blame is being laid at the feet of Attorney-General Dreyfus because it would have been easy for him to have the prosecution dropped in this case.
But the problem we have is that judges are declaring Public Interest is limited by the legalities and required to be subservient to slavish obedience to orders. There is no acceptance that individuals should act according to conscience, and it is clearly implied that they must in fact ignore wrong-doing even at the level of criminal acts.
I hope McBride’s legal team is able to put forward a successful argument that establishes that there is a duty beyond protecting government secrecy.
Well said, Lyndal.
The judge is acting within the parameters of the law as it currently exists and the Attorney General is constricted by the separation of powers.
Clearly we need to review these laws ; personally I was surprised that the sentence was not wholly suspended and I expect that we will see a vigorous appeal.
So, does this mean that “I was just following orders” is, iin fact, a valid defence in Australia? Regardless of the (alleged) crime?
Leefe, It now seems that “following orders” is most definitely a valid defence, and it has become a criminal act to attempt to counter or publicise wrongdoing
Well put article Dr Binoy,
and well said Lyndal.
As for Mossop’s comment … possessed by a mania with the correctness of his own opinions, on the face of it appears to be an horrendous judgement upon a man that was in the know, a man that sought the proper exercise of justice within the orbit of the powers that be, and was ignored. And a man that nevertheless pursued justice at huge personal cost and agony over six years. And a man that at last resort, brought to public light egregious matters of mal-administration, subversion, and execution of service contrary to domestic and international law and conventions of war. In anybody’s book this is not mania, but determination to see justice done.
Had McBride not done so, there would have been no test of the matters, uncovering of countless wrongs, and public acknowledgement of those wrongs and a path to compensation of the victims. The fog of war would have remained in place, albeit, it appears to have thickened and concealed breach of duties to Oz citizens and the crown (Constitution) from those at the the top down.
As for Dreyfus’ duties as Oz top legal officer, it seems he had little alternative but to protect the documents, and to allow the process of law and the judiciary to take place – a process that is not yet exhausted. Albeit, yet again, the very complex matter of whistleblower protection is screaming out to be resolved and put in place – an undertaking made by Labor and Dreyfus to Oz citizens. It also speaks loudly to the urgency for completion of reform of some of the world’s worst dysfunctional entanglements in judicial, policing and penal processes under Oz ‘secrecy’ provisions, especially as it seems they have been so frequently perverted by political bias.
As for the ABC, Oakes, Morris et al, it seems they principally went at the acts in the field, with only lip service to the matters at the top, which was in disregard to McBride’s aim and intent. It seems they hung McBride out to dry. They have done little but shed crocodile tears, and almost nothing to expand on the top down issues which now appear to remain a deepening murk of networked obscurantism, jobs for the aligned top boys, and little if any accountability.
Where does this leave the Oz citizens? With an unresolved impression that there’s a network of foxes in the public hen house casting shadows over propriety by the likes of Mossop’s allegation of McBride’s “mania”.
Like the war in Afghanistan, little has been achieved except an increase in treachery against citizens.
Since truth telling in our legal system can put you in clink when humans are doing the judgement, it is time to herald a radical change in the way justice is delivered.
I suggest we hand over decisions of this nature to AI, because it certainly cannot be any worse than what goes on now.
We have simply handed over to the master in this “democratic” master/slave, “Rules based”, “Global north” World..
Yes DP, AI might be a way, but maybe we could revert to the medieval method of pointing the finger, and the madding crowd calling out AU were coming for you.
PS:
It’d be like mining the articulation of blancmange digging into judge Mossop’s experience and wrangling of matters where ‘mania’ may be attributed.
Recently I listened to ABC RN Big Ideas, where Anna Manne was interviewed about her new book Crimes of the Cross about the slow and agonizing process of breaking the network of sexual abuse by the Anglo-Catholic clergy in Newcastle region initially. In the first court hearing, the judge castigated the victim alleging the claims were a fantasy impossible to reconcile. The police had failed to act, just shelving complaints. And in the case of one determined victim, who wrote to every politician in Oz, seeking action, the vast majority, including the NSW premier, turned their back on the matter, ‘running a mile’. It was not until finally a Royal Commission was put in place that the horrors were unraveled across the entire country. Typically it was per the situation surrounding Newcastle where it was a top-down process of blackmailing aspirational tyros into membership by favor, and the exercise of raw power by a small circle of elite within the churches hierarchies, and also the charming and playing of lawyers and other ‘important’ community and bureaucratic influencers in the halls of gentleman’s clubs.
We all know how it unwound, albeit, despite a raft of new legislation, it’s still going on in the shadows. So much for the separation of powers.
Back to McBride, here’s a lay person’s take on the network of foxes and the entanglements … so frequently perverted by political bias: