Punishing the just

Binoy Kampmark
Tuesday, May 21, 2024

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”.

Excerpted: ‘A Brutal Punishment: The Sentencing of David McBride’. Courtesy: