Free David McBride and protect whistleblowers

19 May 2024
Nicholas Carlton

David McBride, a former military lawyer, has been sentenced to five years and eight months behind bars for providing files to the ABC that revealed Australian Defence Force (ADF) war crimes in Afghanistan.

In 2017, ABC journalists Dan Oakes and Sam Clark used the documents McBride provided to produce the Afghan Files, a seven-part series of articles about alleged unlawful conduct by Australian special forces. The incidents exposed in the Afghan Files are chilling. For instance, the killing of an Afghan man, Bismillah Azadi, and his six year old child in their home. In another incident, an unarmed Afghan detainee alone with an Australian soldier was shot dead after allegedly reaching for the soldier’s weapon.

The Afghan Files increased the public scrutiny over how the war in Afghanistan was being waged. McBride’s disclosure led to an inquiry by the Inspector-General of the ADF into alleged war crimes. The investigation produced the Brereton Report, which revealed that 39 civilians were unlawfully killed by soldiers in the Special Air Service Regiment (commonly known as the SAS). The report makes clear that these were not difficult decisions made “in the heat of battle” but rather situations where the victim was clearly a non-combatant. Soldiers were documented placing guns on dead bodies to give the appearance that they had been armed.

To date, no one has been prosecuted for any of the illegal killings documented in the Brereton Report. In fact, some of the soldiers implicated in the report continue to serve. This means that the first person to be jailed regarding war crimes in Afghanistan is the person who exposed the war crimes in the first place.

McBride’s courage is remarkable. But the reason he shared the documents was not to expose the war crimes. McBride leaked the documents because he felt that the ADF leadership were excessively investigating and wrongly accusing soldiers.

When writing the Afghan Files, Dan Oakes felt he couldn’t tell that story. In his words, “The more I looked into it, I couldn’t conceive how anyone would think these guys [SAS soldiers] were being too tightly monitored. It was precisely the opposite ... What happened out in the field stayed in the field”, reported ABC’s Four Corners.

McBride should be pardoned both because the information he provided was essential in uncovering the many crimes of the ADF in Afghanistan, and because of the effect his sentence will have on other potential whistleblowers. He is being punished to deter others from exposing wrongdoing within the Australian government. Many will likely remain silent as a result of this verdict. The appallingly censorious treatment of the Afghan Files was displayed in 2019 when federal police raided the Sydney headquarters of Australia’s public broadcaster in search of the leaked documents.

In justifying the extreme sentence for McBride, Justice Mossop said that “it’s important to deter others from such conduct” and that whistleblowers “must know that breaching their legal obligations ... will be met by significant punishment”.

McBride argued that he should receive whistleblower protections. However, documents McBride relied on to argue he had made a public interest disclosure were withheld after intervention from Commonwealth lawyers on the basis that if released, they had the potential to jeopardise “the security and defence of Australia”.

Nothing about the invasion of Afghanistan was about the security or defence of ordinary Australian citizens. The US government conceived of the invasion as the first step in a broader military intervention in the Middle East to cement US dominance in the region. Australia happily jumped on board with this depraved vision.

Under the Judiciary Act, Attorney-General Mark Dreyfus had the power to stop the prosecution of McBride, but declined to do so stating that he would only use the powers in “exceptional circumstances”. Dreyfus is correct: as Labor’s support for Israel demonstrates, there is nothing exceptional about the Labor Party defending or prosecuting imperialist wars in the Middle East. It did, after all, support the invasion of Afghanistan.

The war on Afghanistan left a devastating toll. According to the Watson Institute at Brown University, 176,000 lives were lost, 26 percent of whom were civilians. The politicians who initiated the war, the soldiers who committed horrendous war crimes and the military generals who turned a blind eye or encouraged such behaviour are the real criminals. Not David McBride.

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