Has Four Corners done the Government’s dirty work in the David McBride prosecution?

Did ABC’s Four Corners undermine the war crimes David McBride helped to expose? And why are the generals, Army command, continuing to avoid scrutiny and responsibility for the war crimes in Afghanistan? Retired Australian Army officer Stuart McCarthy with the story.

More than five years and two million dollars in external legal fees after whistleblower David McBride was arrested for leaking the ‘Afghan Files’ to the ABC, the former Army lawyer is set to face sentencing in the ACT Supreme Court in May. Regardless of the sentence, McBride’s continued prosecution shreds the Albanese Government’s platitudes about improved government transparency, accountability and whistleblower protection.

But the saga also exposes serious problems with the legacy media. Monday night’s Four Corners hit-piece, billed as “the full story behind the Afghan Files,” exemplifies just how weak the self-righteous Fourth Estate has become in pursuing substantive stories that contradict the official spin.

The program drew an angry response from McBride’s lawyers Xenophon Davis which expressed dismay at the ABC’s timing to broadcast ahead of their client’s imminent sentencing. ABC had made a “solemn undertaking” not to run the McBride interviews prior to sentence. “They extracted the information they needed and dumped him and only return now as he awaits sentence to pour this venom on him”.

David McBride risked everything to help the ABC and Dan Oakes produce the ‘Afghan Files’. They got the applause and awards but barely glanced up when David was led away in chains. They have largely ignored his story ever since. They totally ignored our request for evidence they…

— XD LAW (@XDlawyers) March 25, 2024

What about McBride’s superiors?

After the ABC was raided by the Australian Federal Police in 2019, executive editor of ABC News and head of investigative journalism John Lyons wrote, “The real victim of a subservient media would be the public.” In truth, the ABC’s uncritical subservience to the official “we didn’t know” and “rogue soldiers” narratives is one of the main barriers to the public’s understanding as to why senior officials ultimately responsible for these events in Afghanistan are not being held to account.

They didn’t know, really? Pursue top brass over alleged war crimes in Afghanistan, says veteran

Command and superior responsibility for war crimes is a matter of criminal liability under international law. Despite the fact that some of the Afghan Files documents provide key evidence for last year’s referral of senior Australian officials to the International Criminal Court, the ABC has repeatedly refused to cover this aspect of the story. Instead, Four Corners falsely intimated McBride, who gave the documents to reporter Dan Oakes at his request, was seeking to inappropriately protect individual soldiers suspected of murder.

Defence scapegoating

What Oakes and Four Corners omitted is that by the time McBride deployed to Afghanistan in 2013, the chain of command, right up to Defence Chief David Hurley, was fully engaged in an arse-covering and scapegoating exercise. The leaked documents included amended rules of engagement, disseminated in the wake of a series of killings at Sola and Darwan villages the year before involving the same alleged perpetrator.

Oakes’ stories included coverage of both the amended rules of engagement and the Darwan killings, while the Sola killings were reported separately by Mark Willacy. Inexplicably, the ABC has consistently failed to connect these events, explain their context or properly convey their significance to the public. Thus the official narrative has prevailed, to the extent Willacy’s recent book is titled Rogue Forces.

Within days of the Sola raid, the Afghan government’s complaints about the civilian deaths to Hurley, Defence Minister Stephen Smith, and Prime Minister Julia Gillard were, in fact, splashed across the headlines of Australian and international news outlets, demolishing the “we didn’t know” narrative years before it even began.

Senior officials knew or should have known crimes were committed at Sola but failed to take reasonable steps to prevent further offences at Darwan. For example, suspending the alleged perpetrator from his field duties is a key element of command and superior responsibility under the International Criminal Court Statute.

Australia’s Afghanistan war crimes a serious challenge for Albanese government

Ben McKelvey, author of the seminal book ‘Find Fix Finish’ on the Australian special forces kill/capture campaign in Afghanistan, this week described the rules of engagement amendment as “face-saving BS,” concluding,

It was done so when the murders were public, the impression could be given that they did something. It worked on 4 Corners.

Rules of engagement typically require ministerial or even Cabinet approval. The Defence Minister was directly involved in decisions over the tactical deployment of Australian special forces in Afghanistan. Notably, seven of the Gillard Government ministers in Cabinet at the time of these events are now Albanese government ministers. The then Cabinet Secretary is now the Attorney-General who has refused to exercise his ministerial power to drop the unjust McBride prosecution.

Seven years after the Afghan Files stories and more than a decade after the government was publicly informed of apparent war crimes, members of that same government now have discretion over McBride’s fate. The ABC continues to ignore the question of government culpability, choosing instead to throw its source under the bus on the eve of his sentencing. Little wonder Oakes feels so ashamed, as should his ABC colleagues.

There could be no worse indictment on the integrity of a national broadcaster than to knowingly fail to hold a government to account over matters as serious as command and superior responsibility for war crimes. Beyond the reputation concerns of the whistleblower or journalist involved, Monday’s Four Corners piece constitutes exactly that. In essence, a compliant state media outlet doing its government’s dirty work under the pretext of independent journalism.

Mark Dreyfus, whistleblowers and the non-existent circumstances