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Afghan war crimes whistleblower David McBride sentenced to prison

by Michael West | May 14, 2024 | Government, Latest Posts

In a landmark day for the ‘system of justice’ in Australia, Afghan war crimes whistleblower David McBride has been sentenced to jail. Michael West reports.

This is a momentous day for the system of justice in Australia. David McBride, the Afghan war crimes whistleblower has been packed off to prison for 5 years and 8 months – a non-parole period of 27 months.

He endangered no lives. He was not involved in the murder of 39 Afghan civilians by the Army. Its generals remain decorated, off scot free. Army command and Defence chiefs have taken no responsibility.

McBride had complained through the requisite Army channels but his complaints about proper legal process fell upon deaf ears. This is essentially an administrative story where a lawyer saw failure in legal process, was rebuffed when he tried to go through the right channels, and eventually went to the press to reveal the failure. Then had his life destroyed.

Do a soldier’s orders trump a lawyer’s public duty? David McBride sentencing reserved

David was charged with stealing documents and ‘communicating’ them to journalists. He stole them as an act of public duty, he said at his sentencing hearing, in the belief that he would be vindicated for acting in the public interest.

What a double standard we face. Big 4 consultancy PwC stole secret govt documents. PwC partners were not charged with stealing documents. The firm stole them for personal profit for the partners. Who is the traitor? Who is the enemy of the state? The whistleblower acting from public duty, or the PwC cabal acting for personal profit?

PwC stole these secret government documents – while working confidentially with the government for large consultancy fees, gave them to foreign MNC companies to rip off Australia to the tune of hundreds of millions of dollars in tax, refused to comply with the demands of Australia’s Parliament to release information – and after a year of rough publicity, has now been rewarded by going back into government consulting.

The problem with PWC and the Big 4 – treason is the business model

McBride, on the other hand, has spent five years awaiting the hangman’s noose. He has done his time already. Now a family is deprived of a father. 

The case is likely to be appealed as there are important precedents set by J David Mossop’s decision last November. The appeal is likely to be on grounds that this guilty decision was too narrow and would only conceal war crimes in future. 

Does an army lawyer have a duty to simply obey orders or a higher duty to justice and the public interest? The Nuremberg trials found that “I was just obeying orders” was not an adequate defence.

Afghan war crimes whistleblower David McBride says the latter – public interest and truth should prevail. That’s why, he says, he leaked sensitive information to the media about the carriage of legal affairs in the Defence Force.

The leaks led to the ABC’s Afghan files story, and the Brereton Inquiry later found 39 Afghans were illegally killed during the war. Those responsible have never been prosecuted, and the Army command has not taken responsibility. Rather McBride, the whistleblower, has been prosecuted. 

Do a soldier’s orders trump a lawyer’s public duty? David McBride sentencing reserved

But David McBride was never given the chance to argue his case as Justice Mossop struck out his public interest defence late last year. McBride suddenly had no case to present and was compelled to plead guilty, and now he is off to jail.

Yet it is not only David McBride on trial, it is the system of justice.

What kind of justice is it where a whistleblower is tried, yet all of his superiors, the decorated generals and army command, get off scot free for Australia’s war crimes in Afghanistan?

What kind of justice is it where McBride is denied the opportunity to put his case in an open court of law, being forced rather to plead guilty to government charges but with no resort to the most basic legal right of pleading his case?

And what kind of justice is it that allows a whistleblower to be tried and convicted while the actual war crimes go un-prosecuted, while dozens of incidents go entirely unpunished, untested in court?

What kind of justice is it where an extravagant defamation circus of Ben Roberts-Smith, a $40m circus of prancing silks and media titans – a civil trial – spilt daily evidence of war crimes, yet it is the whistleblower who faces the criminal proceedings?

What kind of justice is it where Defence can outsource its SAS black ops to a secretive private operator, Omni Executive, while an employee of the state trying to expose administrative failures can face criminal trial?

Off the Books: how the Army privatised SAS elite to dark ops outfit Omni

Postscript: The Tax Office hit Lendlease this week with a demand for $112m for its ‘double-dipping’ tax scam – a billion-dollar fraud. The whistleblower, former tax lawyer Tony Watson, remains in limbo, fighting to keep his home. Australia needs whistleblower protections that work.

Lendlease whistleblower and lawyer Tony Watson – the law is failing to protect whistleblowers

Michael West established Michael West Media in 2016 to focus on journalism of high public interest, particularly the rising power of corporations over democracy. West was formerly a journalist and editor with Fairfax newspapers, a columnist for News Corp and even, once, a stockbroker.

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