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The David McBride Case: Whistleblowing, Afghanistan and Australian War Crimes

Much complaint can be had of the “Inspector-General of the Australian Defence Force Afghanistan Inquiry Report”. It exempts political actors of responsibility for alleged atrocities and war crimes. It suggests that those in the highest echelons of the Australian Defence Forces are ignorant of incompetent innocence. It spares the desk warriors and flays the field operatives. Heavily redacted, this document suggests that no serious cleansing of the Augean stables is going to take place any time soon.

One recommendation in the report does stand out for its logical decency. “Perhaps the single most effective indication that there is a commitment to cultural reform is the demonstration that those who have been instrumental in the exposure of misconduct, or are known to have acted with propriety and probity, are regarded as role models.”

Unfortunately, we have no way of knowing who the people being recommended for promotion or pardon are, their names furiously blacked out in the public version of the report. But hints can be gathered from the explicit reference to the role played by whistleblowers. “Too often, not only in the military, have the careers of whistleblowers been adversely affected.”

One such whistleblower is Major David McBride, who once cut his teeth as a military lawyer and participated in two deployments to Afghanistan. Between 2014 and 2016, McBride passed on information to the ABC on alleged war crimes committed in Afghanistan by Australian soldiers. It began with the gathering of files from computers located in the joint-operations headquarters near Bungendore, east of the nation’s capital. A report documenting alleged atrocities by special forces in Afghanistan came into being, though it bulked to cover the mishandling of sex abuse allegations within the military, and the treatment of women in the armed forces. Avenues of internal disclosure were used, and exhausted. McBride even sought to tempt the Australian Federal Police. No one bit.

In 2017, the material gathered by McBride became the trove of documents and revelations called “The Afghan Files”. They were disturbing, enlightening, and did much to expose the whole sordid business of committing special forces to such theatres of war as Afghanistan. But McBride’s view on the information was more panoramic and less specifically focused on the minutiae of brutality. Australia’s special forces, he suggested in what can only be regarded as an eternal theme, were scapegoats for desk-bound commanders and bureaucrats. While soldiers killed and bled in the field, the pen pushers back in Canberra thrived. “It’s a real sickness we need to work on,” he told the Sydney Morning Herald in June 2019. “Everyone has an opinion poll. No one wants to make a decision.”

In that sense, McBride remains conventional, keen on proper process, and far from a garlanded peacenik. He stares at officialdom, finds them wanting: they want to send soldiers to war, but in doing so, hobble them. “If you are worried about Afghan deaths, why not pull us out? If you want us to fight the war, you have to be able to let us do it.”

For his deeds, McBride faces five charges centred on theft of Commonwealth property, breaching the Defence Act, and disclosing information without due authorisation. In a preliminary hearing in 2019, he pleaded not guilty to all charges.

His case has put a few Australian parliamentarians in a sour mood, though not those of the major parties, who remain characteristically cowed and cowardly on such subjects. The well-meaning and often sound independent MP Andrew Wilkie is entirely clear about what should happen to McBride. “The federal government must stop going after whistleblowers who risk everything to reveal what happens in dark corners.” To that end, the government “must drop all charges against Mr. McBride.”

Senator Rex Patrick, another independent, has also urged the Commonwealth Director of Public Prosecutions to drop the charges. McBride “is a hero” and in the absence of the CDPP failing to drop the case, “the Attorney-General should order the discontinuance of the prosecution under the powers afforded him by section 71(1) of the Judiciary Act.”

Nick Xenophon, law partner of the firm representing McBride and himself a former federal parliamentarian, is also a standard-bearer for whistleblowers. In an open letter to the chief of the Australian Defence Forces, General Angus Campbell, he argued that it was only “whistleblowers like McBride and a handful of others who made the Brereton report possible by refusing to be intimidated into silence. In my view, they have redeemed the reputation of our nation. They do not deserve jail cells.”

The answer supplied by General Campbell was nothing if not predictable. When called upon to have a view on the subject of McBride’s liability, he retreated to the bunker of dispassionate propriety. “I can’t speak to issues at play in a current court process,” he explained to the press last month. “I am not in a position to do so. I understand your concern and I appreciate that many here will speak to that issue, but I am not able to talk to it.”

A petition started by Afghan Australian lawyer Arezo Safi, is bustling away to its intended target of 50,000. (To date 38,552 have signed it.) “As an Afghan-Australian and a lawyer, I am deeply upset by the persecution of David McBride, the brave whistleblower who exposed Australian Defence Force’s war crimes in Afghanistan.” Democracy, she claims, is at stake without the exploits of McBride and his like.

Support is also forthcoming from the Afghan Community Support Organisation of New South Wales. In commending the efforts and findings of the investigation, its president, Nadir Azami, wanted the government to “go all the way and finish this goodwill and drop charges against Mr. McBride.” Doing so would show “good intention” in supporting future whistleblowers.

Safi is dedicated in her advocacy for McBride, certain that he is “being celebrated for his bravery by the general public.” But the approach to whistleblowers in Australia is at best fickle. The system of protections are perniciously poor for those exposing national security information. The best McBride can hope for at this point are sensible decisions made by the CDPP based on the public interest, a concept regularly used against, rather than for, the whistleblower.

Should the matter ultimately wind its way to the Attorney-General Christian Porter, advocates for McBride will have every reason to be perturbed. Porter is a dreary authoritarian who relishes the prosecutor’s garb. He has already given a clue to fellow parliamentarians on what members of the public can expect. Intervening in the McBride case “would be utterly extraordinary and would necessarily, by its very nature, represent political intervention in a process which has conventionally been independent.”