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Deprived of a public interest defense by an Australian court, former military lawyer and whistleblower David McBride pleaded guilty to offenses that stemmed from his disclosure of documents related to the war in Afghanistan.
McBride’s attorney Mark Davis told the press that the court and government had hamstrung McBride from putting crucial evidence before a jury. The court also had limited what could be said to the jury, determining that a soldier has a duty to follow orders even if it may violate their oath.
“It is a sad day and a difficult day for us to advise David on his options,” Davis added, mentioning that there may be an option for an appeal.
McBride, who was advised not to speak about anything related to his case, offered a simple statement. “I stand tall, and I believe I did my duty. I don’t see it as a defeat. I see it as the beginning of a better Australia.”
Sarah McBride, his wife, said their family had been through a “very long battle both financially and emotionally.”
“Our two girls have been through a helluva lot, more than anyone should be going through,” Sarah shared. “I’m not giving up hope. He’s done the right thing. I’ve said that from the beginning.
David served in the Royal Australia Regiment and Australia Special Forces. He was deployed for two tours in Afghanistan and later submitted an internal complaint against what he witnessed in the war. That complaint led to harassment and intimidation.
From 2014 to 2016, David shared classified documents about Australia’s involvement in the Afghanistan War with the Australia Broadcasting Corporation (ABC). The documents, which were published as “The Afghan Files,” garnered quite a lot of attention. The Australia government responded by raiding the ABC offices and targeting David with an espionage prosecution.
The three charges he pleaded guilty to on November 17 involved allegations from the government that he stole the Afghanistan War documents and “unlawfully shared” the information.
David McBride was prepared to go to trial and had long awaited the moment when he could go before a jury and discuss what motivated him to become a whistleblower.
Throughout the week, Consortium News and its editor-in-chief Joe Lauria reported from court in Canberra.
The first day, as Lauria detailed, the prosecution insisted “that McBride broke laws of military discipline by leaking to the Australian media. McBride’s lawyers conceded in court that he indeed broke such regulations but that he had a duty to the nation that superseded military discipline.”
Argument over whether a soldier had a duty to reveal the truth about war crimes or a duty to his superior officers occurred on the second day. “Trish McDonald, the chief prosecutor, said the concept of duty in the law says it is not in the public interest to reveal classified information to the public. McBride’s primary duty, she said, was to follow orders,” Lauria reported.
The trial judge ruled in favor of prosecutors that McBride had no obligation to challenge any criminal misconduct that he witnessed. McBride’s defense appealed because it was their position that if the jury was allowed to apply a “public interest test” then they would likely recognize that "circumstances might arise in which" simply following orders was "not in the public interest.”
After the ruling was upheld by Australia’s Supreme Court, as Lauria documented, the development practically foreclosed any possibility of a fair trial before a jury.
"The Nuremberg Tribunal that tried Nazi war criminals established that a soldier had a duty to disobey unlawful orders,” Lauria contended. “ The ruling of both judges that the Australian military is not responsible to the public underscores the fundamentally undemocratic nature of the military, rooted still in 19th Century thinking, when soldiers could not vote and had no democratic rights.”
McBride’s case is yet another example of how key allies of the United States government follow the example of U.S. prosecutors when it comes to criminalizing whistleblowers for the disclosure of information.
No whistleblower prosecuted under the Espionage Act in the U.S. is allowed a public interest defense.
Finally, Australia Prime Minister Anthony Albanese has spoken out against the U.S. case against Australian WikiLeaks founder Julian Assange, even raising the matter in meetings with President Joe Biden. However, when it comes to McBride, Albanese has not urged prosecutors to spare him.
Albanese has instead catered to U.S. security officials, who undoubtedly appreciate Australia prosecutors for making an example out of him. They definitely do not want any Australian to get the idea that they may legally expose military matters that implicate the U.S. in misconduct and avoid a prison sentence.