David McBride: Former Australian military lawyer who exposed alleged war crimes jailed for leaking documents


A former Australian army lawyer who leaked classified documents to journalists revealing details of alleged crimes committed by Australian special forces in Afghanistan has been sentenced to more than five years in prison, a verdict criticized by justice advocates freedom of the press, who believe that it sends a frightening message to potential whistleblowers.

Cries of “disgrace” rang out in the courtroom in Canberra, the Australian capital, on Tuesday as Judge David Mossop handed down the sentence against David McBride, a sanction described by his lawyer as “out of the ordinary” and dissuasive for anyone feeling motivated. to denounce wrongdoing.

“Anyone who watched what happened to McBride would do well to shut up, put their heads down and get back to work. That was pretty much the tone of today’s judgment,” lawyer Mark Davies said, adding that his client was “totally shocked” by the sentence and would appeal.

Tuesday’s sentencing ends a long legal battle between the former Army attorney and commonwealth prosecutors who filed charges against McBride over classified defense documents he admitted to stealing between May 2014 and December 2015.

McBride handed the material over to the Australian Broadcasting Corporation (ABC), which in 2017 published a seven-part series called “The Afghan Files”, which detailed a series of alleged war crimes, including the killing of unarmed Afghans by Australian soldiers in Afghanistan.

The ABC’s reporting was later confirmed by the findings of an investigation by the Australian Defense Force (ADF) which found credible evidence that members of the Australian Special Air Service (SAS) had committed crimes of war in Afghanistan between 2005 and 2013.

Known as the Brereton Report, the Afghanistan inquiry report found that members of the SAS had in some cases placed “throws”, or weapons and other material, near the bodies of civilians to suggest that they had been legally killed. McBride is the first person to be convicted of a criminal charge related to these accusations.

However, during the proceedings against McBride, the court heard that he had failed to bring the documents to the attention of the media to highlight the alleged war crimes.

In his ruling, Mossop said McBride complained that the soldiers were being investigated “even in circumstances where there was no chance that they had committed a war crime that is murder.”

McBride believed the soldiers were the target of an investigation “to address political concerns about civilian deaths.”

McBride had planned to argue he had acted out of a sense of duty to the Australian public, but at an earlier hearing Justice Mossop indicated he would not instruct the jury to that effect. McBride therefore pleaded guilty last November to three charges, including theft of Commonwealth property and violation of the Defense Act.

In its decision, Mossop acknowledged that McBride had not acted for profit or to aid Australia’s adversaries, but wrote that “the offender has no remorse and still considers that he did the good thing”.

“Self-confident and opinionated people who are under a legal obligation not to disclose information should be discouraged from disclosing information in order to assert their own opinions,” Mossop wrote.

“They must know that failure to comply with their legal obligations to maintain the confidentiality they are committed to protecting will result in severe sanctions. This is particularly true where that information is secret and its disclosure is likely to harm Australia’s national security,” the judge added.

McBride’s supporters called on Australia’s attorney general to drop the charges against him and reacted angrily to his conviction on Tuesday.

Kieran Pender, acting legal director of the Human Rights Law Centre, called it a “dark day for democracy” and sending a “chilling” message to would-be whistleblowers.

“David McBride leaked documents to our national broadcaster containing credible evidence of war crimes committed by Australian forces in Afghanistan. This information is obviously in the public interest, I think no one can deny that,” he said.

Pender and others pointed out that no one had yet been prosecuted for Australia’s alleged war crimes in Afghanistan – except the man who brought the matter to the country’s attention.

“Will the next David McBride speak out about wrongdoing when he sees this is the result? He asked.

Peter Greste, a journalist, author and staunch defender of press freedom, said he found the imprisonment of a whistleblower “very disturbing”.

He said he believed it would have a “very serious deterrent effect” on whistleblowers, with implications for press freedom.

“Journalists are supposed to act as intermediaries for this kind of thing,” said Greste, who was released by Egypt in 2015 after spending 13 months in prison on charges of producing false news to defame the country.

“It is part of the democratic system that sources with evidence of wrongdoing within governments, when internal mechanisms fail, can go to journalists and provide them with the information they need to expose these stories while keeping their identity protected,” he said. “This seriously and profoundly undermines this principle. I am very worried about this.

“David should be treated as a hero and not a villain,” Greste added.

Australian Federal Police officers raided the ABC offices in Sydney in 2019 looking for documents as they pursued possible charges against the journalists behind the story.

But ultimately, no charges were filed. The ABC declined to comment on McBride’s conviction. If the sentence is confirmed, he will serve a prison period of 27 months without parole until August 2026.

Australian Prime Minister Anthony Albanese declined to comment on the sentence due to the prospect of an appeal.

“I won’t say anything here that interferes with a matter that obviously will continue to go before the courts,” he told parliament on Tuesday.

In a statement, a spokesperson for Attorney General Mark Dreyfus said: “The decision to prosecute David McBride and the conduct of those prosecutions was the responsibility of the Commonwealth Director of Public Prosecutions. »

“The CDPP is independent from the government of the day – a very important feature of our criminal justice system,” he added.

The Australian Federal Police are working with the Office of the Special Investigator (OSI) to investigate possible charges.

Last year, a New South Wales man was charged with murder, marking the first war crimes charge against a serving or former member of the ADF under Australian law, according to AFP.

This article has been updated to clarify that the ADF investigation began before the ABC’s publication of the “Afghan files”.

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