A former army attorney faces 60 years in prison for leaking secret documents……that exposed a government’s attempt to subvert democracy.
Earlier this week I pulled an article I wrote on the Australian Federal Police raids of ABC and and Australian journalist. I wrote it using various articles from the “mainstream” media as source material, thinking I was getting accurate, factual information.
After hearing that pretty much the entire article was pure unadulterated crap, I deleted it, and decided to start over and look into what was really at the heart of the matter. From all appearances the Australian media have made a complete mess of this story, and it might not be unintentional.
From where I’m sitting some thirteen and a half thousand kilometers away, I’m seeing something disturbing. It is Machiavelli and Orwell come to life, as a country of the Commonwealth begins to resemble something more suited for the Warsaw Pact. What I am seeing is an attack on democracy.
Where it all begins.
Any information about Maj. McBride and this case will now come from media interviews. I have had very brief contact with him and due to the current circumstances I do not think he will be able to make any comments to the media. His trial is now underway, and as such any statements he makes outside the courtroom could potentially jeopardize his case.
I hope to be able to have an in-depth interview with Maj. McBride after his acquittal.
When Major (Ret.) David McBride turned over a number of secret documents to the Australian Broadcasting Corporation, he would become the second whistleblower in his family. He joins his father, Dr. William McBride (d.2018), who in 1961 discovered the link between thalidomide and birth defects. His work would go on to save thousands of lives around the world.
Armed with the same conviction, his son would take drastic steps in order to stop a wrongdoing. The government was committing the acts in question, and Australian troops were being killed and injured not for tactical or strategic gains, but for political gains.
Education and career.
He graduated with a degree in law from Sydney University in 1985, before heading to Oxford University where he was awarded a Master of Arts in Jurisprudence in 1988. Later that year he joined the British Army, serving for over 5 years and was a legal officer in the SAS.
He would return to Australia and work in private practice and specialized in intenational law. In 2009 he joined the Australian Defence Force and served as a legal officer in Special Forces Command. He was deployed to Afghanistan twice with the SAS, the first time in 2011, the second in 2013. In 2010, Maj. McBride was awarded an LL.M in International Law from the Australian National University.
The Law of Armed Conflict
If you are ever brave enough to take International Relations in university, you will eventually find yourself learning about the Law of Armed Conflict (LOAC). These are the laws as established by the International Committee of the Red Cross (ICRC), that govern wars.
There a four basic principles of LOAC:
- DISTINCTION: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 48. See Also Commentary.
- PROPORTIONALITY: U.S. Army Field Manual FM27-10: Law of Land Warfare (July 1956), Page 5, Paragraph 41.
- MILITARY NECESSITY: The Law of Armed Conflict, International Humanitarian Law in War, by Gary D. Solis, Cambridge University Press; 1st Edition (February 15, 2010), Page 258.
- UNNECESSARY SUFFERING:Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 35.2. See also Commentary.
These are the laws that govern wars and armed conflicts, at least by those states or entities that respect the law that is. These laws are spelled out clearly and place the responsibility for upholding them upon every combatant from the commander down. It is at the command level that clear, unambiguous orders must be given and followed in accordance with international law.
Click to access law1_final.pdf
The Law of Armed Conflict International Committee of the Red Cross.
jus ad bellum/jus in bello
The LOAC covers the legal principles of jus in bello (justice in war), which differs from jus ad bellum (a just war). Integral to both the principle of jus in bello, and this story, are Rules of Engagement (ROE).
Rules of engagement (ROE) are the internal rules or directives among military forces (including individuals) that define the circumstances, conditions, degree, and manner in which the use of force, or actions which might be construed as provocative, may be applied. (Source: Wikipedia)
Rules of Engagement
If ever there were a phrase that could instantly demoralize an entire regiment at once, “Rules of Engagement” would be it. When it comes to ROE, they can be very simple ie shoot at anything that moves, or, they can be very, very complicated which is why lawyers are now a common feature in the combat units of many nations.
Imagine being in a situation like this: you are a soldier deployed to a hostile situation in a foreign country. You are assigned with protecting a group of civilians, however there are limits to how much protection you can give them. An angry mob approaches, armed with rifles and machetes. You cannot fire on the mob unless they fire on you first and you return fire, or they fire upon the group you are protecting.
The mob simply pushes past you without firing a shot, takes control of your charges, and leads them off to be killed elsewhere. Meanwhile, if you fire a single shot outside of those rules, you will face criminal charges and could be facing prison time. There are many former U.N. peacekeepers who have had to live through such a nightmare.
Rules of Engagement can also be so restrictive that the lives of troops can put in jeopardy because of them. What is even worse, and has happened in the past, are instances where the Rules of Engagement are vague and unclear. This can and often does result in battlefield casualties or deaths.
This is what Major David McBride began to notice on his first deployment to Afghanistan. By 2013, and his second deployment, he was sure that what he was seeing was intentional and purposeful. What Australia’s leading authority on LOAC was seeing, was evidence of a crime that was being committed at the highest levels.
A very telling journal article.
In August of 2012, an article appeared in the Australian Journal of International Law titled ” Who is a Member? Targeted Killings against Members of Organized Armed Groups”. Its author was Major David McBride. It is a fourty-six page examination of battlefield intricacies that can mean the difference between someone living and someone dying.
Virtually every military will do its utmost to ensure that civilian lives are not placed at risk whenever hostilities erupt. In the age of technology and smart weaponry the ability to limit collateral damage is greater now than at any time in history. This is war however, and by definition civilians are going to die, it is unavoidable. It is incumbent on soldiers however to minimize the risk of collateral damage and to act in a responsible and non-reckless manner.
Recklessness arises from ambiguity, and complicated or confusing Rules of Engagement lead to reckless situations, which inevitably end up with somebody dead, usually an innocent victim, but all to often it’s a soldier. This is the basic point Maj. McBride was trying to get across in this article, because he was seeing it first hand in Afghanistan. But as he began to read through an incredible number of secret documents, another picture was beginning to emerge.
What he was seeing was evidence that the Rules of Engagement were being drawn up at the behest of politicians, whose sole intent wasn’t to achieve tactical success on the battlefield. Rather, they were done to maximize political gain, to score points with the voters, and boost polling numbers.
It was nothing more than a ghoulish and cynical attempt to pick up clout with the voters as they watch their politicians greet the caskets of the fallen at the airport, or grieve with families at the graveside. You just can’t buy that kind of publicity with money, this is the kind that comes at the cost of soldiers lives.
You don’t charge the government.
For two years, McBride would take the evidence he compiled to every possible authority he could. At almost every turn, starting with the AFP, he was told virtually the same thing. This is the government, mate. You can’t charge the government.
Well just who the hell are you supposed to go to when your elected officials are breaking the law? Having run out of options, and with the law continuing to be flouted, McBride did the only thing that he could do, and leaked the documents to the media. The people HAD to know, MUST know, and had EVERY RIGHT to know what was going on within their government.
A government that chooses to freely break the law and use it as a weapon against its own citizens is no longer operating in a democratic manner. The nation with such a government is then perilously close to losing their democracy, and having it quickly replaced with a totalitarian regime.
THIS IS THE BLOODY SCANDAL!!
Not the government criminalizing journalists. Not the raid on ABC. Not the loss of freedom of the press. Not. Even. Close.
It’s bigger than that. This isn’t just about freedom of the press, this is about freedom. A government free to run amok unchecked is not what a democracy is all about. In a country that is supposed to be one of the safest democracies in the world. But guess what?
Canada’s doing it too!!!
The Trudeau regime is no better. The matter with the Director of Public Prosecutions earlier this year was a clear and blatant criminality and their attempt to make and break laws as they saw fit. Then, by trying to railroad Rear Admiral Mark Norman, they showed that they were willing to use the law as their own personal weapon in an effort to silence those who oppose them.
Retribution, not justice
What the Australian government is doing to Major David McBride is assinine. They are threatening him with 60 years in prison, the rest of his natural life, for releasing documents that gave away no national security secrets, and in no way are a detriment to Australia’s security.
What they are is an embarrassment for a great many politicians at the very least. They are evidence of a crime against the people of Australia, and for being patriotic to his country, Major David McBride is pilloried.
The proceedings might be in secret, but fair warning to the Australian government, the democratic world is watching very closely. Nothing short of an acquittal and an apology to him will satisfy many in Australia, or the rest of the world.
Update: the Australian Court has ruled that only portions of McBride’s trial will have to be held in secret due to the nature of the testimony. A trial date is expected to be selected by June, 2020.
20 thoughts on “The Aussie Files: Scandal Of Criminal Proportions”
Excellent article, with worrying content.
Thank you, and I agree it is quite worrying.
And the Brereton enquiry exonerated David McBride, a true and great Australian for standing up to the Federal Government and delivering the public’s right to know when the news is in the public interest about the actions of an elected government. What they subjected him and his family would have been a nightmare scenario and was an utter disgrace to his rights as an Australian citizen serving his country to the best of his abilities for all Australians. As Australians we should never take our freedom and freedom of speech for granted and should fight tooth and nail for it every inch of the way. The government had nowhere to run or hide once the news covered in-depth by Chris Masters came out with witness statements from Afghanistan, Afghani International lawyer involvement and further SAS whistleblower testimonies about the killings of innocent Afghani civilians by SAS Soldiers which initiated the Bereton enquiry.
I wouldn’t like to contemplate what the outcome could have been for David McBride if his was the only whistleblower action in this regard and journalists such as Chris Masters hadn’t taken up the mantle.
You have a “but” instead of “buy”. Frightening what our politicians have done and still trying to cover up.
Is it correct to say that the only point you are making is that ADF combat deaths were incurred solely to create graveside photo opportunities for politicians ?
Not at all. That point has been made by Maj. McBride and I believe he is quite qualified to make this assertion. The real issue here is the subversion of democracy by a government that was democratically elected.
It is a reminder that it is incumbent on a democratically elected government to not only make the law but to operate within the bounds of that law.
When they do not, to what authority does one go to? We live in an anarchic system, and as such governments can act with impunity. As such it is up to the people to hold the government to account.
Without whistleblowers such as Major McBride, the people would have no knowledge of such government malfeasance, and it would only be a matter of time before all power would be in the hands of the government instead of where it really belongs, in the hands of the people.
If McBride believes that point then he has a psych problem.
The assertion that ‘the subversion of democracy’ has occurred is incorrect based on the facts disclosed in your article. Instead, the closest you can get is ‘an democratically elected government in some way allegedly breaching LOAC in a foreign area of operations’. There is no breach of Australian law.
The facts that you cite in no way implies power being transferred from ‘the hands of the people’ (sic) by any means.
If you are referring to raids and prosecutions as examples of the subversion of democracy, these actions are already enabled by the Crimes Act etc. If you release documents with classification markings then LE will have no problem getting a Magistrate to sign a search warrant with your address on it. That is in no way ‘freely break the law and use it as a weapon against its own citizens’ – it is the actual operation of the law.
McBride’s trial will be interesting as it will at last establish the facts about what he did, and why. He would have sworn an Oath of Allegiance which included the words ‘faithfully discharge my duty according to law’, and will need to establish where and when he believed he received, or was required to give, or even as a bonus became aware of(!), unlawful commands.
It would be an interesting trial to follow indeed if it were public, however the public will not know the details as it is being held in secret.
You may find also this interesting of the theme of “It is a reminder that it is incumbent on a democratically elected government to not only make the law but to operate within the bounds of that law. ”
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Thanks for such a comprehensive article. I wish everyone could read it. It has been obvious to many where we are headed in Australia. I have been calling the govt the Stasi for a while now. Democracy is being whittled away from under us. There is someone terribly wrong with those Rules Of Engagement our troops have to deal with.
‘Secret’ trials will be far more controversial than long sentences and will remain in the public mind for far longer, so I suggest we will not see too many of the former.
Derek, how do you know that the trial will be held in secret ?
While I expect some material will be heard in-camera, the Commonwealth AG will be mindful of the fact that a secret trial with a conviction and sentence would be remembered long after a largely open trial and a longer sentence has been forgotten by the public.
I’m amazed, I must say. Seldom do I come across a blog that’s both equally educative and interesting, and let me tell you, you have hit the nail on the head. The problem is an issue that not enough men and women are speaking intelligently about. Now i’m very happy I stumbled across this during my search for something relating to this.
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Thank you very much. I will be continuing to cover this story into the future.