A monumental betrayal: Four Corners and David McBride

 

By John Jiggens

 

 

David McBride's work to expose war crimes is being wrongly minimised. Dr John Jiggens reports.

ON EASTER Saturday, a friend and I drove down to Mullumbimby to hear Afghan war crimes whistleblower David McBride speaking at the Mullumbimby RSL.

The previous Monday, I had watched the Four Corners program about David McBride, called 'Rules of Engagement'. My friend hadn’t seen it, so we listened to it on an iPhone as we drove along. There was one heavily ironic moment towards the end of 'Rules of Engagement' when ABC journalist Dan Oates said he hates it when journalists make themselves the centre of the story.

If only his Four Corners colleagues had listened. Unfortunately, the storyline of 'Rules of Engagement' carefully avoided such vitally important issues as who bears the responsibility for Australian war crimes in Afghanistan, the controversial National Security Information Act and the important role whistle-blowers and journalists play in a democracy.

 

Instead, they concentrate on a petty squabble between Four Corners reporter Oates and whistle-blower McBride concerning who gets the credit for the award-winning 2016 Four Corners episode, 'The Afghan Files'.

'Rules of Engagement' covered the events of David McBride’s trial in November 2023, a trial I wrote two articles about for Independent Australia, so I found the contrast between what the Four Corners program included and what my reportage covered, illuminating.

My first Independent Australia article on the subject covered the colourful protest outside the ACT Supreme Court in Canberra before McBride’s trial began.

The MC for the rally was former SBS news anchor, Mary Kostakidis and the list of speakers supporting McBride featured an impressive array of whistle-blowers: Troy Stolz, the Clubs NSW whistle-blower; Jeff Morris, the Commonwealth Bank whistle-blower; Bernard Collaery, the former ACT Attorney-General who was prosecuted for defending the ASIS whistle-blower, known as Witness K; former senator Rex Patrick and Julian Assange’s father, John Shipton.

My story was filled with grabs from these whistle-blowers about their support of McBride, the failure of Australia’s whistle-blower laws and the increasing level of legal protection given to the "national security state". Four Corners ignored all of this, except for two five-second grabs of Stolz and Morris.

I saw the duo arrive in Canberra with the Four Corners crew, and I watched them being filmed speaking in support of McBride at a concert and again outside the ACT Supreme Court on Monday.

Subsequently, Four Corners decided to use almost none of their footage of them or the other whistle-blowers. The assembled whistle-blowers greatly supported McBride, which I reported and which Four Corners chose to ignore.

My second Independent Australia article about McBride’s prosecution focused on the judgment by Justice David Mossop, who denied McBride his public interest defence and ruled that Australian soldiers' sole duty is to obey their superior officers.

This article reported the use of the controversial National Security Information Act by the Attorney-General to confiscate all the files McBride had hoped to use for his defence. It also questioned why the whistle-blower was being prosecuted, which was not recommended by the Brereton Report.

What Brereton had recommended was an investigation into what he described as possibly the most shameful event in the history of the Australian Defence Forces that occurred during the Afghan War. This investigation has been sidelined for over three years. Meanwhile, the whistle-blower is being prosecuted, which seems a convenient misdirection.

The Four Corners report did cover the legislation, but the report needed a civil liberties lawyer to explain the Act and its misuse against whistle-blowers.

Another mistake I should correct... about 30 minutes into 'Rules of Engagement', over footage of McBride entering the ACT courthouse, the reporter, Grace Tobin, narrates: “Inside [McBride] will face prosecutors who will deny he is a genuine whistleblower.”

Not true. The prosecution never denied McBride was a whistle-blower. They were striving to convict him as one and give him a long prison sentence.

Paradoxically, the only people who deny that McBride is a genuine whistle-blower are Four Corners. Tobin’s narration was untrue, but it planted the seed for the outrageous Four Cornersaccusation that David McBride was not a genuine whistle-blower.

Michael West Media have published a powerful critique of this Four Corners episode by retired Australian Army officer, Stuart McCarthy. Like McBride, McCarthy questioned how and why the generals and other ADF commanders avoided scrutiny and responsibility for war crimes committed in Afghanistan. He accused the ABC of avoiding the question of government culpability for war crimes in Afghanistan, choosing instead to ‘throw its source under the bus’on the eve of his sentencing.

McBride’s lawyer, Mark Davis, was outraged at the timing of the program and his angry retort on X (formerly Twitter) responded to the ABC’s “venom” with withering vitriol. David McBride had risked everything to help the ABC and Oakes produce 'The Afghan Files', he said.

His firm posted:

They got the applause and awards, but barely glanced up when David was led away in chains. They have ignored his story ever since. They totally ignored our request for evidence they held which was vital for David’s defence. They extracted the information they needed and dumped him and only return now as he awaits sentence to pour this venom on him.

 

While we are limited in what we can say until the proceedings end, we will briefly address Oates’ comments in the message to follow but our true dismay is how ABC management could allow this 4 Corners episode to broadcast at this time. 

 

It is possibly a contempt of court and the worst time imaginable to be spreading half-truths. We gave some interviews to this program on a solemn undertaking that it would not be broadcast prior to sentencing. It was a promise given virtually every time the camera rolled. Once they had what they needed it was a promise thrown into the gutter like David McBride. At least they are consistent.

What were David McBride’s views on the program? At the Mullumbimby RSL, McBride’s support team had set up a merchandise stall in the RSL auditorium, selling 'Truth is a Lonely Warrior' t-shirts and McBride’s book, The Nature of Honour.

The event had been hastily organised because McBride had expected to spend Easter in prison. But his sentencing date had been shifted from 13 March to 6 May, so, unexpectedly, he found himself spending Easter in Mullumbimby as happily as a man with the threat of a long gaol sentence hanging over him could.

McBride was interviewed by my Bay FM colleague, Mia Armitage, before a crowd of about 45 people. He expected to be sent to prison for a long time, he told her.

Halfway through the interview, Juice Media’s new Honest Government Ad about whistle-blower protection laws was shown before the interview resumed. During the Q&A, I asked McBride questions about his views on the Four Corners program.

Like McCarthy, McBride felt the program was a hit job. Four Corners seemed to suggest that McBride was covering up war crimes or somehow helping bad people. As a lawyer for the Special Forces, his job had been to defend soldiers accused of war crimes and he performed his job conscientiously. He had hoped for support from Four Corners, but it had betrayed him.

It was all smoke and mirrors, he said:

"The case is they just want to punish me, to make an example of me, to show other people do not mess with us and do not ever disobey orders."

He added:

My case was to say the Defence Force is broken because it has become a political force rather than a military force and we do whatever will make the Minister look good that day. And that means sometimes pinning medals on some people, sometimes investigating people. Neither of them are real. 

 

They're both for show and they're both for short term good news stories for the Minister. And of course the 'Four Corners' programme tried to shrink what I did. Funnily enough, 'Four Corners' and Dan Oates, and the prosecution, they both said the same thing. They try to minimise my complaint, to say it was only about their investigation.

 

What's outrageous was the idea that Dan Oates can get a medal for my documents, he can get an Order of Australia and he also didn't get prosecuted. He got a letter saying he's not going to get prosecuted. It isn’t in the public interest. But McBride’s got to go to gaol forever for giving him the same documents, without the ABC saying: "Hang on? How does that work?"

Dr John Jiggens is a writer and journalist currently working in the community newsroom at Bay-FM in Byron Bay.

 

https://independentaustralia.net/politics/politics-display/a-monumental-betrayal-four-corners-and-david-mcbride,18486

 

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it's time for being earnest.....

 

SEE ALSO: https://www.youtube.com/watch?v=fsun8e4E4Gk

 

 

 

David McBride goes to prison – and Australian democracy takes a hit

 

BY Peter Greste

 

Governments and their agencies wield awesome power. At times, it is quite literally the power over life and death. That is why in any functioning democracy, we have robust checks and balances designed to make sure power is exercised responsibly and with restraint. 

So, what message does a sentence of more than five years in prison for someone who exposed credible allegations of war crimes by Australian soldiers send? 

On Tuesday, ACT Supreme Court Justice David Mossop despatched the former military lawyer David McBride to prison for five years and eight months, for passing classified military documents to journalists. Those documents formed the basis of the ABC’s explosive “Afghan Files” investigation, revealing allegations that Australian soldiers were involved in the unlawful executions of unarmed civilians. 

It is hard to think of any whistleblowing more important.

McBride’s case forced us to confront the way our own troops had been conducting the war in Afghanistan, as well as the government’s ongoing obsession with secrecy over the public interest. 

McBride had been concerned about what he saw as systemic failures of the SAS commanders, and their inconsistency in dealing with the deaths of “non-combatants” in Afghanistan. In an affidavit, he said he saw the way frontline troops were being 

improperly prosecuted […] to cover up [leadership] inaction, and the failure to hold reprehensible conduct to account. 

He initially complained internally, but when nothing happened he decided to go public. In 2014 and 2015, McBride collected 235 military documents and gave them to the ABC. The documents included 207 classified as “secret” and others marked as cabinet papers. 

It is hard to deny the truth of what McBride exposed. The Brereton Inquiry later found what a parliamentary briefingdescribed as “credible information” of 23 incidents in which non-combatants were unlawfully killed “by or at the direction of Australian Special Forces”. The report said these “may constitute the war crime of murder”.

Brereton went on to recommended prosecutions of the soldiers who were allegedly responsible. Yet, the first person to face trial and be sent to prison in the whole debacle is not any of those who might have been responsible for alleged killings, but the man who exposed “misconduct” in the Australian Defence Force.

Much has been made of McBride’s reasons for going to the media, but this focus on motives is a form of misdirection. Whistleblowers take action for a host of reasons – some of them less honourable than others. But ultimately, what matters is the truth of what they expose, rather than why.

That is why we recognise media freedom as an essential part of a healthy democracy, including the right – indeed the responsibility – of journalists to protect confidential sources. Unless sources who see wrongdoing can confidently expose it without fear of being exposed and prosecuted, the system of accountability falls apart and gross abuses of power remain hidden. 

It is also why the formal name for Australia’s whistleblower protection law is the “Public Interest Disclosure Act”. 

This law is designed to do what it says on the tin: protect disclosures made in the public interest, including those made through the media. It recognises that sometimes, even when the law imposes certain obligations of secrecy on public servants, there may be an overriding interest in exposing wrongdoing for the sake of our democracy.

As a highly trained and experienced military lawyer, McBride knew it was technically illegal to give classified documents to the media. The law is very clear about that, and for good reason. Nobody should be able to publish government secrets without a very powerful justification. 

But nor should the fact that a bureaucrat has put a “secret” stamp on a document be an excuse for covering up serious crimes and misdemeanours. 

In McBride’s case, the judge accepted the first premise, but rejected the second. 

This is why my organisation, the Alliance for Journalists’ Freedom, is advocating for a Media Freedom Act. The act would oblige the courts to weigh up those competing public interests – the need for secrecy in certain circumstances against the sometimes more compelling need to publish and expose wrongdoing – rather than assume secrecy as a given.

It is hard to overstate the impact this case is likely to have on anybody with evidence of government misdeeds. Do they stay quiet and live with the guilt of being complicit, or do they speak up like McBride and others, and risk public humiliation, financial ruin and possibly even prison? 

Attorney-General Mark Dreyfus has committed to reforming the whistleblower protection regime, and before the last election, promised to set up an independent Whistleblower Protection Authority. Those commitments are laudable, but they ring hollow while McBride sits in prison and another prominent whistleblower, Richard Boyle from the Australian Taxation Office, faces trial later this year. 

It is hard to see the former military lawyer being locked in a cell, and say Australia is either safer, or better because of it.

https://theconversation.com/david-mcbride-goes-to-prison-and-australian-democracy-takes-a-hit-230007

 

 

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A public interest defence must protect whistleblowers like David McBride    By Greg Barns

 

The jailing of military whistleblower David McBride, who exposed alleged war crimes by Australian troops in Afghanistan, for 5 years and 8 months by the ACT Supreme Court shines a light on a number of issues and one of them requires urgent consideration. The need for a public interest defence to protect individuals like McBride.

Of course Mr McBride, like Australian journalist and author Julian Assange who is back in a London court next Monday and who exposed war crimes by the US with the release of documents and videos in 2010, finds himself embroiled in a system where the law is used to shoot messengers and truth tellers, often called whistleblowers.

McBride’s ‘crime’ was to disobey orders, including those relating to classified material, and ensure documents made their way into the public arena where they formed the basis of the 2017 4 Corners program, the Afghan Files. It is important to note, albeit a side story, that McBride and the journalist Dan Oakes who wrote the ‘Afghan Files’ series, had a serious falling out. McBride, the ABC reported, “handed over his original complaint about the “over-zealous” investigations of special forces soldiers along with thousands of pages of supporting documents.” But Oakes took a different view of the material.

Again, in a bitter irony, the Australian Federal Police considered prosecuting Oakes, his producer and a News Limited journalist Annika Smethurst for publication of classified material but in 2020 decided not to because of “public interest” considerations. But no such luck for McBride. The Attorney-General Mark Dreyfus could have exercised the power he has in section 71 of the 1903 Judiciary Act to intervene and “decline to proceed further in the prosecution” ,but decided not to arguing in October last year that such a power is “reserved for very unusual and exceptional circumstances”. One might have thought this case fitted the bill given, particularly, that the information which McBride gave to Oakes and which the latter published was bolstered by the Brereton report, released in 2020, which found that there was “credible evidence to support allegations that 39 Afghan civilians were killed by Australian special forces.’

Further why did the Commonwealth DPP not make use of the ‘public interest; test to refuse to proceed with the prosecution?

This test is one criteria used by the Commonwealth DPP and it includes a large range of factors none of which were strong enough, on their own, or in combination for the DPP to decide not prosecute even though there were reasonable prospects of conviction.

The question which arises from McBride is whether the duty to act in the public interest argument which his legal team ran as a possible defence, but without success, should be explored further and incorporated into the law, or at least be explicitly set out in the criteria which the Commonwealth DPP applies to deciding whether to prosecute? McBride’s argument was that “as a member of the military, he had a duty to act in the public interest, even where that conflicted with a lawful order.” This was rejected by the trial judge Justice David Mossop and the ACT Court of Appeal refused to entertain substantive argument on it.

But McBride surely has a point in this regard. And it does not simply apply to the military but also to police, security agencies and other organisations where individuals are required to pledge to obey lawful orders.

In rejecting this argument as being inconsistent with the state of the law in Australia, as Justice Mossop and the ACT Court of Appeal did, a conflict between adherence at all costs to some concept of ‘loyalty’ clashes with broader societal interests in ensuring that, to coin the phrase Shakespeare used in the Merchant of Venice, “the truth will out.”

Legal philosopher Eric Boot of the University of Amsterdam has examined and described the framework for a public interest defence, one which could have applied to McBride’s case. He argues that it is not necessary to require that the individual disclosing the information have motivations that are exclusively public-spirited. What we should require, however, is that the whistleblower “must have actually held the belief that her disclosure” would better serve the public interest than continued secrecy. Boot says that to run the public interest defence in a case like McBride’s there should be three tests. First that the individual meets the objective and subjective tests which means he or she or they were acting in the public interest; that his her or their actions are a last resort and finally, they have sought to minimise harm in releasing materials. This sounds a very sensible and balanced approach to the public interest test being available to those who refuse to obey lawful orders or pledges because they believe in a duty to ensure that actions which are contrary to our democracy and its values must be known.

And what is the public interest? It might be, to use a poor analogy, what former US Supreme Court Justice Potter Stewart said in 1964 about the definition of obscenity, “I know it when I see it.” But it is also clear, and this has certainly been the case in McBride, that the public interest is served when alleged wrongdoing of a serious nature is exposed to the community, where individuals disclose information that, if it is not made public, will corrode our democracy and undermine human rights and liberal values. In relation to this think Mark Felt, the senior FBI official, who clearly broke the law in becoming the ‘deep throat’ informer that created Watergate.

David McBride is the victim of bad law which is perpetuated by executive government and the legislature, and enforced by the courts. That is, a prioritising of rigid rules over the individual’s moral compass and their commitment to the public interest. Time for some serious law reform. Injustice must not be allowed to deter the ever present need to shine a light on wrongdoing by institutions.

https://johnmenadue.com/a-public-interest-defence-must-protect-whistleblowers-like-david-mcbride/

 

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