Antinuclear

A Duty to Obey: David McBride, Whistleblowing and Following Orders

Australian Independent Media November 19, 2023,  Dr Binoy Kampmark

The unpardonable, outrageous trial of Australian whistleblower David McBride was a brief affair. On November 13, it did not take long for the brutal power of the Commonwealth to become evident. McBride, having disclosed material that formed the Australian public about alleged war crimes by special forces in Afghanistan, was going to be made an example of.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013. During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences. He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer. Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking. “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise. “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.” It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification. Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich. There are cases when a soldier is under a positive duty to disobey certain orders. But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19^th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes. The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order…………………………………………..

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial. As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.” In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty. Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”………………………………………………………………………………………………………………..more https://theaimn.com/a-duty-to-obey-david-mcbride-whistleblowing-and-following-orders/

November 20, 2023 - Posted by Christina Macpherson | AUSTRALIA - NATIONAL, legal