McBride: An Offer You Can't Refuse
Deliberate denial of justice by a sequence of legislative and administrative branches of the Australian government
[The graphic to the ABC’s lead article pathetic obfuscation of the meaning of the events in the ACT Supreme Court on 2023-11-17.]
Published: 2023-11-21
YesXorNo coverage starts in 2022-11-06, continues on 2023-11-08, this, and then 2023-11-30 (a podcast).
Introduction
A whistleblower, whose revelations resulted in a report recommended by the Australian Defence Force's (ADF's) Inspector General which documented 39 prima facie cases of war crimes, has just pleaded guilty to 3 counts of stealing and sharing classified information. There were a few bland articles in Australia's regular press about the obvious plea deal which the whistleblower was forced to make.
Does this not strike you as strange? Where is the coverage? Where is the outrage?
Before this article attempts to explain this and why there should have been far wider coverage, two points should be made. Credit must be given to Joe Lauria from Consortium News and some to Christopher Knaus of The Guardian for providing the only real international coverage. The best local coverage was by Rex Patrick published by MichaelWest Media. Secondly, the main article from the ABC will be dissected to provide some answers to some of these questions. This dissection is not a criticism of the journalists who wrote the ABC article. Their obfuscated effort was just as unhelpful as the rest of the garbage written in Australia's news media.
Clockwork Orange
Please examine the headline of the ABC article shown above in the title image for this article. Are you not confused? Does "unlawfully sharing secret allegations" not get your spider senses tingling? Something just does not make sense. What are "secret allegations" anyway? And of war crimes!
Perhaps the first few paragraphs will clarify matters for us.
[Orange underlined phrases will be examined. The red box will later lead us towards our outrage.]
From the first sentence-paragraph one would surely ask why has McBride "given up his fight" and hope that the article would answer this obvious question. In pursuit of that answer one meets the second sentence-paragraph which is a quintuple negative with "failed appeal against" ... "no legal duty to defy" .. "against the public interest". This is obviously very difficult to untangle. One's second question, apart from what the hell did that mean, is why so complicated?
We’ll skip the box wherein we learn that the court said, No, you cannot use those documents for evidence, which naturally raises the next questions of "what were they?” and “why not?"
One is very pleased with the third sentence-paragraph because it aligns with the first but still don't explain why McBride "gave up his fight"/"pleaded guilty". Next we learn that, because he pleaded guilty he also gave up a jury trial, which puzzles us further because that is a pretty good thing to forgoe. Our question of why he pleaded guilty is now gnawing at us. There must have been a very good reason.
In the final sentence-paragraph we learn that the court heard something. To my recollection, courts can't hear. Judges can. But, the usual manner of introducing something like this is "McBride's lawyer informed the court ...". The reason that they dont do this is because they would have to misquote McBride's lawyer to give the sense that they wish, or possibly more likely, because the journalists don't know what was said in court, only what was said outside it, after the proceedings.
The impression we gain from the article is that McBride, a military lawyer, became concerned about "over-investigation". This naturally raises another question. Since when are lawyers concerned about "over-investigation"? That would be when their client, or clients are being "over investigated", would it not? But, who were Major McBride's clients when he served as a military lawyer in Afghanistan? This is a question which neither the ABC nor the Australian government nor, it would seem the court, wishes you to ask. So, naturally we shall, in good time.
At this point the vast majority of the public would, with good sense, completely abandon this article. It raises unanswered question after unanswered question while providing very little information which does not actually raise them. Just to annoy us more, they've used "given up his fight" and "pleaded guilty" to mean the same thing, which means they are wasting words. The same is true for "over-investigation" and "excessive" investigations. One is beginning to suspect that someone wants people to not read this article, and more importantly not receive sensible answers to the questions which it raises.
Seeing Red
Still deferring on the red box, here is what reporters could have said so that a reader would learn what happened, in a context, would make sense and is true:
Former ADF lawyer, Major McBride had reported up the chain of command that soldiers were being targeted for selective prosecution for political purposes. When the ADF did not respond satisfactorily to his principled stand for equal use of the law he leaked material to journalists. During their examination of the material, they became far more interested in the war crimes which were not being investigated than the minor infractions which were. This lead to the public exposé known as the "Afghan Files" which prompted the ADF's Inspector General to call for a review. That review, compiled by NSW Supreme Court justice Breteton, documented 39 verified prima face cases of war crimes and their cover up for which no charges have been laid.
Charges were laid against Major McBride for theft of government information and releasing classified information. On Friday in the ACT Supreme Court McBride plead guilty to 3 of these 5 charges, an obvious plea deal. His plea occurred after every avenue by his legal team failed to shield McBride from these charges because existing federal whistleblowing protection laws do not offer any useful protection.
[FYI, the article section reviewed uses 190 purposeless words. The two paragraphs above required 186.]
Are you ready to get pissed off yet, both because you now understand what is going on, because there is no outrage and that now you are beginning to understand why there is no outrage?
Well, calm down. We haven't got to the red box yet. Once we understand that, we'll look at a precursor to it. Then we shall open the floodgates of opprobrium. Medusa and her fellow gorgons are being held in reserve for the final assault.
Targeting
With the above clarification of what has actually occurred, you are now sufficiently informed to read good reporting on the matter. You will be shocked, shocked I tell you, to discover that this was issued by independent journalists. Here is Australian journalist Rex Patrick reporting for West Media.
Afghan war crimes whistleblower David McBride has pleaded guilty today. The people who committed the crimes, and the officers who covered them up, remain without charge or investigation. Rex Patrick reports.
David McBride has pleaded guilty to handing over to a journalist classified documents that revealed Australian war crimes in Afghanistan. He remains on bail pending sentencing.
I guess pleading guilty was the right thing for an honest person to do. After you’ve been denied whistleblower protection, after you’ve been told your jury would not be allowed to see all the evidence, after you’ve been told your duty to your country and public interest do not trump obedience with the strict letter of the law, and with the Attorney-General content on letting you face the gallows, what are you left to do?
It’s no longer a case of ‘the standard you walk past is the standard you accept’, rather ‘the standard you walk past is the standard you MUST accept’. Calling [out] our wrongdoing seems to have no place in Australia democracy,
This is a dark day for whistleblowing and democracy in Australia.
I have scoured high and low to find decent reporting on this important moment in Australian political history. Only these three journalists have done it: Joe Lauria, Rex Patrick and to some degree Christopher Knaus. The (Australian) Human Rights Law Centre which been following the case and reporting on it from a legal perspective for years also issued a report.
That Red Box
The reason that Joe leads that list is not because he's a veteran reporter. It is because he does both things. He provides the context and he names and quotes the parties. But before we get to that, I ask that you suffer far less than McBride to learn a little of the Australian Judiciary.
The names of Australia's courts collide with their US equivalents in a confusing manner. To alleviate any unwise confusion about legal matters here follows the court names, roles and purposes.
The Commonwealth of Australia was formed as a federation of the 6 settler colonial states. The nation required a capital, and neither Sydney nor Melbourne could claim that without annoying the hell out of the other. To solve this problem the Australian Capital Territory was formed. Within it is Canberra, the national capital. The ACT also has a port excised from the NSW coast at Jervis Bay so that the politicians can run away on a fast cutter when the population realizes how duplicitous and cowardly they are.
The huge area of land to the north of South Australia and between Queensland and Western Australia, which at the time of federation (1901) was dominantly populated by Australian First Peoples, was formed into a second territory, the Northern Territory.
[A table of the structure of the Australian Juciary. Below is a really short summary of it. Australia has courts which are dedicated to certain types of legislation (family, work). Note also the 'NI' which you can see here and there above. That is Norfolk Island. Cool, eh?]
Each state has a legislature, a judiciary (courts) and an administration. The territories are inferior things lacking in the core instruments of a tripartite government. The territories do have 'inferior' courts which can hear cases. These are funded by the federal government, but are not 'federal courts'. (Clear, right?)
The highest courts in the states and territories are called Supreme Courts. The states have intermediary (appellate) courts, whereas the territories do not.
The highest court in Australia is the High Court which is located in Canberra in the ACT, where the ACT’s Supreme Court is also located. The High Court serves two purposes. It is the final court of appeal (like the US Supreme court) and it has what is known as 'original jurisdiction' for any legal matters which relate to the Australian constitution. Constitutional matters are immediately referred to Australia's High Court. No other court will consider them because these matters are its ‘original juridiction’.
McBride's case involves federal law (theft and transmission of classified or 'secret' government information/documents). It was lodged at a Magistrates court (an 'inferior' court) in the ACT, possibly because McBride's registered address was in the ACT at the time. The appeal which has just been heard was heard at the ACT Supreme court, which is NOT the highest court in the land, just that of the ACT. [Recall, the territories don't have appellate courts so the appeal from the ACT Magistrates court went to the ACT Supreme court. You’re with me, right?]
So, when you hear McBride's lawyer speaking of an appeal you may have been confused, asking "how is that possible when the case was heard at the Supreme court?" Yes, the ACT Supreme court, which is supreme for the ACT but appellate for the High Court.
Here, Australian and US legal process again join. The High Court needs to be asked to hear a case if it is not a constitutional matter. An appeal case’s legal merits need be assessed to decide if the busy High Court should allocate time to hear it.
Justices Cannot Do Justice If There's No Justice In The Law
ACT Supreme Court Justice David Mossop issued two significant rulings which go to the heart of the case. Counsel for the prosecuting Commonwealth (legally abbreviated as 'Cth') asked the court to deny the use of some documents, which the defense wished to submit. The Cth asserted that the revelation of those documents to the court:
had the potential to jeopardize “the security and defence of Australia”
McBride's lawyer, Mark Davis, informed media outside the court that Justice Mossop's denial of the use of these documents was "a fatal blow" to the defense.
Justice Mossop also informed the court that were a jury trial to be held he would instruct the jury to disregard any "public interest" defense when he stated:
There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order,
Which is to say that following a 'lawful' military order to not disclose "secret" information has a higher legal weight than any 'public interest' in learning what this information can tell them (about the war crimes which were committed by Australia's elite SAS soldiers in Afghanistan over a decade ago). Again, IANAL (I am not a lawyer), but I believe what was happening was that Justice Mossop was ruling on the argument put forward by the defense that McBride had a duty, in a military sense, to inform the public. It would seem very likely that McBride’s counsel knew that this was not the most sound of legal arguments, but that making it and having it denied was in itself a way of informing the public.
If the High Court is asked to hear an appeal it is highly likely that it will refuse on purely legal grounds, probably stating that Justice Mossop's interpretation of Australian law is correct and accurate. Australia's legal community will agree with the High Court, for that is the correct interpretation of Australian law.
And so we return to politics. An application to the High Court to appeal the decision should be made. It will force the highest court to declare that Justice Mossop did exactly as he should.
This will inform the Australian public that a whole sequence of Australian governments have utterly failed to either actually implement any decent whistleblower protection laws or to use the power vested in the Attorney General to stop this travesty of justice. The injustice here is not being meted out by Justice Mossop but by a whole sequence of Australian governments, their Prime Ministers and Attorney's General, who are legislative and administrative government leaders, aka political leaders.
This consistent, dual failure by Prime Ministers and Attorney’s General will be placed in front of the Gorgons to rile them up. We and they will then be informed WHY this duality of cowardice has been on display for years to really get all of our juices flowing.
Medusa and her shock troops shall be set loose in the next article.
You can take a sneak peak via the trailer below.
or you can support this work via Buy Me A Coffee or Patreon.
Sources
Whistleblower David McBride pleads guilty, Rex Patrick, MichaelWest Media, 2023-11-17
Rex Patrick is also a former Australian Sentator and ADF submariner.
LEFT WITH NO DEFENSE, McBRIDE PLEADS GUILTY, Joe Lauria, Consortium News, 2023-11-17
McBride’s guilty plea to have a chilling effect on whistleblowing and public interest journalism, HLRC (Human Rights Law Centre), 2023-11-17
Whistleblower David McBride pleads guilty after court rules to withhold evidence over ‘security’ risk, Sarah Basford Canales and Christopher Knaus, The Guardian, 2023-11-17
Judiciary of Australia, Wikipedia
Public Interest Disclosure Act 2013, (Australian) Federal Register of Legislation
Amendments to the PID Act, (Australian) Commonwealth Ombudsman
The General Rubbish
Military lawyer David McBride pleads guilty to unlawfully sharing secret allegations of Australian war crimes, Elizabeth Byrne and Markus Mannheim, ABC, 2023-11-17
Whistleblower David McBride has ACT Court of Appeal bid refused, Hannah Neale, The Canberra Times, 2023-11-16
Whistleblower pleads guilty to leaking war crime claims, Dominic Giannini, AAP (Australian Associated Press), 2023-11-17
David McBride: Australian war crimes whistleblower pleads guilty, Tiffanie Turnbull, BBC, 2023-11-17
[There is more, but there’s no point recording it.]
The Trailer
Interview with David Mcbride - Afghan war crimes whistleblower, The West Report, 2023-10-29
Culture
Slim Dusty - A Pub With No Beer, Slim Dusty, uploaded by SlimDustyMusic on 2009-06-25
Copyleft: CC0
