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The Sentencing of David McBride: Protecting “Chosen War Heroes” and Imprisoning Whistleblowers

Written by Rebecca Oxtot

Edited by Annika Lilja



This past May, Australian whistleblower David McBride was sentenced to five years and eight months in prison after pleading guilty to three charges of theft and leaking classified documents to the press. These documents were leaked to ABC News in 2017 and published as a part of the series “Afghan Files,” which contained allegations of war crimes committed by Australian military personnel in Afghanistan.


David McBride was deployed to Afghanistan in both 2011 and 2013, serving as an Australian Army Lawyer. McBride explains his decision to leak documents in an interview with the journalist Maeve McGreggor, describing the pressure placed upon him to prosecute those whose conduct he didn’t think “fit the parameters of wrongdoing,” while high-profile war criminals were ignored. He felt that his commanders were attempting to address rumors of wrongdoing without risking the reputation of their “chosen war heroes” (Mcbride, 2024).


Further, McBride’s defense identified his motive for the leak as the Australian Military’s scapegoating of lower-ranked officers to cover up the crimes of the higher ranks. They argued that he acted in good faith, stating, “His motivation was therefore to remedy what he perceived to be an injustice occurring within the ADF” (Mcbride’s Defense, 2024).


David Mcbride has stood by his actions since the case began. In 2019, he wrote, “Whatever they decide, I believe that I did my duty.” (Mcbride, 2019). He stated that he attempted to file a complaint and reach out to both the police and minister prior to leaking the documents. 


During the case, evidence was dismissed due to the Commonwealth’s intervention, which claimed that it jeopardized the security of the nation and should not be used. According to the Guardian, David Mcbride’s defense lawyer Mark Davis reported that the ruling was a fatal blow to their case. Following the dismissal of evidence, David McBride pleaded guilty to three charges of stealing commonwealth information to pass on to ABC News.


The Afghan Files contain allegations of numerous war crimes, including mutilation and the murder of unarmed civilians. Additionally, they focus on the crimes of individual personnel and the growing “warrior culture” within the military (Oakes, 2017).


Despite the heavy allegations posed in the Afghan Files, David McBride is the first to be prosecuted in relation to the leak. Those accused of war crimes are yet to face the same legal accountability. 


The Australian government has yet to publicize any investigation into the allegations of the Afghan Files, making it difficult to argue their legal validity. However, the Afghan Files have incited further reporting on the topic, particularly relating to the most decorated living Australian veteran, Ben Roberts-Smith. Ben Roberts-Smith has received numerous medals for his service in Afghanistan and Iraq, including the Victoria Cross, Australia’s highest military award. However, since the release of the Afghan Files, news agencies such as the Sydney Morning Herald, the Age, and the Canberra Times have published articles that accuse Roberts-Smith of killing unarmed Afghani prisoners, including the machine-gunning of a man with a prosthetic leg.

David McBride has cited Roberts-Smith directly as one of the previously described “chosen war heroes” that he claims the Australian military protects; during interviews with both the news site Crikey and the YouTube channel Boy Boy. 


In 2018, Roberts-Smith brought these accusations under legal scrutiny when attempting to sue news organizations that broadcasted these accusations for defamation. To defend themselves from the defamation suit, these organizations brought forward numerous witnesses that supported the allegations. 

In a summary of the ruling prepared by the Federal Court of Australia and reported by the Guardian, the judge summarized each major conclusion that led to the dismissal of the case. The judge found that the respondents established substantial truth for eleven of the sixteen allegations complained of. Those found substantially true accused Ben Roberts-Smith of murdering unarmed Afghan prisoners and civilians, including the previously mentioned machine-gunning of a man with a prosthetic leg, further alleging that he later used the prosthetic as a novelty beer-drinking vessel in Australia. 

Because the judge found the majority of the allegations substantially true, the case for defamation was dismissed. According to ABC News, Ben Roberts-Smith is currently appealing the ruling, claiming that the judge used insufficient evidence and overlooked discrepancies between accounts.


Despite the judges’ findings, Ben Roberts-Smith remains celebrated by the Australian military, while Davide McBride is imprisoned. This has led to a call for the strengthening of whistleblower protections and investigation into Australian military misconduct.


 

Sources:


“Allegations Ben Roberts-Smith Gunned Down Prisoner With Prosthetic Leg Backed by Witnesses, Court Told.” The Guardian, Acces. Jun 10, 2024. 


Baker, Mark, and Rod Mcguirk. “Decorated Australian War Veteran Unlawfully Killed Prisoners in Afghanistan, Judge Said.” AP News, June 1, 2023.


Besanko, Anthony. “The Ben Roberts-Smith Defamation Judgement: Read Justice Anthony Besanko’s Full Summary” The Guardian, June 1, 2023.


McBride, David. “‘My Duty Was to Stand and Be Counted’: Why I Leaked to the ABC.” The Sydney Morning Herald, June 19, 2019.


McGregor, Maeve. “Whistleblower David Mcbride and the War Criminal: David Mcbride and Ben Roberts-Smith.” Crikey, June 20, 2023.


Mckinnell, Jamie. “Will Ben Roberts-Smith’s Failed Defamation Case Stand? His Lawyers Argue the Facts Don’t Add Up.” ABC News, Feb 17, 2024. https://www.abc.net.au/news/2024-02-18/will-ben-roberts-smith-failed-defamation-case-stand-/103472886


Oakes, Dan, and Sam Clarks. “The Afghan Files: Defense Leak Exposes Deadly Secrets of Australia's Special Forces.” ABC News, Jul 10, 2017.


“R v McBride (No 4)” Supreme Court of the Australian Capital Territory, May 6, 2024.


“Our Friend is Going to Jail.” Boyboy, Acces. June 10, 2024. 


“Whistleblower David McBride Pleads Guilty After Case Rules to Withhold Evidence Over ‘Security’ Risk”. The Guardian, Acces. June 10, 2024.

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