A former lawyer for Australia’s army, David McBride, has been sentenced to five years and eight months in jail for taking 207 classified documents from his employers and handing them to journalists.
The Supreme Court of the Australian Capital Territory found his actions were not justified by the public interest.
Mr. McBride originally intended to defend three charges of stealing and unlawfully sharing secret military information in a jury trial due to commence last November.
But he changed his plea to guilty when he lost an appeal after it was ruled—in a preliminary hearing—that he was not entitled to the “public interest defence.”
That court also accepted the government’s argument that certain documents he intended to rely on could jeopardise “the security and defence of Australia” and could not be used—a decision his lawyer, Mark Davis, described as a “fatal blow” to his case.
While serving as a lawyer in Afghanistan, Mr. McBride became concerned by what he believed was the “over-investigation” of alleged misconduct by Special Forces troops, fearing that they undermined the soldiers’ safety.
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The documents asserted that troops were being hamstrung by restrictive rules of engagement issued by senior officers under political pressure.
Further, a four-year inquiry by the inspector general of the Australian Defence Force, completed in 2020, found “credible information” of 39 murders of civilians and prisoners by 25 members of the Australian Special Forces in Afghanistan.
It described the killings as a “disgraceful and a profound betrayal” of the Australian military, and said they could not be attributed to the “fog of war”—uncertainty of the situation during combat.
One of those soldiers, Australia’s most decorated Afghanistan veteran Ben Roberts-Smith, lost a defamation case over a subsequent series of newspaper reports accusing him of war crimes that he said portrayed him as having “disgraced his country.”
McBride’s Actions Aggravated by High Security Clearance
At Mr. McBride’s sentencing on May 14, Justice David Mossop rejected the whistleblower’s explanation that he did not believe he was breaking the law, and found the offences were aggravated by his high security rating, which gave him access to the material.
He said Mr. McBride appeared to have become obsessed with the correctness of his own opinions, and accepted that his mental health, which included PTSD, may have made a minor contribution to the offending.
The judge said he did not accept that Mr. McBride genuinely held a belief that what he was doing was not a criminal offence, but rather that he hoped this might be a plausible legal defence for his actions.
“The offender has shown no contrition for his offending,” he said, and had decided that the constraints imposed on people serving in the military did not apply to him.
“He decided he knew best,” Justice Mossop said. “It’s important to deter others from such conduct. They must know that breaching their legal obligations … will be met by significant punishment.
“In my view, the level of harm done to the community caused by the offending is significant,” he said.
Attorney General Mark Dreyfus refused to intervene to discontinue the prosecution, despite having done so in other whistleblower cases, and despite repeated pleas from Mr. McBride, Greens Senator David Shoebridge, and the Human Rights Law Centre.
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