Years in jail for exposing military secrets

Sam Hawley: To some he’s a hero for helping to expose alleged war crimes in Afghanistan. To others he’s a criminal who stole and shared military secrets. This week a judge found former military lawyer David McBride did break the law, jailing him for five years and eight months. Today investigative reporter Adele Ferguson on the case against him and what the jailing means for whistleblowers. I’m Sam Hawley on Gadigal land in Sydney. This is ABC News Daily. Music

David McBride: I’ve just got one thing to say this morning. I’ve never been so proud to be an Australian as today. I may have broken the law but I did not break my oath to the people of Australia and the soldiers who keep us safe.

Sam Hawley: Adele, for David McBride this has been a really long fight, hasn’t it?

Adele Ferguson: It’s been many, many years since he went to the ABC and handed over documents. I think it was 2017 so this has been hanging over his head for a very long time.

Sam Hawley: Adele, just before we get into the reasons why the judge has sentenced McBride to this jail time, I think it’s good just to go back for a moment and remember how this case unfolded. David McBride, he was a military lawyer in Afghanistan and he had two tours there. The first was in 2011. Once he came back to Australia his life was somewhat troubled, wasn’t it?

Adele Ferguson: Yes, absolutely. So the second return was in 2013 and at that time there were a lot of rumours going around internally that war crimes were going on and that low-level soldiers were being scapegoated to protect leadership. And I think he knew some of those soldiers and that really weighed heavily with him. And so he came back and he started drinking heavily, he wasn’t sleeping, so things were starting to unravel for him.

David McBride: And I wasn’t sleeping much. I was on ADHD medication, which I was abusing, to stay awake all night. I’d frequently stay in the office all night. But everything else in my life fell apart to try to put that complaint together.

Sam Hawley: And at this point he’s working at the Special Operations Headquarters near Canberra and it’s there that he began accessing these secret files.

Adele Ferguson: Yes, over six months he started printing many documents. Some of them were secret, confidential and potentially in the national interest.

Sam Hawley: And his main concern, as I understand it, Adele, is that SAS soldiers were being wrongly accused of war crimes.

Adele Ferguson: That’s exactly right. He actually wrote in an affidavit, he said, Afghan civilians were being murdered and Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour. At the same time, soldiers were being improperly prosecuted as a smokescreen to cover leaderships in action and a failure to hold reprehensible conduct to account. So in other words, he was really interested in the culture at the top.

Sam Hawley: Yeah, and he told Four Corners he was also really worried about the rules of engagement for soldiers in Afghanistan.

David McBride: I made a complaint about it to say this could get soldiers killed because it had like a seven-step test for a soldier in a firefight with a Taliban as to when he could pull the trigger and it was just a mess. And in the bottom it said if you don’t follow the seven-step test basically, you’ll be guilty of murder.

Sam Hawley: So he’s gathered these secret documents and then he starts this blog where he’s complaining about the Australian military leadership.

Adele Ferguson: That’s right. He lodged an internal complaint about the leadership. It was looked into by the ADF and they said nothing to be seen here. So that’s when he started to blog with videos and that’s when the journalist Dan Oakes saw what was going on and contacted him.

Sam Hawley: So Dan Oakes, he’s working for the ABC. He comes across this blog and he gets in contact, of course, with David McBride and David McBride is willing to give the ABC all of these secret documents.

Adele Ferguson: That’s exactly right. That was around 2017 and he handed over his original complaint about the overzealous investigations of the Special Force soldiers and lots of documents. All of the documents he’d compiled, he handed everything over to the journalist.

Sam Hawley: And in 2017, Dan Oakes publishes the Afghan Files.

Dan Oakes: Tonight, we reveal serious allegations that Australian soldiers may have committed unlawful killings during Australia’s longest war and claims that the death of an unarmed Afghan civilian was covered up.

Sam Hawley: But his reporting isn’t quite what David McBride had wanted or expected.

Adele Ferguson: No, that’s right and that’s often the case with whistleblowers who come to journalists. They hand over the documents and then the journalist comes up with the angle. David McBride didn’t cherry pick what he gave to Dan Oakes. He gave him the entire tranche of documents and that’s when we got the Afghan files, which had multiple unlawful killings of unarmed men and children.

ABC News clip: The ABC has learnt of a 2013 incident in which an Australian soldier shot and killed a detainee after he tried to grab the soldier’s gun.

ABC News clip: The killing is described in a trove of documents obtained by the ABC, many of which detail the killings of unarmed Afghans. Our reporter Daniel Oakes now joins us….

Dan Oakes: …so in September 2013, an Australian soldier shot and killed a detainee in Afghanistan….

Adele Ferguson: And it really was explosive.

Sam Hawley: Yeah, because the Afghan files really revealed alleged war crimes committed by Australian soldiers in Afghanistan.

Adele Ferguson: That’s exactly right and many of those allegations were later supported by the Inspector General of the Australian Defence Force in the Brereton Report.

Sam Hawley: Alright, and then of course we know that the AFP swooped, it seized the documents and later arrested McBride. It also, of course, searched the ABC offices in Sydney.

ABC News clip: We begin PM this evening from inside the ABC’s headquarters in Sydney, where the Australian Federal Police are searching for information over a series of 2017 stories detailing alleged abuses by Australia’s Special Forces in Afghanistan.

Sam Hawley: But then later dropped any case against the ABC.

Adele Ferguson: Yeah, so it was a really tense time. They storm-trooped the ABC offices. It went on for eight hours. It was headlines all over the world that the police had come into the ABC wanting to seize documents. So what happened was the DPP recommended charges be laid against the journalist, but then they opted not to go ahead with it, but they pursued David McBride. There are five charges. One is theft related to classified documents and then communicating them with the media.

Sam Hawley: OK, all right, that brings us then, Adele, to today. So he was first arrested in 2018, David McBride, and so now, almost six years later, he’s been sentenced to five years and eight months in prison. Were you surprised by that?

Adele Ferguson: I was, actually. A month ago, I would have thought that he would have got a community centre sentence, but then last week, things really started to change when, at the court, they didn’t make a decision. They delayed it for another week until Budget Day. And that was a really, you know, red flags there.

Sam Hawley: It’s a pretty big sentence. Why did he sentence him to that long a period of jail time?

Adele Ferguson: It was to do with duty. So the judge focused on duty and the duty of David McBride as a military lawyer was to uphold the military. But David McBride wasn’t allowed to use the public interest as a defence, so it had to focus on duty, and that’s why David McBride actually had to admit guilt in November. The case collapsed in November and he had to say he was guilty. So from November until Tuesday, it was really about sentencing and what he would get because he’d admitted he was guilty.

Sam Hawley: Right, OK, because, of course, his supporters and he himself say he’s a war crimes whistleblower, so that should have given him what, some sort of protection?

Adele Ferguson: But unfortunately, he couldn’t ventilate that in the court. The judge did not want to hear that.

Sam Hawley: Right, OK, so let’s unpack this whistleblower argument then. He says he is a whistleblower, but others argue against that because his intentions when he passed over those documents to the ABC were not to expose war crimes. That’s not what he wanted the ABC to report on.

Adele Ferguson: Yeah, it’s an interesting one, but another point to consider is, and I think he is a whistleblower, because a whistleblower hands over documents, takes all the risks, which he took enormous risks to do, handed them to the journalist. He didn’t cherry-pick the documents that the journalist could have and when the journalist said, this is the angle I’m taking, he didn’t say, I withdraw consent, give them back to me. He allowed those documents to be published to what we have as the Afghan files. And David McBride’s intention, when he handed over those documents, was to expose wrongdoing. He thought there was wrongdoing at the top of the chain.

Sam Hawley: Yeah, well, his lawyer, Mark Davis, says his sentence is a shocking blow, of course, and they will appeal it…

Mark Davis: …I mean, David believes he is a man of integrity. He believed every step of this way, and it’s been a long time, and it’s overwhelmed his life, that he would be vindicated. Well, he wasn’t vindicated today, he was taken away in handcuffs. That’s a very hard blow for any person.

Sam Hawley: McBride himself, he appeared on ABC Four Corners this year, making the point that people might misunderstand what he was actually standing for, but whatever way you look at it, he is 100 per cent in his view a whistleblower.

David McBride: Whether I’m a war crimes whistleblower or a defence force whistleblower, it doesn’t really matter in the sense that I’m someone that stood up for what I believed in and am prepared to go to jail for it.

Sam Hawley: So, Adele, in terms of whistleblower laws and how whistleblowers are protected in this country, how significant do you think this judgement is?

Adele Ferguson: So what it really shows is that the whistleblower laws are not fit for purpose. They need updating, and the government is currently looking into that because it agrees that whistleblower laws are not fit for purpose. There are flaws in it. We have another whistleblower, Richard Boyle, an ATO whistleblower, who’s currently facing criminal charges. His court case is in September. There are flaws in the whistleblower laws. There’s no question about that. And at the end of the day, we need to look at how important is whistleblowing to democracy. Many of the scandals that have happened in recent years, the Commonwealth Bank scandal, the robo-debt casinos, at the heart of it have been whistleblowers, and we need to protect them.

Sam Hawley: If the government does proceed with changing these whistleblower laws, do you think David McBride would have been protected? Would he be out of jail now?

Adele Ferguson: I think possibly, yes, because what some of the proposals are is that we have a whistleblower protection agency so that whistleblowers or potential whistleblowers have somewhere to go, a one-stop shop where they can get advice and get legal advice and know how to do it properly. If we had a whistleblower protection agency and something that can protect them, I think Australia would be a different place.

Sam Hawley: Tell me, Adele, what about David McBride? Does he regret any of his actions, giving the journalist all those documents and taking them in the first place?

Adele Ferguson: No, not at all. He’s consistently said he acted in the public interest and he can hold his head up high. He believes he did his duty, and his duty was to the public, not to the military. So David McBride has been sentenced to five years and eight months, but he could be out on parole in two years and three months, which is a long time. Every day in jail, it’s a long time for doing what you believe is right.

Sam Hawley: Adele Ferguson is an investigative journalist at the ABC. This episode was produced by Bridget Fitzgerald and Nell Whitehead. Audio production by Sam Dunn. Our supervising producer is David Coady. I’m Sam Hawley. ABC News Daily will be back again tomorrow. Thanks for listening.