Whistleblower who exposed alleged war crimes in Afghanistan jailed for leaking documents

By Hilary Whiteman and Angus Watson, CNN

(CNN) — A former Australian Army lawyer who leaked classified documents to journalists exposing details of alleged crimes by Australian special forces in Afghanistan has been sentenced to more than five years in prison, a verdict criticized by press freedom advocates, who say it delivers a chilling message to potential whistleblowers.

Cries of “shame” rang out in the courtroom in the Australian capital Canberra on Tuesday, as Justice David Mossop delivered the sentence to David McBride, in a punishment described by his lawyer as “off the charts” and a deterrent to anyone who felt motivated to expose wrongdoing.

“Anyone who’s observed what’s happened to McBride will be well advised to shut up, put your head down and get back to the workplace. That was pretty much the tone of the judgement today,” lawyer Mark Davies said, adding his client was in “total shock” at the sentence and would appeal.

Tuesday’s sentencing ends a long legal battle between the former army lawyer and Commonwealth prosecutors who pursued charges against McBride over classified defense documents he admitted stealing between May 2014 and December 2015.

McBride gave the material to the Australian Broadcasting Corporation (ABC), which in 2017 published a seven-part series called “The Afghan Files,” that detailed a string of alleged war crimes, including the killing of unarmed Afghans by Australian soldiers in Afghanistan.

The ABC’s reporting was later vindicated by the findings of an investigation by the Australian Defense Force (ADF) which found credible evidence that members of the Australian Special Air Service (SAS) had committed war crimes in Afghanistan between 2005 and 2013.

Known as the Brereton report, the Afghanistan Inquiry Report found SAS members had in some cases planted “throwdowns,” or weapons and other material, near the bodies of civilians to suggest they had been lawfully killed. McBride is the first person to be convicted of any criminal charge related to the accusations.

However, during proceedings against McBride, the court heard that he did not bring the documents to the media’s attention to highlight the alleged war crimes.

In his ruling, Mossop said McBride had complained that soldiers were being investigated “even in circumstances where there was no prospect that they had committed the war crime of murder.”

McBride believed soldiers were being targeted for investigation “to satisfy political concerns as to the death of civilians.”

McBride had planned to argue that he acted out of a sense of duty to the Australian public, but in a previous hearing, Justice Mossop indicated he wouldn’t instruct the jury to that effect, so McBride pleaded guilty last November to three charges, including theft of Commonwealth property and breaching the Defense Act.

In his ruling, Mossop acknowledged McBride had not acted for financial gain or to assist Australia’s adversaries but wrote “the offender has no remorse and still considers that he did the right thing.”

“Self‑confident people with strong opinions who are subject to legal duties not to disclose information must be deterred from making disclosures in order to advance their own opinions,” Mossop wrote.

“They must know that breaching their legal obligations to maintain the confidentiality which they have undertaken to protect will be met by significant punishment. That is particularly so when that information is secret and its disclosure has the potential to harm Australia’s national security,” the judge added.

Supporters react

McBride’s supporters had appealed to the Australian attorney general to drop the charges and reacted angrily on Tuesday to his sentence.

Kieran Pender, acting legal director of the Human Rights Law Centre, called it a “dark day for democracy” and one that sent a “chilling” message to potential whistleblowers.

“David McBride leaked documents to our national broadcaster which contained credible evidence of war crimes committed by Australian forces in Afghanistan. That information is obviously in the public interest, I don’t think anyone can deny that,” he said.

Pender and others pointed out that no one had yet been prosecuted over Australia’s alleged war crimes in Afghanistan – except the man who had brought it to the country’s attention.

“Will the next David McBride speak up about wrongdoing when they see that this is the outcome?” he asked.

Peter Greste, a journalist, author and fierce defender of press freedom, said he found the imprisonment of a whistleblower to be “seriously troubling.”

He said he thought it would have a “very serious chilling effect” on whistleblowing, with implications for press freedom.

“Journalists are supposed to be a conduit for this sort of thing,” said Greste, who was released by Egypt in 2015 after spending 13 months in prison on accusations he produced false news to defame the country.

“It’s part of the democratic system that sources with evidence of wrongdoing in governments, when internal mechanisms fail, can go to journalists and give them the information they need to expose these stories and still have their identities protected,” he said. “This undermines that principle to a serious and profound extent. I’m very worried about that.”

“David ought to be treated as a hero, not as a villain,” Greste added.

Australian Federal Police officers raided the ABC offices in Sydney in 2019 seeking documents as they pursued potential charges against the journalists behind the story.

But ultimately no charges were laid. The ABC declined to comment on McBride’s sentencing. If the sentence is upheld, he’ll serve a non-parole period of 27 months in prison until August 2026.

Australian Prime Minister Anthony Albanese declined to comment on the sentence due to the prospect of an appeal.

“I’m not going to say anything here that interferes with a matter that is quite clearly going to continue to be before the courts,” he said in parliament Tuesday.

In a statement, a spokesperson for Attorney-General Mark Dreyfus said, “The decision to prosecute David McBride, and the conduct of that prosecution, was the responsibility of the Commonwealth Director of Public Prosecutions.”

“The CDPP is independent of the Government of the day – a very important feature of our criminal justice system,” he added.

The Australian Federal Police is working with the Office of the Special Investigator (OSI) to investigate potential charges.

Last year, a man in New South Wales was charged with murder, in the first war crime charge against a serving or former ADF member under Australian law, according to the AFP.

This story has been updated to clarify that the ADF inquiry began before the ABC’s reporting of “The Afghan Files.”

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