Above photo: McBride leaving Supreme Court during break in his trial in November 2023. Cathy Vogan/Consortium News.
A vindictive judge in Canberra has thrown the book at a man who revealed war crimes by the Australian military in Afghanistan.
A federal judge in Canberra, the Australian capital, has sentenced military whistleblower David McBride to nearly six years in prison for leaking classified material to the media that revealed Australian war crimes in Afghanistan.
Supreme Court Justice David Massop ruled on Tuesday morning local time that “only a prison sentence is appropriate,” and handed down 68 months — 5 years and 8 months.
Consortium News‘ Cathy Vogan, who is inside the courtroom, reported that McBride “will go to jail until 2030. He is led out of the court by three policemen. A woman takes his dog.”
McBride’s solicitor Mark Davis said they will appeal the severity of the sentence and the circumstances of his trial that forced McBride to plead guilty, namely the ruling out of a public interest defence and the removal of evidence from the court that would have enabled him to defend himself.
Mossop told the court at sentencing that McBride, 60, thought he knew better than the ADF. “It is imperative that others be generally deterred from holding such attitudes,” he said. McBride will only be eligible for parole after two years and three months. Mark Davis, an attorney for McBride, said they would appeal the sentence.
Listen to an exclusive CN interview with McBride lawyer Mark Davis moments after the sentence was announced:
“Obviously devastated as most people in this room were,” Davis told CN. “A pretty vicious judgement.” Davis called it an “extremely heavy sentence” particularly since the government “conceded” McBride “caused no harm” and it did not personally benefit him.
“We are horrified, frankly,” said Davis. “Whatever happened today we are appealing.” In the street outside the courthouse, Davis said:
It’s an issue of international importance that a Western nation has such a narrow definition of duty. We say David McBride fulfilled his duty and he wished to put it to a jury that he conducted himself according to the oath he gave to his nation.
A former military lawyer, McBride was charged with stealing government documents and giving them to journalists at the Australian Broadcasting Corporation, which revealed covered-up murders of unarmed civilians by Australian soldiers in Afghanistan. A four-year government inquiry later found 23 possible war crimes, including the murder of 39 Afghan civilians.
McBride’s defense had rested on the court accepting his argument that his oath to the British crown gave him a duty beyond obedience to military orders to instead inform the entire nation of government wrongdoing. His lawyers also invoked the Nuremberg principles in which it is a soldiers’ duty to break an oath to report serious crimes.
But Justice Mossop refused that defense. “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order,” he told the court in November.
McBride’s legal team tried to appeal that decision, but its application was denied by Supreme Court Chief Justice Lucy McCallum. On the same day in November Mossop ordered that agents of the Attorney General’s office could remove classified documents from the defense’s possession, which McBride’s team had intended to present to the jury.
Because of those regressive rulings, McBride accepted his attorneys’ advice that, left with no viable defense, he should plead guilty.
After a day-long sentencing hearing on May 6, court reassembled Tuesday morning to hear Mossop’s decision.
McBride’s lawyers had argued for leniency because of post traumatic stress disorder, and because he believed he was doing the right thing in informing the Australian public of its military’s wrongdoing.
Whether McBride’s actions had caused harm was central to his sentence. His lawyers argued until the end on Tuesday that there was no evidence of harm and that the risk was minimal because he had given the material to professional journalists.
But Mossop ruled Tuesday that the “nature of the offending, harm,” and a “lack of contrition all give rise to the need to give general deterrence – to prevent any further disclosures of this kind.”
The judge quoted McBride as saying: “I never said I would coverup crimes for the government.” Mossop told the court that McBride accessed documents and stored them in a personal folder. “He then removed this information – some 237 docs, 209 of which were classified ‘Secret” – and took them home,” the judge said.
The Australian Federal Police “seized the documents from his home, giving rise to the charge of theft.”
The judge said McBride’s lawyers argued his motivation was neither financial gain, nor to aid Australia’s enemies. that he believed he was not committing an offence.
Mossop said McBride admitted to taking the documents but in pursuit of a legal aim – within the Protective Disclosure Act, that McBride claimed he had a legal obligation to disclose. “He showed no remorse,” the judge said.
After relating the history of the Australian Defence Act, which has changed much over the decades since 1914, Mossop said life imprisonment would be inappropriate for McBride, but that two years in jail could be.
Instead, after talking about McBride’s obligations to follow orders and keep official secrets, Mossop came down with a much harsher sentence, one that, given the circumstances, could be called draconian.
Read Consortium News‘ live tweets Tuesday from inside the courtroom:
https://threadreaderapp.com/thread/1790124444351946898.html