McBride Trial: Defeat — ‘It Looks Like I’m Going to Jail’

Judge rules that he will instruct the jury that there is no aspect of duty that allows the accused to act in the public interest contrary to a lawful military order, reports Joe Lauria. 

McBride leaving Supreme Court during break. (Cathy Vogan/Consortium News)

By Joe Lauria
in Canberra, Australia
Special to Consortium News

The judge in the case of Australian military whistleblower David McBride dealt the defendant a serious blow on Wednesday when he ruled against a public interest defense during the trial. 

“I will instruct the jury that there is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order,” Justice David Mossop told the court.

Outside the courtroom during a break, McBride told press: “It looks like I will be convicted and will go to jail.”

McBride’s lawyers had asked that the case be moved at this stage to a three-judge appeals court plan, a request that Mossop denied. However Stephenr Odgers, McBride’s chief counsel, objected and Mossop has allowed a hearing on the matter on Thursday before a different judge. Jury selection, that had been scheduled for Thursday, has been pushed back to Monday morning.

“I thought I would go to jail and the case hopefully goes to the High Court so it rules that there is a duty to serve the public interest,” McBride told reporters. “I will be waiting in jail for this to happen.”

McBride, who served two terms in Afghanistan as a lawyer with the Australian Defence Force (ADF), has been charged in a five count indictment for a trial that is expected to last three weeks.

The prosecution has argued since Monday that McBride broke laws of military discipline by leaking to the Australian media. McBride’s lawyers conceded in court that he indeed broke such regulations but that he had a duty to the nation that superseded military discipline.

His leaks to the Australian Broadcasting Corporation revealed murders of unarmed Afghans by Australian soldiers. Though 39 murders were identified by a government investigation, so far only one Australian soldier has been charged with murder in Afghanistan.

The pre-trial debate was a battle between opposing ideas of the military’s role in society: is it to serve the entire community’s interests or is it a law unto itself?  The judge’s decisions on Wednesday regarding his instructions to the jury has decided that battle in the government’s favor. 

Mossop said he would instruct the jury that a soldier’s oath to the Sovereign does not mean he can violate a lawful order to serve the public’s cause. The defense had argued that since the Sovereign’s duty is to the public it followers that a soldier’s oath to the King also meant serving the public.

Left unmentioned in the courtroom during the first three days: the 39 murdered, unarmed Afghans.

Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers, including The Montreal Gazette, the London Daily Mail and The Star of Johannesburg. He was an investigative reporter for the Sunday Times of London, a financial reporter for Bloomberg News and began his professional work as a 19-year old stringer for The New York Times. He is the author of two books, A Political Odyssey, with Sen. Mike Gravel, foreword by Daniel Ellsberg; and How I Lost By Hillary Clinton, foreword by Julian Assange. He can be reached at [email protected] and followed on Twitter @unjoe

32 comments for “McBride Trial: Defeat — ‘It Looks Like I’m Going to Jail’

  1. Frank James
    November 16, 2023 at 13:09

    “that there is no aspect of duty that allows the accused to act in the public interest”

    The agents of the people, paid for by the taxes of the people, have no obligation to act in the interests of the public. In fact, they are not even ‘allowed’ to do so.

    What a lovely summation of “Freedom” and “Democracy”.

  2. LeoSun
    November 16, 2023 at 11:57

    What “if” David McBride had NOT reached a higher level of consciousness & carried on w/a “soldier’s oath to the King,” basically, IMO, “fornication under the consent of the King,” f’n-up animal, plant & human life?

    —— “When the president does it, that means it is NOT illegal.” “A soldier’s oath to the King does NOT mean serving the public?” A military’s lawyer is NOT a Public Servant?

    In the 21st Century, David McBride, Australia’s & Britain’s Military’s Lawyer & the King’s Soldier, “is charged w/leaking documents.” No worries. No contest. For McBride it’s “Own It. Do It. DONE!” For that level of higher consciousness, McBride is “Standing on the gallows with [his] head in a noose. Any minute now, [we] expect all hell to break loose…” (Bob Dylan, “Things Have Changed” @ hxxps://

    I, LeoSun, did NOT expect Judge Mossop’s poisoned arrow to be shot into the center of the heart & soul of McBride’s defense. IMO, Judge Mossop gettin his freak on, i.e., IMO, the judge is 100% intent on fast-tracking the pre-trial hearing to sentencing. “Do NOT Pass GO! Do NOT Collect $200!”

    W/all due respect, your Honor, “the pre-trial judgment is f/f.u.b.a.r. The murder of one, is the death of many. WHO’S NEXT?”

    WHO’d they target, last month? In the past twenty (20) years? In the UK/AUS/Divided $tates of Corporate America fka USA? Craig Murray. John Pilger, David Hicks. Russell Brand. Julian Assange. The list is long! The end goal, f/up, the personal & professional life, of good men.

    “How long shall they kill our prophets, while we stand aside and look. Some say it’s just a part of it. They got to fulfill da book. Won’t you help to sing, these songs of freedom. Songs of freedom. Redemption songs.” Bob Marley & The Wailers

    “Things have changed,” David McBride’s attorney, counsel, advisors shout-out, in proper protocol, “Bring it! A trial w/a Judge, a Jury, & a Defendant. The end goal, David McBride lives free; after the trial.

    “We cannot have this kind of colonial mindset where we’re always right without ever having some sort of insight into our own actions and accountability for those activities we carry out overseas, especially involving violence and imprisonment.”

    David McBride wants people to know, “THERE ARE POPLE who are working to right the wrongs of the past.”

    May the force be with you, David McBride, your Family, Friends, Lawyer/Attorney(s), et al., “People should NOT be [persecuted, prosecuted, caged] for telling the truth.” hxxps://

    Oct. 3, 2023, New Delhi, India @ hxxps://

    “the homes and offices of over one hundred journalists and researchers across India were raided by the Delhi Police, which is under the jurisdiction of the country’s Ministry of Home Affairs.” Tricontinental: Institute for Social Research. TRS’ focus, “How To Build A Better World.”

    “What Is a Hicks-Style Plea Bargain for Assange?” @ hxxps://

    “INDEED, it can confidently be assumed that the better prophets were quiet, thoughtful men, dramatic enough, no doubt, but never over-acting their part.

    Oct. 23, 2023 “US Government & NewsGuard Sued by Consortium News” @ hxxps://

    TY! “KEEP IT LIT!!!”

  3. November 16, 2023 at 06:58

    The decisions of the Nuremberg tribunals continue to be not only ignored but thoroughly rejected by every government allied with the United States, and especially, by the countries that insisted on them in the first place, which makes a mockery of all the men and women who lost their lives in the second “war to end all wars”, as well as of the United Nations Charter, the United Nations’ Declaration of Human Rights and International Law. So, just who were the bad guys in that and the myriad ensuing conflict?

  4. Al
    November 15, 2023 at 21:14

    “The military has no duty to act in the public interest”. Something most of us have known most of our lives, that has now been articulated by a judge in open court.

    Just like every other branch of government, your own military is also your enemy.

  5. Anon
    November 15, 2023 at 21:09

    What we are witnessing here is the same monkey trial MO as Julian will receive… IF… US extradition succeeds!

  6. Steve Abbott
    November 15, 2023 at 18:49

    One might hope that members of the jury might have the wit to ask whether an order to cover up war crimes can be considered “a lawful military order”.

  7. Mike
    November 15, 2023 at 17:58

    Working in key war zone to keep Australia’s reputation clean, David McBride must have had a fat salary and a cushy pension ahead in doing the ADF’s bidding. From such a position, to expose wrongdoings (what’s a few extrajudicial executions?), you’re not going to get much sympathy in losing everthing from the comfortable westerner who simply expects his/her government to keep it that way.

  8. Judy Dyer
    November 15, 2023 at 14:24

    He is sacrifices himself for a greater good. How many will do that?
    I hope he gets a short sentence.

  9. Judy Dyer
    November 15, 2023 at 13:49

    That rule is made for keeping war crimes from the public….war crimes are common in war. sadly.

  10. JulianJ
    November 15, 2023 at 12:58

    So the Australian soldiers who committed atrocities and murder don’t go to jail, but the whistleblower who listened to his conscience, does? This is the nature of the sick society we live in.

  11. Jeff Harrison
    November 15, 2023 at 12:22

    Nuremberg anyone? This goes to prove that we are a world of men, not laws.

  12. Will Durant
    November 15, 2023 at 11:20

    Jurors don’t have to follow the judge’s instructions, and should not. I’m afraid I wouldn’t be a very compliant juror, preferring natural law over positive law and the foundational imperative of a moral individual to follow his conscience in violating an order, legal or not. Th systems we operate under are designed to crush conscience. The law and order we have is asymmetric, and favors the perpetrators at the highest levels of our government and society. A jury of our peers is still the best bet for most of us, but jurors must see through and reject the too narrow strictures of a legal system that prefers the letter of the law to the spirit of the law, whoch is always to correct injustice.

    • Mike Madden
      November 15, 2023 at 18:28

      Well said Will. Potential jurors must also be careful not to reveal that they have a conscience lest they be stricken from the pool by the prosecution,

  13. Steve
    November 15, 2023 at 11:02

    Re. “Mossop said he would instruct the jury “. Not sure of the law here, but I believe, in the UK, the Jury has the right to ignore the direction of a Judge if they believe it is appropriate.

  14. JonT
    November 15, 2023 at 09:19

    Here we go again. Another brave whistle blower. Another government trying to make sure that the accused is unable to defend themselves. Another corrupt rotten system.
    Why do I expect any differently? The US, the UK, Australia. All in it together. As usual.

    • Rosemary Molloy
      November 15, 2023 at 10:36

      Thank you!

  15. Cara
    November 15, 2023 at 08:39

    I’m not familiar with the details of this case. What “lawful orders” is it claimed that he disobey?

    When I read the CN tweet yesterday about the Judge’s ruling I felt heartbroken. We live in dark times when any possibility of truth and justice seems to have died and scoundrels hold all positions of authority and power.

    Very grateful to Joe Lauria and CN for this reporting.

      November 15, 2023 at 19:45

      The lawful order not to reveal classified information to unauthorized persons, such as in the press. That this material revealed a crimes should render these documents no longer classified, for as in the U.S., it is not permitted to coverup a crime by classifying it.

  16. susan
    November 15, 2023 at 08:02

    Why is it that the innocents who are trying to inform the public about what is really going on in our corrupt governments & military operations, end up in jail and those perpetuating the corruption get away with murder – literally?

  17. Jack Stephen HepburnFlanigan
    November 15, 2023 at 01:34

    For what is is worth my understanding is that during the Nuremburg trials The Tribunal held that if a serving member of the military refused to obey an order to carry out an act amounting to a war crime then he was obligated to disobey the order regardless of the possible consequence even if it meant his execution.

    Jack Flanigan

    • michael888
      November 15, 2023 at 05:54

      That was only for the defeated German NAZIs.

      The American/ Australian/ Ukrainian/ and Israeli NAZIs are just following orders, as they must. Deviants from their military orders will be locked up or shot.

      Must be the new improved “Rules based Order”.

    • Carolyn L Zaremba
      November 15, 2023 at 12:28

      Your understanding is correct.

  18. Andrew Nichols
    November 14, 2023 at 23:44

    “Judge rules that he will instruct the jury that there is no aspect of duty that allows the accused to act in the public interest contrary to a lawful military order, reports Joe Lauria. ”

    ie “I was only following orders”

    Didnt the Nazis lose this kind of argument at Nuremberg?

    • Carolyn L Zaremba
      November 15, 2023 at 12:28

      They did and it didn’t work.

  19. November 14, 2023 at 23:38

    Would that prospective jurors involved in the McBride trial familiarize themselves with Philip Lynch’s article “Juries as Communities of Resistance: Eureka and the Power of the Rabble,” published in the Alternative Law Journal in 2002 (the conclusions of which are succinctly summarized in, e.g., Lyons Law Firm’s “Understanding the Role Of Jury in Legal Cases”).

    US citizens who may some day find themselves serving on a jury are invited to do likewise by consulting the materials of the Fully Informed Jury Association (FIJA).

    • Rafael
      November 15, 2023 at 12:16

      Hear, hear!

  20. Em
    November 14, 2023 at 23:27

    What else was expected from the U.S. Hegemons proxy democracy, led by an obsequious puppet named Albanese?
    This result is nothing less than another nail in the coffin of freedom of speech in publishing truth.
    Further, it means an even more dire outcome in Julian Assange’s saga!

    • Selina Sweet
      November 15, 2023 at 22:09

      We must call our governmental representatives every day and insist on justice and decency….our silence will be construed as consent….isn’t it the least we can do in support of this brave and decent man? ….our silence is not acceptable…is it?

  21. Ed
    November 14, 2023 at 23:15

    So, all those hanged at Nuremberg who said that: “I was just carrying out orders from my superiors” were hanged in vain? Gee I thought it was the other way around. I thought a soldier was required to consider the morality of an order before proceeding with inhumane orders.

  22. Lois Gagnon
    November 14, 2023 at 22:42

    Western governments have gone completely off the rails. Fascism rules and it’s called freedom and democracy. This is what happens when pursuit of profits trumps the rule of law.

    How many more whistleblowers will go to jail for informing a propagandized public about war crimes before said public figures out it is they who are the designated enemy by their own governments?

    • Em
      November 15, 2023 at 07:49

      Unfortunately the late great Daniel Ellsberg was the last to beat ‘them’ at their despicable game, staying free in body, mind and spirit to promote truth, and love, in his own beloved country.

    • Selina Sweet
      November 15, 2023 at 22:13

      Right on Lois Gagnon! Mammon over decency and justice. So we got to protest for justice! Hound our representatives to do the right thing…every single day..,.on the phone….and if in the neighborhood visit their office and load their ear up with truth telling and insisting on doing the right thing…Every itty bitty voice joining with every other itty bitty voice winds up into a roar for truth, justice, and right action….

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