After a bid for a public interest defense and classified documents needed for his defense were both denied him, whistleblower David McBride pled guilty to three reduced charges on Friday. Joe Lauria reports.
Davd McBride with his legal team and dog Jake arrive at the Supreme Court on Friday where he would plead guilty on all counts. (Joe Lauria)
By Joe Lauria
in Canberra, Australia
Special to Consortium News
With his options for a fair trial exhausted, Australian whistleblower David McBride on Friday asked for a new indictment to which he pled guilty on all counts.
McBride, a former military lawyer, was charged with stealing government documents and giving them to journalists to reveal covered-up murders of unarmed civilians by Australian soldiers in Afghanistan.
His 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 these crimes.
But the trial judge, Justice David Mossop, said he would instruct the jury, which was to be selected starting Monday, to disregard any public interest in the 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 Wednesday.
McBride’s legal team tried to appeal that decision, but its application was denied by Supreme Court Chief Justice Lucy McCallum on Thursday. Later that day 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.
On Friday afternoon, he asked for a new indictment. On being arraigned for a second time, a defiant McBride stood in courtroom SC7 before a microphone placed in front of him and pronounced “Guilty” to each count read out to him.
McBride was then embraced by his attorney Mark Davis and by his wife, who leaned over the railing from the public gallery.
Mossop agreed to delay sentencing until the new year and to allow McBride to remain free on bail. He faces a maximum of ten years in prison. But Mossop assented to a so-called “intensive corrections order assessment,” which means McBride may be eligible for punishment out of prison.
On the street outside the courthouse immediately afterward, Davis told reporters: “We received the decision just this afternoon, which was in essence to remove evidence from the defense. … The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it. He is no longer able to put it before a jury.”
Davis said:
“It was the fatal blow made in conjunction with the decision a few days ago that limits what we can say to the jury on David’s behalf in terms of what his duty as an officer was on the oath he took to serve, as we say, the interests of the Australian people.
Well the ruling was: he doesn’t have a duty to serve the interests of the Australian people. He has a duty to follow orders. That is a very narrow understanding of the law in our view that takes us back really to pre-World War II. We all know how military law has been judged since then in terms of compliance to follow orders.
So facing that reality, we’re limited in terms of what we could put to a jury in term’s of David’s duty … together with the removal of evidence makes it impossible, realistically, to go to trial. It is a sad day and a difficult day for us to advise David on his options this afternoon and he embraced them.”
McBride said: “I stand tall and I believe I did my duty and I don’t see it as a defeat. I see it as a beginning of a better Australia.”
Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and 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
Well, clearly Judge Mossop practices what he preaches. This is obviously a man who follows orders, no matter what they are, and we know what he was ordered to do.
Wars are fought for power for the King or the ruling class. The soldiers are just faithful pawns, young men with plenty of testosterone and the belief they will won’t die. It’s a game for them to fit in, win, show their manhood, be loyal to the cause….in the end, they don’t matter; what matters is the spoils. Who are these pawns to object, to decide they know more than the top soldier they report to. If they desert or break ranks: death sentence for them. In these recent times, individuals think they should have rights, a voice, a choice. McBride made a choice to use his voice….something that happened was wrong and ignored by higher ups; it didn’t matter to them. It mattered to him. He will pay a price. At least he won’t be shot.
100% true, Andrew. Just a big, phony circus, signifying nothing, and no precedent of any kind. Victor’s justice.
Praise to Joe Lauria and Consortium News for following this important case. Yet another mockery of justice for the whole world to see. This is exactly what the “Rules Based Order” looks like. The sign behind David McBride said it all, “Failures Within Create Whistleblowers.” A Topsy Turvy world continues…
MEMO To: Judge Mossop
R E P E N T!!!
“Your servant here, he has been told. To say it clear, to say it cold. It’s over. It ain’t going any further; and, now the wheels of heaven stop. You feel the devil’s riding crop. Get ready for the future, it is murder.”
“Things are going to slide. Slide in all directions. Won’t be nothing. Nothing! You can measure anymore. The blizzard. The blizzard of the world has crossed the threshold and it has overturned the order of the soul.” Leonard Cohen, “The Future” @ hxxps://m.youtube.com/watch?v=8WlbQRoz3o4&pp=ygUYbGVvbmFyZCBjb2hlbiB0aGUgZnV0dXJl
MEMO To: The “Universe”
FROM: The Best in the West
SUBJECT: “Smashing the Idols of War” – “Murder King” – by Mr. Fish
“A society that prohibits the capacity to speak in truth extinguishes the capacity to live in justice.”
“Some here today (FEBRUARY 19, 2023) might like to think of themselves as radicals, maybe even revolutionaries. But what we are [DEMANDING] demanding on the political spectrum is, in fact, conservative: [The RESTORATION OF THE RULE OF LAW]. It is simple and basic. It should not, in a functioning republic, be incendiary. But living in truth in a despotic system, one the political philosopher Sheldon Wolin called “inverted totalitarianism,” is subversive.
The architects of imperialism, the masters of war, the corporate-controlled legislative, judicial and executive branches of government and their obsequious mouth pieces in the media and academia, are illegitimate. Say this simple truth and you are banished, as many of us have been, to the margins. Prove this truth, as Julian did, and you are crucified.”
“The ruling oligarchy has us locked in its death grip. It cannot be reformed. It obscures and falsifies the truth. It is on a maniacal quest to increase its obscene wealth and unchecked power. It forces us to kneel before its false gods. And so, to quote the Queen of Hearts, metaphorically, of course, I say, “Off with their heads!” Chris Hedges/Mr. Fish, IN “LIVING COLOR,” THE FULL CONTEXT @ hxxps://consortiumnews.com/2023/02/22/chris-hedges-smashing-the-idols-of-war/
MEMO To: David McBride, your Family, Friends, Lawyers, Attys., Counsel, et al.,
IF, “they” were right, we’d agree; but, they’re so f/beyond wrong…Twisted!!! However, you, are, were, have been, will always be Spot f/On!!! Thank you. “KEEP IT LIT!”
Mis respetos y abrazo solidario desde Lima, Perú, a David Mcbride por su irrestricta defensa al derecho de informar a la opinión pública mundial.
The learned 19th C. criminal law theorist, Sir James Fitzjames Stephen argued that the jury system was a safety valve. Juries would in some instances refuse to convict when a law was, in particular circumstances, morally abhorrent to them. However much they were told that they were to apply the law and not remake it, they would often vote their consciences and give a perverse verdict. Maybe the jury would not have felt conviction was so very morally abhorrent, but it would have been interesting to find out where they stood. Being generally conservative, Stephen would not have wanted his view to be used to advise a jury.
Keep manufacturing martyrs for all of the wrong reasons and just see what happens….
Thank you, Joe Lauria and CN, for again (Assange coverage) not only covering such an important case (ignored by MSM), but doing it so well. You succinctly described so well the positions on both sides of the issues. Was wondering how Aussie media covered the case.
And are you now in the Guinness Book of World Records for number of miles to and fro Australia?
It is another confirmation, that law and justice are two different things, they are not related.
In addition to the Breaker Morant trial
The concept of the duty of a soldier is enshrined in many military codes of conduct. For example the US Army’s Field Manual 22-100, Military Law, state that “A soldier is obliged to obey lawful orders from superiors. A soldier is not obliged to obey orders that are unlawful or manifestly unjust.”
This means that soldiers have a duty to obey orders from superiors, but this duty is not absolute. Soldiers are not required to obey orders that are illegal or unjust.
The distinction between “unlawful” and “manifestly unjust” orders is not always clear. In general, an order is considered unlawful if it violates the law or is contrary to the established rules of war. An order is considered manifestly unjust if it is so patently unfair or arbitrary that no reasonable person could believe it to be lawful.
In the case of Breaker Morant, the officers were found to have violated the law by following orders to take no prisoners. This order was considered unlawful because it violated the rules of war, which prohibit the killing of prisoners of war.
The duty to obey lawful orders is an important principle in military law. It ensures that soldiers will carry out their duties in a disciplined and orderly manner. However, this duty is not without its limits. Soldiers must always be prepared to disobey orders that are unlawful or unjust.
many other countries have a requirement for soldiers to not follow orders where those orders may result in a crime being committed or concealed. These countries include:
Canada: The Queen’s Regulations and Orders for the Canadian Forces (QR&O) state that “A member of the Canadian Forces shall not obey an order that is illegal or manifestly unjust.”
United Kingdom: The Joint Service Publication (JSP) 830, The Armed Forces of the United Kingdom: Law, Ethics and Administration states that “A member of the Armed Forces is obliged to obey lawful orders from superiors. A member of the Armed Forces is not obliged to obey orders that are unlawful or manifestly unjust.”
New Zealand: The New Zealand Defence Force (NZDF) Manual of Military Law states that “A member of the NZDF is obliged to obey lawful orders from superiors. A member of the NZDF is not obliged to obey orders that are unlawful or manifestly unjust.”
Even the Australia Defence Force (ADF) Law Manual states that “An ADF member is obliged to obey lawful orders from superiors. An ADF member is not obliged to obey orders that are unlawful or manifestly unjust.”
These are just a few examples, and there are many other countries that have similar requirements in their military codes of conduct. The specific wording of these requirements may vary from country to country, but the basic principle is the same: soldiers are not required to obey orders that are illegal or unjust.
In addition to the countries listed above, there are a number of international treaties and conventions that also address the issue of soldiers’ obedience to orders. These include the Geneva Conventions, the Hague Conventions, and the Rome Statute of the International Criminal Court. These treaties and conventions all prohibit soldiers from committing war crimes, and they also state that soldiers are not required to obey orders that would result in war crimes being committed.
The requirement for soldiers to not follow orders where those orders may result in a crime being committed or concealed is an important principle that helps to protect human rights and prevent war crimes. It is a principle that is enshrined in the military codes of conduct of many countries, and it is also reflected in international law.
Read many… as good a comment as ever posted this venue!
I think HH is wrong.
I think the precedent for this was set in 1902 with the Breaker Morant trial.
The Breaker Morant trial set several legal precedents that are still relevant today. These precedents include:
The defense of superior orders: The defense of superior orders is a legal defense that can be used to excuse a soldier from criminal liability for following an order from a superior officer. However, the defense is only valid if the soldier did not know that the order was unlawful or if the order was not manifestly unjust.
The burden of proof: The burden of proof in a criminal case is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. In the Breaker Morant trial, the prosecution was unable to prove that the officers knew that the order to take no prisoners was unlawful.
The definition of murder under military law: Murder is defined as the unlawful killing of another human being with malice aforethought. In the Breaker Morant trial, the officers were found guilty of murder because they killed the Boer prisoners of war with malice aforethought.
The role of superior orders in mitigating or eliminating criminal liability: Superior orders can mitigate or eliminate criminal liability in some cases. However, this is only true if the soldier did not know that the order was unlawful or if the order was not manifestly unjust.
The Breaker Morant trial was a landmark case that helped to clarify the law of war and the rights of soldiers. The precedents set by the case are still relevant today and continue to be debated by legal scholars and military experts.
In addition there are several other legal precedents and lessons that can be learned from the Breaker Morant trial.
The importance of the rule of law: The Breaker Morant trial showed that the rule of law is essential in ensuring that soldiers are held accountable for their actions. The officers in the case were found guilty of murder because they violated the law, and their executions served as a reminder that no one is above the law.
The need for clear and unambiguous orders: The Breaker Morant case also highlighted the need for clear and unambiguous orders. The order to take no prisoners was vague and open to interpretation, which led the officers to believe that they were acting lawfully. This case shows that it is important for superiors to issue clear and unambiguous orders to avoid confusion and misunderstanding.
The importance of training: The Breaker Morant case also showed the importance of training. The officers in the case were not adequately trained on the laws of war, which led them to make poor decisions. This case shows that it is important for soldiers to be well-trained on the laws of war to ensure that they can make informed decisions in combat situations.
The need for accountability: The Breaker Morant trial also showed the need for accountability. The officers in the case were held accountable for their actions, and their executions served as a deterrent to other soldiers. This case shows that it is important to hold soldiers accountable for their actions to ensure that they uphold the law and protect human rights.
The importance of due process: The Breaker Morant trial was conducted fairly and impartially, and the officers were given the opportunity to defend themselves. This case shows that it is important to uphold due process rights even in times of war.
The need for a balance between law and military necessity: The Breaker Morant case showed that there is a need for a balance between law and military necessity. In some cases, soldiers may need to follow orders that are not strictly lawful in order to achieve a military objective. However, this should only be done as a last resort and only if the order is not manifestly unjust.
The importance of command responsibility: The Breaker Morant case showed that commanders must be held accountable for the actions of their subordinates. In this case, the commanders who issued the order to take no prisoners were not held accountable, which many people believe was a miscarriage of justice. This case shows that it is important to hold commanders accountable for the actions of their subordinates to ensure that they do not abuse their power.
The importance of civilian oversight of the military: The Breaker Morant case showed that it is important for there to be civilian oversight of the military. In this case, the British government was held accountable for the actions of its soldiers, and this helped to prevent future abuses. This case shows that it is important for civilians to have a say in how the military is run to ensure that it is accountable to the public.
The importance of speaking out against injustice: The Breaker Morant case showed that it is important to speak out against injustice, even if it is against one’s own superiors. In this case, several people spoke out against the order to take no prisoners, and this helped to bring about the trial of the officers involved. This case shows that it is important to stand up for what is right, even if it is difficult.
The Breaker Morant trial was a landmark case that helped to clarify the law of war and the rights of soldiers. The precedents set by the case are still relevant today and continue to be debated by legal scholars and military experts.
So this is the law of “the Crown:” perpetrators can walk, but the guy who reveals their crimes is prosecuted?
Another example of the further decline of the US and the UK, and the total disregard for international law and standards of human decency and morality that emerged long ago and promised a more just, less brutal world order. That international laws in the interest of everyone, combatants and none combatants alike, wasn’t “working out” for the post-war imperialist powers is the reason our cynical governments have abandoned them.
Every time something like this happens the US and its allies are putting another nail in their own coffin. People will always rise against tyranny in any form, even the veiled tyranny of our “modern” “liberal” “democracies,” which are no more than a cover for power and corruption.
Thank God there are still people like McBride, Assange, Snowden, Ellsberg and others too numerous to name who put ethics, morality and conscience first. We must celebrate, emulate and stand for them in every moment. The real justice is never in the courts and laws, which protect the powerful, but in the hearts and minds of We The People.
More proof that no good deed goes unpunished.
hopefully the “punishment” will fit the heroic deed. We are still waiting for the sentence, right? Many a hero has spent time in prison. That’s life……among the humans.
I have to add that, all through history, many many men have died or lost legs or their sanity in unlawful or pointless or somebody else’s damn war.
Ratified Geneva conventions are laws too, and they compel prosecuting murders committed by members of the military. In this case of 38 murders, prosecutions were delayed beyond any reason (just one ten years after the fact, against a private), thus eliminating any discipline effect. The orders to hide those facts had questionable legality, but the courts do not allow to question that.
Democracy cannot prevent crimes by (indirectly) elected officials if its people can be denied that knowledge. That said, Australia is still behind USA and UK, the treatment of McBride is lenient by comparison (although we need to see the sentencing). As those things are progressively getting worse, shedding light on them is very important.
Shame on you Australia.
I ask again who are the nazis ?
Mark this date on your calendar: the day Australia stepped into tyranny.
No, that happened when the gov’t insisted that everyone be injected and began locking up people who refused as well as chasing and arresting citizens that dared to walk out of their homes.
You got that right Robert.
Lots of parallels with John Kiriakou’s case for exposing torture by Americans (once unthinkable).
DC (and other governments’) creatures now decide our lives. They need and brook no interference with their authority. “American democracy” in action.
“There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order,” So, this is what it all boils down to – The People = 0; Corrupt governments/military = wins the lot! Can someone please explain to me how our judicial systems aren’t rigged – when people like McBride and Assange rot in jail for exposing crimes against humanity???
Nineteen Nazis tried at Nuremburg — twelve sentenced to death and seven to prison — are celebrating in their graves.
So it’s illegal to act in the public interest even though it’s the public who funds the military. Fuck the war mongers in every country. This man McBride has got more courage and morals than all the world “leaders” and military “leaders” combined.
You are not guilty Mr. McBride, in the eyes of compassionate, ethical and caring people.
David McBride, Julian Assange. If they want you, they’ll get you. And they do. Every time.
Another shameful episode in Australia’s history.
So Just following orders is covering up war crimes? Those dead Nazis were right after all “I was just following orders.” It is more and more clear in these last few decades, esp since 119 that Nuremberg was nothing more than victors’ justice. No legal precedent at all.