Australian Army whistleblower jailed for leaking documents

A whistleblower who helped uncover allegations of Australian war crimes in Afghanistan has been sentenced to five years and eight months in prison.

David McBride pleaded guilty to stealing and leaking military secrets on the eve of his trial last year after court rulings threw out his defense.

McBride, a former military lawyer, said he felt a moral obligation to speak out.

A landmark investigation later found evidence that Australian forces had unlawfully killed 39 Afghans during the war.

The McBride case has caused uproar in Australia, shining a spotlight on what some say are poor whistleblower protections and slow progress in prosecuting soldiers who allegedly killed with impunity under the Australian flag.

McBride, 60, admits he gave numerous documents to the Australian Broadcasting Corporation (ABC) and said he was concerned about the attitude of commanders and what he believed at the time was an “excessive scrutiny” of troops like that Court heard.

Instead, the information he provided underpinned a series of reports in 2017 called “The Afghan Files,” which gave unprecedented insight into the operations of Australia’s elite special forces in Afghanistan and included allegations of war crimes.

Prosecutors argued McBride was motivated by “personal justification” and that the way he collected, stored and then shared the documents jeopardized Australia's national security and foreign policy.

However, McBride's lawyers asked for leniency, saying he shared the information with “honorable” intentions and a sense of personal duty.

During sentencing on Tuesday in the nation's capital, Judge David Mossop agreed that McBride was of “good character” but said he appeared to be obsessed with the accuracy of his own opinions. Sharing military secrets was “a gross breach of trust” for which he had shown “no remorse,” he added.

McBride will be eligible for parole after 27 months.

After the verdict was read, some in the public gallery shouted “Shame on you!” at the judge as he left the bench.

McBride, his service dog nearby, hugged his friends and family before being taken into custody.

He claimed his leak was justified because it ultimately exposed wrongdoing.

“I have not broken my oath to the Australian people and the soldiers who keep us safe,” he told a group of supporters, including relatives of WikiLeaks founder Julian Assange and his whistleblower, before his sentencing on Tuesday. Colleagues included Jeff Morris.

Files were smuggled over a period of 18 months

Even before he became one of Australia's most prominent whistleblowers, McBride led a colorful life.

After studying law at Oxford University, he began his career with a stint in the British Army. After reaching the rank of captain, he left and dabbled in everything from private security to reality TV to politics before coming full circle and joining the Australian Defense Force (ADF).

As a judicial officer, he undertook two tours through Afghanistan in 2011 and 2013, the latter with the special forces. At this point he began to get the impression that the commanders had “crossed a line.”

Over the next few years, as he suffered from undiagnosed post-traumatic stress disorder (PTSD) and abused drugs and alcohol, McBride said he became increasingly convinced that he needed to speak out.

Working late at night at a military base near Canberra, he began secretly copying hundreds of sensitive documents and smuggling them home in a backpack for 18 months.

He first tried an internal complaint. When that failed, he contacted the police and the defense minister before turning to the press.

He believed that the dossier he had compiled would show that the ADF chain of command was so concerned about perceptions of unlawful killings that they scapegoated soldiers and undermined special forces' confidence in their work.

Instead, ABC journalist Dan Oakes found they contained evidence that Australian forces had committed war crimes and lied to hide them.

“The more I looked into it, the more I couldn't imagine how anyone could think that these people were being watched too closely. “It was just the opposite,” he recently told the “Four Corners” show.

“What happened out on the field stayed on the field.”

The Afghan files included revelations that military leaders themselves had concerns about a “warrior culture” within the force, and details of how soldiers allegedly covered up the unlawful killings of unarmed men and children – including a six-year-old boy who was allegedly shot dead in his sleep in 2013.

Up to this point there have been very few reports of allegations of war crimes.

McBride was quickly deemed the man behind the leak and fled to Spain shortly before the Australian Federal Police (AFP) raided his home. There, the officers found four plastic containers full of secret documents in a closet.

After a year in hiding, McBride returned to Australia and was charged with theft of Commonwealth property, breaching the Defense Act and disclosing confidential information.

Police also began to open a case against Mr Oakes and his producer Sam Clarke. In 2019, they carried out a dramatic raid on the ABC headquarters in Sydney and seized documents.

It was an unprecedented moment in Australia that made headlines around the world. Under pressure from the public, prosecutors ultimately decided against charging the journalists, saying it was not in the public interest.

Within a month, the results of a groundbreaking investigation known as the Brereton report found credible evidence of unlawful killings of civilians and prisoners in Afghanistan from 2007 to 2013.

The government also established the Office of Special Counsel to conduct a criminal investigation into the allegations. So far only one person has been charged.

But despite mounting pressure, the government refused to order prosecutors to drop the case against McBride.

'Deterrent effect'

In Australia there are some legal protections for whistleblowers. But advocates have long complained that they are weak and have also demanded that whistleblowers meet a series of strict requirements before disclosing information – some of which, ironically, make it easier for authorities to catch them.

McBride had originally planned to invoke those protections, but his legal team said they were forced to withdraw that defense after much of their evidence was struck out on national security grounds.

After failed attempts to persuade Attorney General Mark Dreyfus to intervene and drop the prosecution – as Mr. Dreyfus did in the case of fellow whistleblower Bernard Collaery in 2022 – McBride then tried to argue that he had a duty to reveal the documents, because he did this in the public interest.

But that defense, too, was thrown out by the judge, who ruled that it had no legal basis and could not be presented to a jury – a decision that McBride's attorney says they will appeal.

Advocates say McBride's case shows that whistleblower protections aren't working and will discourage others from speaking out about wrongdoing.

“It is a stain on Australia's reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person to be convicted in connection with these crimes is a whistleblower and not the perpetrators,” said Daniela Gavshon, head of the department for human rights in Australia.

Among the critics were numerous parliamentarians who described the result as “perverse”.

“The prison sentence imposed on David McBride sends a chilling message to whistleblowers across Australia… We urgently need better whistleblower protection,” said independent MP Allegra Spender.