Australia: Military whistleblower not allowed to choose his own lawyer: An interview with David McBride

Last Updated: 22 November 2019
Article by Paul Gregoire

Most Read Contributor in Australia, December 2019

Former Australian Defence Force lawyer turned whistleblower David McBride told reporters last week that he'll be representing himself in court. A reason for this decision is that the government requires any lawyer who represents him to have top secret security clearance.

Mr McBride is set to stand trial early next year over five national security-related charges. These comprise of three counts of breaching the Defence Act, one of stealing Commonwealth property and a final count of unauthorised disclosure of information.

The charges were laid due to his leaking of classified military documents to the ABC, which were subsequently published as The Afghan Files. These laid bare the details of Australian elite forces' operations in Afghanistan, including incidents of troops killing unarmed civilians.

Keeping up appearances

As McBride put it in an account published in SMH, things came to a head for him in 2013, during his second deployment in Afghanistan. The then legal officer for the Australian Special Forces got to the point where he understood that "lives were being cynically wasted".

The lawyer has described Australian Defence Force operations in Afghanistan as an "Instagram war", meaning "everything was done for appearance". And while that may not sound too bad, he said in June. "It was bad because we were even killing our own soldiers for appearance."

Exposing a corrupt elite

The publishing of The Afghan Files led the Australian federal police to raid the Sydney ABC offices in early June this year. Although, Mr McBride has always maintained that he wasn't happy with the angle the national broadcaster took with the story.

While the alleged misconduct of troops might have been newsworthy, McBride wanted to focus on how special forces troops had been abandoned by politicians and defence force management, who were more concerned with climbing the ladder, than conducting meaningful operations in the field.

McBride also told reporters outside the ACT Supreme Court last week that he plans on calling attorney general Christian Porter and former ADF senior officer and current governor general David Hurley to the stand during his trial.

Sydney Criminal Lawyers spoke to David McBride about his decision to represent himself in court, what he wants to discuss with the attorney general at the stand, and the "good result" he got from an ACT justice whilst setting the date for his trial.

Mr McBride, last week, you announced that you'll be representing yourself in court over some serious charges relating to the leaking of classified military information. Why have you decided to take that approach?

My tactic is to just tell the truth. I worry that once you get a lawyer representing you, it looks like you're hiding something. A lot of it is optics: you're sitting at the back of the court, you've got someone doing the talking for you and you're hoping to win the jury over.

I've decided to be on my feet, looking like I can talk for myself, rather than having a lawyer explain the reason I did "this" was because of "that".

It's unusual, I understand. But, I got this far by myself. And if I get a lawyer, and it doesn't go well, and I end up in prison, and I think they could have done things differently, I'm going to be angry.

But, if I end up in prison because of my own fuck ups, I'll be more philosophical about it. I'll know I tried my best and it didn't work out.

I've had cases in the past, when you're instinct is to do something unusual. And then you go and speak to some – a supposed expert in the area – and they say no. And you follow their advice, and it turns out that, even though they were an expert, you were right in the first place.

Also, I don't think anyone else would run it the way I want to run it. The paradigm with which a lawyer approaches any case is different. They necessarily approach it to try and make sure you get the least punishment.

All the lawyers I've spoken to have said, "Whatever you do, don't speak to the police." Of course, it's very sound advice for a normal case. But, I decided to speak to the police, because I wanted to narrow the issues at stake in the case, to whether or not what I saw was bad enough to justify the whistleblowing.

I didn't want to have to waste time with the Crown having to prove whether or not I actually gave the documents to the ABC. Now, no lawyer would do that. They would say that we should make them prove the case, and maybe they won't be able to even make their case.

I didn't want to do that, because I want to debate the key issues. I know that they're strong. And if I go down on the key issues, I go down on the key issues.

It looks better to the jury. If you make the police run the case about whether or not you actually gave the documents over, and when it looks like they prove that, you get up there and you say, "I was justified."

It's a bit like a child saying, "I didn't knock over the cookie jar. But, if I did do it, I was justified." You can't have it both ways. I'm going to go in there and say I was justified and play the honesty card.

There are some logistic problems as well. The government has said that whoever is going to run my case has to have a top secret security clearance. That's very rare. The only people who have that work for the government already. And I don't trust them.

In order for me to get someone else to get the clearance, it could take up to a year. And the government could deny them at the last minute.

So, it could be a way that the government delays the case indefinitely by making me wait a year if I want a particular lawyer to get the clearance.

And after a year of reviewing their personal history, they can then say they're not good enough. Then I'd have to go back to the beginning. And I don't want to give them that power.

So, the government's basically saying in a way that they'd be selecting your lawyer?

Yeah. They have to approve them. Even if they have the clearance, they have to be approved by the government. It's all very dodgy.

You plan on calling the attorney general and the governor general to the stand. Can you outline why that is?

The governor general was the head of the defence force at the time. And he signed off on the changes to the rules of engagement. While he may say he wasn't involved with that, he was in charge of the defence forces. And at least he'll have to explain why he wasn't involved.

With the attorney general, he hasn't prosecuted the journalists who published the information. And I'm going to ask him why that is. Presumably, his answer will be, "Because they didn't damage national security like you."

I'm then going to say, "We have on file an affidavit from the military saying I damaged national security by releasing information into the public knowledge. Now, presuming that's true, the ABC are the ones who put it onto the internet. So, if I damaged national security by giving it to the ABC, the ABC must have damaged national security much more. And yet, you're not prosecuting them."

And this being the case, it looks like a political prosecution, which is just done to make an example of me, and not for any actual damage to national security. I want him to justify why he's not charging the journalists, and he's charging me.

How would you describe the way your case is being handled?

It's a political witch hunt. They want to get some vengeance upon me. And I don't think anyone has really thought about it, because a lot of the things that they're doing are backfiring on them.

The security is going to backfire on them. One of the reasons that the governor general might not want to come is that he doesn't want to speak on highly sensitive matters. But, I can say that it's a closed court, everyone has security clearance, so there's nothing we can't talk about.

So, that's helps me. I don't think too much really needs to be classified. But, because the attorney general said it needs to be – a kneejerk reaction – it may backfire on them.

I believe they were going to set the trial date on Monday. Did that happen?

Yes. It's 2 March. And I had a good result from the judge. He said 2 March. Then the prosecutor said they can't do that date, because the QC they've got from Melbourne is one of the few people with top secret security clearance, and he's not available then.

The judge just said, "Too bad. Get another lawyer."

And lastly, Mr McBride, do you have any regrets about leaking what are now known as The Afghan Files to the ABC?

I'm not happy about the way the ABC covered it. But, I don't have any regrets in my actions, because as a result, this has all happened. And eventually, it will be a good outcome for the country when the full story is told.

Had they not published it, I would never have been arrested. And had I not been arrested, we wouldn't have been able to change some of the things that are wrong with this country.

Overall, it's been good. But, obviously, they weren't trying to help me.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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