David McBride, a former army lawyer who revealed information about alleged Australian war crimes in Afghanistan, could be facing a “life sentence” if found guilty in a trial that starts on Monday.
While Australia has established an independent special investigator into alleged war crimes committed by Australian troops in Afghanistan, supporters of McBride point out he is facing a criminal trial before any of the perpetrators of the alleged wrongdoing he helped reveal.
“It seems strange that when clearly so many things went wrong in the wars of Afghanistan and Iraq, that I am the first person to [face trial]”, McBride told Al Jazeera in an interview before his trial began. “It’s extremely likely that I will be facing prison and not just short term but for quite a long time,” the defence whistleblower added.
McBride is open about the fact he leaked documents to the ABC, Australia’s public broadcaster, leading to a series of articles called the Afghan Files.
“I’ve been charged with leaking documents,” McBride said. “I’ve never made a secret of that.”
Instead, he wants the conversation to be about whether it was right to speak out.
“What I want to be discussed is whether or not I was justified in doing so,” the whistleblower says.
Although McBride, a former lawyer for the Australian and British armies, sees the information he revealed as being in the public interest, his ability to claim a whistleblowing defence has been limited by claims of national security.
He is going on trial “without the benefit of being able to rely” on a whistleblower defence, Kieran Pender a lawyer with the Human Rights Law Centre, an Australian organisation based in Melbourne, told Al Jazeera.
McBride’s trial will be heard by both a judge and jury and will begin in the Australian Capital Territory’s Supreme Court at 10am Canberra time on Monday (23:00 GMT on Sunday).
‘Wrongs of the past’
McBride has not been the first or only person to reveal information about alleged Australian war crimes in Afghanistan.
Dramatically, an Australian judge found earlier this year that journalists had not defamed one of Australia’s most highly decorated soldiers Ben Roberts-Smith by saying he was “complicit in and responsible for the murder” of three Afghan men.
That case was a notable moment that came more than seven years after the Australian government established an inquiry, led by Supreme Court Justice Paul Brereton, into allegations that Australian troops had committed war crimes in Afghanistan.
In 2020, Brereton handed down findings that there was credible evidence to support allegations war crimes had been committed. As a result, the Australian government established a new Office of the Special Investigator, as an independent executive agency within the attorney general’s portfolio.
“We should be proud that Australia set up this process as a meaningful way to address these allegations,” Rawan Arraf, the executive director of the Australian Centre for International Justice, told Al Jazeera.
But while Arraf notes that McBride’s trial is separate from other processes related to justice for alleged war crimes in Afghanistan, she questions what it says about the Australian government’s priorities that his trial is proceeding first.
“Where is their priority in this?” Arraf asked. “Prosecuting a whistleblower or prosecuting those alleged crimes?”
Although one former soldier was charged earlier this year, McBride is still the first to stand trial.
Arraf adds that the Australian government has been “slow” to implement a recommendation to provide “compensation, or as we would say, reparations to Afghan victims and their families impacted” by alleged Australian crimes.
“Australia still has a long way to go to adequately address the legacy of its military involvement in Afghanistan,” Kobra Moradi, from the Afghanistan Human Rights and Democracy Organisation, told Al Jazeera, adding that “while some progress has been made” the trial of McBride was a setback.
“People should not be punished for telling the truth,” Moradi said.
For McBride, despite the trial going ahead, he still thinks revealing the information he did was important.
“It’s important for me to show that there are people in the West, especially people in the Western war machine who do get [that] we are not above the law,” he told Al Jazeera.
“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,” McBride said. He wants people to know “there are people who are working to right the wrongs of the past,” he added.
Despite acknowledging he is concerned about his trial going ahead, McBride says he has people contacting him from Afghanistan and around the world “and that always lifts my spirits”.
Journalists and whistleblowers
McBride’s case is just one of several examples of whistleblowers and journalists in Australia facing consequences for speaking out.
In June 2019 the Australian Federal Police raided the offices of the ABC, with a warrant to search reporters’ notes, emails and story drafts in relation to the so-called Afghan Files. Police later dropped the investigation in 2020.
McBride is also not the only whistleblower currently, or recently, facing prosecution in Australia.
But he is going on trial “without the benefit of being able to rely” on a whistleblower defence, Pender, his lawyer, says.
“David McBride tried to argue that he was protected under whistleblowing law,” says Pender, “The government made a last-minute national security claim in relation to that argument that ultimately meant it was never decided by the court.”
Instead, supporters of McBride have been calling for the Australian attorney general to intervene in his case.
In 2022, Attorney General Mark Dreyfus did intervene in the prosecution of another Australian lawyer, Bernard Collaery, leading to the case against him being dropped.
Collaery had been charged with conspiring to release classified information about alleged Australian spying on the then newly formed nation of East Timor during negotiations over oil and gas boundaries in the Timor Sea.
Asked about whether the attorney general would consider a similar intervention in the case of McBride, a spokesperson told Al Jazeera: “The attorney general’s power to discontinue proceedings is reserved for very unusual and exceptional circumstances.”
The spokesperson also said that the Australian government is currently planning to pursue further whistleblower reforms, though it seems unlikely these will be applicable to McBride’s trial this week.