Paul Gregoire tells the story about the story behind what is happening to whistleblower David McBride (Sydney criminal Lawyers 18 May 2023). David, a former Australian Defense Force (ADF)lawyer who served two tours of Afghanistan witnessed murder and other human rights violations there and decided that he must speak out. The decision to go public was made after being ignored by the military brass. Since then, he has faced ongoing persecution in Australia, been charged with violating national security, and faces the prospect imprisonment. This is a landmark case with serious implications for the right to speak out in Australia.

The AFP arrested former SAS officer Oliver Shultz on 20 March, following a joint investigation with the Office of the Special Investigator. The 41-year-old was charged with the war crime of murder, making him the first serving or ex ADF member to face a war crime under Australian domestic law.

Schultz has been charged in relation to the shooting death of Dad Mohammed, which occurred in a field in Uruzgan province, Afghanistan in May 2012. And the incident appears as the 33rd in a list of ADF serious misconduct allegations reported in the Central Asian country over 2005 to 2013.

The Schultz arrest follows the November 2020 release of the Brereton report, an inquiry into Australian special forces in Afghanistan, which recommended the AFP investigate 39 unlawful killings of either Afghan civilians or prisoners with 19 ADF personnel implicated.

Soldier who shot an unarmed Afghan man suspended from duty by Australian Army.

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But as of mid-May, Schultz continues to remain the only SAS soldier to have been charged in relation to Afghan war crimes, although Australian Defence Force chief General Angus Campbell recently suggested that more such arrests are on the way.

Indeed, the drawn-out AFP-OSI investigations further reveal a reluctance on the part of authorities to punish Australian war crimes and hence, publicly admit they exist, which hints at why former ADF lawyer David McBride continues to be treated as the chief culprit over having exposed such crimes.

A commendable failure

The Brereton report outlines that the ADF had “a system of operational reporting and investigatory mechanisms” to respond to “allegations of unlawful conduct”, and it went on to list a number of reasons why the system failed to identify such misconduct despite being alerted to it.

Most telling is that those charged with conducting investigations were quick to dismiss “external complaints”, considering local reports “as insurgent propaganda or motivated by compensation”, while any submitted by the Afghan government or the Red Cross were also discounted.

Shultz is alleged to have shot Mohammed, a young Afghan farmer, three times at close range, and despite locals having complained to the ADF about the killing, Australian investigators determined the unarmed man, who was holding a set of prayer beads, did pose a threat to soldiers.

The May 2020 Four Corner’s report Killing Field, however, included footage of an ADF solider, now said to be Shultz, shooting Mohammed, who was on the ground posing no threat. The video of the incident had been captured via the head cam of the ADF dog handler who was also present.

Australian SAS veteran charged with war crime in historic first.

So, in this instance, it appears that the Australian Defence Force has been aware of what appears to be a straight-out execution for more than a decade, while the Australian public was presented with clear evidence of the murder three years ago, yet the alleged culprit has only been charged now.

The Brereton report further outlines that “the failure of oversight mechanisms” was due to numerous factors, some of which were “commendable”, those being “loyalty to the organisation, trust in subordinates, protection of subordinates, and maintenance of operational security”.

Shooting the Messenger

This reluctance to prosecute, or even properly investigate, Australian war crimes allegedly perpetrated by SAS troops in Afghanistan has certainly not been replicated in the manner in which former ADF lawyer David McBride has been dealt with by the authorities.

And it may be presumed that the reason for the harsh treatment that McBride has been subjected to since he spoke up and then out about what was going on in Afghanistan is that he succeeded in exposing what ADF management had wanted to keep mum.

McBride served two tours in Afghanistan as a legal officer in 2011 and 2013. And as he’s told Sydney Criminal Lawyers in the past, that he was a “true believer” in the Australian mission in the Central Asian country, until he came to realise that ADF operations were all being done for show.

“Everything was done for appearance. And while that doesn’t sound bad. It was bad because we were even killing our own soldiers for appearance,” the lawyer said in June 2019. “And we had no intention of actually improving the situation. It was just appearance for the voters.”

So, McBride took his concerns to his ADF superiors. But as this and subsequent reporting to the AFP proved fruitless, McBride began passing on classified ADF documents revealing these matters to the ABC over 2014 to 2016, which provided the details for the 2017 The Afghan Files report.

But there was no decade-long wait for a reaction to McBride’s exposing of the truth. He was arrested by the federal police in September 2018. And the AFP then went on to raid the ABC Sydney office in relation to the war crimes reporting, with legal action initially threatened but then dropped.

McBride is set to go before the ACT Supreme Court on 6 November charged with five national security offences, those being one count of theft of Commonwealth property, another of unlawfully disclosing a Commonwealth document and three counts of unlawfully giving information.

Silencing the truth

The Afghan War, the longest conflict Australia has been involved in, was a pointless exercise, involving our nation participating in the US-led invasion of the Central Asian nation, so that Washington could punish someone – perhaps, anyone – for the 9/11 attacks in New York.

As McBride points out the futility and the lack of any purpose to the military operations on the ground was obvious to anyone involved, which might go some way as to explaining that while only 40-odd ADF troops were killed there, about 500 more who served have since taken their own lives.

Despite the widespread outcry to drop the prosecution against McBride coming from within parliament and throughout the public, attorney general Mark Dreyfus continues to refuse to drop his prosecution, as the nation’s chief lawmaker did with that against Bernard Collaery.

Photo from AAP: Attorney General Mark Dreyfus has o far refused to stop the case against David MacBride

But the clear message coming from the Australian Defence Force with the government in tow is that they want McBride strung up as an example of what happens to defence personnel that dare to tell the truth about what takes place in foreign theatres of war.

And as all foreign affairs is now focused on the coming war with China, it’s likely Australian authorities consider the need to deter other ADF members from speaking out as heightened, especially as the war in the Indo Pacific is set to be the most devastating our nation has ever seen.