David McBride is not a whistleblower or a hero. He is a man convinced of his own opinion

Former Australian Army lawyer David McBride’s hefty prison sentence, handed down on Tuesday, was heavily criticised by his supporters for punishing someone who acted with pure intentions to reveal criminal behaviour within Australian military ranks.

More than five and a half years is certainly a significant sentence, and the case drew international attention. CNN described him as a whistleblower, BBC as variously an Australian Army whistleblower or Australian war crimes whistleblower. Nearly all other international and domestic news outlets also used the term whistleblower.

David McBride, pictured outside the ACT Supreme Court before his sentencing on Tuesday.Credit: Alex Ellinghausen

McBride was jailed for stealing and then disclosing to ABC journalists classified military information about alleged Australian war crimes in Afghanistan. He had access to top secret documents and believed military top brass were unfairly investigating soldiers over deaths during the conflict that he did not believe were worthy of investigation.

True whistleblowing is, of course, an honourable pursuit not only because it is the right thing to do, but because it intimates that it is the last course of action open to someone who believes their efforts to highlight malfeasance have been stymied at every turn. Whistleblowers are in essence truth tellers.

McBride certainly sees himself in this light. His autobiography was titled The Nature of Honour. He is described on the front cover as a “duty-bound soldier … truth-teller”. The Human Rights Law Centre was moved to say that without people like David McBride, “we don’t get the truth”.

In contrast to private sector whistleblowers, whose exposes may have relatively limited application, their actions often little reported and names little-known, in the national security space “whistleblowers” are often a cause-celebre. People such as Julian Assange, Chelsea Manning and Edward Snowden have all had the term whistleblower applied to them, or applied it to themselves.

These three, of course, have a high profile because their actions involved the theft and/or publication of massive volumes of classified information. They also stand out because of Assange’s six years spent in the Ecuadorian Embassy in London, Manning’s sentence commutation by US president Barack Obama, and Snowden’s escape to Russia, asylum claim and eventual Russian citizenship.

When information security can have far-reaching consequences if breached, however, one person’s whistleblower can be another person’s thief, or even traitor. And so it is with the McBride case where he has pleaded guilty to, among other things, theft. McBride the whistleblower connotes honour. McBride the thief, not so much.

The ACT Supreme Court’s judgment does not make for comfortable reading. Far from the theft and leaking of classified information representing a desperate final act for someone whose pleas for justice had been ignored, McBride was allowed to spend his work hours compiling a formal complaint over what he believed to be corrupt practices to the Inspector General of the Australian Defence Force. He submitted that “some investigations into Australian soldiers were a waste of time and were having a severely adverse effect on the soldiers being investigated”.

McBride’s complaint was investigated by a former County Court judge and a Navy captain. The pair found that many of the issues raised by Mr McBride could not be substantiated. McBride was given the report to read and there is no indication that he disagreed with the conclusions reached in the report or that he raised concerns about it. He obviously did disagree with it privately though, as his subsequent actions indicate.

Justice David Mossop noted that McBride “became so convinced of the correctness of his own opinions that he was unable to operate within the legal framework that his duty required him to”. And far from someone whose complaints were ignored, forcing him to disclose classified information that he stole as a last resort, the judge noted that it was significant that during the trial “no attempt was made to prove as a fact … that the claims made by McBride were justified, that they were inappropriately addressed … or that the mechanisms for complaint or redress available under the law were not adequate”.

Arguments were made that McBride’s disclosures advanced the public interest because they were used by Major-General Paul Brereton to identify issues to be examined in his inquiry into war crimes. The reality is the court found that while the ABC feature was of significant public interest, Defence’s inquiry had been “initiated by the ADF more than 12 months prior to the ADF becoming aware of Mr McBride’s disclosures”. The ABC’s series on “The Afghan Files”, which used material leaked by McBride, even referred to the “secretive” inquiry under way examining reports of alleged war crimes. The ABC report merely reported on some issues that would later form part of a comprehensive inquiry that had already been initiated well before the ABC story and independent of McBride’s complaint.

People are complex individuals and are motivated to act in certain ways for different reasons. David McBride received no financial advantage for his actions in stealing classified information. He didn’t seek to give them to a foreign power or to act against Australia’s interests in giving them to the press. But he wasn’t silenced internally and had been allowed to put forward a complaint, and raised no concern with what was done with it. And although he may have been unaware of it, Defence had already independently instituted the Brereton Inquiry to look into allegations of war crimes, a redacted copy of which would later be released to the public.

Short of providing material for an ABC expose into an issue that was already being comprehensively investigated by Defence, McBride’s release of classified information achieved very little.

As Justice Mossop wrote in his judgment, McBride “decided that he knew best and that he should disregard his legal obligations in order to pursue his own view of how the ADF should be managed.” The judge added: “Self-confident people with strong opinions who are subject to legal duties not to disclose information must be deterred from making disclosures in order to advance their own opinions.”

It is worth reading the judgment because it reveals the complexity of issues that no tagline such as “whistleblower” ever could. To begin with, it should start a debate about exactly who we should describe as a whistleblower.

Dr Rodger Shanahan is a former Army officer who conducted several operational inquiries in Afghanistan.

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