Inspector General of Australian Defence Forces Report on Afghan War Crimes

[brihard]

I just want to make sure I understand this... I've googled a few different sources, so I just want to confirm I understand this properly.

A lawyer, while working on a file, discovered the possibility of gross misconduct on behalf of certain SOF personnel, some of which constituted war crimes. 

He decided to go public with the matter, and was subsequently charged by the government??

That could absolutely happen here under the Security of Information Act. Generally speaking whistleblower protection legislation expects a whistleblower to have already exhausted the legitimate internal mechanisms for bringing attention to wrongdoing. I have no idea how Australia’s works, but I’d not be surprised if their laws are written such that, in a case like this, multiple bit players each playing their part in their respective official capacities, would end up with this result.

 

[Cloud Cover]

SOIA does not displace the Rules of Professional Conduct regarding privileged or confidential information or that to which a fiduciary duty exists. Australia is known to be roughly the same as Canada, however it’s not clear to me that he was in fact receiving the information while acting as counsel or as a commissioned officer, but either way and in both cases there is a chain of command that appears to have dropped the ball.

 

[daftandbarmy]

From the Sunday Times....

 

[brihard]

SOIA does not displace the Rules of Professional Conduct regarding privileged or confidential information or that to which a fiduciary duty exists. Australia is known to be roughly the same as Canada, however it’s not clear to me that he was in fact receiving the information while acting as counsel or as a commissioned officer, but either way and in both cases there is a chain of command that appears to have dropped the ball.

I...didn’t... suggest that it did? I said that under our laws at least, someone could be criminally charged in like circumstances. More specifically, the individual would have to be someone bound to secrecy under SOIA, and they would need to unlawfully disclose safeguarded information. It’s a much higher threshold than civil servants’ rules of professional conduct, obviously. Anyway, I was merely highlighting that someone acting in good faith could still commit criminal violation of laws regarding protected national security information. Whistleblower protections generally engage in a specific way, and only go so far when classified information is at issue.

 

[CBH99]

You'd think they could learn from some of our government's mistakes, and how expensive they can be in terms of both money and credibility.

Legality aside - if the government instructs the police to lay criminal charges on someone for 'doing the right thing', it's automatically an uphill battle for the government both inside the courtroom and in terms of public trust.



I understand what Brihard is saying, and do understand the legality of such charges being laid.  And I can understand from a purely legal perspective, the government may have a point.

But in terms of optics, the optics are automatically on the accused's side in this case.  It also makes it far easier to defense council to argue government interference in the case, since that is where the charges stem from in the first place.

And if the case is dismissed for any reason, it's not only makes it 'appear' as if the government failed to sweep crimes under the rug, but it's also a pretty callous waste of taxpayer's money in the subsequent move to pay the accused to keep silent about the details.




I could be wrong.  Just seems that governments don't learn...

 

[brihard]

You'd think they could learn from some of our government's mistakes, and how expensive they can be in terms of both money and credibility.

Legality aside - if the government instructs the police to lay criminal charges on someone for 'doing the right thing', it's automatically an uphill battle for the government both inside the courtroom and in terms of public trust.



I understand what Brihard is saying, and do understand the legality of such charges being laid.  And I can understand from a purely legal perspective, the government may have a point.

But in terms of optics, the optics are automatically on the accused's side in this case.  It also makes it far easier to defense council to argue government interference in the case, since that is where the charges stem from in the first place.

And if the case is dismissed for any reason, it's not only makes it 'appear' as if the government failed to sweep crimes under the rug, but it's also a pretty callous waste of taxpayer's money in the subsequent move to pay the accused to keep silent about the details.

I could be wrong.  Just seems that governments don't learn...

Fully agreed. From the outside looking in, they probably want to strongly consider withdrawing charges and getting a settlement in place fast.

 

[FJAG]

...
Legality aside - if the government instructs the police to lay criminal charges on someone for 'doing the right thing', it's automatically an uphill battle for the government both inside the courtroom and in terms of public trust.

I understand what Brihard is saying, and do understand the legality of such charges being laid.  And I can understand from a purely legal perspective, the government may have a point.

But in terms of optics, the optics are automatically on the accused's side in this case.  It also makes it far easier to defense council to argue government interference in the case, since that is where the charges stem from in the first place.
...

Just a few points about the use of the term "the government".

My basic understanding of the facts are that 1) McBride became aware of issues of crimes and suspected coverup and did report those through the CoC; 2) when nothing was done as a last resort he reported the matters to the media; 3) the Defence department reported the matter that confidential information was disclosed in these media reports to the Australian Federal Police and, after investigations charges were laid against both the journalist who received the documents and McBride; 4) the prosecution of the offences is in the hands of the Australian Commonwealth Director of Public Prosecutions; and 5) the CDPP has previously dropped charges against the journalist.

https://www.theage.com.au/national/if-moral-courage-matters-this-whistleblower-needs-defending-20201116-p56ey4.html

You should note that, like her Canadian DPP counterpart:

The Office of the Commonwealth Director of Public Prosecutions (CDPP) is an independent prosecution service established by Parliament to prosecute alleged offences against Commonwealth law. We aim to provide an effective, ethical, high quality and independent criminal prosecution service for Australia in accordance with the Prosecution Policy of the Commonwealth.

https://www.cdpp.gov.au/about-us

So the fact of the matter is that the "government", per se, is not involved in either instructing that charges be laid or interfering in the case. It's all to easy to use the term "the government" to create the illusion that some central authority is pulling the strings but, while one can have suspicions, the facts of the matter are much more innocent.

In many cases where a federal crime is alleged to have been committed by a federal servant it is quite normal for the department involved to provide the information/evidence respecting the crime to the federal police services who will investigate the offence, consult with the prosecutors from the DPP's office and, if warranted, lay an information or charges with the DPP whose office will then prosecute it in a federal court. It never involves any element of the government's executive branch which would be both improper and unusual.

Obviously all of our senses are heightened about our own recent experiences with Adm Norman but that case touched on cabinet secrets which obviously fell much closer to the line of the executive (and perhaps actual interference or animus) which is not present in the McBride case.

Based on McBride's own admissions, he clearly broke the law. The question that is left is: was he justified in doing so to the point that charges should be stayed or withdrawn. All that I know is that he tried to work through the CoC before going public but do not know to what extent he may have tried to "blow the whistle" let's say to their Defence Minister. The Inquiry's report seems to say that the "coverups" were fairly low level. It would be very interesting to see details on what levels McBride's internal complaints went to and why they resulted in no further action. I presume that's included in the censored portion of the report.

Like you, I distinguish between the technical guilt of having done the crime in this case with the moral necessity of bringing to light significant wrongdoings. I too feel that it would be in the best interest of justice to have the charges stayed. That, however, is the role and decision of the independent CDPP. It would be as wrong for "the government" to pressure her into withdrawing the charges as it would have been for them to urge prosecution.

:cheers:

 

[brihard]

Just a few points about the use of the term "the government".

My basic understanding of the facts are that 1) McBride became aware of issues of crimes and suspected coverup and did report those through the CoC; 2) when nothing was done as a last resort he reported the matters to the media; 3) the Defence department reported the matter that confidential information was disclosed in these media reports to the Australian Federal Police and, after investigations charges were laid against both the journalist who received the documents and McBride; 4) the prosecution of the offences is in the hands of the Australian Commonwealth Director of Public Prosecutions; and 5) the CDPP has previously dropped charges against the journalist.

https://www.theage.com.au/national/if-moral-courage-matters-this-whistleblower-needs-defending-20201116-p56ey4.html

You should note that, like her Canadian DPP counterpart:

https://www.cdpp.gov.au/about-us

So the fact of the matter is that the "government", per se, is not involved in either instructing that charges be laid or interfering in the case. It's all to easy to use the term "the government" to create the illusion that some central authority is pulling the strings but, while one can have suspicions, the facts of the matter are much more innocent.

In many cases where a federal crime is alleged to have been committed by a federal servant it is quite normal for the department involved to provide the information/evidence respecting the crime to the federal police services who will investigate the offence, consult with the prosecutors from the DPP's office and, if warranted, lay an information or charges with the DPP whose office will then prosecute it in a federal court. It never involves any element of the government's executive branch which would be both improper and unusual.

Obviously all of our senses are heightened about our own recent experiences with Adm Norman but that case touched on cabinet secrets which obviously fell much closer to the line of the executive (and perhaps actual interference or animus) which is not present in the McBride case.

Based on McBride's own admissions, he clearly broke the law. The question that is left is: was he justified in doing so to the point that charges should be stayed or withdrawn. All that I know is that he tried to work through the CoC before going public but do not know to what extent he may have tried to "blow the whistle" let's say to their Defence Minister. The Inquiry's report seems to say that the "coverups" were fairly low level. It would be very interesting to see details on what levels McBride's internal complaints went to and why they resulted in no further action. I presume that's included in the censored portion of the report.

Like you, I distinguish between the technical guilt of having done the crime in this case with the moral necessity of bringing to light significant wrongdoings. I too feel that it would be in the best interest of justice to have the charges stayed. That, however, is the role and decision of the independent CDPP. It would be as wrong for "the government" to pressure her into withdrawing the charges as it would have been for them to urge prosecution.

:cheers:

Nice summary, thanks.

I’m assuming that, like us, their DPP decides based on the reasonable prospect of conviction, and the public interest in proceeding to prosecute. The latter would likely be what pulls him out of the fire on this.

 

[FJAG]

Nice summary, thanks.

I’m assuming that, like us, their DPP decides based on the reasonable prospect of conviction, and the public interest in proceeding to prosecute. The latter would likely be what pulls him out of the fire on this.

Exactly:

The Prosecution Policy provides a two-stage test that must be satisfied before a prosecution is commenced:

- there must be sufficient evidence to prosecute the case; and
- it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.

In determining whether there is sufficient evidence to prosecute a case the CDPP must be satisfied that there is prima facie evidence of the elements of the offence and a reasonable prospect of obtaining a conviction. The existence of a prima facie case is not sufficient.

https://www.cdpp.gov.au/publications/prosecution-policy-commonwealth

:cheers:

 

[brihard]

Exactly:

https://www.cdpp.gov.au/publications/prosecution-policy-commonwealth

:cheers:

Though one point to note on the 'government' thing; under our applicable legislation, the Security of Information Act, no prosecution may commence without the consent of the Attorney General- so it goes to a Member of Parliament of the governing party before a charge can be laid.

I'm not sure if Australia has anything equivalent. Here a SOIA charge will have had to get a thumbs up from a cabinet minister, and given the nature of the statute and the implications of the sort of events that constitute offences under it, it's likely that there would be awareness all of the way up to the top- though of course there are very few precedents for this; Delisle is the only conviction that comes to mind, with Huang and Ortis still winding their way through the system. I don't imagine Australia has much more experience prosecuting leaks of classified information than we do.

 

[FJAG]

Though one point to note on the 'government' thing; under our applicable legislation, the Security of Information Act, no prosecution may commence without the consent of the Attorney General- so it goes to a Member of Parliament of the governing party before a charge can be laid.

I'm not sure if Australia has anything equivalent. Here a SOIA charge will have had to get a thumbs up from a cabinet minister, and given the nature of the statute and the implications of the sort of events that constitute offences under it, it's likely that there would be awareness all of the way up to the top- though of course there are very few precedents for this; Delisle is the only conviction that comes to mind, with Huang and Ortis still winding their way through the system. I don't imagine Australia has much more experience prosecuting leaks of classified information than we do.

I've done a quick scan of the three provisions that McBride has been charged under (theft of Commonwealth property contrary to s 131(1) of the Criminal Code Act 1995; in March 2019 he was charged with a further four offences: three of breaching s 73A(1) of the Defence Act 1903; and another of "unlawfully disclosing a Commonwealth document contrary to s 70(1) of the Crimes Act 1914") and as far as I can see there is no AG limitation such as under s.24 of the SOIA. Interestingly, s 70(1) of the Crimes Act 1914 has been repealed and replaced since the offences took place (see here.)

In Canada, the roles of Attorney General and Minister of Justice are two separate ones but generally filled by the same individual.

In the role of Minister of Justice (French: Ministre de la Justice), the officeholder serves as the minister of the Crown responsible for the Department of Justice and the justice portfolio.

In the role of Attorney General (French: Procureur général),[8] the officeholder litigates on behalf of the Crown and serves as the chief legal advisor to the Government of Canada. Most prosecution functions of the attorney general have been assigned to the Public Prosecution Service of Canada. The attorney general is supported in this role by the director of public prosecutions.[8]

https://en.wikipedia.org/wiki/Minister_of_Justice_and_Attorney_General_of_Canada

This duality has received criticism over the years. (I don't care enough to take sides in the debate  ;D)

On the other hand, in Australia the Attorney General and Minster of Justice are two separate individuals although the Attorney General is also generally a member of the federal cabinet as a Minister of State.

https://en.wikipedia.org/wiki/Attorney-General_of_Australia

https://en.wikipedia.org/wiki/Minister_for_Justice_(Australia)

I think (but am far from certain) that the issue of whether or not the Attorney General of Australia either needed to be or was involved in the decisions respecting McBride is moot. I'm presuming that all issues and decisions were handled within the CDPP's office or below.

As an aside, The Australian AG may decide to proceed no further under s 71(1) of the Judiciary Act:

71  Discharge of persons committed for trial
(1)  When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney‑General or such other person as the Governor‑General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his or her hand direct the discharge of the person from custody, and he or she shall be discharged accordingly.

https://www.legislation.gov.au/Details/C2018C00347

As may the CDPP under s 9(4) of the Director of Public Prosecutions Act 1983:

(4)  Where:

(a)  a person is under commitment, or has been indicted, on a charge of an indictable offence against a law of the Commonwealth; and

(b)  the prosecution for the offence was instituted, has been taken over or is being carried on by the Director;

the Director may decline to proceed further in the prosecution and may, if the person is in custody, by warrant signed by the Director, direct the discharge of the person from custody, and where such a direction is given, the person shall be discharged accordingly.

https://www.legislation.gov.au/Details/C2018C00187

:cheers:

 

[FJAG]

New article in the Daily Mail respecting threats by 60 SASR members threatening to quit if 2 Sqn is disbanded. How is this a crisis? Doesn't that solve two problems?

Defence crisis as SIXTY outraged SAS soldiers 'will quit' in protest over squadron being scrapped due to 'war crimes' report - as 'insulting' morning tea farewell is scrapped after families vowed to boycott
- 2 Squadron Special Air Service Regiment to disband over 'war crimes' report
- The four-year inquiry uncovered a 'shameful record' of unlawful killings
- SAS members are now in 'absolute uproar' and already have or intend to resign
- They have written 350  letters to Scott Morrison to have their voices heard
- The mass exodus comes as veterans blast a morning tea as a slap in the face
- The event, which was meant to recognise soldiers' service, has been 'postponed'
By ALANA MAZZONI FOR DAILY MAIL AUSTRALIA

More than 60 outraged SAS soldiers may quit in protest against their squadron being disbanded over war crimes by some of its members in Afghanistan.

Chief of Army Rick Burr removed the 2 Squadron of the Special Air Service Regiment from the army's order of battle in the wake of the release of the Brereton Report.

The four-year inquiry uncovered a 'shameful record' of unlawful killings, including cases where new patrol members were told to shoot a prisoner to achieve their first kill in an 'appalling practice' known as 'blooding'.

Former officer in the Sydney-based special forces 2nd Commando Regiment Heston Russell said SAS members are now in 'absolute uproar' and already have or intend to resign over the 'group punishment'.

...

See rest of article here.

:cheers:

 

[dapaterson]

Quitting saves the army the time and effort to fire the war-crime embracers who have no place in an honourable military.

 

[SeaKingTacco]

Quitting saves the army the time and effort to fire the war-crime embracers who have no place in an honourable military.

You might be right. But.

It also would not be the first time that political expediency clashed with the facts on the ground (the disbandment of the CAR springs to mind).

I will hasten to add that I do not fully understand this situation. It could be that the Australian SAS deserves and needs to be completely blown up. Or equally, it could be that some craven politicking is going on, when a more surgical option is called for.

 

[daftandbarmy]

You might be right. But.

It also would not be the first time that political expediency clashed with the facts on the ground (the disbandment of the CAR springs to mind).

I will hasten to add that I do not fully understand this situation. It could be that the Australian SAS deserves and needs to be completely blown up. Or equally, it could be that some craven politicking is going on, when a more surgical option is called for.

“Never explain, never retract, never apologize. Just get the thing done and let them howl.”

― Nellie McClung

 

[FJAG]

Regiments, including Canadian ones have been disbanded for less reasons than those here.

Consider that in 1968 to 1970 when we moved the QOR, the Cdn Guards and the Black Watch in the Reg F to the Supp Order of Battle for no better reason that we wanted to have only four Reg F infantry "regiments". We actually reduced the battalions from only 13 (2 x Black Watch; 2 x QOR; 2 x Cdn Guards; 2 x PPCLI; 2 x RCR; 3 x R22R) to 10 (3 x RCR, 3 x PPCLI, 3 x R22R and the Canadian Airborne). That certainly made absolutely no sense to any of the folks in the QOR, Cdn Guards, or Black Watch. It was more a matter of convenience to regroup into 3 such regiments (and don't get me started on the formation of the 4th Mechanized Commando - that one never made sense)

What happened subsequently to the Canadian Airborne Regiment and is now happening to 2 Sqn SASR makes much more sense then what happened in 1968-70.

You may recall that after WW2, the main element of the Active Army i.e. the Reg F--at an authorized strength of two armoured regiments (RCD and LdSH), one artillery regiment (1 RCHA), 3 parachute battalions (one each of RCR, PPCLI and R22R - grouped into a formation called the "Mobile Striking Force"), and several support elements and schools--was restricted to appx 27,000 all ranks but was significantly undermanned and in 1950 incapable of deploying a brigade to Korea. With the return of major conventional conflict in Korea and then NATO, the airborne idea withered away in favour of mechanized. It was only under Army commander and later CDS, General Allard, that the movement for a rapid deployment/short duration spearhead force was given any serious attention. To say that it's role and doctrine was conflicting and controversial at the time is an understatement. Originally intended to have it's members rotate in from their "home" regiments for short tours to develop leadership skills in young officers and NCOs, it quickly became a place for personnel to bury themselves away for long tours and developing their own ethos which, regretfully with time, became a somewhat "we and them" poisonous one. It's doctrine was never clearly established within the broader defence plans. Even Allard became disenchanted with what the Airborne had become. Quite simply, when the problems came for the Airborne after Somalia and Chretien got his back up, there were very few people outside the Regiment who were prepared to go to bat for it.

With the SASR report being as redacted as it is, it's hard to see the rationale focused on one squadron. I presume that the situation is similar to the issues that plagued the CAR being focused on 2 Cdo in Somalia although not limited to that event or that single subunit.

De Chastelain, the then CDS who had argued on behalf of the CAR's retention accepted that 'it [the CAR] has lost the confidence of the country.'

That's the case here. It's not that the politicians are being craven and playing politics. They are recognizing that there is a crisis of confidence within the organization that needs to be addressed. With the SASR there is a continuing need for an organization like it. It would set the Australian Defence Force back a decade to "blow up" the whole regiment and rebuild something new. A squadron might just do, however. The CAR had no such operational requirement in 1995. It's elimination allowed for the birth of a stronger CANSOFCOM which fits our strategic needs much better.

:cheers:

 

[Jarnhamar]

Do they really have an option not to disband the squadron at this point? To show they mean business?

Just my opinion, when a toxic culture permeates a group (unit whatever) you can't just punt the command team and fix it. Even punting the command team and NCOs won't fix it, because everyone in that group has been tainted by it. And now the name itself is tainted. If 2 squadron were to deploy somewhere in the future the press would hound them and the country hosting them would probably be a little skeptical too.

Those 60 dudes may have had a slight chance to gamble their jobs against not disbanding the squadron with their threat to quit. Publicly stating it? They might be overestimating their net-worth a bit.

 

[Infanteer]

That certainly made absolutely no sense to any of the folks in the QOR, Cdn Guards, or Black Watch. It was more a matter of convenience to regroup into 3 such regiments (and don't get me started on the formation of the 4th Mechanized Commando - that one never made sense)

I think it was also a part of the effort to "de-anglify" the Canadian Army by de-emphasizing those Regiments with heavy British Army connotations.  Guards, Kilts, and "Queen's Own (who had issues on UNMO missions in the Suez)" were put to the Reserve to make more room for the three distinctly Canadian regiments that remain on the Reg Force order of battle today.

 

[FJAG]

Here are several articles from over the last few years respecting the SASR published in "The Strategist" a publication of the Australian Strategic Policy Institute. They make interesting reading:

Dec 2020 https://www.aspistrategist.org.au/the-anatomy-of-the-special-air-services-descent-into-a-one-battalion-army/

Nov 2020 https://www.aspistrategist.org.au/use-of-special-forces-for-conventional-operations-in-afghanistan-imprudent-and-unwise/

Nov 2020 https://www.aspistrategist.org.au/australias-special-forces-and-the-fog-of-culture/

Oct 2020 https://www.aspistrategist.org.au/australian-army-rebuilding-special-forces-culture-ahead-of-afghanistan-war-crimes-report/

Oct 2019 https://www.aspistrategist.org.au/special-forces-issues-have-deep-historical-roots/

Jun 2018 https://www.aspistrategist.org.au/what-does-the-special-forces-controversy-tell-us-about-strategy-and-force-structure/

As a note,  the bulk of the Australian counter insurgency combat activities in Afghanistan fell on the backs of the Special Operations Task Group which was formed from the start with elements of the SASR which was later joined by elements of 4th Battalion, Royal Australian Regiment (Commando) and the Incident Response Regiment. Subsequently other Australian Army units were also involved in Afghanistan from time-to-time, such in a Mentoring Task Group, a Reconstruction Task Group and several OMLTs.

To an extent CANSOFCOM as configured is also a product which developed over time to fulfill a specific need in combat. It would be interesting to see how it's role has matured since Canada has left Afghanistan.

:cheers:

 

[daftandbarmy]

Terribly sad....


Sergeant Kevin Frost, a "fearless" Australian commando who went public three years ago about his involvement in an alleged war crime in Afghanistan, has died — becoming one of the hundreds of former and serving defence personnel who have taken their own lives in the past two decades.

https://www.youtube.com/watch?app=desktop&v=4NTW5HgnfqI&fbclid=IwAR1OZLVNdSGeLj53h3JmT0SAe6dq2Y3V6MswT6G-pHt8qwfDc5SqKxdKirE