Justice miscarried: The unanswered questions of the McBride verdict

May 23, 2024
Sydney, Australia. 24th May 2023. Relatives of Julian Assange attended the ?Free Julian Assange!? rally at Archibald Fountain in Hyde Park before a march through the centre of Sydney. The rally coincides with what was to be Joe Biden?s first trip to Australia since his election to attend the Quad summit in Sydney on Wednesday. However, President Biden cancelled his arrangements before Prime Minister Albanese announced the cancellation of the entire event. Pictured: Major David McBride speaks at the rally. Credit: Richard Milnes/Alamy Live News

The sentencing verdict of David McBride gives rise to question that, if unaddressed, will haunt the Australian Defence Force (ADF) forever.

Justifiable anger is so easy to come by these days that any more reasons are gratuitously excessive. Nevertheless, they are not only intruding on daily life but to such an extent and significance that they must be acknowledged and confronted. Indeed, various rulings and statements by the prosecution in the case brought against David McBride make this unavoidable. But with it comes the wellsprings of genuine indignation and ire – fear, sadness, disappointment, betrayal. Reading the proceedings all are present in this recent display of justice miscarried.

In the light of the many commentaries on the case, and the limitations of length, the intention here is not to reprise all of its contentious aspects; rather, it is to draw attention to three aspects which, unaddressed will haunt the Australian Defence Force (ADF) forever.

These are [1] the ruling that personnel in the ADF have no higher duty than to obey lawfully given commands to the exclusion of all other considerations; [2] that this duty relegates the public interest to the point of non-existence, and [3] that 1 and 2 are examples of a bankrupt understanding of politics, society, and psychology in states declaring themselves to be democratic.

Accordingly, the sentencing of David McBride to a long period of incarceration does not make Australia safe or secure so much as it intimidates – but also enrages – those citizens who take democratic politics (both theory and practice) seriously.

First, consider the behaviour required in [1]: it reduces to blind obedience, and was rejected in the Nuremberg trials. Some of those pleading it were executed. Why it was even given legs, let alone affirmed in McBride’s proceedings is cause for alarm; more, it calls for loud and repeated public repudiation across all the relevant spheres of Australian life.

Then there is the related matter of rendering the public interest void. Apart from fiat, by what logic is this asserted?

If the public interest is derived from the public, and government power is derived from the public, then a military force subordinated to the duly elected government is itself in receipt of a licence from the public. Not the other way round.

It is also the case that the essential role of the military – in this case the ADF – is to defend Australia – and this would include Australia’s national interests – which in turn are derived from the public (if the public is understood to be the citizens of Australia).

Put another way, in Australia the national interest and the public interest, ought logically be complementary and coincident; where they differ in some contexts is that the former is used to refer to the domestic realm, and the latter to the external

The concept of public-as-citizens is necessary because most nation-states aren’t: they are, rather state-nations, composed of diverse publics who are committed too certain fundamental principles of how life is to be lived within the country and united by common purposes agreed when the political community speaks for itself.

Among the former, to repeat, is the subordination of the military to the government.

Thus, when Justice Mossop dismissed McBride’s public interest defence, he dismissed a central pillar of democratic government in general and civil-military relations in particular.

Moreover, he did not explain how he reached his decision – perhaps because, in democratic theory, he couldn’t.

Finally, to accept the imperative of blind obedience, which at times extends to destructive obedience, while at the same time as vitiating the public interest is, inter alia, to return to the dystopia described in the early 1960s by Hannah Arendt and repeatedly verified by Stanley Milgram’s experiments.

Arendt’s analyses of Nazi atrocities led her to conclude that ordinary people will commit evil by following orders to do their jobs – she famously termed it “the banality of evil.”

Milgram’s research complemented Arendt’s. Based on his study on Germans’ obedience to Nazi orders during the Holocaust and World War II. But the experiments had a wider application beyond the obedience of soldiers to orders to attack civilians; they included medical personnel following a doctor’s orders even when they knew the doctor was mistaken and participants, under pressure, complying with an authority figure to administer dangerous levels of electric shocks to another person. A 65% obedience rate was reported.

Over the years a particularly disconcerting explanation for such heinous behaviour was discovered which is highly relevant in all environments requiring normal, everyday obedience to commands.

It turns out that obedience actually liberates the obedient: under a regime of strict obedience, even when committing actions of a heinous nature they experience a distance – even a disconnection – from the outcomes they are responsible for.

There is much, much more that a mining of the McBride case’s records can bring to our urgent attention.

For now, the public commentary on the case, and others which are equally pressing and come under the rubric of “whistleblowing,” are threaded with a distinct sense of unease – that Australia is betraying its better instincts and is deserving of what Robinson Jeffers wrote of the United States in similar circumstances some decades ago:

Weep (it is frequent in human affairs), weep for

the terrible magnificence of the means,

the ridiculous incompetence of the reasons,

the bloody and shabby

Pathos of the result

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