The Dreyfus Affair was a tragic miscarriage of justice during the early years of the French Third Republic. Captain Alfred Dreyfus, a French army officer of Jewish background, was unjustly accused of espionage charges. Motivated by anti-semitism, his principal accusers in the military and the government were blind to evidence pointing conclusively to another officer, who had deep motives to accept bribes from Germany, being financially comprised.
Captain Dreyfus was eventually fully exonerated, after a decade, but not before he had spent several years as a prisoner on Devil’s Island, which ruined his health.
Many of those who sought justice for him were themselves falsely accused, such was the political climate of the time.
This week, we have our own Dreyfus Affair playing out in the courts here in Australia. Army lawyer David McBride is facing serious charges relating to leaking sensitive information to the ABC. Whilst this is not espionage, it is a serious breach of his duties as a member of the defence forces.
The tragic irony of this particular case is that the information McBride leaked to journalists relates to the evidence that there were war crimes allegedly committed by Australian Defence personnel in Afghanistan. Motivated by his conscience, and probably by a reasonably formed opinion that if he were to remain silent, rather than to become a public whistle blower, these alleged war crimes would never see the light of day and the alleged perpetrators would never face justice.
Instead, this week, it is Mr McBride who is facing justice in court.
Legally, I expect that the prosecution case is a strong one – open and shut. Mr McBride has leaked that information in violation of his responsibilities – this is factual and uncontested.
Morally, the matter is obviously more problematic. His defence have argued the laudable, but possibly quixotic, defence argument that he had a duty above that of his oath and the relevant secrecy legislation, to follow his conscience in this matter. This is similar to the arguments of the prosecutors at Nuremberg, that following immoral orders to commit immoral acts was not a defence against the charges of war crimes and crimes against humanity levelled at the Nazis.
The court of appeal has thrown out this defence argument today, and I expect that legally, this is the soundest decision. Courts and judges do need to follow the law in the administration of justice, rather than to make up rules on whim.
As a consequence, it appears according to the news today, that McBride may change his plea to guilty, given that his defence was based on a moral dilemma which has been disallowed.
But the issue which concerns me, and which should concern all Australian citizens, is not what the courts should determine in this matter. I have full confidence that the courts will deliver justice according to what the law stipulates, much as this will have tragic implications for Mr McBride.
The issue that concerns me is why the decision has been made to prosecute Mr McBride with the full force of the law in this matter, one where he despairingly sought to act in what he felt was in the public interest, where significance malfeasance (to put it mildly) was apparent but not being appropriately addressed by the authorities.
Yes, he had access to very sensitive and restricted information, which he had no legal right to reveal. Having the noblest of motives to reveal this in violation of his normal obligations does not diminish the legal liability, but it should mitigate it, and should have guided the hands of those who made the decision to prosecute him.
Instead, we have had a rare show of bipartisanship on the part of our Federal Attorney Generals. It was under the watchful gaze of Christian Porter, one of the least admirable of recent federal ministers, that these charges were laid in September 2018. It is now under current Attorney General, Mark Dreyfus KC, that the charges are proceeding to trial.
I am not alone in my concerns about this matter. Better informed people than myself have articulated their thoughts on this and another ongoing prosecution of a whistleblower:
I feel that the motives for the continuation of this trial is more a matter of protecting the legal sources of government power, which is supported by both sides of politics, given that they wield that power, rather than questioning the morality as to how, why and when that power is wielded by its agents.
The legal matter will result in the punishment of McBride by the law courts. The moral matter is one that we all need to consider ourselves, as the court of public opinion.
The irony and injustice inherent in Mr McBride being the sole person to face a criminal trial so far in relation to the war crimes allegations he revealed does give great reason to question the morality of our elected officials, who are prepared to hide behind the black letter of the law rather than to explore their consciences for a more holistic form of justice.
I hope that fairness prevails, and that Attorney General Dreyfus relents in this matter, and extends mercy to one who sought to expose the mercilessness of others.
Lost For Words! 