David McBride and our retreat from the lessons of Nuremberg

It’s no defence to claim you were merely “following orders”, goes the lapidary axiom of Nuremberg. Less known is the Mossop corollary: except if those orders were lawful orders — and even if such orders implicitly required you to conceal, ignore or turn a blind eye to alleged war crimes. 

That is the heroic, albeit implicit, conclusion of a recent ACT Supreme Court ruling in the prosecution of David McBride. There, Justice David Mossop declared that neither a soldier’s oath of service nor the scope of their duty necessarily contemplates an overarching obligation to serve the public interest — still less one that might, on rare occasions, invite something less than unswerving obedience to lawful orders or the law, such as the disclosure of classified material.  

So clear, so manifestly “obvious” was this proposition, Mossop went on to explain, that the courts have never had occasion to give expression to it — which may or may not be one way of papering over the sneering lack of authority there is to lend support for such a view. 

Perhaps the most that can be said for such flawed reasoning is that it allows us to dispense, once and for all, with the attorney-general’s polite fiction that the prosecution of McBride has only ever constituted an ordinary and uncontroversial application of due process. To do away with the conservative anxiety inspired by the idea that the prosecution was never about justice or truth so much as a chilling lesson in untrammelled power: who wields it, to what end and, not least, at whose expense. 

This isn’t to suggest Mossop’s judgment was improperly or wrongly motivated. But rather that his reasoning — when taken to its logical conclusion — seems utterly unmoored from principle, reality and the weight of history. 

The clearest example of this finds reflection in his insistence that the public interest, so far as it might be taken to bear upon a soldier’s duty, “must be seen as being advanced by compliance” with the law. On its face, it’s an uncontroversial statement. But when read carefully and in context, those throwaway words distil an unthinking and dangerous faith in executive and legislative goodwill, and one that collides with both the thickets of past experience and the broken grandeur of the present moment. 

It gives way to an understanding of the world that assumes, against all the evidence, that all laws and regulations self-evidently reflect or serve the public interest as opposed to partisan valance or unadulterated executive self-interest. That their quintessence is the quintessence of the public interest. 

This would include the burgeoning suite of laws that govern national security and permit intrusions into fundamental rights, such as a fair and open trial; the web of laws that forbid military personnel, such as McBride, from ever disclosing classified or confidential evidence of war crimes to the public; and so too our hopeless freedom of information and whistleblower regimes, the latter of which seems utterly incapable of supporting the defence of anyone who sounds the alarm on wrongdoing by the state. 

In this sense, if we’re to accept as true, as some claim, that Mossop’s judgment is “not obviously wrong”, then it’s difficult to conceive the space occupied by our democracy as anything less than the thorny and unbecoming terrain of uncharted territory. It’s a space where instead of a society in which the governors serve the governed — or where the state is taken to serve the public interest — the two are by rights conflated and the fundamental distinction between them lost.  

This is a society where truth doesn’t matter; where people succumb to cynicism and nihilism and vacate the field of politics to those who make no secret of their creeping illiberal tendencies, and where, after a certain point, the drumbeat of degraded and degrading norms has the familiar cadence of wind and rain — we simply accept it as normal. Kafka’s leopards are in the temple, and our Overton window shrinks. 

What remains in this barren landscape of broken ideals is an operating principle that tells us the public interest = the state, which is a sentiment not, as Daniel Ellsberg would point out, so very far removed from the usual sensibilities of autocrats and dictators who say: “I am the state.”

It’s this that throws into sharp relief the principal objection any right-thinking liberal should level against Mossop’s judgment. Applied to circumstances like McBride’s, the judgment arms the executive with not only a shield but a sword against transparency and accountability. Its logic reads like a permission slip for something close to absolute executive impunity where, absent whistleblower interventions, war crimes risk going unpunished and unnoticed: in part because they were committed by the executive branch, and in part because acting contrary to “lawful” laws that prohibit their disclosure is considered inimical to the public interest.

It’s in this tortured, circular way, where absolute impunity shades into absolute power and any pretence of accountability is lost, that the cardinal distinction crystallised at Nuremberg between lawful and unlawful orders fades from view and the long shadow of “befehl ist befehl” — an order is an order — once again looms large. 

Zoom out a little further, and what emerges is the extent to which Mossop’s reasoning in truth functions as an argument against whistleblowing. But it’s also one he appears to confine to the members of the armed services, whose regime of obedience and discipline, he says, distinguishes them from civil servants. The fear, he said with reference to 19th-century case law, is that any crack in this regime of discipline might plunge the nation down the slippery slope of anarchy. As one 1869 authority he cited with approval put it: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.” 

The trouble with such a stance, of course, is that it ignores how McBride’s disclosure of war crimes doubled as evidence of a lack of discipline among SAS troops, as catalogued in the Brereton report that followed. It also pays no heed to one of the fundamental lessons of 20th-century history, which is that often the only thing standing between humanity and its declension is disobedience, not blind submission, to orders. 

Seizing on this, McBride characterised both the Crown’s argument and Mossop’s judgment as an overreach: “It’s hard to see that there can never be exceptions to lawful obedience — that it can be such a cut-and-dried issue,” he told me. “When I [took my oath] it was on the proviso that my duties wouldn’t go against the principles Australia is meant to stand for.” 

He similarly bristled at the suggestion that any hint of exceptions could, as 19th-century authority suggests, give way to a “floodgates” type scenario. “Our argument was that it would be up to the jury to decide whether what I did was in the public interest, whether I fell into an exception. We can’t have a situation where whatever the military says is good enough, because if the military itself is complicit in the crime, then there’s your conflict of interest.” 

The very last thing we need, in other words, is everyone standing tall and saluting. 

But with the rejection of this argument came McBride’s guilty plea not 10 days ago. It was a guilty plea that sheeted home not only the deplorable state of our whistleblower protections but how very far the dial of our democracy now points towards the drip-drip-drip of executive-arm secrecy. 

Unlike the Nazis tried at Nuremberg, the jaws of national security have here, step by step and until the very end, denied McBride a fair trial according to the rule of law. And unlike Nuremberg, ours is a nation far more willing and preoccupied with prosecuting whistleblowers than it is war criminals. 

So, there it is: with McBride’s criminal proceedings almost complete, we now carry the singular and unenviable distinction of finding ourselves not one but three steps removed from the lessons of Nuremberg. It bears emphasising that McBride’s legacy in all of this isn’t, in this sense, confined to his disclosure of war crimes. It extends to the lacunas he’s exposed between Australia’s vision of itself and reality — its Faustian currents of needless secrecy, its failure of imagination, the limits of its possibilities, and its failures of duty. 

McBride, like Mossop, is an officer of the law, a distinction which commands an allegiance to the rule of law. Not to reveal ongoing criminality could be construed as inconsistent with a lawyer’s oath. Not to reveal ongoing criminality in a command structure, such as McBride’s, may enliven the laws of accessory. 

The reality is we’re either a country bound by the rule of law or we’re not. And as McBride’s experience would attest, it’s the latter. This is why it’s perhaps not entirely correct to say our graveyards are full if indispensable men. There will always be some, like McBride, who defy that truth.