The legal team for whistleblower David McBride says it is "unfathomable" that the former military lawyer still faces jail, after an inquiry confirmed Australian soldiers were involved in the unlawful killing of dozens of Afghan civilians.
The findings of NSW Justice Paul Brereton's long-running inquiry into war crimes in Afghanistan were handed down on Thursday. He found 25 special forces soldiers killed 39 civilians in practices known as "throwdowns" where concealable weapons were placed on the bodies of those killed in order to photograph evidence to justify the killings.
Justice Brereton also recommended no action be taken against key individuals who helped bring the war crimes to light.
"Perhaps the single most effective indication that there is a commitment to cultural reform is the demonstration that those who have been instrumental in the exposure of misconduct, or are known to have acted with propriety and probity, are regarded as role models," Justice Brereton wrote.
"It is crucial that their careers be seen to prosper. "
Mr McBride has been charged with five offences including theft of Commonwealth property and the unauthorised disclosure of material to journalists after leaking documents about the unlawful killings of unarmed civilians in Afghanistan to the ABC. The Australian Federal Police decided not to charge journalist Dan Oakes over the publication of the material last month. Independent crossbench senator Rex Patrick has urged the Commonwealth Director of Public Prosecutions to drop charges against Mr McBride..
"Persecution of whistleblowers is not in the public interest. Mr McBride is a hero," Senator Patrick said.
"If the CDPP fails to do so in exercising his ultimate responsibility to the parliament for Commonwealth prosecutions, the Attorney-General should order the discontinuance of the prosecution under powers afforded him by section 71(1) of the Judiciary Act."
Mr McBride's lawyer Mark Davis said it was "unfathomable" how the prosecution could proceed given the revelations of this report.
"Since 2014 David McBride was alerting Defence to the central matter that has now been highlighted by Justice Brereton - the culture of impunity that was created and overseen by army command," Mr Davis said,
"He exposed this at great cost to his career and reputation and is now facing a jail cell for doing what he saw as his proper duty.
"National security orders prevent us commenting on the details of McBride's defence or the actions that he took but we can say, from the public indictment, that he released materials that formed the basis of the ABC's Afghan Files which provided the public with the first insights into matters now exposed by Justice Brereton. We hope that reason can prevail before more pain is inflicted on Mr McBride and his family."
Human Rights Watch Australian director Elaine Pearson noted Mr McBride is the only person who was deployed to Afghanistan who is facing criminal charges.
"David McBride is a brave whistleblower who drew attention to hideous abuses after his superiors failed to respond to his concerns," Ms Pearson said.
"His whistleblowing has been vindicated by this report and his continued prosecution is a chilling warning to others who may wish to come forward."
Australian Defence Force chief Angus Campbell refused to say whether he believed the prosecution of Mr McBride should be abandoned.
"I can't speak to issues that are at play in a current court process. I am just not in a position to do so. I understand your concern and I appreciate that many here will speak to that issue, but I am just not able to talk to it," General Campbell told media.
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