With McCallum’s ruling the case resumed under Mossop Thursday afternoon. He called a closed session in his courtroom to discuss the use of classified documents in the trial.

Mossop ruled that redactions must be made before they could be shown to the jury.  Officials from the Attorney General’s office then removed unredacted documents possessed by the defense from the courtroom.  

No Longer Classified

Outside the courthouse after McCallum ruled against McBride lodging an appeal regarding the public interest defense, McBride told Consortium News that he considered the documents he leaked to have lost their classification because evidence of crime cannot be classified in the first place.

Whom Does the Military Serve?

At the heart of the case are two questions: whom does a soldier serve? and is the military’s role in society to serve the entire community’s interests or only its own interests? 

The rulings by two judges so far are that a soldier only serves his superiors and that the military essentially owes nothing to the public.

The prosecution has argued since Monday that McBride’s duty is only to military orders and not society’s interests.

The government says McBride broke laws of military discipline by leaking evidence of war crimes to the Australian media. McBride’s lawyers have conceded in court that he indeed broke such regulations but that he had a duty to the nation that superseded military discipline.

Trish McDonald, the chief prosecutor, argues that the concept of duty in the law means not it’s not in the public interest to reveal classified information to the public.

McBride’s primary duty, she said, was to follow orders. The accused was a legal officer, she asserted. He was not appointed to inform the press. He contravened his official duty. In fact, there is a public interest in non-disclosure, she argued.

Odgers, McBride’s chief counsel, on the other hand has contended that an Australian soldier’s duty is based on an oath to serve the British sovereign, whose duty is to care for the interests of the entire nation.  It followed logically then that McBride’s duty was also to serve the nation, Odgers said.

But the prosecution said to “interpret ‘serve’ to mean to act in the pubic interest, is to turn on its head service to king or queen.” It is not “for the soldier to do whatever he thinks is right,” she said.

“Nowhere in the oath does it refer to public interest or that” a soldier “must act in the public interest,” she added. If it were, Parliament would have said so, she argued. 

McDonald quoted an 19th century reference on military justice and statutory powers, saying, “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

For the defense, Odgers countered that, “The duty to serve the sovereign does not require blind obedience to orders.”

Odgers said in the “21st Century for the Crown to make the assertion that to obey unquestionably, the orders of superiors ignores Nuremberg and the acceptance in our society that members of the military have higher duties.”

The Nuremberg Tribunal that tried Nazi war criminals established that a soldier had a duty to disobey unlawful orders. 

The prosecution had argued that the oath a member of Parliament makes to the Sovereign is fundamentally different than that of a soldier because an MP is representing the public.

The ruling of both judges that the Australian military is not responsible to the public underscores the fundamentally undemocratic nature of the military, rooted still in 19th Century thinking, when soldiers could not vote and had no democratic rights. 

That has changed, yet the power of the military and attendant intelligence services are allowed to run roughshod over the interests of the entire nation.