On 2 November 2008, the New York Times Magazine headlined “Questions for James K. Galbraith: The Populist,” which was an “Interview by Deborah Solomon” of the prominent liberal economist and son of John Kenneth Galbraith. She asked him, “There are at least 15,000 professional economists in this country, and you’re saying only two or three of them foresaw the mortgage crisis” which had brought on the second Great Depression?

He answered: “Ten or twelve would be closer than two or three.”

She very appropriately followed up immediately with “What does this say about the field of economics, which claims to be a science?”

He didn’t answer by straight-out saying that economics isn’t any more of a science than physics was before Galileo, or than biology was before Darwin. He didn’t proceed to explain that the very idea of a Nobel Prize in Economics was based upon a lie which alleged that economics was the first field to become scientific within all of the “social sciences,” when, in fact, there weren’t yet any social sciences, none yet at all. But he came close to admitting these things, when he said: “It’s an enormous blot on the reputation of the profession. There are thousands of economists. Most of them teach. And most of them teach a theoretical framework that has been shown to be fundamentally useless.” His term “useless” was a euphemism for false. His term “blot” was a euphemism for “nullification.”

On 9 January 2009, economist Jeff Madrick headlined at The Daily Beast, “How the Entire Economics Profession Failed,” and he opened:

At the annual meeting of American Economists, most everyone refused to admit their failures to prepare or warn about the second worst crisis of the century.

I could find no shame in the halls of the San Francisco Hilton, the location at the annual meeting of American economists. Mainstream economists from major universities dominate the meetings, and some of them are the anointed cream of the crop, including former Clinton, Bush and even Reagan advisers.

There was no session on the schedule about how the vast majority of economists should deal with their failure to anticipate or even seriously warn about the possibility that the second worst economic crisis of the last hundred years was imminent.

I heard no calls to reform educational curricula because of a crisis so threatening and surprising that it undermines, at least if the academicians were honest, the key assumptions of the economic theory currently being taught. …

I found no one fundamentally changing his or her mind about the value of economics, economists, or their work.”

He observed a scandalous profession of quacks who are satisfied to remain quacks. The public possesses faith in them because it possesses faith in the “invisible hand” of God, and everyone is taught to believe in that from the crib. In no way is it science.

In a science, when facts prove that the theory is false, the theory gets replaced, it’s no longer taught. In a scholarly field, however, that’s not so — proven-false theory continues being taught. In economics, the proven-false theory continued being taught, and still continues today to be taught. This demonstrates that economics is still a religion or some other type of philosophy, not yet any sort of science.

Mankind is still coming out of the Dark Ages. The Bible is still being viewed as history, not as myth (which it is), not as some sort of religious or even political propaganda. It makes a difference — a huge difference: the difference between truth and falsehood.

The Dutch economist Dirk J. Bezemer, at Groningen University, posted on 16 June 2009 a soon-classic paper, “‘No One Saw This Coming’: Understanding Financial Crisis Through Accounting Models,” in which he surveyed the work of 12 economists who did see it (the economic collapse of 2008) coming; and he found there that they had all used accounting or “Flow of Funds” models, instead of the standard microeconomic theory. (In other words: they accounted for, instead of ignored, debts.) From 2005 through 2007, these accounting-based economists had published specific and accurate predictions of what would happen: Dean Baker, Wynne Godley, Fred Harrison, Michael Hudson, Eric Janszen, Stephen (“Steve”) Keen, Jakob B. Madsen, Jens K. Sorensen, Kurt Richebaecher, Nouriel Roubini, Peter Schiff, and Robert Shiller.

He should have added several others. Paul Krugman, wrote a NYT column on 12 August 2005 headlined “Safe as Houses” and he said “Houses aren’t safe at all” and that they would likely decline in price. On 25 August 2006, he bannered “Housing Gets Ugly” and concluded “It’s hard to see how we can avoid a serious slowdown.” Bezemer should also have included Merrill Lynch’s Chief North American Economist, David A. Rosenberg, whose The Market Economist article “Rosie’s Housing Call August 2004” on 6 August 2004 already concluded, “The housing sector has entered a ‘bubble’ phase,” and who presented a series of graphs showing it. Bezemer should also have included Satyajit Das, about whom TheStreet had headlined on 21 September 21 2007, “The Credit Crisis Could Be Just Beginning.” He should certainly have included Ann Pettifor, whose 2003 The Real World Economic Outlook, and her masterpiece the 2006 The Coming First World Debt Crisis, predicted exactly what happened and why. Her next book, the 2009 The Production of Money: How to Break the Power of Bankers, was almost a masterpiece, but it failed to present any alternative to the existing microeconomic theory — as if microeconomic theory isn’t a necessary part of economic theory. Another great economist he should have mentioned was Charles Hugh Smith, who had been accurately predicting since at least 2005 the sequence of events that culminated in the 2008 collapse. And Bezemer should especially have listed the BIS’s chief economist, William White, regarding whom Germany’s Spiegel headlined on 8 July 2009, “Global Banking Economist Warned of Coming Crisis.” (It is about but doesn’t mention nor link to https://www.bis.org/publ/work147.pdf.) White had been at war against the policies of America’s Fed chief Alan Greenspan ever since 1998, and especially since 2003, but the world’s aristocrats muzzled White’s view and promoted Greenspan’s instead. (The economics profession have always been propagandists for the super-rich.) Bezemer should also have listed Charles R. Morris, who in 2007 told his publisher Peter Osnos that the crash would start in Summer 2008, which was basically correct. Moreover, James K. Galbraith had written for years saying that a demand-led depression would result, such as in his American Prospect “How the Economists Got It Wrong,” 30 November 2002; and “Bankers Versus Base,” 15 April 2004, and culminating finally in his 2008 The Predator State, which blamed the aristocracy in the strongest possible terms for the maelstrom to come. Bezemer should also have listed Barry Ritholtz, who, in his “Recession Predictor,” on 18 August 2005, noted the optimistic view of establishment economists and then said, “I disagree … due to Psychology of consumers.” He noted “consumer debt, not as a percentage of GDP, but relative to net asset wealth,” and also declining “median personal income,” as pointing toward a crash from this mounting debt-overload. Then, on 31 May 2006, he headlined “Recent Housing Data: Charts & Analysis,” and opened: “It has long been our view that Real Estate is the prime driver of this economy, and its eventual cooling will be a major crimp in GDP, durable goods, and consumer spending.” Bezemer should also have listed both Paul Kasriel and Asha Bangalore at Northern Trust. Kasriel headlined on 22 May 2007, “US Economy May Wake Up Without Consumers’ Prodding?” and said it wouldn’t happen – and consumers were too much in debt. Then on 8 August 2007, he bannered: “US Economic Growth in Domestic Final Demand,” and said that “the housing recession is … spreading to other parts of the economy.” On 25 May 2006, Bangalore headlined “Housing Market Is Cooling Down, No Doubts About It.” and that was one of two Asha Bangalore articles which were central to Ritholtz’s 31 May 2006 article showing that all of the main indicators pointed to a plunge in house-prices that had started in March 2005; so, by May 2006, it was already clear from the relevant data, that a huge economic crash was comning soon. Another whom Bezemer should have listed was L. Randall Wray, whose 2005 Levy Economics Institute article, “The Ownership Society: Social Security Is Only the Beginning” asserted that it was being published “at the peak of what appears to be a real estate bubble.” Bezemer should also have listed Paul B. Farrell, columnist at marketwatch.com, who saw practically all the correct signs, in his 26 June 2005 “Global Megabubble? You Decide. Real Estate Is Only Tip of Iceberg; or Is It?”; and his 17 July 2005 “Best Strategies to Beat the Megabubble: Real Estate Bubble Could Trigger Global Economic Meltdown”; and his 9 January 2006 “Meltdown in 2006? Cast Your Vote”; and 15 May 2006 “Party Time (Until Real Estate Collapses)”; and his 21 August 2006 “Tipping Point Pops Bubble, Triggers Bear: Ten Warnings the Economy, Markets Have Pushed into Danger Zone”; and his 30 July 2007 “You Pick: Which of 20 Tipping Points Ignites Long Bear Market?” Farrell’s commentaries also highlighted the same reform-recommendations that most of the others did, such as Baker, Keen, Pettifor, Galbraith, Ritholtz, and Wray; such as break up the mega-banks, and stiffen regulation of financial institutions. However, the vast majority of academically respected economists disagreed with all of this and were wildly wrong in their predictions, and in their analyses. The Nobel Committee should have withdrawn their previous awards in economics to still-practicing economists (except to Krugman who did win a Nobel) and re-assigned them to these 25 economists, who showed that they had really deserved it.

And there was another: economicpredictions.org tracked four economists who predicted correctly the 2008 crash: Dean Baker, Nouriel Roubini, Peter Schiff, and Med Jones, the latter of whom had actually the best overall record regarding the predictions that were tracked there.

And still others should also be on the list: for example, Joe Weisenthal at Business Insider headlined on 21 November 2012, “The Genius Who Invented Economics Blogging Reveals How He Got Everything Right And What’s Coming Next” and he interviewed Bill McBride, who had started his calculated riskblog in January 2005. So I looked in the archives there at December 2005, and noticed December 28th, “Looking Forward: 2006 Top Economic Stories.” He started there with four trends that he expected everyone to think of, and then listed another five that weren’t so easy, including “Housing Slowdown. In my opinion, the Housing Bubble was the top economic story of 2005, but I expect the slowdown to be a form of Chinese water torture. Sales for both existing and new homes will probably fall next year from the records set in 2005. And median prices will probably increase slightly, with declines in the more ‘heated markets.’” McBride also had predicted that the economic rebound would start in 2009, and he was now, in 2012, predicting a strong 2013. Probably Joe Weisenthal was right in calling McBride a “Genius.”

And also, Mike Whitney at InformationClearinghouse.info and other sites, headlined on 20 November 2006, “Housing Bubble Smack-Down,” and he nailed the credit-boom and Fed easy-money policy as the cause of the housing bubble and the source of an imminent crash.

Furthermore, Ian Welsh headlined on 28 November 2007, “Looking Forward At the Consequences of This Bubble Bursting,” and listed 10 features of the crash to come, of which 7 actually happened.

In addition, Gail Tverberg, an actuary, headlined on 9 January 2008 “Peak Oil and the Financial Markets: A Forecast for 2008,” and provided the most detailed of all the prescient descriptions of the collapse that would happen that year.

Furthermore, Gary Shilling’s January 2007 Insight newsletter listed “12 investment themes” which described perfectly what subsequently happened, starting with “The housing bubble has burst.”

And the individual investing blogger Jesse Colombo started noticing the housing bubble even as early as 6 September 2004, blogging at his stock-market-crash.net “The Housing Bubble” and documenting that it would happen (“Here is the evidence that we are in a massive housing bubble:”) and what the economic impact was going to be. Then on 7 February 2006 he headlined “The Coming Crash!” and said “Based on today’s overvalued housing prices, a 20 percent crash is certainly in the cards.”

Also: Stephanie Pomboy of MacroMavens issued an analysis and appropriate graphs on 7 December 2007, headlined “When Animals Attack” and predicting imminently a huge economic crash.

In alphabetical order, they are: Dean Baker, Asha Bangalore, Jesse Colombo, Satyajit Das, Paul B. Farrell, James K. Galbraith, Wynne Godley, Fred Harrison, Michael Hudson, Eric Janszen, Med Jones, Paul Kasriel, Steve Keen, Paul Krugman, Jakob B. Madsen, Bill McBride, Charles R. Morris, Ann Pettifor, Stehanie Pomboy, Kurt Richebaeker, Barry Ritholtz, David A. Rosenberg, Nouriel Roubini, Peter Schiff, Robert Shiller, Gary Shilling, Charles Hugh Smith, Jens K. Sorensen, Gail Tverberg, Ian Welsh, William White, Mike Whitney, L. Randall Wray.

Thus, at least 33 economists were contenders as having been worth their salt as economic professionals. One can say that only 33 economists predicted the 2008 collapse, or that only 33 economists predicted accurately or reasonably accurately the collapse. However, some of those 33 were’t actually professional economists. So, some of the world’s 33 best economists aren’t even professional economists, as accepted in that rotten profession.

So, the few honest and open-eyed economists (these 33, at least) tried to warn the world. Did the economics profession honor them for their having foretold the 2008 collapse? Did President Barack Obama hire them, and fire the incompetents he had previously hired for his Council of Economic Advisers? Did the Nobel Committee acknowledge that it had given Nobel Economics Prizes to the wrong people, including people such as the conservative Milton Friedman whose works were instrumental in causing the 2008 crash? Also complicit in causing the 2008 crash was the multiple-award-winning liberal economist Lawrence Summers, who largely agreed with Friedman but was nonetheless called a liberal. Evidently, the world was too corrupt for any of these 33 to reach such heights of power or of authority. Like Galbraith had said at the close of his 2002 “How the Economists Got It Wrong“: “Being right doesn’t count for much in this club.” If anything, being right means being excluded from such posts. In an authentically scientific field, the performance of one’s predictions (their accuracy) is the chief (if not SOLE) determinant of one’s reputation and honor amongst the profession, but that’s actually not the way things yet are in any of the social “sciences,” including economics; they’re all just witch-doctory, not yet real science. The fraudulence of these fields is just ghastly. In fact, as Steve Keen scandalously noted in Chapter 7 of his 2001 Debunking Economics: “As this book shows, economics [theory] is replete with logical inconsistencies.” In any science, illogic is the surest sign of non-science, but it is common and accepted in the social ‘sciences’, including economics. The economics profession itself is garbage, a bad joke, instead of any science at all.

These 33 were actually only candidates for being scientific economists, but I have found the predictions of some of them to have been very wrong on some subsequent matters of economic performance. For example, the best-known of the 33, Paul Krugman, is a “military Keynesian” — a liberal neoconservative (and military Keynesianism is empirically VERY discredited: false worldwide, and false even in the country that champions it, the U.S.) — and he is unfavorable toward the poor, and favorable toward the rich; so, he is acceptable to the Establishment.) Perhaps a few of these 33 economists (perhaps half of whom aren’t even members of the economics profession) ARE scientific (in their underlying economic beliefs — their operating economic theory) if a scientific economics means that it’s based upon a scientific theory of economics — a theory that is derived not from any opinions but only from the relevant empirical data. Although virtually all of the 33 are basically some sort of Keynesian, even that (Keynes’s theory) isn’t a full-fledged theory of economics (it has many vagaries, and it has no microeconomics). The economics profession is still a field of philosophy, instead of a field of science.

The last chapter of my America’s Empire of Evil presents what I believe to be the first-ever scientific theory of economics, a theory that replaces all of microeconomic theory (including a micro that’s integrated with its macro) and is consistent with Keynes in macroeconomic theory; and all of which theory is derived and documented from only the relevant empirical economic data — NOT from anyone’s opinions. The economics profession think that replacing existing economic theory isn’t necessary after the crash of 2008, but I think it clearly IS necessary (because — as that chapter of my book shows — all of the relevant empirical economic data CONTRADICT the existing economic theory, ESPECIALLY the existing microeconomic theory).

This content originally appeared on Dissident Voice and was authored by Eric Zuesse.

Without McBride’s feats, there would have been no Afghan Files published by the ABC.  The Brereton Inquiry, established to investigate alleged war crimes, would most likely have never been launched.  (That notable document subsequently identified 39 instances of alleged unlawful killings of Afghan civilians by members of the special forces.)

In an affidavit, McBride explained how he wished Australians to realise that “Afghan civilians were being murdered and that Australian military leaders were at the very least turning the other way and at worst tacitly approving this behaviour”.  Furthermore “soldiers were being improperly prosecuted as a smokescreen to cover [the leadership’s] inaction and failure to hold reprehensible conduct to account.”

For taking and disclosing 235 documents from defence offices mainly located in the Australian Capital Territory (ACT), the former military lawyer was charged with five national security offences.  He also found Australia’s whistleblowing laws feeble and fundamentally useless.  The Public Interest Disclosure Act 2013 (Cth) provided no immunity from prosecution, a fact aided by grave warnings from the Australian government that vital evidence would be excluded from court deliberation on national security grounds.

Through the process, the Attorney-General, Mark Dreyfus, could have intervened under Section 71 of the Judiciary Act 1903 (Cth), vesting the top legal officer in the country with powers to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth”.  Dreyfus refused, arguing that such powers were only exercised in “very unusual and exceptional circumstances”.

At trial, chief counsel Trish McDonald SC, representing the government, made the astonishing claim that McBride had an absolute duty to obey orders flowing from the oath sworn to the sovereign. No public interest test could modify such a duty, a claim that would have surprised anyone familiar with the Nuremberg War Crimes trials held in the aftermath of the Second World War. “A soldier does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.” To justify such a specious argument, authorities from the 19th century were consulted: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

ACT Justice David Mossop tended to agree, declaring that, “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order”. A valiant effort was subsequently made by McBride’s counsel, Steven Odgers SC, to test the matter in the ACT Court of Appeal.  Chief Justice Lucy McCallum heard the following submission from Odgers: “His only real argument is that what he did was the right thing. There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”  The answer from the Chief Justice was curt: Mossop’s ruling was “not obviously wrong.”

With few options, a guilty plea was entered to three charges.  Left at the mercy of Justice Mossop, the punitive sentence shocked many of McBride’s supporters.  The judge thought McBride of “good character” but possessed by a mania “with the correctness of his own opinions”.  He suffered from a “misguided self-belief” and “was unable to operate within the legal framework that his duty required him to do”.

The judge was cognisant of the Commonwealth’s concerns that disclosing such documents would damage Australia’s standing with “foreign partners”, making them less inclined to share information.  He also rebuked McBride for copying the documents and storing them insecurely, leaving them vulnerable to access from foreign powers.  For all that, none of the identifiable risks had eventuated, and the Australian Defence Force had “taken no steps” to investigate the matter.

This brutal flaying of McBride largely centres on clouding his personal reasons.  In a long tradition of mistreating whistleblowers, questions are asked as to why he decided to reveal the documents to the press.  Motivation has been muddled with effect and affect. The better question, asks Peter Greste, executive director of the Alliance for Journalists’ Freedom, is not examining the reasons for exposing such material but the revelations they disclose.  That, he argues, is where the public interest lies.  Unfortunately, in Australia, tests of public interest all too often morph into a weapon fashioned to fanatically defend government secrecy.

All that is left now is for McBride’s defence team to appeal on the crucial subject of duty, something so curiously rigid in Australian legal doctrine.  “We think it’s an issue of national importance, indeed international importance, that a western nation has such as a narrow definition of duty,” argued his defence lawyer, Mark Davis.

John Kiriakou, formerly of the Central Intelligence Agency, was the only figure to be convicted, not of torture inflicted by his colleagues during the clownishly named War on Terror, but of exposing its practice. McBride is the only one to be convicted in the context of alleged Australian war crimes in Afghanistan, not for their commission, but for furnishing documentation exposing them, including the connivance of a sullied leadership.  The world of whistleblowing abounds with its sick ironies.

This content originally appeared on Dissident Voice and was authored by Binoy Kampmark.

Photograph Source: Spc. Kaitlin M. Joiner – Public Domain

The unpardonable, outrageous trial of Australian whistleblower David McBride was a brief affair.  On November 13, it did not take long for the brutal power of the Commonwealth to become evident.  McBride, having disclosed material that informed the Australian public about alleged war crimes by special forces in Afghanistan, was going to be made an example of.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013.  During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences.  He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer.  Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking.  “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise.  “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.”  It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification.  Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich.  There are cases when a soldier is under a positive duty to disobey certain orders.  But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19^th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes.  The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.

There being no direct Australian decision on the subject (in itself, a startling fact) McBride’s legal team took the matter of duty to the Court of Appeal of the Australian Capital Territory on November 16, hoping to delay the trial and argue the point.  Chief Justice Lucy McCallum heard the following submission: “His only real argument is that what he did was the right thing.  There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”

If such an approach was adopted, Odgers went on to state, it “may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.”  Were the jury to understand that a public interest test applied in certain cases, they would then work on the “basis that there is a powerful public interest that members of the defence force do obey orders, but circumstances might arise in which that is not in the public interest.”

What Justice Mossop was essentially saying was “not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey”.  This was irrespective of “how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not”.

Odgers suggested an example elementary but salient.  Picture a junior officer, being given a supposedly lawful order to commit what would be seen as a war crime.  “Is that junior officer necessarily in breach of his duty?  And there’s no way that a jury can say no he didn’t have a duty to obey that order?  That’s the implications we say of his honour’s decision.”

Unfortunately for McBride, McCallum would not be swayed.  Mossop’s ruling was “not obviously wrong.”  She did not feel “that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial.”

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial.  As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.”  In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty.  Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that “the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers.”  Hardly. While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer.  Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth”.

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle.  His reasoning proved strikingly inconsistent: only in “very unusual and exceptional circumstances” could Dreyfus use such discretion.  We are on slippery terrain when revealing alleged war crimes is a matter usual and unexceptional.

In McBride’s understandably distressed reading of the result, he warned that, in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones.  A judge has made that clear.”  And, sadly, more besides.

The post A Duty to Obey: David McBride, Whistleblowing and Following Orders appeared first on CounterPunch.org.

This content originally appeared on CounterPunch.org and was authored by Binoy Kampmark.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013.  During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences.  He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer.  Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking.  “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise.  “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.”  It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification.  Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich.  There are cases when a soldier is under a positive duty to disobey certain orders.  But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes.  The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.

There being no direct Australian decision on the subject (in itself, a startling fact) McBride’s legal team took the matter of duty to the Court of Appeal of the Australian Capital Territory on November 16, hoping to delay the trial and argue the point.  Chief Justice Lucy McCallum heard the following submission: “His only real argument is that what he did was the right thing.  There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”

If such an approach was adopted, Odgers went on to state, it “may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.”  Were the jury to understand that a public interest test applied in certain cases, they would then work on the “basis that there is a powerful public interest that members of the defence force do obey orders, but circumstances might arise in which that is not in the public interest.”

What Justice Mossop was essentially saying was “not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey”.  This was irrespective of “how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not”.

Odgers suggested an example elementary but salient.  Picture a junior officer, being given a supposedly lawful order to commit what would be seen as a war crime.  “Is that junior officer necessarily in breach of his duty?  And there’s no way that a jury can say no he didn’t have a duty to obey that order?  That’s the implications we say of his honour’s decision.”

Unfortunately for McBride, McCallum would not be swayed.  Mossop’s ruling was “not obviously wrong.”  She did not feel “that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial.”

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial.  As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.”  In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty.  Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that “the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers.”  Hardly.  While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer.  Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth”.

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle.  His reasoning proved strikingly inconsistent: only in “very unusual and exceptional circumstances” could Dreyfus use such discretion.  We are on slippery terrain when revealing alleged war crimes is a matter usual and unexceptional.

In McBride’s understandably distressed reading of the result, he warned that, in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones.  A judge has made that clear.”  And, sadly, more besides.

This content originally appeared on Dissident Voice and was authored by Binoy Kampmark.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013.  During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences.  He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer.  Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking.  “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise.  “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.”  It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification.  Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich.  There are cases when a soldier is under a positive duty to disobey certain orders.  But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes.  The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.

There being no direct Australian decision on the subject (in itself, a startling fact) McBride’s legal team took the matter of duty to the Court of Appeal of the Australian Capital Territory on November 16, hoping to delay the trial and argue the point.  Chief Justice Lucy McCallum heard the following submission: “His only real argument is that what he did was the right thing.  There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”

If such an approach was adopted, Odgers went on to state, it “may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.”  Were the jury to understand that a public interest test applied in certain cases, they would then work on the “basis that there is a powerful public interest that members of the defence force do obey orders, but circumstances might arise in which that is not in the public interest.”

What Justice Mossop was essentially saying was “not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey”.  This was irrespective of “how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not”.

Odgers suggested an example elementary but salient.  Picture a junior officer, being given a supposedly lawful order to commit what would be seen as a war crime.  “Is that junior officer necessarily in breach of his duty?  And there’s no way that a jury can say no he didn’t have a duty to obey that order?  That’s the implications we say of his honour’s decision.”

Unfortunately for McBride, McCallum would not be swayed.  Mossop’s ruling was “not obviously wrong.”  She did not feel “that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial.”

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial.  As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.”  In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty.  Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that “the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers.”  Hardly.  While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer.  Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth”.

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle.  His reasoning proved strikingly inconsistent: only in “very unusual and exceptional circumstances” could Dreyfus use such discretion.  We are on slippery terrain when revealing alleged war crimes is a matter usual and unexceptional.

In McBride’s understandably distressed reading of the result, he warned that, in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones.  A judge has made that clear.”  And, sadly, more besides.

This content originally appeared on Dissident Voice and was authored by Binoy Kampmark.

McBride served as a major in the British army before becoming a lawyer for the Australian Defence Force, serving two tours in Afghanistan over 2011 and 2013.  During that time, he gathered material about the culture and operations of Australia’s special forces that would ultimately pique the interest of investigators and lead to the Brereton Inquiry which, in 2020, made 36 referrals to the Australian Federal Police related to alleged war crimes.

McBride was subsequently charged with five national security offences.  He was also denied immunity from prosecution under the near-unworkable provisions of the Public Interest Disclosure Act 2013 (Cth).

A central contention of the Crown was that McBride had, first and foremost, a duty to follow orders as a military lawyer.  Such a duty flows on from the oath sworn to the sovereign, and no public interest could trump that undertaking.  “A soldier,” contended Trish McDonald in her astonishing submission, “does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament.”

Even a layperson’s reading of the oath would surely make a nonsense of this view, but Justice David Mossop was in little mood to suggest otherwise.  “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order.”  It was a point he would be putting to the jury, effectively excluding any broader public interest considerations that might be at play in disobeying a military order.

For anybody vaguely familiar with military law since the Nuremberg trials of Nazi leaders in 1945, such orders are never absolute, nor to be obeyed without qualification.  Following orders without question or demur in all cases went out – or so the 1945 trials suggested – with Nazi officialdom and the Third Reich.  There are cases when a soldier is under a positive duty to disobey certain orders.  But McDonald was trapped in a fusty pre-Nuremberg world, evidenced by her use of a 19th century authority on military justice that would have sat well with the German defence team: “There is nothing so dangerous to the civil establishment of the state as an undisciplined or reactionary army.”

Chief counsel representing McBride, Stephen Odgers, hoped to drag Australian military justice into the twenty-first century, reaffirming the wisdom of Nuremberg: there are times when a public duty supersedes and transcends the narrow demands of authority, notably when it comes to the commission or concealment of crimes.  The oath McBride swore as a member of the ADF to serve the sovereign comprised an element to act in the public interest, even when opposed to a lawful order.

There being no direct Australian decision on the subject (in itself, a startling fact) McBride’s legal team took the matter of duty to the Court of Appeal of the Australian Capital Territory on November 16, hoping to delay the trial and argue the point.  Chief Justice Lucy McCallum heard the following submission: “His only real argument is that what he did was the right thing.  There was an order: don’t disclose this stuff, but he bled, and did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?”

If such an approach was adopted, Odgers went on to state, it “may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.”  Were the jury to understand that a public interest test applied in certain cases, they would then work on the “basis that there is a powerful public interest that members of the defence force do obey orders, but circumstances might arise in which that is not in the public interest.”

What Justice Mossop was essentially saying was “not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey”.  This was irrespective of “how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not”.

Odgers suggested an example elementary but salient.  Picture a junior officer, being given a supposedly lawful order to commit what would be seen as a war crime.  “Is that junior officer necessarily in breach of his duty?  And there’s no way that a jury can say no he didn’t have a duty to obey that order?  That’s the implications we say of his honour’s decision.”

Unfortunately for McBride, McCallum would not be swayed.  Mossop’s ruling was “not obviously wrong.”  She did not feel “that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial.”

With the trial resuming on November 17, Mossop issued another stinging order: that the Attorney-General’s office remove classified documents in McBride’s possession that could be presented to the jury at trial.  As one of the defence team, Mark Davis, told reporters, “We received the decision just this afternoon, which was in essence to remove evidence from the defence.”  In doing so, “The Crown, the government, was given the authority to bundle up evidence and run out the backdoor with it.”

With such gloomy prospects, McBride requested a new indictment on lesser charges, to which he pleaded guilty.  Facing sentencing in the new year, he may be eligible to serve time outside carceral conditions, though a decade long stint is also in the offing. “The result of today’s outcome,” wrote transparency advocate and former Senator Rex Patrick, “is one brave whistleblower likely behind bars and thousands of prospective whistleblowers lost from the community.”

In June this year, Australian Attorney-General Mark Dreyfus proudly claimed that “the Albanese government has delivered on our promise to the Australian people to strengthen protections for public sector whistleblowers.”  Hardly.  While modest amendments were made to the unspeakably clumsy Public Interest Disclosure Act, including the establishment of a National Anti-Corruption Commission, McBride had little reason to cheer.  Dreyfus refused to use Section 71 of the Judiciary Act 1903 (Cth), which gives the country’s chief lawmaker to drop prosecutions against individuals charged with “an indictable offence against the laws of the Commonwealth”.

Dreyfus, however, did discontinue the obscene prosecution of former ACT attorney-general Bernard Collaery under that same provision but refrained from exercising that same power regarding McBride and the Australian Tax Office whistleblower, Richard Boyle.  His reasoning proved strikingly inconsistent: only in “very unusual and exceptional circumstances” could Dreyfus use such discretion.  We are on slippery terrain when revealing alleged war crimes is a matter usual and unexceptional.

In McBride’s understandably distressed reading of the result, he warned that, in joining the Australian military, you were not “joining a noble profession, just a criminal gang like any other criminal gang: silence and complicity are the touchstones.  A judge has made that clear.”  And, sadly, more besides.

This content originally appeared on Dissident Voice and was authored by Binoy Kampmark.

With a record number of anti-LGBTQ bills introduced across the United States this year, we speak with Delaware state Senator Sarah McBride about her bid for an open seat in the House of Representatives that could make her the first openly transgender member of Congress. “Trans people are part of the rich fabric of America. We have something to offer for the table,” says McBride about the necessity of political representation as trans and queer people face increasing attacks on their civil rights. McBride is a Democrat who became the first openly transgender state senator, and the highest-ranking transgender elected official in the country, when she was elected in 2020.

This content originally appeared on Democracy Now! and was authored by Democracy Now!.