Defence boss turned weapons company director Mark Binskin led the ‘Keystone Cops’ task-force associated with Afghan war crimes cover-ups. The Albanese Government has now appointed him to “scrutinise” the Israeli Defence Force “investigation” into the killings of Australian aid worker Zomi Frankcom and her World Central Kitchen colleagues in Gaza last week. Former army officer Stuart McCarthy reports.

Renowned Australian investigative reporter Chris Masters often reminds his profession that “our job is to hold truth to power.” According to the ABC’s advertising pitch for Grace Tobin’s recent Four Corners’ piece Rules of Engagement, the documentary was intended to be “the full David McBride story for the first time.”

The lead-up ads included a grab from Tobin’s colleague Dan Oakes, who eight years ago asked McBride to provide him with the documents that became known as the Afghan Files, “its a much greyer and murkier and messier story than people appreciate,” said Oakes.

So grey, murky and messy is this story that even with hundreds of pages of classified documents, the resources of the ABC Investigations unit, eight years and a freshly minted OAM at his disposal, he’s only managed to tell half of it. But the story has now come full circle and its up to the independent media to do the real telling. Jobs, truth and power are certainly what the real story is about, but not in the same sense as that quote from Masters.

At the heart of it lies abuse of power, patronage and arse-covering at the highest levels of Defence and government, where the truth counted for nothing.

One of the central figures is Mark Binskin, who on Monday was appointed by the Albanese government to “scrutinise” the Israeli Defence Force “investigation” into their killings of Australian aid worker Zomi Frankcom and her World Central Kitchen colleagues in Gaza last week.

Over recent months, chair of the Royal Commission into Defence and Veteran Suicide Nick Kaldas has frequently referred to “a catastrophic leadership failure” in our own defence force, where the consequences have also been “a senseless loss of life.”

Military justice not that just

One of the Defence institutions under the spotlight at this Royal Commission is something called the military justice system. Two components of this system caught in the beam of that spotlight are the Australian Defence Force Investigative Service (ADFIS) and the Inspector General of the Australian Defence Force (IGADF).

ADFIS has similar investigative powers to a police force, although its jurisdiction is obviously limited to those in military uniform. They answer to the Vice Chief of the Defence Force (VCDF).

The role of the IGADF, which answers directly to the Chief of the Defence Force (CDF), is to “oversee the quality and fairness of Australia’s military justice system.” The Royal Commission has uncovered widespread abuses of administrative law as a proxy for criminal proceedings, while the IGADF was also grilled over serious oversight failures.

‘Keystone Cops’

ADFIS is widely regarded as the defence force”s Keystone Cops. This is a law enforcement agency so incompetent that of the 1,751 plausible cases of rape, sexual assault, cover-ups or other abuse acknowledged by the 2016 Defence Abuse Response Taskforce report, the total number of those taken to successful prosecution closely resembles a goose egg, These include cases where the alleged perpetrators were officers up to the rank of Colonel.

Over the years the media has occasionally exposed scandalous examples of catastrophic leadership failures involving the abuse of military justice. Among them was the so-called ‘Jedi Council’ sex scandal in 2013. An Army reservist boasted of his sexual exploits using the Defence email system, sharing non consensual images of his sexual partners to groups of email addresses, many of whom he didn’t even know. According to Robert Ovadia’s Walkley Award winning story,

Army chief David Morrison did nothing when alerted to the initial complaints, leaping into action only nine months later when the NSW Police became involved, then over-reacting, then scapegoating. A completely innocent Lieutenant Colonel was unfairly dismissed from the defence force, slandered by Morrison in his famous “standards you walk past” speech, traumatised to the point of suicide when Morrison was awarded  Australian of the Year. He was cleared of any wrongdoing five years later.

Canberra arse-covering

A decade into Australia’s military campaign in Afghanistan, this Canberra arse-covering and scapegoating mentality extended all the way to the Australian special forces deployed to the battlefields of Uruzgan and its neighbouring provinces.

Defence Minister Stephen Smith had already been publicly informed of apparent war crimes in 2012 by the president of Afghanistan, the rules of engagement had been tweaked to create a perception that the problems were fixed, and the generals were jostling for the Defence chief’s job on David Hurley’s impending retirement in 2014.

These included his vice chief Mark Binskin. The key to becoming Hurley’s successor was demonstrated performance as the minister’s Praetorian Guard, protecting him from a threat even more dangerous than a Taliban bomb maker – political scandal.

Enter David McBride

This was the minefield McBride landed in when he deployed to Uruzgan in 2013 as the Special Operations Task Group’s legal officer. As a lawyer, McBride’s main ethical obligation was to uphold the rule of law, including the rules of evidence, natural justice and due process. As a military lawyer specifically, someone with a post graduate Oxford degree in the laws of armed conflict, those professional obligations extended into the application of the laws of war and adherence to rules of engagement.

In April 2013, the SOTG conducted a raid targeting a senior insurgent commander in Zabul province. Four suspected insurgents were killed. Standard procedure after engagements like this was to gather forensic evidence from the deceased, including fingerprints.

This was a crucial part of the coalition forces’ efforts to counter the threat of improvised explosive devices including suicide bombs used to target schools and hospitals. ADFIS staff were attached to SOTG in order to assist with the forensics.

Because there wasn’t sufficient space on the helicopters returning the troops to Uruzgan, an SAS Corporal reportedly removed the right hands from two of the insurgents’ bodies using a surgical scalpel, taking the forensic evidence back to base for the forensics team. As awful as this incident may sound, given the operational imperative it was debatable whether the incident constituted a war crime. However, it was promptly reported up the chain of command. An ADFIS team was dispatched to Uruzgan to investigate, while initial reports were leaked to the ABC from Canberra.

Legally permissible to chop of hands?

One of the disputes that emerged during the investigation was a claim from an SAS soldier that one of the attached ADFIS forensic staff had advised him it would be legally permissible to remove a hand from a corpse if it was absolutely imperative to do so.

The investigation; conducted by ADFIS into an incident involving ADFIS, did not support that claim. The conduct of the ADFIS investigation, including the interviewing of witnesses and the gathering of evidence, was one of the complaints McBride raised back uo through the chain of command.

His concerns were vindicated. The federal police conducted a two-year criminal investigation and the soldier was cleared.

Team America

One thing that’s striking about Canberra’s “we didn’t know” and “rogue soldiers” narratives now is that even the first story on this incident filed by the ABC in May 2013 noted “the allegation of misconduct was raised through internal channels”.

Enlisted soldiers and junior officers including then Captain Andrew Hastie, now the Shadow Minister for Defence, did exactly the right thing. They reported the incident to their superiors. Where the chain of command actually broke down was in Canberra, a capital infested by a toxic culture of scapegoating the very soldiers they’d dispatched to a brutal war of insurgency. giving them the vague mission “support the U.S. alliance”.

Another striking thing is that nobody has ever been investigated, much less prosecuted, for the classified document leak that created the scandal in the first place.

Hurley dead-bat

The only reason the public knows anything about the severed hand incident among others, beyond those apparent political leaks to the ABC in 2013, is that the classified ADFIS investigation reports and related documents were included in the Afghan Files given to Oakes by McBride several years later.

The only reason we don’t know the full story is that the actual documents were never published by the ABC. Anyone who discloses them further would face the same criminal prosecution as McBride. The captured ABC’s version of events is protected by the national security apparatus, under the threat of secret trials then jail,

Nonetheless, so concerned was McBride about the legal consequences of botched ADFIS investigations and politicised rules of engagement, he complained to his chain of command, then to the IGADF, then to the federal police, then to Hurley.

No action was taken. Eventually, he went to the media. When the media backgrounded the leaked documents to Defence, the generals needed a plausible deniability narrative. Hence came the Crompvoets “culture review” to uncover rumours of war crimes, then Brereton’s IGADF administrative inquiry which found no evidence of criminal culpability above the rank of Sergeant.

Brereton whitewash and Binskin

The use of administrative rather than criminal investigative procedures in the Brereton Inquiry tainted the evidence so badly that criminal proceedings against the worst of all the alleged perpetrators were abandoned by the Commonwealth Director of Public Prosecutions last year, after a five year federal police investigation.

Neither Smith nor Hurley were ever called to give evidence at the Brereton Inquiry. Nor was Binskin, the man in charge of the Keystone Cops, who also bungled their “investigations” so badly that dozens of potential war criminals and their victims may never receive justice. Binskin replaced Hurley as the CDF in 2014, then waltzed out the revolving door into the defence and aerospace industry in 2018.

Within hours of the “horrific and shameful” Brereton Report’s delivery to a packed Canberra media conference two years later, Smith told the ABC’s Linda Mottram:

“I was always confident in the run up to the report that there would be nothing that would indicate that either I or any of my ministerial colleagues of whatever political persuasion were ever alerted to anything which they should have taken any action on. [The report] makes it clear that the rumours started to emerge after the tempo had finished in about 2015-2016 …”

Albo dusts off Smith

After a nine year hiatus as an academic, Smith was brought back onto the public teat by Albanese in 2022 to co-author a defence strategic review paper heralded in April last year as “the missile age,” then was appointed Australian High Commissioner to the UK.

For McBride’s commitment to upholding the rule of law during this “horrific and shameful” war crime scandal, he was thrown under the bus by several of Australia’s leading “investigative journalists,” now faces the prospect of 50 years imprisonment as a “national security threat,” and has become the slander target-de-jour for an incestuous national press gallery intent only on currying favour for the next political leak from their true masters.

Had McBride not been check-mated into pleading guilty by an executive government intervention in his case last October, it’s plausible that Smith, Hurley and Binskin may have been subpoenaed to the ACT Supreme Court during the trial proceedings, giving evidence that may have freed McBride.

Yet even if those proceedings had taken place they would have been kept secret from the public under a clause of the National Security Information Act intended for the prosecution of terrorists and invoked by the Attorney-General. The same Attorney-General who has refused to exercise his ministerial power to drop the unjust prosecution.

Welcome to the Albanese Government’s new era of transparency and accountability, and good luck to anyone seeking justice for war crimes against Australian humanitarian aid workers or their colleagues in Gaza.

Photo above: 愚木混株 @cdd20: Unsplash
Michael West Media
https://www.michaelwest.com.au/