Dumping due process (or war crime trials by media)

One of the fundamental legal principles of our civilisation is the presumption of innocence until guilt is proven.

This should be particularly so when it comes to allegations of war crimes levelled against our soldiers on operations. They put their lives on the line in the most dangerous of circumstances at the behest of our government. They deserve, at the very least, due process.

Unfortunately, this principle appears to have been thrown out the window in the modern Australian Defence Force.

Let’s not beat around the bush: since Friday allegations have been aired in Fairfax media and on the ABC that in 2012 members of the SAS engaged in murder and then a conspiracy to cover it up:

The SASR soldier, nicknamed “Leonidas” by a fellow soldier after a Spartan warrior, kicked the handcuffed detainee off the edge of a small cliff, badly injuring his face, according to claims of two defence force insiders who witnessed the event.

As the detainee lay injured, hands still bound, the two witnesses say Leonidas was party to the decision among soldiers to “get him out of his misery.”

The journalists who wrote this story, Nick McKenzie and Chris Masters, made it very clear that they believed that these allegations were more than mere rumours:

Now, five years after Ali Jan was walked towards the cliff edge, rumour has hardened into allegations, and then into evidence. Fairfax Media has spent months looking into Ali Jan’s fate as part of broader investigation into the behaviour of SASR forces in Afghanistan. The investigation involved interviews with dozens of current and former soldiers and senior officials, and unearthed highly confidential documents and briefings. Fairfax Media also hired an Afghan journalist to track down Darwan villagers and Ali Jan’s’s family to tell their story.

Among the special forces soldiers risking their careers to brief Fairfax reporters are those who have also been summoned to give evidence to a special inquiry now being held into the actions of Australians in Afghanistan. This inquiry is run by a Supreme Court judge with the backing of top military officials.

Behind closed doors, the words “war crimes” are being used. Not only specific incidents, but the entire culture and command structure of Australia’s most renowned and trusted fighting force is now under scrutiny in a manner unprecedented in Australian military history.

The ‘suspect’? According to Fairfax media, ‘Leonidas’ had completed multiple tours of Afghanistan before deploying again in 2012, has tattoos and was known for his courage.

That could be half the SAS who are now unjustly tarred with the brush of war crimes.

But given the details in the Fairfax reporting, it should come as no surprise that there are names being thrown around on the rumour mill. Reputations have already been tarnished, even though no charges have been laid and no findings have been made.

Unfortunately, it is highly likely that at some point one or more brave Australians will be fingered in the media as war criminals, even though they have faced no trial at all.

Rather ironic, isn’t it.

Allegations of murder are serious. And they should be taken seriously.

But here’s the rub: there is no proper investigation into these allegations. One can only wonder why.

Yes. There has been a 2016 ‘war crimes’ report from a feminist sociologist.

Yes. The Inspector General of the Australian Defence Force (IGADF) has been running a separate inquiry since 2016 to advise the chain of command on how to deal with the allegations.

Yes. We now have a third ‘inquiry’ being led by the former ASIO boss, David Irvine, examining undetailed ‘reforms’ within the SAS.

And yes, we now also have trial by media.

Unfortunately, none of these processes are the due process.

Feminist sociologists are not criminal prosecutors facing a burden of proof. And neither are journalists at Fairfax or the ABC. And with all due respect to the work being undertaken by Supreme Court judge Paul Brereton and David Irvine, neither of their ongoing investigations have the power to lay charges or make criminal findings.

All they can do is recommend what should have been done in the first place: hand the matter over to the Australian Defence Force Investigative Service (ADFIS) or the Australian Federal Police (AFP).

So in terms of dealing with the allegations, all these ‘inquiries’ are pointless.

We now have a bizarre situation where we are supposed to believe that two separate witnesses have made statements to the effect that they witnessed a murder and yet neither ADFIS nor the AFP have been called in.

Instead, a shadowy and self-appointed prosecution has been given free rein to air allegations in public via the media while the ‘defendant’ has had no fair chance to lay his side of the story at all.

Due process and natural justice have been jettisoned.

Furthermore, one could easily form the impression that the media trial has been given a green light by the chain of command.

Witnesses from the Brereton inquiry seem to be leaving its hearing rooms and heading straight over to the Sydney Morning Herald, almost as if they have been directed to do so as part of some media operations campaign to shape public opinion. Fairfax journalists claim they have spoken to dozens of SAS members and that they have managed to obtain a report from feminist sociologist, Samantha Crompvoets, that Defence has previously refused to release.

Newspaper journalists appear to have been given access to all the ‘evidence’ (or should that be rumours) while the criminal prosecutors have not.

Even if none of this is condoned by military commanders, they are still responsible for failing to follow due process and instead setting up a parallel system of pointless inquiries that were always likely to end up with trial by media.

Perhaps the best way of understanding this outrageous situation is by contemplating this: in the six years since Fairfax states the allegations were first made, Defence has deployed a feminist and banned images of the Grim Reaper. And launched an IGADF inquiry to provide recommendations to senior commanders about how to deal with ‘war crimes’ allegations.

What a joke.

The fact that our military leadership has to have an inquiry into what it should do with allegations of war crimes is far more concerning than the actual allegations themselves.

If the current Chief of Army and former Special Operations Commander truly don’t know what to do with these allegations then neither of them should have been placed into these positions of responsibility.

The correct response to these allegations is simple: spare the Army from feminist sociologists and if there is evidence of murder that could result in a conviction, lay charges under the Defence Force Discipline Act 1982. If not, the matter ends there. And ‘there’ should have been back in 2012.

All of this reminds me of David Morrison.

When he was Chief of Army the ‘Jedi Council’ scandal was beat up to the media and Morrison went on to become Australian of the Year and land a cushy job with the Diversity Council of Australia. Along the way, a lieutenant colonel was unjustly framed, leading him to attempt suicide.

A cynic might question whether something similar is happening again.

The Chief of Army, who after six years of serious allegations is yet to call in the criminal investigators, is being praised in the media for his handling of this affair:

The silver lining for the Australian Defence Force is that the alleged war crimes have been exposed by SASR whistleblowers who have been backed by certain high-ranking officers, including now former major-general Jeff Sengelman and incoming defence force chief Angus Campbell.

As I said at above, these allegations are serious and should be taken seriously.

Yet the ‘whistleblowers’, who Fairfax claims are backed by the Chief of Army, have not been directed to speak with police and have instead been briefing the media.

The whole process is wrong, leaving Defence likely to get the worst possible outcomes.

If there is no substance to the rumours (which was the outcome of other war crimes accusations), senior leadership have allowed Australia’s bravest soldiers to be unfairly tarnished with allegations of murder.

If there is something to this story, Army commanders have failed to launch any proper inquiry and allowed the creation of circumstances that may prejudice any future criminal trial.

And in both cases, instead of dealing with the causative problems that were always likely to lead to problems within the SAS (such as the unsustainable over-deployment of the SAS due to the political decision to avoid casualties in the Army’s combat units deployed to Iraq and Afghanistan), the SAS is likely to succumb to the next round of feminist social engineering within the Australian Defence Force.

Either way, the greatest casualties in this scandal seem likely to be morale, capability and the rule of law…

Author: Bernard Gaynor

Bernard Gaynor is a married father of nine children. He has a background in military intelligence, Arabic language and culture and is an outspoken advocate of conservative and family values.

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  1. I lived through the Vietnam War on U.S. TV in the States and I have nothing but respect for the men who served. They fought a Communist army hellbent on adding another de-colonised nation to the Communist bloc of nations. It was the duty of the Western world to oppose this. And to the mind of the Church, the Communist Revolution being rolled out across the globe had to be opposed.

    The enlisted were probably not aware (as were those in the chain of command) but they were also fighting the U.S. Deep State which serves the World Order – which is Communist. The officers knew that the U.S. chain of command was sabotaging the war and had reasoned that the government had a covert policy to hand the Indo-China peninsula to the Communist bloc. American atrocities made to order for American TV supported the Deep State cover story that the war was unwinnable and hopeless etc. Of course, Communist atrocities (innumerable) received no exposure or air time in the West. The Communist armies all got to pose as ‘nationalists’ on Western TV and FAKE-NN. There was no word in those days for ‘the Deep State’ but that is indeed what the veterans had come up against.

    Those who realised the truth – that the U.S. government had been subverted at the highest levels – did not recover from that war

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  2. “Unfortunately, none of these processes are the due process”
    No – but a court-martial would be. Is that what you’re advocating?
    You seem to have forgotten recent history – remember My Lai?
    It doesn’t matter that the report was written by a “feminist sociologist”.
    What matters is its accuracy. I’m tired of the crap that we need ruthless warriors somehow exempt from the restraints of normal behaviour to “keep us safe”. We didn’t need that when I fought in Vietnam, and we don’t need it now. With the exception of one incident of water torture in Vietnam, the behaviour of our diggers was in the best traditions of ANZAC.
    Contrast that with the record of the Americans, including My Lai.
    Perhaps that’s why Australians are held in much higher esteem than the Americans in SVN, especially in the old AO (Phuoc Tuy/Baria) where we operated for almost as long as the Afghanistan deployment.

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    • I am advocating that the process under the Defence Force Discipline Act be followed and that could include a court-martial.

      Accuracy is important. Which is why, when allegations were first raised, they should not have deployed a feminist academic but ADFIS or the AFP.

      And for those who do want to see justice done, this should be no comfort at all: under the Defence Force Discipline Act many of the ancillary offences cannot be prosecuted after the elapse of five years and evidence given in the IGADF inquiry cannot be used in criminal proceedings against the person who provided it.

      If a cover up is a concern, then questions should be directed at those who allowed due process to be sidetracked for pointless investigations that can only prejudice any future trial and that have caused unnecessary delay and probably a loss of evidence.

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    • Yes Mr 1735099 that IS EXACTLY what he is proposing.

      If DUE PROCESS HAD BEEN followed in the first place we would be in this mess now.

      So glad you can hold your head up so high as a son of ANZAC about your ‘clean war’. I bet you never even uttered a single swear word did you?

      That kind of dog s**t attitude was the same as was given to the likes of you by those WW2 Veterans on your return from your – in most cases SINGLE operational deployment.

      And no, our war definitely lasted longer than yours in most cases, since the majority of us were/are professional soldiers & returned to combat operations for multiple deployments.

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    • Yes, we all remember My Lai but none of us were there – including you. You are clearly unaware of the history of the behaviour of some of our ANZAC’s during WW1 – remember, that’s where the ANZAC legend was forged.

      You’re obviously unaware of the role Australia’s special forces played during your conflict. I have my doubts you’re even a veteran & just one of those wanne-be’s who pop up every ANZAC day.

      I don’t pretend to put myself in the same cast as SF or the regular infantry who had to patrol beyond the FOB. I did a couple of tours, my role was different & I do not glorify it.

      Go find a mirror & take a long hard look at yourself.

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      • You disagree with me, so try the “you’re a wannabe” smear. Sad. Suggest you check my bona fides using the Vietnam nominal roll. My tag is my regimental number. An apology would be in order.

  3. Don’t miss the great political satire of the online survey we would like to see posted by the ADF in the Afghani newspapers.

    In the Dari language “Hi we’d like you to complete this online survey after your contact with our special forces troops”

    “How did you contact us today?”

    “Were you
    a. laying in wait to ambush us?
    b. placing an IED inside a dog’s carcass?
    c. firing at us while surrounded by a group of school kids?
    d. pretending to work with us on one of our bases?”

    “On a scale of 1 – 5, how would you rate the troops you shot at on the following attributes?”
    a. gender balance, including fluidity and expression of individual gender identity…

    I am sure Bernie and the Readers could come up with more PC survey questions for the ADF and give Rapid Context a little friendly competition.

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  4. Cultural Feminist Marxism demands the destruction of all forms white male machismo.

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  5. It seems to me the feminists are almost as dangerous as the Islamists.

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  6. It is the emasculation of the Defence Force by a thousand cuts by innuendo,heresay and unproven allegations by whistle blowers ably assisted by Fairfax, ABC and no doubt by the Green/Labor feel good brigade. Is there any support from the Government or the DF Chiefs? No they as guilty as the rest. As if the present Govermentisnt bad enough if Labor gets in they will at a rate worse than usual oversee the virtual destruction of a viable Defence Force and the potential Turnbull opposition won’t say a word. How long will the accused have to wait for a proper enquirey and result? The last one went for over four years will they have to wait this long or will they be branded guilty without trial.

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