How could 39 alleged unlawful killings of Afghan people by members of Australia’s special forces have occurred over years while no officer in command of those soldiers knew about or had reasonable grounds to suspect the crimes?

The Afghanistan inquiry ^[1] conducted by Major General Paul Brereton gives us four main answers. There’s the one we heard this week from Chief of Army Rick Burr on 60 Minutes: soldiers in the small teams operating ‘outside the wire’ concealed the crimes from everyone else. It’s this narrative that has caught the popular imagination, even as we sense that it is insufficient to explain what happened and why.

The Brereton report sets out three other big reasons why the crimes went undiscovered, with plenty of supporting material even in the redacted version ^[1]. All three go well beyond the culpable soldiers and take us away from simply blaming the behaviour and acts of a few.

All three have consequences for how our military, the broader defence organisation, and the system of engagement with the members of our parliament operate.

Obviously, these events must be put in the context of a brutal conflict that only those who fought it can really appreciate. But that doesn’t excuse the rest of us from working to make future operations less likely to leave the same legacy.

The first factor is that operational reporting by the special operations task group in Uruzgan was not accurate. Tactical reports of raids on villagers and the events that involved killing of Afghans—combatants, non-combatants and prisoners—were sanitised and falsified to conform with the rules of engagement (ROE). Descriptions were added by legal officers that put key words and phrases into the mouths of those reporting the events to satisfy the ROE. The Brereton report says: ‘This became so routine that operational reporting had a “boilerplate” flavour, and was routinely embellished, and sometimes outright fabricated, although the authors of the reports did not necessarily know that to be so, because they were provided with false input.’

The authors did know what boilerplate language to use, though. As Brereton says, ‘It is apparent that legal officers have contributed to the embellishment of operational reporting so that it plainly demonstrated apparent compliance with the ROE.’

Sanitising operational reporting so that no inquiries would be ordered from above let the deployed personnel—including the soldiers raiding villages—know that it was okay, and even normal practice, to distort reporting to avoid scrutiny. That corrosive message enabled greater misconduct.

The second, perhaps bigger, issue is that the special forces command and legal officers frustrated and interfered with most—if not all—of Defence’s internal investigations, whether through the Australian Defence Force Investigative Service, inquiry officer inquiries or quick assessments. Brereton puts this politely in the report, observing, ‘A balance needs to be struck between the lawful rights of defence members and the support of the investigation of criminal and disciplinary offences.’ That balance was not struck within the command.

Part of this was the tendency to invoke secrecy requirements as preventing disclosure, even though they don’t extend to concealing potentially criminal conduct. The larger problem was that the report found a pattern when internal investigations were underway. Of one case Brereton says, ‘[T]here is little doubt that the [higher ADF] command intention to have an investigation was, if not frustrated, at least inhibited.’ More broadly, he observes that investigators’ ‘attempts were frustrated by outright deceit by those who knew the truth, and, not infrequently, misguided resistance to inquiries and investigations by their superiors’.

Frustrating the investigations led to the numerous inquiries and assessments responding to allegations by Afghan villagers, Afghan government officials and human rights groups not being substantiated. That’s not surprising, as the investigators were unable to gather and assess evidence that would do anything else. And the inconclusive outcomes of these frustrated inquiries were then used as a shield to deny problems in the command.

The Brereton report also shows the corroded standards widespread in the special forces task forces, captured in the word ‘throwdowns’. The term appears in the redacted report 60 times, which tells us a lot. It might well be the start of the trail of concealment that allowed misconduct culminating in murders. Perhaps it’s because the Brereton team was immersed in its work for four and a half years years that the term is used so unremarkably.

‘Throwdowns’ included pistols, assault rifles, grenades and radios of the types used by the Taliban that special forces soldiers carried to plant at the scenes of their operations as fabricated evidence to support false reporting. That allowed them to do things that the ROE did not permit.

Brereton says that the practice seems to have begun because deployed personnel thought the rules were unworkable, so instead of seeking changes they worked around them. On ‘throwdowns’, he observes that ‘interviews taken over a number of years build up a picture of their use gradually becoming an acceptable practice to solve this real problem on the ground’. The practice was fundamental to concealing unlawful killings, because photos and reports could include the (false) fact that a dead Afghan was armed or had a radio used to communicate with the Taliban. Placing ‘throwdowns’ was allowed to continue for years and was ‘widespread’.

So, these three factors—planting false evidence, sanitisation and fabrication of reporting, and frustration of and interference with inquiries by special forces command and its legal officers— explain why it has taken until now to get a body of evidence that will result in criminal charges against individuals.

It’s no doubt true that, as Andrew Hastie says ^[2], along with the small group of soldiers who committed crimes a parallel, more positive warrior culture persisted in the special forces, ‘it just wasn’t the prevailing one at the time’. It’s also no doubt true that ‘there were acts of command moral courage during the period investigated by the Brereton inquiry’. And, Hastie notes, ‘History won’t record these good deeds the way it will the battlefield criminality of a few, but there were junior leaders … who made hard decisions to uphold the sacred trust reposed in them by the Australian people.’

We can recognise this and yet we still need to understand what happened, not just in the villages and fields of Afghanistan, but ‘inside the wire’ and in the reporting chain, if we are to learn from the crimes and make future ones less likely.

Whether the motives of those involved in distorting reports and in frustrating internal investigations was anything more than protecting people they were intensely loyal to and trusted absolutely is important, but in a way, it doesn’t matter. The effect was to create cover for unlawful killings and other crimes for years.

That wider operational and command environment is the subject of recommendations by Brereton; however, it’s hard to see these as sufficient. They may even be counterproductive. The recommendation to create a parallel reporting structure for soldiers with allegations sounds smart given the experience in Afghanistan. But that proposal accepts that reporting through the chain of command will be false and so a parallel channel is required. It also seems to accept that complicating  and frustrating investigations out of loyalty to colleagues and those you command is almost in the nature of the command chain and reporting process. Both assumptions, if true, cut to the heart of how command can be exercised in any meaningful way.

So, Lieutenant General Burr was right to say that tightly knit small groups concealed their unlawful acts. As Brereton says, ‘[T]he criminal behaviour of a few was commenced, committed, continued and concealed at the patrol commander level’. It’s also true that the reporting and the command that wrapped around them helped this go on for so long by protecting and enabling these acts.

Transparency in reporting is not a hindrance. As Hastie says, that can help deal with the nasty reality that people will do bad things when left unaccountable. Another lesson is that local workarounds to unworkable policies from on high can reach well beyond the original problem they seem to solve.

That’s a sobering message to many of us who have scratched our heads about head office directives in many fields of human endeavour. It’s a challenge to how higher-level instructions are formed, implemented and open to change through the experience of those doing the implementation.

Last, no command or even hierarchical relationships can work effectively without trust, but leadership requires more than blind trust in the team. Some dose of Reaganism—‘trust but verify’— is healthy both for the leaders and for those whom they trust and direct.

Brereton’s work goes well beyond the small group of soldiers who will face charges. It’s expecting too much of the report for it to not just do the forensic investigative work but to also come up with all the right solutions.

We have a shared responsibility to rethink the design of strategy, policy and operations and to bake in transparency and accountability in new ways that work to the benefit of those who bear the enormous responsibilities of serving our country in conflict.

It’s worth reading beyond the horrific descriptions, even in the redacted report, and looking for the deeper reasons that drove us to this point.