The United States warned that it may have to suspend cooperation with Australian special forces after the release of a report into alleged war crimes in Afghanistan, the Senate has heard.
The chief of the Australian defence force, Gen Angus Campbell, also confirmed that an army member’s employment arrangements had been “adjusted” after the US raised the issue.
Campbell made the comments during a hearing of the Senate’s foreign affairs, defence and trade committee on Wednesday.
It prompted the Tasmanian senator Jacqui Lambie to claim that the US was “dictating” what would happen to Australian personnel.
Campbell said he had “received a letter from the United States defence attache here in Canberra” after the Brereton report found “credible” information to implicate 25 current or former special forces personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others.
The report was released in late 2020 and the embassy’s letter was sent to Campbell in March 2021.
Campbell recounted that the letter said the Brereton report “may trigger Leahy law consideration with regard to the relationship between the United States armed forces and a partner unit or organisation, in this case either being Special Operations Command or the Special Air Service (SAS) regiment”.
According to a US fact sheet, “Leahy law” refers to rules “prohibiting the US government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights”.
Guardian Australia understands the then chief of the army, Lt Gen Rick Burr, subsequently wrote to a special forces member to say that Campbell had “received advice from the US embassy in Canberra that the findings within the report had triggered ‘Leahy law’ considerations”.
Burr’s letter, sent in February 2022, said that while the person continued to serve in the special forces, there was “no path” to alleviate the concerns of the US.
It is understood the letter also said it was important to achieve “remediation” of the issue in order to resume US Department of Defense engagement with Australian special forces.
The person was informed that they would not be posted to support the SAS regiment or Special Operations Command, and would also not be able to join operations or exercises that involved the US.
Campbell told the committee he knew “of one member of the army whose employment arrangements – as in posted position – was adjusted based on consideration of the question in part of whether Leahy law issues may emerge”.
He said it was important to ensure “there is no uncertainty about the continuing relationship between Australian and United States special forces” and the change was made with “due care” to the individual’s “circumstances and opportunities and professional development”.
Lambie asked “why consideration of US law is being used to take action against Australian soldiers”.
“Quite frankly, I find it atrocious,” she told the committee. “They’re going to start dictating that this is what’s going to happen to our personnel?”
Campbell replied: “Senator, I can assure you there was absolutely no dictate or threat or inappropriate conduct in any way, shape or form.
“And I do say that any casual reader of that redacted [Brereton report] document would say it refers to credible information of allegations of unlawful conduct or in the United States’ term to gross violations of human rights.”
Campbell took several questions on notice, including for how long US cooperation with Australian special forces was disrupted.
The Greens’ defence spokesperson, David Shoebridge, told Campbell during the hearing: “When our major ally has advised our chief of defence that they won’t work with a key unit of the Australian military and you won’t tell us for how long that restriction lasted or what the nature of the restriction was, we have a significant problem, don’t we?”
Campbell replied: “No, senator, that is not the truth.”
He said Australian special forces were currently able to operate with US forces and were not subject to any Leahy law-related restrictions.
During the hearing, Campbell initially said he had “no memory of the minister of the day being advised” at the time of the US embassy letter, but he later corrected the record.
“Our minister of the day was advised and was then routinely advised from March of 2021 through to the conclusion of the issue through advice to the minister in March of 2022,” he said.
Marise Payne was acting as defence minister at the time of the embassy letter and Peter Dutton was appointed to the position a week later.
Asked whether the current defence minister, Richard Marles, knew about the letter, Campbell said: “No, he does not know what I am telling you here, Senator.”
A spokesperson for Marles reiterated that he had not been briefed on the matter and said: “Given there are serious privacy issues, it would be inappropriate to comment further.”
The US embassy declined to comment.
