U.S. Special Operations Forces (SOF): Background and Issues for Congress

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U.S. Special Operations Forces. (US SOF)

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However, if SOF are regularly deployed on a long-term basis in intensive combat operations, an issue becomes apparent as to whether this constitutes a state of permanent armed hostilities and should require some sort of public debate or system of review. Indeed, it is estimated that the course of the first decade of the war on terror, including the conventional operations in Iraq, has cost perhaps lives.

In terms of legal accountability for actions in combat, all three services have structures of military justice which cover SOF as they would other military units. Following internal investigation, the result might be disciplinary hearings, courts martial or in appropriate circumstances the transfer of the case to civilian criminal courts. For example, with regard to Canadian special forces, difficulties in accountability were highlighted by a case stemming from at a forward operating base in Kandahar, Afghanistan, when a warrant officer in JTF-2 attacked a fellow member of the unit, strangling him for 45 seconds until pulled off by three other JTF-2 personnel.

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The rank of the accused and the seriousness of the offence meant he was despatched for full court martial in Canada. However, he was never brought to trial allegedly because of the problem that military courts in the Canadian armed forces are open, but JTF-2 identities and operations are classified. Charges were eventually allowed to.

In , near Tarin Kowt in southern Afghanistan, Australian troops fired on a car they apparently believed was a taxi ferrying Taliban fighters in the area. The attack killed one and seriously wounded four others. The soldiers departed without helping the injured. After officials had denied any role in the incident, it transpired that Australian military authorities had knowledge that Australian SAS soldiers were in the area and that they were in an engagement and fired their weapons.

We know little if anything about cases where civilian injury or death may have occurred unlawfully as a result of SOF operations. Amnesty International, the American Civil Liberties Union and journalists have filed a number of freedom of information requests on US investigations and prosecutions for deaths caused by SOF in Afghanistan with no result. Finally, it must be noted that accountability in SOF missions becomes even more tenuous when SOF are acting as trainers or advisers in areas with little or no local legal frameworks or where local authorities refuse to investigate abuses.

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During the war on terror, SOF have recruited and led local paramilitary groups which are accused of unlawful killings of insurgents and civilians. In , Australia ceased its involvement in training such forces but resumed it in , inappropriately according to critics. Currently, the main form of general oversight of SOF is financial. This form of oversight remains limited, since it focuses on monetary issues. Nevertheless, this still could be an area where the effectiveness of SOF is scrutinised but reviews have been sporadic.

The Australian National Audit Office has not conducted an audit on SOF but they are mentioned in reports dealing with reserve forces and army learning. As mentioned SOF can perform a number of important roles with a positive impact, including conflict prevention or stabilisation, hostage rescue and assistance to war crimes investigators. Having made these points, the secrecy and specialised nature of SOF activities also raise the negative effects of their deployment. They are perhaps most clearly defined in a recent British government document:.

They are expressed as permissions and prohibitions which govern where armed forces can go, what they can do and, to an extent, how and when certain actions can be carried out. They are designed to ensure that action taken by UK forces is lawful and consistent with government policy. They are also used to enhance operational security, avoid fratricide and to avoid counter-productive effects which could destabilise a campaign. Moreover, ROE do not restrict the inherent and inalienable right of an individual to act in self-defence. Therefore, adhering to, or alternatively breaking ROE does not imply legality or illegality.

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ROE may be illegal in themselves for example, an instruction to execute enemy prisoners of war [71] or may be legal but effectively ignored. The ROE under which special forces operate depend on the context in which they are deployed. For example:. Australian special operations ROE are not disclosed.

For example, during the SAS deployment to Iraq as part of Task Force Black, British special forces were constrained during their assaults on residences containing suspected terrorists — not being able to fire on even those who offered resistance. Here, SOF were operating in an emergency situation of near civil war and being despatched on rolling missions in hostile urban areas in which they were immediately at risk.

The issues are different when SOF are not operating in a situation of public emergency like Iraq [80] where their missions are fewer and planned in greater detail, or when SOF are proactively seeking out targets that they can choose to engage or not, as when Australian special forces implemented ROE which were wide in scope in in Uruzgan province. During a joint Afghan-Australian operation to track a mid-level Taliban commander, an Australian soldier shouted in the local language to two men to stop.

The men ignored this and the soldier opened fire, also hitting a year-old boy who was transferred to hospital. This process was accelerating by the time it was described by the media:. That such operations are of questionable legality is clear from the special and secret legal advice given to special forces, different to that given to the rest of the British armed forces. Such acts may indeed be necessary to sustain the fighting capacity of the organisation, but they are not so dangerous in a direct military sense as to justify killing.

Away from combat or a conflict situation, SOF theoretically have the duty to remain within the parameters of their mission, using force only when absolutely necessary for self-defence or to prevent the loss of life. However, in practice, training and mentoring roles can see SOF engaging in combat with little scrutiny. The issue is really situational. In those circumstances, I suspect the line becomes a very fine one — a matter of metres. The law may be unable to cope when, for example, SOF and those police units trained by them adopt more aggressive ROE automatically, in place of arrest.

The fact that SOF are expected to operate in situations of high risk does not mean that they are owed no duty of care. This duty might be said to run from their deployment to their operations and finally their return.

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Apparently, they have been collecting intelligence on terrorism and areas where Australians may be taken hostage. This exact phrase. Any of these words.


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