Afghan war crimes allegations 2: The Blackman defence

Lord MacDonald, the former Director of Public Prosecutions and current Warden of Wadham College, Oxford, has called for a judge-led inquiry into the ditching of the Royal Military Police inquiry. There is a clear public law question as to whether it was lawful or rational for the MoD to stifle the RMP inquiry, and whether it actually did stifle it. There is also a criminal law question surrounding the soldiers’ alleged conspiracy to plant weapons on the corpses of civilians.

However I’m most interested in whether the RMP could have any success in bringing murder charges, as they intended to, in light of the Court of Appeal’s decision in the Alexander Blackman case. 

Blackman had been accused of killing a wounded Taliban militant in cold blood. The video evidence seemed to show as much, and at first instance he was convicted of murder by a military court. The Court of Appeal subsequently agreed in its judgment that he had the partial defence of diminished responsibility, which led to a substituted conviction for the lesser offence of voluntary manslaughter. Blackman’s responsibility for killing the militant was diminished, the court held, because his role as a marine sergeant in Helmand put him under ‘quite exceptional stressors’ [109] leading to an ‘abnormality of mental functioning’ per section 2 of the amended Homicide Act 1957.

My concern is that, if followed closely, the judgment in Blackman would mean that any infantryman or marine accused of killing a combatant hors de combat in an intense and stressful campaign would be able to run the partial defence of diminished responsibility. As infantry fighting is almost always intense and stressful – the job is still commonly described as ‘closing with and killing the enemy’ – the effect of Blackman might be to make it almost impossible for any infantryman to be convicted of murder, no matter how callous and calculated the killing. If stress is intrinsic to being a soldier on the front line, does Blackman create an intrinsic defence to murder?

This in turn engages matters of public policy. It is clearly in the national interest to maintain a cadre of soldiers who are able to kill lawfully in combat for purposes of national defence, who are trained to do so in a professional manner strictly distinct from outright murder, and whose conduct does not diminish the standing of the armed forces or of the nation. If it becomes impossible to identify and punish murder when it is committed by infantrymen and marines, then the professionalism of the armed forces and the national standing would be harmed. As, of course, would justice itself.

On the other hand, however, as soldiers have rights and duties under law as everyone does, and do not form a special class of citizen with special privileges or restrictions, they must in turn have the right to a lawfully valid defence such as diminished responsibility.

How, then, can these two conflicting aims be reconciled? How can we insist that soldiers kill lawfully and professionally, in intrinsically stressful circumstances that would defeat civilians’ ability to act rationally, while also accepting that in some circumstances soldier’s responsibility to kill lawfully and professionally is diminished by the mental stress that combat can cause?

I argue that a balance can be struck, but it is not to be found in Blackman.

Critique of Blackman

The Court of Appeal found that Blackman did indeed kill the injured militant in cold blood, but that his responsibility for doing so was diminished by an ‘adjustment disorder’, a psychological impairment caused by the stresses of combat in Helmand province. He was not in his right mind when he committed the killing.

In making this finding, the court applied section 2 of the amended Homicide Act 1957. The section says that a defence of diminished responsibility requires the following:

• an abnormality of mental functioning 
• which arose from a recognised medical condition,
• and substantially impaired the defendant’s ability (a) to understand the nature of his conduct; (b) to form a rational judgment; (c) to exercise self control.

If it can be proved that the abnormality explained why the defendant killed, then the defendant cannot be guilty of murder but can still be convicted of manslaughter. Importantly, it is for the defence to prove, on the balance of probabilities, that the defendant suffered from the abnormality – if the defence is made out to that standard, then the prosecution must rebut it beyond reasonable doubt in order for a murder charge to stand.

It is certain that due to Blackman’s condition the charge for murder could not have been proved beyond reasonable doubt, and highly likely that the prosecution could not have rebutted a defence of diminished responsibility to that standard. I am less certain, however, that the defence of diminished responsibility could have been proved on the balance of possibilities in the first place.

The psychological assessment of Blackman which uncovered the adjustment disorder was carried out some time after the incident, which led the prosecution to object that it could not be proved that his mind was impaired when he killed the militant. The court seems to have rejected this contention on the grounds that Blackman, previously an exemplary soldier, was showing signs of stress before the incident, and was in such difficult and stressful circumstances at the time of the killing that it could be inferred that the adjustment disorder determined his behaviour when he killed the militant. Those circumstances were:

• Returning to UK to scatter ashes of recently deceased father;
• B had not received the full amount of pre-deployment training;
• had not been trained in Trauma Risk Management
• junior officer killed whilst on patrol, thus B lost the support of his junior officer (‘of material significance as a stressor’)
• powerful evidence that members of the unit under B's command were always on edge and did not feel safe at night
• Padre did not visit B’s post because it was too dangerous (‘evidence of a further stressor’
• The base was ‘during summer months under constant external threat and difficult to reach safely. It was isolated. It was without doubt austere.’
• J company had been hardest hit by the insurgents, that they were losing ground to the insurgents and by the end of the tour were combat weary.
• B's unit was undermanned: the previous multiple had been 25; the multiple under the appellant was 16
• Unit was required to patrol between 5 and 10 hours a day over rough ground in heat that was normally over 50 degrees Celsius when carrying a minimum of 100lbs of equipment. The court rejected the submission that this was irrelevant to the psychiatric assessment
• All men exhausted and deprived of sleep, but B particularly so as sgt
• B regarded himself as responsible for welfare of troops.

Viewed in totality, this is a compelling list of stressors, particularly when the subsequent proof of the adjustment disorder is taken into account. There are, however, two difficulties. 

First, the wording of the Homicide Act specifically requires a subjective impairment that impairs the defendant’s internal mental functioning and, subsequently, how he acts – is proof of the external circumstances endured Blackman enough to infer, on the balance of probabilities, an internal state of mind? As I discuss below, what if he just powered through? 'Cracked on' as the military say. It seems to me that the court gave undue weight to objective circumstances without determining how they caused an impairment in Blackman’s reasoned and reflective self-control.

Second, the circumstances listed above, while probably unendurable for a civilian like myself, reflect in large part the imperfect realities of being an infantryman or marine fighting in the difficult Helmand campaign. The physical ordeal, the less-than-adequate training and manpower, the stress of imminent danger, the horrors of violent killing – it is overwhelmingly likely that most infantrymen, especially those who fought in Helmand, would be able to cite similar stresses if accused of murdering the enemy. 

Consider next that, as the court heard from an expert witness, ‘about 20-25% of combat troops deployed to Iraq and Afghanistan at some point suffered from a mental health difficulty’ – and consider too that any accused soldier would probably be legally advised to get himself within that 20-25% bracket. 

The corollary, then, of the court’s emphasis on external circumstances as a means of ascertaining Blackman’s internal state of mind is to create a precedent in which almost any infantryman accused of battlefield murder could avail himself of a blanket partial defence.

An objective duty of resilience?

How can the Homicide Act, and the Court of Appeal’s construction of it, be interpreted so as to allow infantrymen the right to the diminished responsibility defence, without it being a blanket defence?

First, a solution that could not work.

There are obvious policy grounds for demanding that soldiers behave lawfully even when faced by stress that would impair others – that is, largely, one of the main points in training people to be soldiers. As Joseph Heller asserts in Catch-22, seeking to get out of combat is merely proof that you are sane – only an insane person would do otherwise. However, while it is reasonable to acknowledge that soldiers often inhabit a world far removed from the world of civilians of lawyers and judges, in which mind-bending stresses are the norm, it could not be just to demand legally that soldiers meet an objective, raised standard of mental resilience. 

First, at a certain level of mental functioning minds control people, people don’t control minds. If an impaired mind caused someone to do something illegal, he or she could not be held culpable for failing to meet some objective standard of resilience, as doing so was beyond his or her control – to hold that person culpable would be to punish him or her for not having a different mind, essentially for not being a different person. The need for soldiers who can kill in stressful situations without becoming insane or criminal is important, but not so important that it could justify such obvious unfairness. Soldiers are people.

Second, it would not be just to hold soldiers to a higher legal standard, such that a soldier would be liable for murder where a civilian would be liable for manslaughter, simply on the grounds that the soldier should have been more resilient. That would be to say that the state could legally punish soldiers for failing to meet super-human standards of resilience. Again, this would be unfair as soldiers are human and cannot be punished for being any less.

It is difficult to see how soldiers could be forced to accept a higher, less diminishable responsibility of reasoned self-control without the above problems biting. So any solution to the conundrum must be found within the current provisions of the Homicide Act – once it is shown as a matter of fact that the mind of any defendant is impaired, thus causing him to commit homicide, the partial defence of diminished responsibility becomes available.

Subjective resilience

The Homicide Act 1957 says that a recognised medical condition must 

substantially impair the defendant’s ability (a) to understand the nature of [his] conduct; (b) to form a rational judgment; (c) to exercise self control.

In specifying that the ability to exercise self-control etc. is the ability of the defendant, the Act leaves it open to the court to take into account as a matter of fact the subjective capacity for self-control of different defendants, even in the face of mental impairment. It is uncontroversial that infantrymen and marines acquire through their training a heightened ability to form rational judgments and exercise self-control in extremely stressful circumstances (as accepted by the court at [71]). Should Blackman have had to prove, then, that the impairment was such that it diminished a capacity for self-control that was already unusually heightened?

There is a fair argument that the court should have paid much more to the following:

• the typical resilience of infantrymen, and the extent to which Blackman showed more or less of such resilience;
• the typical stress-related mental impairments faced by infantrymen in combat, and the extent to which Blackman’s impairment exceeded them; and
• the likelihood that the mental impairment suffered by Blackman exceeded his soldierly self-control and resilience in the face of particular stresses, such that it was, on the balance of probabilities, the cause of his killing the injured militant.

This is a purely factual question. If such an approach were suggested to a jury in a similar trial, it would have to consider questions about mental causation and might even have to reject expert psychiatric evidence. The authority of Golds says that a jury can be invited to reject expert evidence, though the judge must suggest some rational basis for doing so. It would fall within Golds for a judge to ask a jury if it believed that a particular soldier’s mental resilience would have allowed him to retain reasoned self-control in spite of a proven mental impairment – though I accept that in practice this could be difficult.

A legal question also arises – this approach might increase the burden on the defendant such that he had to prove not only the mental impairment but also a) his levels of resilience and b) that the impairment defeated his resilience. While Blackstone’s Criminal Practice is fairly clear in submitting that the switched burden in section 2 of the Homicide Act 1957 does not infringe the Article 6 right to a fair trial, it is possible that any addition to that burden might.

Conclusion

I think the Court of Appeal was wrong to put such emphasis on Blackman’s circumstances – it shifted the attention from his mental state, which the Act requires, and created the possibility of a blanket defence for soldiers who have killed unlawfully in intense combat. I am fairly sure that, if the Blackman decision were followed, the special forces soldiers currently accused of murder in Afghanistan would by default be able to take advantage of the diminished responsibility defence – particularly given reports of the over-deployment and exhaustion of special forces units, and the greater regularity with which they are required to kill at close proximity (in so-called ‘night raids’ for instance).

It is consistent with the Act to take account of a defendant’s subjective resilience, and doing so might be a way of keeping the DR defence open to soldiers, while still defending the policy that trained soldiers should be expected to tolerate heightened (but not infinite) stress, and kill professionally but not murderously.

The question is part of a wider, very difficult problem of litigating what happens on the battlefield. It is undesirable to say that soldiers should form a separate class of people with separate legal duties, as it would then be consistent also to say that they should have special rights and privileges beyond those enjoyed by other citizens. Yet it is also absurd to disregard the fact that fighting in war is far removed from the realities most citizens face. It is likely this will remain a conundrum.

Afghan war crime allegations 1: Accountability

I recently read an extraordinary investigation by the Sunday Times Insight Team alleging that a UK special forces unit working in Afghanistan turned bad.

The allegations are:

• The unit (presumably a squadron within the SAS) killed Taliban suspects having hooded and handcuffed them;

• Soldiers planted weapons on dead suspects to justify killing people who may have been totally innocent farmers not linked to the Taliban;

• The MoD then wound down the Royal Military Police investigation into the killings, perhaps believing that it could be buried amid the widespread scepticism about UK war crimes investigations caused by the Iraq Historic Allegations Team and Phil Shiner.

A couple of points of interest here, one political, the other legal.

The political issue: accountability deficit

First, it’s notable that a regular army officer stationed nearby was concerned that UK special forces were operating freely and without accountability (quoted in the Times, behind the paywall). 

I’ve banged on about this before – this is a manifestation of a systemic problem facing the entire UK armed forces, and especially the army. The UK is caught in a bind: on the one hand it has valuable military assets (well-trained infantry, including the special forces) that any government would want to keep – they buy the UK credibility with the US, and once wound down the institutions that create the talent couldn’t simply be spent back into existence. If it was a matter simply of money, the UK would send its officers to be trained in the Gulf States, not the other way round.

On the other hand, however, Basra and Helmand showed that the UK doesn’t have the logistical clout or the money to field large armies. It has valuable assets, but the only way to realise their value is to offer them to allies, mainly the US, as boutique assets that can be integrated into allies' larger, more capable command structures. The result is that UK taxpayers spend billions training soldiers only for them to be commanded and deployed by American generals who are not accountable to the Defence Secretary nor, ultimately, to Parliament.

The UK special forces are an extreme example of this – they are one of the most attractive items in the UK boutique, and as such ministers are happy to oblige American officers by allowing them to be placed directly under US command, usually in so-called joint task forces. Mark Urban, the excellent defence journalist, has written extensively on this.

The dangers are obvious: 

1. Loss of political control over military assets that should be accountable to the taxpayers who fund them, and to nation which stands to have its reputation tarnished if they behave criminally.                                                                                                               
2. The possibility that UK soldiers, acting effectively as mercenaries, will become decoupled from the ethical and legal standards of the UK armed forces, and ‘go native’ in their new surroundings. It’s important not to make an unfair insinuation – the British soldiers in question may have gone rotten without any outside help – but it should be noted that their US counterparts have long stood accused of similar heavy-handedness (to be treated with caution, but this well-researched Intercept article is pretty damning).
3. More generally, any aggressive military unit stands to become a liability if it is allowed to feel the usual shackles have come off. It is notable that in the Alexander Blackman case, which I discuss here, some attributed Blackman's crime of murdering an injured militant to a failed command structure which left his unit to its own devices.

As much as any government should want to avert these dangers, it might be the case that maintaining the UK armed forces in a ‘complementary’ role, thereby risking the dangers, is the only way to get value out of them. The alternative would be to run down assets which are of value to the country and couldn’t be easily rebuilt. No government elected for five years should seek lightly to strip assets developed over centuries.

It’s difficult to see a good way out of this bind – and difficult to foresee today’s political class possessing the imaginativeness to find a middle way.

ISIS: Why Obama fiddles

Yes more depressing news from the Middle East with the ISIS conquest of Ramadi in Iraq and of Palmyra in Syria. As Ramadi was falling, the US administration, with remarkable good timing, released the happy news that they had just killed a high-up ISIS financier during a night raid.

On the face of it this is a pretty naked, and pretty weak, PR bid – the fall of a major city is hardly made up for by dragging a senior administrator out of his bed and shooting him while still in his pyjamas. But when you look beneath the surface, it’s much, much worse than all that.

Here, briefly, are four possible reasons for why the Obama administration is fiddling while the Middle East burns. They get progressively more worrying.

1. Ideological shift

The Obama administration has inherited from its predecessor a preoccupation with special forces troops as a magic wand. As I argued previously, the magic was particularly potent for the Bush administration, which saw such troops as the ideological vanguard of a new, smaller military (and, ultimately, a new, smaller state). Obama has surely noticed too that this sort of derring-do plays well with a public that worships the military, and especially its elite units. Compare the aftermath of the Bin Laden killing, in which the feat of shooting an unarmed old man in the face was laughably talked up into a latter-day Iwo Jima.

2. Obama is a vacillator

Obama is a chronic vacillator (or unfailingly prudent, to be more generous), and will only commit to pinprick actions like this, fearing the consequences of confronting ISIS head-on.

3. The situation is intractable

There are simply no good moves to make. A previous administration largely created the mess in Iraq, but while this makes it America’s duty to put it right (‘you break it, you own it’), Obama still can’t do anything because yet another toxic Bush legacy has been to sully full-scale humanitarian intervention for the foreseeable future. Moreover, there are no good guys to fight alongside in Syria, and why should fighting in Iraq do any good this time around when it failed last time? In the absence of any proper solution, then, something morale-boosting and faintly useful like a daring night raid will have to do – it’s at least a strike against ISIS in a propaganda war that the bad guys are winning.

4. The situation might be solvable, but the US is incapable

By far the worst possibility is that the world’s leading democratic nation is incapable of confronting a rampant, malevolent power which threatens to ruin Middle Eastern civilization. Instead the US is limited to morale-boosting but peripheral actions like the killing of pyjama-wearing ISIS supremo Abu Sayyaf.

According to this terrifying interpretation, the modern US is structurally unable, or ill-suited, to winning wars.

Consider this: special operations like the one that so rudely awoke Mr Sayyaf were largely pioneered by the British during the Second World War. ‘Set Europe ablaze!’ Churchill so memorably commanded, but while actions like the St Nazaire raid continue to capture the imagination, and understandably so, we have largely lost sight of the fact that unconventional warfare was employed as a workaround, to compensate for the weakness at the time of Britain’s conventional capabilities. The commando raids on occupied Europe’s shores were an interim, morale-boosting means of attack until the Allies could get on with the real business of launching a conventional reinvasion.

Is a similar thing happening in the modern day? Has the US military, for a long time suspicious of unconventional warfare, embraced it now because of the crippling limitations of its conventional forces?

As I understand it, the US military historically scorned unconventional warfare on the basis that you play to your strengths – when you have more conventional firepower than any other nation, why faff around with other stuff? Hence the Powell doctrine of ‘overwhelming force’, and ‘shock and awe’ – America’s advantage over its enemies is its firepower, so it stands to reason that conflicts can be won by escalating them until that advantage proves decisive.

You only need to watch the war-porn footage from Afghanistan available on YouTube (a guilty pleasure, I admit) to see this. A Taliban gunman has a fighting chance engaging a NATO infantryman, but has no answer to the massive airpower that NATO will throw at him in response to his ill-advised pot-shots. Escalation, then, is a reasonable means of advancing any conflict to the point at which the enemy can no longer meaningfully retaliate.

However, as the US has found out during three costly and traumatic failures, there are enormous problems with this – problems which, I argue, render the US paralysed. First, escalation as a matter of principle inevitably leads to conflicts becoming big, high-intensity, expensive affairs, in which chaotic unforeseen consequences are likely and compromise with the enemy improbable.

Second, a strategy of open-ended escalation only works if it might at some point prove decisive – the Taliban gunman and the armoured divisions of Soviet Russia would ultimately have been blown away, but if your enemy is the Viet Cong, or the Taliban, or Al Qaida in Iraq / ISIS, then they won’t stick around the battlefield to receive the decisive blow. Instead, as indeed happened, US forces fruitlessly keep escalating, incurring all the attendant problems (high intensity, massive expense, chaos), without the reward of decisive victory.

True, ultimately the US could have gone completely bonkers and vapourized the Viet Cong, the Taliban etc. but it doesn’t matter. This entire way of war is far, far in excess of what the American public, i.e. the military’s paymasters, will tolerate. The US public dislikes open-ended engagements overseas, is partly still isolationist, and above all wants to bring their boys home – and yet the US military is wedded to tactics that will inevitably result in expensive, bloody, open-ended wars. Even though the Vietnam, Iraq, and Afghanistan conflicts demonstrate that at some point the President will have to bow to political pressure and pull the plug on them.

There’s no good in saying ‘we should have won, but victory was prevented by the politicians’, as was said after Vietnam and also after the First World War (except it was said in German). Armies must fight within their means, and those means are determined by politics and economics – generals might as well complain ‘we should have won, but victory was prevented by the lack of money and soldiers and equipment.’ War is, after all, the pursuit of politics by other means.

So there it is: the US is unable to carry out a conventional attack on ISIS because the military is so cut off from the political supply lines it relies on for funding and legitimacy, any attack would end in abandonment and failure. The basic American war-waging model is unworkable, and so Obama must settle for fruitless propaganda coups.

To be generous, the US military is a blameless victim of its size: big armies will fight big wars. To be less generous, one wonders if a lack of creativity and imaginativeness has led to the assumption that a big heavy military can only fight big heavy wars – what about small smart ones?

This is awfully depressing if true. The strong America of the Bush years was terrible, but it didn’t have to be, whereas a weak America could only be a much worse thing for the world. The criminal and unforgivable stupidity of invading Iraq caused this situation, and the US and UK must put it right. Ash Carter is right of course: Iraqi troops will not fight hard for a state that was artificially created, from the top down, by self-interested occupying forces. But it was obvious from the very start that the post-Saddam state would be artificial and lacking legitimacy.

Iraq has become something of a Frankenstein's monster – he was driven to misery and ultimately self-destruction by the tormenting knowledge that he didn't exist in his own right, but merely as the object of his creator's will. Nobody can bear living in the knowledge that they are a merely artificial thing, and the Iraqi people seemingly don't want give their lives to prolong the existence of an artificial state created for the benefit of foreign powers. America and Britain created this monster, now they have to do something about it.

Death 2: Bin Laden

'A violent loser, and a mutt.'

One death I’ve been thinking about is that of barely-remembered Osama Bin Laden, and in turn the wider policy of extra-judicial killing.

The killing of Bin Laden was, according to Barack Obama, ‘one of the greatest military operations in our nation's history.’ Fair enough – even if it is an over-statement, his death was legitimately an occasion for overstatement. And the intelligence build-up leading to his death was by the sound of it an extraordinary achievement.

But… one can't help wonder if, over the long years of the War on Terror, the US has lost sight of the days when her fighting men took on other soldiers, rather than over-excited holy men. To recap: a large team of soldiers, trained at eye-watering expense to the taxpayer, successfully shot an unarmed old man in the face; while also killing or injuring one armed opponent, and five unarmed women. Along the way they also, inexplicably, lost a $60-million helicopter.

This was no Iwo Jima, Mr President.

'This was no Iwo Jima, Mr President.' 

(I mean, the killing of Bin Laden wasn't - this picture was Iwo Jima, obviously. Read the above bit before you read this caption, it'll make more sense).

But I’m snarking. I agree with the case that Bin Laden was an enemy commander in the field and a fair target, rather than a civilian felon – al Qaida were, still are, a heavily militarized outfit, and the notion that one single set of anti-terrorist laws can provide grounds for action against e.g. both Baader Meinhof-style groups and, say, Hezbollah, is a clear nonsense.

And, frankly, I think in some ways it was a classily executed affair. It delivered a sickener to other violent losers in a way that will probably save lives – you won’t get a blaze of glory, you’ll disappear with a ‘splosh’ and the world will forget about you, like the mutt you were. And you can forget about the seventy virgins too.

However I’m not too interested in delving into rights and wrongs in these two posts (though I accept both are highly debatable, and am not trying to draw the question to a premature close). I’m more concerned with looking at neglected possibilities, and disturbing corollaries that weren’t immediately obvious to me. I’ve not read round this topic a great deal, so it’s more than possible that they have proven obvious to a great many others, on an immediate basis.

The first query. A participant in the raid (Mark Owen, the one that wrote the book – N. B. not Mark Owen) described it as routine in most aspects and no different to many targeted killings he was involved with before (the so-called 'decapitation' strategy targetting the mid-level leadership of the Taliban). We know that in Iraq and, with less success, Afghanistan, thousands of such ‘kinetic’ operations have taken place (what is it with the macho posturing of soldiers from certain countries? surely when you're the real thing, you don't have to speak like you're pretending to be the real thing?). As one source rather unpleasantly put it – the Americans, supported by the British, have been killing ‘on an industrial scale’.

Is it implied therefore that the casualty rate of the operation (one target, one armed combatant, and five unarmed non-combatants mostly female) was also uncontroversial and typical? We know that certain aspects of the operation were controversial, as chuntering ensued – the intrusion into Pakistani territory, and the ethics of the intelligence operation (the sneaky obtaining of DNA samples, the possible use of torture) for example. But there seems to have been no attempt to hide or query the fact that, in a so-called surgical strike, only two of the seven casualties were valid targets.

Now it might be that behind closed doors commanders were furious about this rate of 'collateral damage' or 'attrition' or 'accidental neutralization of enemies of freedom' or whatever silly term they use. Perhaps such things are done behind closed doors.

Possible, but then contrast the public contrition and the punishments doled out when US forces accidentally killed a hostage by throwing a grenade at her (the deeply unfortunate Linda Norgrove). We certainly heard about the fallout that time.

So given this, and given the general openness and leakiness of the United States and its institutions, it seems reasonable to conclude that within military circles this was a non-controversial operation, with a casualty rate that was entirely to be expected.

In which case, if these operations have killed, let's say, a thousand Al-Qaida and Taliban militants in Iraq and Afghanistan, then it follows that another 3,500 non-combatants might have been killed and injured on top of that.

This would clearly be a great wrong – and inexcusable from a modern, technologically superb power. Indeed, looking at accounts of the raid, it seems likely that the casualties piled up because of a culture of risk aversion which is massively stacked in favour of trained combatants, and against non-combatants who never asked to be involved in the first place. 

That is: the person you are shooting at might or might not be a threat, but it is preferable for an enemy non-combatant to be killed than for a friendly combatant to take the risk of being killed. Expendability shifts from soldiers, whose lives and expertise are politically and economically valuable respectively, to enemy non-combatants, whose deaths don’t sell newspapers or swing elections.

I think someone wrote a book on this topic about ten years ago, calling it something like The Western Way of War. I suppose it could be argued that this argument is now out of date – the ‘heroic restraint’ drive (gist – upon seeing a non-white person with a firearm, at least wait a bit before calling in a massive airstrike) identifies and has possibly solved this very problem. We should be prepared to accept that the US military, with its extraordinary flexibility and adaptability, has turned the tanker around. But if the Bin Laden raid was representative – maybe not yet.

My second point is wider. As suggested above, the media’s utter beguilement at anything to do with the special forces, and their frequent inability to discover the truth surrounding them, produces a kind of ‘moral hazard’ for the soldiers. By 'moral hazard' I mean, to borrow OED's definition,  the lack of incentive to avoid risk where there is protection against its consequences, e.g. by insurance.' The reluctance of the press to criticize America’s elite forces (itself possibly a consequence of popular support for them – witness the success of recent film Lone Survivor starring Mark ‘we’re going to land somewhere safely’ Wahlberg) is likely one factor among others that enables the soldiers’ heavy-handedness - see e.g. here.

An altogether more pernicious enabling factor is the patronage military elites attract from the political elites that should be overseeing and crosschecking them. An elite, that is, is all too often someone's elite - a would-be Praetorian Guard. The result is an out-of-control military cabal, and the subversion of democratic principles at the hands of their supposed guardians.

Think, for instance, of the love-in between Thatcher and the SAS during the 1980s (and doubtless beyond) which culminated, bizarrely and disturbingly, with Thatcher using them to quell a prison disturbance in Scotland (HMS Peterhead). Think the Revolutionary Guard in Iran, and its extensive political power; Putin and Russia’s paramilitaries; and any number of South and Central American tinpot dictatorships, probably.

A certain ideological narcissism is involved – Thatcher saw in the SAS not just a flag-waving, tab-pleasing vote-spinner, but also a self-flattering reflection of her own buccaneering, brawny, and pitiless free-market individualism. More to the point, this seems also to underlie the Pentagon’s fairly recent espousal of unconventional soldiering, having until recently been unsold on the idea (which stands to reason – why faff around with unconventional warfare when you have more conventional power than any nation in history?). 

Donald Rumsfeld (now forgotten about, in a way eerily similar to his nemesis Bin Laden) saw in US special forces not just the right tool for the job he was about to make an absolute pig’s ear of – viz. fighting the war on terror – but also a chance to radically downsize the US military and with it the federal government. As a small-government fundamentalist, this was a higher ideological end (an end served also by replacing professional soldiers with the nightclub bouncers, tubby ex-policemen, and other cowboys that make up Blackwater / Xe / Academi).

In the run up to the invasion of Iraq, for instance, civilian Rumsfeld insisted that the country could be conquered by 15,000 special forces soldiers backed by airpower. The generals didn’t listen to him, obviously, and instead fielded 150,000 soldiers from the US alone (‘shut up, Don’).

So it is easy to see how an anointed elite can come to operate in isolation from the moral and political pressures that should circumscribe its actions. There is a dangerous feedback loop – the politician identifies in the soldiers an aspirational image of himself and his ideology, a hefty dose of reflected glory (decisive, strong, daring, a cut above, etc.), and the soldiers are more than happy in turn to exploit this affection – it protects their budget (likely contested anyway) and gives them more opportunity to do all the fun things they train for but never actually get to do.  And the more ‘fun’ they have (think back to the ‘killing on an industrial scale’) the more glory accrues to their political paymaster.

This mutually reinforcing pattern is the very opposite of the accountability ministers must impose on the military, as a sort of inertia mechanism. And the results are real, and bad – many of the ‘enhanced interrogation’ techniques that proliferated over the past decade plus were traced back to the resistance-to-interrogation training inflicted on elite soldiers. This was where the rot was coming from.

It is under this culture of tutelage, then, that the Navy SEALs shot the five unarmed occupants in Bin Laden’s compound. Did a similar culture see British soldiers and /spies – in the high watermark of Thatcherite cowboyism during the Troubles – use Loyalist terrorists to systematically murder Republicans during the late 80s and early 90s, as is alleged? We don’t know yet – but you wouldn’t rule it out, despite the implausibilities.

There's another post I want to write, about how, sadly, such unaccountable and shady military adventurism is the likely future of the British Army. But I'll leave it here for now.