Lions led by lawyers: Why UK's special forces may have reason to fear the Labour government

There are two key military units that the might of America’s forces wholeheartedly rely on Britain delivering – the nuclear deterrent in the Atlantic Ocean and the UK’s esteemed special forces.

While the veteran nuclear submarines are creaking along, the ultra-trained troopers are suffering what could be a debilitating reputational issue.

The legacy of Afghanistan is looming, with allegations that SAS soldiers carried out the extrajudicial killings of more than 50 civilians during the height of the Taliban insurgency in 2011.

With a well-earned reputation for bravery and professionalism, the SAS could find legal challenges heading its way to be highly damaging.

There have been calls for reform of Britain’s special forces, who for good reason fight largely in the shadows, yet with little oversight or accountability for their actions.

That could change under the Labour government. With a human rights lawyer, Keir Starmer, at its helm the appetite for legal reform could well be felt by those at the sharpest end of combat.

Campaigners have told The National of the need for greater regulation to protect soldiers and civilians, but senior military figures say tinkering with the sharp end of Britain’s military could leave it dangerously blunted.

“We've got to be really, really careful as we have an absolutely a diamond organisation in our special forces and we don't want anything that is going to dull that diamond,” said former British army officer Hamish de Bretton-Gordon. “Politicians have got to roll with these punches, not let the lawyers run over them.”

‘Deliberate killing’

For more than two decades there has been a nagging exposure of British soldiers’ actions on operations from Northern Ireland to the Iraq occupation, Afghanistan and even in Kenya, where it has a large training wing.

But continued allegations are threatening to expand with revelations that the SAS killed unarmed civilians during night raids in Afghanistan. The evidence that one unit allegedly killed 54 people during its six-month tour is compelling.

In a memo sent to the UK’s Director of Special Forces in 2011 after the rotation, a senior officer stated that there had been “deliberate killing of individuals” and a “subsequent fabrication of evidence”.

But no further action was taken until damaging reports emerged on the BBC and elsewhere, with a public inquiry now investigating.

It is understood that the Afghanistan killings came about because an SAS squadron “went rogue” with an ineffective commander, and had been heavily influenced by a US Navy Seal Team 6 unit that allegedly espoused an unscrupulous, religious-driven kill policy.

The issue was not been helped by the Ministry of Defence’s dogged insistence that nothing untowards happened, leading to accusations of a cover-up.

“If we claim that Britain has the best military in the world, I would argue that we have to be absolutely transparent, especially if civilians are killed in the line of fire, and which, if any, were intentional,” said Iain Overton, director of the Action on Armed Violence pressure group.

Mr Overton, a former war correspondent, also points to the incredulous claim made by the RAF that during its air strikes against ISIS in Syria and Iraq from 2014, it killed more than 4,000 insurgents but just one civilian.

Matt Kennard, of the specialist investigations outfit Declassified, also said the lack of regulation worked against special forces, allowing rogue elements to commit crimes because they can “operate completely secretly and with complete impunity”.

Whistleblowers are also very rare in the SAS, whose code of silence is never to speak out against the regiment for fear of permanent ostracism.

Life or death

SAS troopers must make life or death decisions while under fire in the harshest of circumstances, which was very different to “a lawyer sat in London commentating on it, who's never been shot at in their life", said Mr de Bretton-Gordon.

“Things go wrong in combat, that has happened since time immemorial,” he said. “When you're on the very edge, as you are in special forces operations, it is even more dangerous and there’s even more opportunity to go wrong.”

Mr de Bretton-Gordon said it had to be understood that a civilian “peacetime, legalistic and moral” agenda should be balanced against fighting the likes of ISIS and the Taliban.

“Sometimes things do go wrong but we don't want to do anything that diminishes our special forces’ capability, most especially in the eyes of the enemy.”

Cultural heroes

One issue is that the British military, and the SAS in particular, are held on a pedestal similar to the royal family with a right-wing press that “supports the military relatively uncritically”, said Mr Overton.

The SAS is “hugely admired in British culture”, in the same vein as the heroic Spitfire fighter pilots of the Second World War.

“In our sofa-bound, digital age they are seen as an incredible fighting force of heroism and valour, but that doesn't mean we shouldn't critique them,” Mr Overton said.

The media, said Mr Kennard, projected an image of the SAS as “heroes who ensure our interests and protect freedom and democracy around the world, fighting heroic campaigns”. Thus, for “your average Joe”, their reputation “hasn't been damaged at all”.

Special forces committee

With an institution whose central ethos is loyalty and camaraderie, it is not surprising the primary response to controversy is to close ranks, but that may now be forcibly removed as an option.

A current inquiry into “matters arising” from UK special forces sent to Afghanistan between 2010 and 2013 by Lord Justice Sir Charles Haddon-Cave could provide the vehicle for change when it concludes, possibly next year.

While Britain’s intelligence services, MI6 and MI5, have a degree of oversight from parliament’s intelligence committee, nothing exists for special forces.

One proposal has been for a closed “special forces committee” to be created to give MPs some control over their activities.

There are also calls for Britain to set up something similar to the US Department of Defence’s “reporting of civilian casualties”, which records all instances of non-military deaths.

Who watches the watchmen?

That the military are investigated by their own is another area that could face reform. The Royal Military Police are used to investigate crimes but many call this inadequate as they are also soldiers.

“When it comes to international allegations of war crimes, is the RMP fit enough?” asked Mr Overton. He referred to a whistleblower from the Iraq Historical Allegations Team, investigating alleged crimes in the country, who disclosed that it did not even have a fluent Arabic speaker.

“Who watches the watchmen?” he asked. “And therein lies the fundamental challenge for modern political analysis of the military failings.”

A former RMP member described the organisation as having a “confused identity”, with soldiers investigating soldiers, so “there’s a question about how impartial they are”.

“To be brutally honest, the RMP does not have the capacity to investigate this type of crime,” the former member said. He added that the Labour government could have “more political appetite to come down on this stuff”.

Rogue lawyers

There is also an argument, made by some Conservative MPs, that the current low levels of military recruitment are in part attributable to people fearing prosecution if they join up.

A significant dent was made in the reputations of the army and lawyers when rogue solicitor Phil Shiner introduced false allegations about soldiers torturing and murdering Iraqis in 2004.

Shiner was later found guilting of professional misconduct and struck off as a solicitor, but the legacy of his false accusations is enduring. “The conduct of Shiner was very, very damaging to the British Army,” said Mr de Bretton-Gordon.

But another indicator that Mr Starmer may seek greater special forces scrutiny comes after he removed Gen Gwyn Jenkins as his National Security Adviser soon after entering Downing Street.

The Royal Marine officer, it was revealed by the BBC, locked in a safe evidence of SAS killings in Afghanistan rather than submit it to military police.

But Mr Kennard says the new government has yet to introduce any policies that “would attenuate the power of special forces, or at least show more transparency”.

“The human rights background of Keir Starmer crashes on the rocks of reality of the UK establishment and how they exercise power and retain it,” he said.

The worry is that if strict legal impediments are imposed, the SAS’s lure to its American allies – and the fear it strikes in its enemies – will be irretrievably lost.