Solving the Special Forces Problem

Introduction

In 1975, a United States Senate Select Committee known as the Church Committee began a formal inquiry into the activities of the major U.S. intelligence agencies and exposed, for the first time, the true extent of their operations.^[1] The results appalled lawmakers. The CIA had drugged and tortured U.S. citizens in bizarre experiments with mind control,^[2] run unlawful covert assassination programs against foreign leaders,^[3] and insinuated itself into foreign and domestic newspapers, converting journalists into assets that could write cover stories and put the desired spin on important articles.^[4] The FBI, executing an operation designated COINTELPRO, had infiltrated American civil rights organizations and targeted their membership with harassment, smears, false charges and imprisonment, and physical violence.^[5] Both agencies, moreover, had collectively intercepted and photographed hundreds of thousands of first-class letters inside the United States, and without warrants.^[6] The existence of the National Security Agency, theretofore a closely guarded Executive Branch secret, was publicly acknowledged for the first time.^[7] A flurry of legislative reforms followed, resulting in a major structural readjustment within American government and a muscular attempt by Congress to reassert control over an Executive that, behind the veil of imperatives like “national security” and “preserving order,” had grown aggressive, powerful, and lawless.^[8]

A similar reckoning may someday come due regarding the United States’s clandestine special forces activities abroad––a reckoning with how profoundly the War on Terror has affected the methods, composition, and character of our defense and intelligence communities.^[9] The September 11 attacks catalyzed these changes.^[10] While the Executive Branch’s domestic intelligence and national security arms were almost completely restructured,^[11] the subtler changes to the military and CIA were just as important. No legislation wholly restructured the Department of Defense (DOD), but the nature, scope, and aims of its day-to-day operations changed dramatically. Among other changes, like the privatization of important military functions,^[12] the United States began to heavily rely on its special operations forces (SOF) for direct action against the enemy. SOF units played pivotal roles in both invasions and in the counterinsurgency and security operations that followed.^[13] They were soon deploying all over the world, in virtually all regions and against most entities to which U.S. authorities could feasibly impute participation in the War on Terror.^[14] The U.S. Special Operations Command (SOCOM), the unified combatant command that oversees SOF units, grew exponentially,^[15] and even more agencies, like the Defense Clandestine Service (DCS), were established to meet the DOD’s ever-growing need for swift and decisive covert action, despite the already byzantine maze of clandestine arms throughout the U.S. government.^[16] The CIA, in something of an identity crisis, metamorphosed from a civilian-run, “cloak-and-dagger” intelligence service into a heavily armed, clandestine paramilitary and drone corps.^[17]

Today, these SOF have become “a covert military within the military.”^[18] They are an exclusive fraternity with their own rituals, their own insignia, their own imperatives, and their own codes of honor and conduct, and in some respects they always have been.^[19] But the War on Terror changed them. As their importance grew, so did their sense of being “above” the federal, military, and international laws applicable to regular troops.^[20] Today, sitting comfortably at the top of the military food chain, their officers and enlisted personnel evince the strong sense that it is in fact their mandate to think, act, and operate outside the box and to do whatever it is that regular troops cannot do, legally, morally, or militarily.^[21] Atrocities have followed, many of which almost certainly amount to war crimes under the Rome Statute and Geneva Conventions, and would shock—and have shocked—the American public.^[22] Even though their operations are largely classified and information about them is scarce, there is enough public information to conclude that serious reform is needed and that the days of running over a dozen missions a night, across the globe, and with little to no regard for accountability to the public or to Congress, must end.

To that end, this Note proposes a way for the Legislative and Judicial Branches to reassert control over the Executive’s warmaking power and to wrangle the U.S. special forces apparatus into compliance with federal, military, and international humanitarian and criminal law. By using the Foreign Intelligence Surveillance Court (FISC)—the court Congress established in response to the Church Committee—as a model, this Note urges Congress to establish a Foreign Clandestine Activities Court (FCAC) that conducts classified ex post review of foreign clandestine operations, adjudicates violations of the relevant law committed within the course and scope of those operations, and administers the appropriate sanctions. The prospect of these sanctions, handed down by a court with robust juridical power over clandestine activities abroad, will hopefully deter the negligent, reckless, and intentionally criminal behaviors that have become endemic to our special forces apparatus.

This Note comprises four parts. First, it introduces the concept of “special operations” before giving a brief history of their development and use by the United States, providing important context regarding what exactly is being regulated and why. Second, it argues that Congress both needs to act and can do so, justifying the FCAC, respectively, as a matter of policy and constitutional law. Third, it introduces the FCAC and proposes a way to structure both the court and the independent prosecutor’s office to which the court is attached. And fourth, the Note concludes, recapitulating some of the arguments made and offering concluding thoughts about the need for the unique legal arrangement being proposed.

A caveat. This Note zeroes in on patterns and allegations of criminality within SOCOM and argues that the problems it identifies are sufficiently widespread to warrant a strong intervention by Congress. However, its characterization of certain SOCOM units and personnel should not be construed as a characterization of all SOCOM personnel. As is true of any organization of its size, the cultures within different components of SOCOM vary widely, and this Note largely does not discuss the SOCOM personnel who honorably and lawfully perform the superhuman tasks asked of them.

I. America’s Special Forces Problem

The following section defines “special operations,” both conceptually and in modern U.S. military and intelligence practice, and provides a history of American special warfare. It closes with a survey of the modern SOF apparatus and an explanation of what it terms “the special forces problem.” The background is extensive, but it provides necessary context by giving the reader a strong sense of the nature, scope, and rootedness of the problem. One must thoroughly understand the object of regulation before attempting to regulate it.

A. Special Operations: Definitions, Purposes, and Origins

1. Definitions.—“Special operations” are defined most broadly as “unconventional military actions against enemy vulnerabilities that are undertaken by specially designated, selected, trained, equipped, and supported units known as special forces or special operations forces.”^[23] SOF may conduct missions in support of and in conjunction with conventional forces, specifically to perform specialized functions like reconnaissance, skirmishing, area preparation, sabotage, psychological operations, targeted eliminations, and more or less all forms of heterodox warfare unsuitable for conventional forces.^[24] They are also used to supervise local forces or in direct action against the enemy in regions in which no friendly conventional forces are present.^[25] SOF are especially well-suited for counterterrorism and counterinsurgency operations, such as the elimination of high-value targets and targeted operations against enemy infrastructure embedded deep within sensitive territory. In the counterinsurgency context, they often function as a way to fight fire with fire, conducting forms of guerrilla warfare themselves and seeking “to deprive irregular opponents of the few tactical advantages they possess by denying them mobility, sanctuary, surprise, and initiative.”^[26]

In the U.S. military context, the SOF who perform these missions are the military personnel organized under SOCOM, the unified combatant command charged with command over the special operations units now fielded by every branch of the military.^[27] Delta Force, Navy SEALs, and Army Rangers are the best-known examples, but there are many such units within each branch.^[28] Intelligence agencies also field their own SOF, such as the CIA’s Special Activities Center (SAC).^[29] Their operations are usually clandestine in nature, meaning “sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy or concealment.”^[30]

2. Origins.—These units and the specific modes of warfare they engage in are relatively recent innovations, but the broader concept is arguably as old as warfare itself. For as long as there were armies to command and orders to be given, political and military leadership had an interest in supplementing their regular forces with those that could perform more niche and even clandestine functions like reconnaissance, espionage, psychological operations, and others. Many kinds of unconventional and auxiliary units meant to exploit particular skills, methods, or territorial advantages—as well as adaptive units meant to emulate the tactics and force structures of their opponents—recur throughout the historical record.^[31] Indeed, one of the oldest tales in Western literature regards the Greek plot to sneak a wooden trophy horse containing shock troops into the walled city of Troy, the plot itself a sort of “special operation” that won them the Trojan war, or so the legend says.^[32]

War, then, has always had esoteric dimensions, realms and methods of conflict in and by which opposing forces secure important advantages at the margins of a larger, core strategic struggle. The modern United States is certainly no exception. The United States’s experience with World War II and the many operational successes of the Office of Strategic Services, the first true U.S. intelligence agency, proved that espionage, subversion, sabotage, and black propaganda were invaluable tools in the warmaker’s arsenal.^[33] Also beyond dispute was the value of the U.S. Navy’s specialized paramilitary units. Today, it is commonly agreed that “naval special warfare trace[s] its roots to scouts and raiders, naval combat demolition units, swimmers, underwater demolition teams, and motor torpedo boat squadrons of World War II.”^[34]

The Cold War followed, and the United States doubled down on the intelligence and special warfare activities that allowed it to manipulate geostrategic conditions without the political, strategic, or financial cost of deploying regular troops.^[35] In many theaters, from Latin America to Southeast Asia, U.S. involvement was an open secret but a secret nonetheless.^[36] Intelligence and counterintelligence became critically important instruments of U.S. policy, specifically the “containment” of communism and Soviet influence.^[37] Proxy wars, which involved using intelligence services to aid or supervise foreign forces against Soviet-aligned adversaries, became a defining feature of the era’s geopolitical contours.^[38]

B. Cold War Clandestine Programs and the Excesses of Containment

Today, the excesses of the U.S. containment strategy are hardly a secret. The atrocities are too numerous to catalogue here––some of them, almost too disturbing to print. In addition to those committed by regular U.S. forces in Korea, Indochina, Latin America, and elsewhere,^[39] SOF and the CIA planned, aided, supervised, or directly perpetrated illegal renditions, detentions, murders, torture, and other atrocities that would very arguably constitute war crimes under modern international criminal law and often did so with civilians as the victims.^[40] This section will provide a few examples to give the reader an idea of just how extreme “containment” could be in practice, particularly as it related to clandestine operations. These examples serve two purposes. First, to show that the Church Committee was a necessary but incomplete reckoning at best, and that its reforms neither addressed nor prevented the foreign atrocities, crimes, or human rights violations that continued apace under Cold War clandestine executive programs. And second, it means to furnish evidence of how severe (and, arguably, strategically counterproductive) intelligence, counterintelligence, and special operations activities can become when they are not meaningfully overseen or regulated by other branches of government. With nothing to temper them, these problems and the institutional cultures that engender them only manage to take deeper root.

Consider Operation Condor, a “clandestine inter-American counterinsurgency system” meant to uproot and extirpate Latin American Communist organizations and insurgents, and that was characterized by the CIA and State Department in their internal literature as “joint counterinsurgency operations.”^[41] Condor had many tentacles but can be broadly understood as a clandestine, interagency security partnership between the United States and allied Latin American governments that was broadly instrumentalized by U.S.-friendly regimes to hunt down activists, “dissidents and leftists, union and peasant leaders, priests and nuns, intellectuals, students, and teachers — not only guerrillas.”^[42] Many innocents were tortured, wrongfully imprisoned, psychologically scarred, maimed, or killed outright by Condor-related programs.^[43] The United States knew about and helped perpetrate these atrocities, and Secretary of State Henry Kissinger exhorted Latin American governments to pursue these efforts even more aggressively.^[44]

Under Condor, the United States trained, supervised, and aided Latin American militaries, intelligence agencies, and police through SOF stationed at the Panama base of the U.S. Army Southern Command (SOUTHCOM), the site of the infamous “School of the Americas.”^[45] As one author concludes, SOUTHCOM can fairly be described as having been Operation Condor’s nerve center, a clearinghouse for intelligence and covert interagency communications and a staging ground for clandestine operations across Latin America.^[46] U.S. involvement ranged from supervision, intelligence-sharing, and other logistical support to, in some limited circumstances, direct co-perpetration.^[47] A declassified DOD document from 1976 relates that “a third and reportedly very secret phase of ‘Operation Condor’ involves the formation of special teams from member countries who are to carry out operations to include assassinations against terrorist [sic] or supporters of terrorist organizations,” with American SOF as their models.^[48] U.S. SOF have also been confirmed to have seen direct action as well, though the true extent of this is largely unknown.^[49] Due process and other constitutional niceties were not observed.^[50] Vincent Bevins estimated that Operation Condor killed somewhere in the range of 60,000–80,000 “leftists or accused leftists.”^[51] A similar program was instituted in Central America: U.S. Green Berets supported the Guatemalan anticommunist death squads known broadly as Mano Blanca, and the CIA began training and financing the Nicaraguan death squads known as the Contras during Ronald Reagan’s presidency.^[52]

Another entry in the SOF canon is the Phoenix Program, a sprawling counterintelligence and military operation during the Vietnam War meant to counteract Communist influence in the large swathes of South Vietnamese countryside over which the government in Saigon had little real influence.^[53] The Viet Cong exploited Saigon’s absence by creating a networked, decentralized “shadow government,” the human nodes of which were plainclothes Viet Cong agents known as “cadre.”^[54] An estimated 70,000–100,000 of these cadres were active in South Vietnam in 1967.^[55] The CIA was working to neutralize them as early as 1964, and in 1967, they began working more extensively with the South Vietnamese government to establish a centralized, collaborative counterintelligence program meant to root them out.^[56] The program was designated “Phoenix.”^[57]

The South Vietnamese established special operations units dedicated to carrying out the Phoenix directive, known as Provincial Reconnaissance Units (PRUs).^[58] As one author explained: “The PRUs would kill VCI [Viet Cong Infrastructure] members, terrorise civilians and capture those deemed to have knowledge about VCI structure. At the [American] interrogation centres, CIA interrogators, . . . would torture VCI prisoners in an effort to learn the identity of VCI members in each province.”^[59] A U.S. Senate inquiry from 1970 corroborates this account: “Accounts by ex-prisoners, many of them persons of integrity, agree that most prisoners in the detention and interrogation centers are tortured.”^[60] Torture methods included electric shocks to genitals, severe beatings with clubs and other implements, waterboarding, Chinese water torture, isolation in cloistered spaces, sleep deprivation, forcibly induced vomiting and defecation, and more.^[61] According to the same U.S. Senate inquiry, one eight-year-old girl was tortured with electricity in order to extract information about her father, and the torture continued despite her constant insistence that he was already dead.^[62] Her mother was tortured, too.^[63] Sexual abuse was common.^[64]

The CIA played a critical role in staging and coordinating these efforts.^[65] Involvement of U.S. special forces was substantial: “PRUs were financed by the CIA . . . and led on missions by members of the Navy SEALs or Green Berets.”^[66] The operation was a fount of valuable experience for how to conduct discreet counterinsurgency operations with light, specialized infantry deep in hostile territory, and it was perhaps the first time where the conscious goal was to become more like the enemy, turning terror and guerrilla tactics against the Viet Cong.^[67] But this came at an immense cost. Many civilian Vietnamese with no discernible connections to the Viet Cong were swept up into the program, killed or tortured for nothing,^[68] and the program was exploited by “crooked security officers, policemen, politicians, and racketeers [who] extorted innocent civilians as well as [enemy agents]. Legendary CIA officer Lucien Conein described Phoenix as ‘[a] very good blackmail scheme for the central government.’”^[69] All told, an estimated 82,000 Vietnamese were “neutralized” by the program, meaning captured, jailed, made to defect, incapacitated, or killed.^[70]

These operations—or at least major components of them—are indefensible, and U.S. involvement in these atrocities could be, if repeated today, considered violations of international treaties to which the United States is a party, as well as violations of international criminal law occurring within the territories of states-parties to the Rome Statute.^[71] The damage to the United States’s standing in the regions affected was deep and enduring.

C. Contemporary United States Special Warfare: The Intractable Problems Around Accountability and Transparency

In contrast to their Cold War predecessors, today’s SOF have come to prefer direct action over supervisory or support capacities. Navy SEAL, Delta Force, Army Ranger, and CIA units were active in Afghanistan barely a month after 9/11,^[72] and CIA and Army SOF units were directly executing strikes against Kurdish Islamists in Iraq at the outset of the 2003 invasion of Iraq.^[73] The SEALs’ share of the action at this time was particularly substantial: “During Operation Enduring Freedom, SEALs carried out more than 75 special reconnaissance and direct action missions. SEALs operated in the Philippines and the Horn of Africa as well[, and] Operation Iraqi Freedom was the largest SEAL deployment in its history.”^[74] They would later win wide acclaim among the American public with their elimination of Osama bin Laden in 2011, a sophisticated operation conducted under the cloak of night, deep within Pakistani territory.^[75]

By around that time, the American SOF apparatus had grown to become the “military within the military” that it is today.^[76] By 2010, 13,000 SOCOM personnel were deployed across seventy-five countries, operating in Afghanistan, Iraq, Yemen, Somalia, and a number of undisclosed locations in the Middle East, Africa, and Central Asia.^[77] SOCOM later revealed that, in 2017 alone, SOF personnel deployed in 149 countries, roughly 75% of all countries on earth—double the 2010 figure.^[78] The basic details of these operations are classified. Today, approximately 70,000 personnel are assigned to SOCOM’s “headquarters, its service components, and sub-unified commands,” about 36,000 of whom are Army SOF operational personnel.^[79] For perspective, consider that SOCOM’s budget request in 2021 was larger than the entire defense budget of Poland and that SOCOM now fields more operational personnel than the entire German military.^[80] It is still growing: “Combatant command requests,” including by SOCOM, “are up 35 percent in the last three years due to the need for deterrence . . . .”^[81] Despite their immense demands on the public fisc, public information about their operations is hard to find: “[V]irtually everything to do with this organization is classified.”^[82]

SOF have proven invaluably well-suited to the operational conditions in the Middle East and North Africa, hotbeds of armed and organized Islamism,^[83] but the new preference for direct action also arguably created the opportunity for the direct perpetration of potential war crimes, and that is precisely what followed. Allegations of SOF personnel wrongfully killing innocent Afghans—and possibly even executing unarmed captives—came to light as early as January 2002,^[84] but it wasn’t until the Iraq troop surge of 2007–2008 that SOF activity would become the major, recurring cause for legal and humanitarian concern it is now. In 2006, President Bush handed control over the flagging war effort to General Stanley McChrystal, formerly the commander of the Joint Special Operations Command (JSOC), a component of SOCOM.^[85] Under his command, JSOC was running up to ten missions a night.^[86] In his memoir, General McChrystal described the scale of killing by JSOC operatives at this time as “industrial.”^[87] A former sergeant major with Delta Force estimated that “[f]rom 2006 on, 90 percent or higher of insurgent deaths were from targeted, offensive SOF operations.”^[88] Hard data about the number of people wrongfully killed by these operations is, by design, impossible to find.

In 2009, President Obama, in a “signal endorsement of McChrystal’s covert tactics,” put General McChrystal in charge of the war in Afghanistan, and he again adopted a force posture that put SOF at the tip of the spear.^[89] General McChrystal was relieved of command in 2010,^[90] but SOF in Afghanistan continued to work at a bracing tempo through 2011, with constant night raids undertaken by Delta Force, SEALs, and Army Rangers.^[91] JSOC operators often acted on faulty intelligence, as “more than half the Afghans killed or abducted by JSOC operators were targeted by mistake. The error rate was around 50 percent.”^[92] General McChrystal prioritized the quantity of missions over their quality, and SOF often felt “pressure to launch raids based on incomplete intelligence,” a destructive policy which he later admitted was “sometimes . . . counterproductive.”^[93] These raids “were hugely unpopular with the population.”^[94] Notably, the highly fallible intelligence methods that created such a high error rate were the same as those used during the Iraq troop surge years earlier.^[95] SOF later took on important roles in the campaigns against the Islamic State, various Al Qaeda franchises and offshoots, and other Islamist organizations.^[96] Public information about SOF activities drops off noticeably from about 2017 onwards, which is also around the time that President Trump tightened restrictions on SOF-related information and loosened their still-classified rules of engagement.^[97]

In addition to these clandestine nighttime raids, allied forces and NGOs in Afghanistan regularly accused SOF of the negligent and reckless destruction of Afghan life. The years 2007 and 2008 proved to be especially bad, with hundreds and possibly thousands of civilians and allied troops killed or wounded by SOF activities each year.^[98] “The US, in particular US Special Operations Forces operating under [Operation Enduring Freedom], [were] heavily criticized for lack of coordination and communication with Afghan forces,” whom they sometimes killed and wounded.^[99] Some airstrikes killed scores of civilians.^[100] A 2014 report from Amnesty International described in detail “10 case studies in which a total of at least 140 civilians were killed, including at least 50 children,” for which “not a single person has been criminally prosecuted” despite “abundant and compelling evidence of war crimes.”^[101] One raid in Azizabad killed dozens of children.^[102] Relations with the local populace frayed, as did those with military allies—in one instance, a senior British commander asked U.S. SOF to leave his district due to consistently killing civilians through negligent airstrikes.^[103]

While many of the incidents discussed so far might be characterized as mistakes—casualties incident to legitimate missions—many intentional war crimes are also known or alleged to have occurred. Multiple instances of executing unarmed captives have been reported.^[104] In March 2002, for example, Navy SEAL Lieutenant Commander Vic Hyder shot an unarmed Afghan man and proceeded “to mutilate his body by stomping in his already damaged skull” in view of other SEALs; they decided not to report him.^[105] Around 2005, Delta Force and SEAL units began using custom hatchets as weapons in hand-to-hand combat against insurgents, as well as to mutilate their corpses after engagements.^[106] They also hacked dying insurgents to death, held internal competitions to see who could score the most hatchet kills, and “practiced mixed martial arts on detainees.”^[107] High-ranking Pentagon and SOCOM leadership knew of these practices and did nothing.^[108]

SEAL Team 6 operators also became obsessed with a book purporting to be an account of a former Nazi Schutzstaffel (SS) officer who escaped Germany after World War II and joined the French Foreign Legion for counterinsurgency operations in Vietnam.^[109] The book “describe[d] counterinsurgency methods such as mass slaughter and desecration and other forms of wanton violence . . . against Vietnamese ‘savages,’” and a number of SEALs began consciously emulating the tactics depicted.^[110] One unit, “Blue Squadron,” skinned dead hostiles with specialized knives, using the excuse of DNA collection while taking much longer strips of skin than was needed for that purpose.^[111] Two leading SEAL officers, Scott Moore and Tim Szymanski, received reports that “small groups” within each of SEAL Team 6’s various squadrons “were mutilating and desecrating combatants in both Iraq and Afghanistan.”^[112] One Blue Squadron operative was caught attempting to decapitate a dead Taliban fighter after his commander told the unit he wanted the enemy’s “head on a platter.”^[113] Justin Sheffield,
a former Blue Squadron operator, told a reporter, “We’ve been called . . . savages, sociopaths, serial killers, whatever. In a way, it’s all a little bit true.”^[114] Another, Eddie Penney, reported taking a sublime pleasure in the killing.^[115]

SEAL Team 6 has also engaged in a ritualized desecration practice known as “canoeing.”^[116] The operatives would position an enemy, dead or alive; aim their rifle or pistol at his upper forehead; and then discharge their firearm, exploding the skull and brain in a way that would cause the brain matter and crushed bone to flare out in a “V” pattern, somewhat resembling a canoe.^[117] The operative-executioner would then take a picture, presumably to compare with other operatives’ canoes, and upload them to a computer known as the “ops computer,” located in the Dam Neck naval annex.^[118] This computer was later discovered to contain a number of these photographs.^[119] “There is and was no military reason whatsoever to split someone’s skull open with a single round,” said one SEAL Team 6 leader: “It’s sport.”^[120] Reports of canoeing and other practices, “particularly mutilations and taking of trophies, were ignored by SEAL Team 6 leadership.”^[121] Perhaps SEAL leadership saw some value in a practice that facilitated perverse forms of bonding, competition, and hatred of the enemy. Similarly, one Red Team operator would produce “bleed out” videos, in which he would taunt dying insurgents on camera as they bled to death on the battlefield; other Red Team members would gather to watch them.^[122] Delta Force is also known to have collected helmet camera combat footage for their later viewing and enjoyment,^[123] even dubbing the videos with rap and metal music as gruesome violence unfolds on-screen.^[124]

Consider too the drone programs operated by the CIA and JSOC.^[125] Wrapped in secrecy, these drone strikes are alleged to have killed thousands of civilians across Yemen, Somalia, and Pakistan over the course of the War on Terror, with The Bureau of Investigative Journalism estimating that by 2015 over 700 civilians had been killed through drone strikes during the George W. Bush and Obama Administrations.^[126] Strikingly, these figures include only those killed “outside the [United States’s] declared war zones,”^[127] meaning that a figure inclusive of those killed in Afghanistan and Iraq is likely much higher. Republican and Democratic lawmakers both accused the program of being “secretive and unpredictable,” ^[128] but efforts at reform proved unfruitful.^[129] The first Trump Administration later expanded CIA drone use,^[130] and in 2019, President Trump revoked President Obama’s 2016 executive order requiring U.S. intelligence officials to “publish the number of civilians killed in drone strikes outside of war zones.”^[131]

It must be noted that any public inventory of the potential war crimes committed by SOF will necessarily be incomplete because virtually all of their operations are classified. Basics like the location, object, or results of their missions often only dribble out into public view well after the fact, against the will of SOCOM, and only for select missions. For example, in 2019, a squad of Navy SEALs attempted to infiltrate North Korea to insert discreet surveillance devices and were spotted by shell fishermen as they landed along the coast.^[132] Fearing they had been discovered by North Korean authorities, they killed everybody on board, punctured their lungs with knives to sink the bodies, and abandoned their mission.^[133] The Trump Administration “did not notify key members of Congress who oversee intelligence operations, before or after the mission. The lack of notification may have violated the law.”^[134] Details of the operation were not publicly available until 2025, and those who eventually spoke to the New York Times did so “because they were concerned that Special Operations failures are often hidden by government secrecy.”^[135] Recall too that the infamous My Lai massacre during the Vietnam War was only revealed due to the efforts of an independent investigation by a former servicemember.^[136]

Reports of widespread involvement in more standard criminal fare have recently come to light. Fort Bragg, the installation out of which many SOF units are based, has come under scrutiny for routinely being implicated in drug trafficking, firearms trafficking, and murder investigations.^[137] Freddie Wayne Huff, formerly a major associate of the Los Zetas cartel serving twenty-one years in prison on drug conspiracy charges, told federal investigators that “fully half of the cocaine he had imported from Texas and Florida between 2018 and 2020” was routed to Fort Bragg—a quantity of, at minimum, one hundred kilos of cocaine per year and “possibly as much as five tons of coke” cumulatively.^[138] A major bust by military police in 2023 arrested “more than a dozen [SOF] soldiers on suspicion of trafficking narcotics and human trafficking,” which set off a “[p]anic” within the SOF community.^[139] The base also sports the highest death rate of any U.S. military installation on earth, a figure inclusive of suicides, murders, and drug overdoses.^[140] Many of these deaths occur under bizarre, ambiguous circumstances,^[141] and investigations often go unsolved.^[142] Severe hazing may also be an issue, with one documented instance of a Green Beret being sexually assaulted and killed during his deployment in Mali in what may have been a hazing ritual.^[143] The Navy SEAL principally responsible for the homicide, Tony E. DeDolph, was ultimately sentenced to eighteen months in military confinement after his ten-year sentence was thrown out by an appeals court.^[144]

Extreme drug use and alcoholism are rampant.^[145] A Green Beret currently incarcerated in federal prison for smuggling fifty kilograms of cocaine into Florida on a U.S. military aircraft told one reporter that “[e]lite soldiers have access to whatever they want to get into: whores, guns, drugs, you name it[.] . . . We are far from the flagpole and are expected to be incorruptible.”^[146] These issues have attracted some scrutiny, including a standoffish meeting of the Senate Armed Services Committee in March 2023, splashy exposés in the New York Times and Special Warfare magazine, and a modest military justice reform and DOD drug addiction rehabilitation bill in the Senate.^[147]

The DOD has most certainly failed in holding SOF to account. Over the course of the entire War on Terror, “only a handful of SEAL team members have ever been charged with [their alleged crimes] and none have been convicted.”^[148] This is unsurprising when one remembers the many—up to 630 in total—alleged war crimes committed by regular U.S. forces in Iraq and Afghanistan that have gone unprosecuted; moreover, of the 127 convictions, only one in five were sentenced to confinement, with the median sentence being only eight months.^[149] “‘You can’t win an investigation on us,’ one former SEAL Team 6 leader told [a reporter with The Intercept,] ‘[y]ou don’t whistleblow on the teams . . . and when you win on the battlefield, you don’t lose investigations.’”^[150] In one instance, SEAL officers subtly threatened to retaliate against enlisted SEALs who wished to report Eddie Gallagher for routinely shooting at Iraqi civilians, warning them that speaking out would jeopardize their careers.^[151] In another, the DOD Inspector General ordered an internal investigation into SOF practices and culture after potential war crimes came to light in 2019.^[152] Its report, published only six months later, was largely self-exonerating, concluding that there were no “systemic ethical problems” to speak of but hedging its conclusions with an admission that SOF were inappropriately prioritizing “force employment and mission accomplishment over the routine activities that ensure leadership, accountability[,] and discipline.”^[153] The Pentagon then announced a separate inquiry into JSOC’s war crimes reporting procedures in 2021, the result of which was a heavily redacted report recommending merely “minor tweaks to obscure administrative regulations.”^[154]

As this Note goes to print, President Trump and Secretary of Defense Pete Hegseth are signaling a more aggressive force posture for the U.S. military. On September 2, 2025, President Trump gloated about using military force to summarily kill eleven Venezuelans on a boat he claimed was loaded with drugs and headed for the United States; he posted a video of the strike.^[155] The legal basis for the action was widely regarded as dubious.^[156] He did so again on September 15, killing three.^[157] At the press briefing announcing that the DOD would be renamed “the Department of War,” Hegseth remarked that the DOD will now prioritize “maximum lethality, not tepid legality.”^[158] And the White House has reportedly “determined that the United States is in a formal armed conflict with various drug cartels that his team has deemed terrorists,” making this Note all the more urgent.^[159]

The facts and allegations cited here bespeak patterns of negligent and reckless malfeasance, of wanton disregard for the lives of civilians and friendly forces, and, more than just periodically, of a disposition towards the intentional commission of war crimes. These problems are not a case of “a few bad apples.” They are structural, generated, and enabled by the institutional position, design, and culture of our SOF apparatus. As one excellent study put the point: “Conventional military crimes tend to be dispositional, where the personality of the individual is more at play as opposed to situational factors. In contrast, SOF crimes are better described by a situationist model in which situational factors, primarily SOF culture, are more to blame than the individual.”^[160]

SOF have proven unwilling to effectively police themselves. Perhaps their constant exposure to extreme violence has inured them to the gravity and consequences of their actions, cultivating callous attitudes towards war crimes that would mortify the average American.^[161] Neurological damage, sustained as a result of intense combat and training, could also be a culprit, lowering the operatives’ impulse control and disinhibiting them from excessive and reactive violence.^[162] The intense secrecy around SOF activities also undoubtedly plays a role in fostering their antisocial cultures, carrying with it the promise that what happens within the group stays within the group, and that cooperating with attempts at external control betrays the pacts of trust and confidentiality that bind them. This covenant has been all but endorsed by their officers. Whatever the explanation, it is past time for Congress to drop the curtain on their impunity.

II. Congress’s Need and Ability to Reestablish Control over SOF

The United States’s willingness to commit, overlook, and not prosecute violations of law by its many clandestine arms belies its stated commitment to values like democracy, the rule of law, and humanitarian respect for the lives, dignity, and rights of human beings.^[163] It perverts the principles the United States claims to stand for and can damage public support for important military activities abroad. It is also a geopolitical liability: Flouting international law makes it harder for foreign leadership to trust us and to see us as reliable partners who will follow the rules of bi- or multi-lateral agreements that we might have strong interests in concluding.^[164] This distrust cuts across all dimensions of foreign affairs: trade and economic partnerships, military alliances, diplomatic negotiations, and more.

This must end. The United States should practice what it preaches. It is not above commitments to accountability and fairness in the administration of international law, nor should it be above any manner of international obligation that might prove politically inconvenient in the future. It should also resist the conclusion that fighting terrorism means it must emulate the tactics and character of terrorism itself, employing ignoble means to noble ends.^[165] Congress can and should act to make SOF more accountable, and it can do so without compromising their operational effectiveness, specifically through the FCAC proposed here. The following Part explores (1) Congress’s need to do so, as a matter of policy, and (2) Congress’s ability to do so, as a matter of constitutional law.

A. Need: Why the FCAC Should be Established

There are three principal reasons the United States would do well to establish the FCAC, or at least something like it: to preempt damaging and divisive disputes with the International Criminal Court (ICC) through the principle of complementarity; to strengthen its global standing and justify its role as a model of democracy, transparency, and the rule of law for other nations; and to shore up domestic support for its military interventions abroad, some of which might be undertaken for perfectly sensible reasons that seem unclear or even cynical to the American public.

1. Avoiding Disputes with the ICC and the Principle of Complementarity.—The United States has much to gain by getting out ahead of the special forces problem and setting up a more robust system of internal juridical control over SOF. SOF units may have committed war crimes in the recent past, and the possibility that the ICC might seek to prosecute U.S. personnel for crimes committed in the near future is not so remote. In 2006, the ICC’s Office of the Prosecutor (OTP) undertook a preliminary investigation into the United States’s war in Afghanistan, investigating possible war crimes by the Taliban, the Afghan National Army, and the United States itself.^[166] The OTP’s investigation into the United States concerned “torture and humiliating or degrading treatment in U.S. interrogation programs . . . [that], unlike any individual abuses by U.S. troops, were part of a plan or policy.”^[167] The Pre-Trial Chamber (PTC) declined to authorize the investigation because it “would not be in the interests of justice under Article 53(1)(c)” of the Rome Statute.^[168] The Appeals Chamber reversed the PTC, letting the investigation go forward.^[169] U.S. authorities reacted strongly, imposing sanctions that were later lifted by President Biden before President Trump reinstated them in February 2025 and then expanded them in August 2025.^[170]

Regardless of the investigation’s results and current status, the Afghanistan example demonstrates that the international legal community is willing and able to investigate U.S. war crimes under the Rome Statute. The ICC again signaled a willingness to prosecute powerful Western or Western-aligned nations when it issued arrest warrants for Benjamin Netanyahu and Yoav Gallant for crimes against humanity and war crimes in Palestine.^[171] Even if these arrest warrants prove fruitless and the perpetrators are not formally brought to justice, there is a profound reputational and dignitary harm in having the ICC declare to the international community that your military personnel are accused criminals wanted for the commission of war crimes.^[172] ICC investigations in this context would also involve probing into classified operations, the details of which the United States reasonably does not want committed to the public record.

The United States is not a state party to the Rome Statute,^[173] but that does not mean that it is not at risk of subjecting itself to ICC jurisdiction. While the United States has a permanent veto on referrals to the ICC by the U.N. Security Council, there are other ways of subjecting U.S. personnel to ICC jurisdiction, such as committing crimes within the territory of a state party,^[174] which was in fact the jurisdictional basis for the investigation into the United States’s role in Afghanistan.^[175] It is also possible that victims or targets of U.S. military action could give their ad hoc consent to the Rome Statute in order to subject U.S. troops to the ICC’s jurisdiction.^[176] In either case, if it were investigated for crimes committed by its SOF forces, the United States would again be in the position of having to openly defy the ICC and of having its military officers and other personnel publicly stigmatized as alleged war criminals. Given the retaliatory sanctions levied against the ICC by President Trump, U.S. leadership clearly does not regard the ICC’s allegations as something it can simply ignore. But if it were to handle these violations of international law internally, it could head off the kinds of politically fraught exogenous controls that international bodies like the ICC might seek to impose if the problem is allowed to fester. This is where the principle of complementarity comes in.

Article 17 of the Rome Statute provides that the ICC shall declare a case “inadmissible” if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”^[177] It further provides that the case shall be inadmissible if the prosecuting State, in good faith, investigated the case and determined that prosecution was not warranted, or where the defendant was tried and acquitted of the crime in question as the result of a procedurally sufficient and impartial trial.^[178] This enactment embodies the principle of complementarity, based in part on the idea that the ICC should not usurp the authority of states to handle investigations locally: “[The ICC is] built upon the premise that national and local efforts to achieve justice after atrocity must be the primary mechanism of accountability.”^[179] The virtues of the ICC’s complementarity approach are many, and several are served especially well in this context.^[180]

First, handling SOF prosecutions internally through federal U.S. courts strongly diminishes the sense that SOF personnel are having international law imposed on them by a foreign body, with foreign rules of law, procedure, and evidence. The SOF personnel and their lawyers will instead be litigating in familiar territory and over mostly familiar laws, an especially important benefit given that SOF have proven especially resistant to most forms of domestic legal process, let alone international process. Second, by handling the investigations through classified proceedings, the United States can preserve the operational integrity of its SOF missions and avoid the exposure of sensitive tactical or strategic details. And third, the United States again can use the investigations to dodge the kinds of confrontations with the international legal community that have done more than enough damage to its global standing. In sum, heading off investigation and prosecution by international bodies would be an important benefit of this Note’s recommendation.

2. Improving Foreign Relations.—The United States has a strong interest in signaling to partners, potential partners, and adversaries that it is serious about holding itself accountable and adhering to the legal and democratic principles that it urges other countries to emulate. The twenty-first century has seen dramatic shifts in the overall balance of geopolitical power, and the United States no longer enjoys unquestioned political and economic hegemony over the world. Adversaries like Russia^[181] and China have made excellent headway in rolling back U.S. influence, and increasing numbers of developing countries are signaling a willingness to align with Russia and China politically, economically, and militarily (or have already done so). As one analyst put it:

[T]hese countries matter for international relations more than ever. If this is an era of great power competition, then the great powers have to compete over something[—]and that something is the support of the rest of the world. . . . Much has been written about the West falling behind Russia and China in wooing the Global South. Russia has been accruing allies there by playing on longstanding ‘anti-imperialist’ ties that date back to the Soviet Union. China has been attracting capital[‑]starved nations interested in access to Beijing’s development loans.^[182]

The United States must signal to these developing nations and emerging markets that it does not consider itself free to exploit them, or, for that matter, free to commit war crimes within their sovereign territory when they find themselves on the wrong end of a U.S. military operation. U.S. adversaries are quick to seize on American arrogance and hypocrisy, and loudly defying international law while accusing other countries of violating human rights and failing to live up to democratic commitments only bolsters these appeals.^[183] Even our allies have begun to feel alienated by the changing character and policy of U.S. leadership.^[184] If the United States is to continue justifying itself with rhetoric about its status as the paradisical “City on a Hill,” it should get serious about its own accountability. Establishing robust juridical control over its now massive SOF apparatus is a good place to start.

3. Domestic Support for National Security Efforts.—The Constitution contemplates a Congress with strong checks on the Executive’s power as Commander-in-Chief of the armed forces. Only Congress may formally declare war, and it is with Congress that the Constitution entrusts the power to fund—or not to fund—the armed forces with which a war must be prosecuted.^[185] It also vests in Congress the power to regulate the armed forces, regardless of how much of that power might currently be delegated to the President under federal law.^[186]

The military, then, is meant to be democratically accountable. It is not merely an instrument of unilateral executive power and geopolitical ambition. The American people can and should have a say in why, how, and when the military is deployed. And this can and should be true of our modern fighting force in an era where many of its functions, like counterterrorism, have come to be “characterized by . . . executive supremacy and unilateralism in introducing extremely repressive counter-terrorist measures that sit uncomfortably with constitutionalist principles of proportionality, limited power, respect for individual rights, and equal application of the law.”^[187] But many Americans hardly feel “in control” of what the military does or how it is used, and many are skeptical and pessimistic about the military’s many foreign entanglements. The obscure and interminable nature of the wars in Iraq and Afghanistan, as well as the falsehoods used to predicate the former, led to precipitous drops in public support for the war efforts and the War on Terror more broadly.^[188] In the 2020 election, both the Republican and Democratic candidates for the presidency exploited this sentiment by styling themselves “as better able to extricate the nation from what have been called ‘endless wars,’”^[189] and in 2023, confidence in the United States military dropped to the lowest point in over two decades.^[190]

This sour public mood is not without good reason: “After 20 years of war, the annual number of terror attacks worldwide has significantly increased, terror groups have proliferated across the globe, and nearly 9,000,000 people have been killed.”^[191] However, it also jeopardizes the longevity of military operations with desirable geopolitical aims. For example, Operation Inherent Resolve, the successful, yearslong, ongoing military operation to dismantle the Islamic State, requires operating in a variety of countries across the Middle East and North Africa.^[192] The United States operates in these countries with the consent and active support of the local national governments,^[193] but to many Americans the involvements appear as little more than extensions of a War on Terror that is broadly unpopular^[194] and whose initial justifications feel increasingly attenuated from its current reality, especially after the “Weapons of Mass Destruction” pretext for Iraq was ignominiously discredited^[195] and our sound defeat in Afghanistan.^[196]

The FCAC can play a role in mending the many cynical misgivings about America’s role in the world. Reestablishing democratic control over the executive’s secretive cadre of counterterrorist crack troops—many of whom have been implicated in sordid war crimes, committed in the shadows and without a mind to public scrutiny—could be an important step in correcting the current imbalance between legislative and executive warmaking powers.^[197] And looping in the public, even through intermediaries like courts and congressional committees, could do much to reestablish public confidence in the military and its objectives abroad.^[198] Restoring public trust and institutional balance are paramount, and the FCAC is but one way that we might right the ship.

B. Ability: The FCAC’s Place in the American Constitutional Order

Article I, § 8 of the Constitution vests in Congress the power to “raise and support Armies” and to “provide and maintain a Navy,” and the same section empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.”^[199] The Supreme Court has interpreted these provisions to give Congress plenary authority to regulate the military so long as it does not usurp the Executive’s Article II authority to conduct and oversee the operational aspects of military activities in its role as Commander-in-Chief: “It is clear that the Constitution contemplated that the Legislative Branch have plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline . . . .”^[200] Of course, also vested in Congress is the power to declare war in the first place.^[201] Congress can regulate and effectively veto—but not micromanage—the use and control of military personnel.^[202]

Congress has enacted and continually updated the Uniform Code of Military Justice (UCMJ) pursuant to this authority, aimed at regulating the conduct of military personnel.^[203] It has also established courts-martial and empowered them to adjudicate disputes arising under their jurisdiction, including the criminal prosecution of service personnel for the commission of a specific class of crimes: military crimes.^[204] These are criminal statutes, the penalties for which include fines, prison sentences, sex offender status and reporting requirements, and more.^[205] The courts-martial are not Article III courts, and courts-martial are, under current law, an exception to the general rule that the courts established by Congress must conform to Article III.^[206] But if Congress so desired, it could mandate that prosecutions for military crimes be adjudicated by Article III courts.^[207] This greater power includes the lesser powers of specifying an Article III military court’s personal and subject matter jurisdiction, providing for appellate review, and prescribing rules of law, evidence, and procedure.^[208] Conceivably, it could do this for any specified class of military personnel.

A specialized court with the power to adjudicate prosecutions of a particular class of military personnel or a particular class of military activities could thus be established under Congress’s broad authority to create, regulate, and abolish Article III courts other than the Supreme Court.^[209] Such a specialized court could also be blessed with jurisdiction over related intelligence activities, whereas courts-martial have exclusive jurisdiction over military personnel.^[210] This is true even where these Executive Branch activities and personnel are commanded by the President within the “core” of her Article II powers, i.e., the executive power traditionally understood to include the authority to conduct diplomacy, intelligence collection, and military activities.^[211]

One such Article III court that Congress has endowed with very particular jurisdictional powers—powers that arguably impede on one of the Executive’s core functions—in order that it may fulfill a specific function is the FISC under the Foreign Intelligence Surveillance Act (FISA). Following the Church Committee, Congress passed FISA to establish procedures and standards for the collection of certain categories of foreign intelligence, especially those whose collection might sweep in information about American citizens, firms, or infrastructure.^[212] As a result, the federal government now has to petition the FISC in classified, ex parte proceedings in order to obtain permission to conduct the kinds of intelligence specified by FISA, subjecting covered intelligence activities to a robust, specialized form of review by the judiciary.^[213]

Stephen Vladeck, a leading authority on federal courts and the FISC in particular, has described the compromise undergirding FISA as follows:

FISA was part of a larger structural accommodation between the three branches of government: The Executive Branch agreed to have many of its foreign intelligence surveillance activities subjected to far greater legal oversight and accountability, in exchange for which Congress and the courts agreed to provide such oversight and accountability in secret.^[214]

This is precisely the nature of the accommodation sought here. The Executive shall agree to have its foreign clandestine activities subjected to greater oversight, in exchange for which Congress and the courts agree to provide such oversight in secret. Foreign intelligence collection, like a military operation, is a core executive function, but that does not mean that it can be conducted without regard for the laws—constitutional and statutory—meant to structure the exercise of those powers. Moreover, the Supreme Court has expressly approved of Congress’s ability to incorporate and execute international law by statute, as would be done here.^[215]

In sum, the arrangement proposed here contemplates a valid Article III court, conforms with the system of checks and balances envisioned by the Constitution, and does not unduly burden the Executive’s exercise of her Article II powers. The FISC has long since been validated in its status as a constitutional Article III court,^[216] and the major issues that hobbled widespread recognition of its constitutionality—the ex parte nature of its proceedings and the fear that this might violate Article III’s “case and controversy” requirement—do not apply here.^[217] The FCAC has a place in our constitutional order.

1. Why Article III?—Perhaps the obvious question raised by this proposal is, why not handle the issue through the courts-martial, or, failing that, through a new Article I court? As is explained below, this Note does not posit that the issue must be handled through an Article III court but that doing so would be the optimal way to address it. Congress could very well establish a new form of court-martial designed to adjudicate cases arising within the course and scope of SOCOM missions, and such a court could very well allay the problem. So too with a new, different form of Article I court. However, the reasons for favoring an Article III court are several.

First, a central premise of this Note is that reasserting control over the Executive’s use of clandestine units is a matter of rebalancing the constitutional relationship between the Executive, Legislative, and Judicial Branches. The Church Committee was a much-needed corrective to an Executive which, left to its own devices, had become accustomed to violating state, federal, and international law with virtually no meaningful oversight. One possible reason that FISA worked—i.e., the reason that the FBI and CIA of today are as effective but less malfeasant than their Cold War predecessors—was because FISA delivered an external, exogenous shock to a clandestine executive system that had more or less abandoned any commitment to the rule of law. And, just like the FBI and CIA of the ’60s and ’70s, the American special forces apparatus of today has come into a culture and a political–institutional position that makes it unlikely to effectively regulate, reform, or restructure itself in the near future.

One needn’t look far for evidence of this. Internal JSOC and DOD investigations have been largely self-exonerating.^[218] Furthermore, the current Executive, President Trump, made a conspicuous show of pardoning Navy SEAL Eddie Gallagher in 2019 after Gallagher was convicted by a court-martial of posing with the decapitated head of a teenage ISIS captive he was alleged to have murdered with a hunting knife, and while the captive was receiving medical treatment from U.S. medics.^[219] The current Secretary of Defense, Pete Hegseth, had personally encouraged President Trump to grant the pardon,^[220] and President Trump then touted this pardon and two others on the campaign trail, proclaiming that he had “stuck up for three great warriors against the deep state.”^[221] President Trump and like-minded future executives would likely intervene to the extent possible in the kinds of proceedings contemplated here, making it imperative that the FCAC be as independent as practically possible. Admittedly, this arrangement does not furnish a total defense—the Executive would still be able to pardon SOF personnel prosecuted by the FCAC—but it affords additional, much-needed layers of independence from an Executive that might be inclined to intervene.^[222]

Second, courts-martial and their prosecutors, JAG Officers, have important limitations that become especially salient in the SOF context. Commanding officers have considerable discretion over referral of their enlisted personnel for prosecution and ultimately over charging decisions,^[223] and we know of multiple instances in which SOF commanders neglected (or deliberately refused) to refer their enlisted personnel for prosecution. Not a single Navy SEAL was prosecuted for the widespread canoeing practice discussed above despite SEAL leadership being aware of the practice.^[224] Lieutenant General Jonathan Braga of SOCOM also halted the prosecutions against the fifteen SOF personnel who were arrested as a result of the major drug and human trafficking busts around Fort Bragg.^[225] SOF are, again, a proud and recalcitrant type, and the current culture and incentive structure within SOF units militates against the kinds of self-reporting needed to make courts-martial a suitable option.^[226] Conferring upon an independent prosecutor’s office the authority to investigate and prosecute potential violations of law would hopefully compensate for this problem. Secondarily, courts-martial do not litigate issues of international or federal criminal law, whereas Article III courts do.^[227] This kind of experience would make Article III judges more suitable for the nature and scope of the task as it is defined here.

Lastly, it is important to emphasize what the FCAC will not do. It will not play armchair general to a competent Commander-in-Chief, micromanaging or second-guessing the Executive’s judgment in the deployment, coordination, or structuring of SOF units. It does not mean to deprive the Executive of the strategic flexibility and unique force structure that only SOF units can provide, only to comport those forces more closely with federal, military, and international law it is their standing obligation to abide. This is precisely why this proposal opts for ex post instead of ex ante review, leaving to the Executive the decision of when and how to deploy SOF units. There is good reason to believe this kind of ex post review and its deterrent effects will have desirable strategic results as well, lessening the tensions between the United States and allied forces, as well as between U.S. forces and the local populations whose cooperation with (and opinion of) U.S. military presence is of paramount importance. And if the Executive’s decision to deploy SOF personnel in a sensitive area is chilled by a particular operation’s likelihood to result in the commission of war crimes and the subjection of SOF personnel to prosecution, then so be it—the FCAC will have accomplished its objective.

III. The Foreign Clandestine Activities Court, or FCAC

The following section means to envisage just how the FCAC will be structured, covering everything from its physical location to its jurisdiction to the exact party structure and the laws they will litigate. Also discussed are the powers, composition, and nature of the independent prosecutor’s office (IPO). Although this Note favors the structure explicated here, each feature is eminently negotiable, and a workable FCAC could look very different from the one proposed here.

In the discussion that follows, the two main points of comparison will be the ICC and the FISC. It will note the important points at which the FCAC tracks the structure and nature of those courts and where it departs from them. This is meant to provide some comparative analysis that highlights the rationale for design choices and the ends they mean to serve.

A. The FCAC: Location, Structure, Jurisdiction, Choice of Laws, and Sanctions

1. Location.—The FCAC will sit in Washington, D.C., within close proximity of the Pentagon and all SOCOM staff housed there in order to make the court as convenient and as centrally located as can be. The nature of the court as a compromise between the Executive Branch, the courts, and Congress means that appearing in the FCAC should demand as little time, money, and manpower as possible from the Executive. A drawback of the ICC is that it sits in The Hague, Netherlands,^[228] and attempts to exercise an effectively global reach.^[229] Its limited enforcement powers undoubtedly arise in part because it issues arrest warrants for defendants ensconced in their home countries, comfortably surrounded by loyal armies, considerable distance, and difficult geography.^[230] This is not so in the case of the FCAC. With the court seated in the heart of the U.S. government and blessed with compulsory criminal process powers over personnel who are—to the man—U.S. citizens, defendants charged with crimes by the prosecutor would be required to appear before the FCAC, much in the same way that personnel charged with military crimes are required to in courts-martial.

Here, the FCAC also looks to the Special Court for Sierra Leone (SCSL) for a model. Established to prosecute war crimes committed in-country over the course of a ten-year civil war, the SCSL was “a hybrid tribunal that shared features of national and international courts,” allowing for the application of international law by an in-country court and in a manner more congruent with local legal culture and customs.^[231] While the FCAC means to be a primarily national and not international tribunal, it means to implement roughly the same concept, allowing for the application of international law in a more familiar venue that retains the forms, procedures, and indicia of an American federal criminal proceeding. Arguments against the legitimacy of the prosecuting authority, as are often made against the ICC prosecutor, and the foreign, non-consensual nature of international law, are considerably weakened when it is a federal court and a federal prosecutor that Congress creates and endows with the power to apply and prosecute international law.

2. Structure: Judges, Parties, Selection, Levels of Review, and Secrecy.—The FCAC’s internal structure will closely follow that of the FISC. As with the FISC, FCAC cases will be heard and adjudicated by a rotating roster of select federal district court judges, each of whom will serve staggered terms by which a new judge is rotated in every year.^[232] The selection process will also mirror that of the FISC, with the judges being selected by the Chief Justice of the Supreme Court according to their experience, ability, and discretion.^[233] Proceedings will be classified and entirely closed to the public to preserve the secrecy and operational integrity of SOF missions, with the involved parties having been sworn to the same secrecy and subject to the same laws governing the possession, review, reproduction, transmission, and leakage of classified materials.

The major departure from the structure of the FISC is that the proceedings will be adversarial and not ex parte. In the FISC, the only party is the government, petitioning the court ex parte for permission to conduct certain types of intelligence collection.^[234] Only where a FISA application “presents a novel or significant interpretation of the law” will the Court consider the appointment of an amicus curiae to test the mettle of the government’s arguments.^[235] The FCAC will more closely follow the ICC, with a permanent and independent prosecutor’s office (IPO) that will be empowered to conduct investigations, collect and review evidence, and initiate prosecutions against SOF personnel it believes have violated the law.^[236]

There will be two levels of appellate review: one appeal as of right to the Foreign Clandestine Activities Court of Review (FCACR) and one discretionary appeal to the Supreme Court. The structure of the FCACR will again follow its model, the Foreign Intelligence Surveillance Court of Review (FISCR).^[237] The three-judge appellate panel will hear all appeals in classified proceedings on the closed legal and factual record generated by the proceedings below, and the parties may appeal the panel’s decisions through a classified submittal process to the Supreme Court.^[238]

3. Jurisdiction.—An Article III court must have personal and subject matter jurisdiction over the matters it hears, whether civil or criminal.^[239] The FCAC will be endowed with personal jurisdiction over all administrative and operational personnel organized under SOCOM, as well as other U.S. military personnel mobilized in support of SOCOM missions and personnel. It will also enjoy subject matter jurisdiction for all actions taken by U.S. government personnel within the course and scope of missions authorized, overseen, or conducted by SOCOM. Taken together, both heads of jurisdiction will encompass all SOF personnel as well as other U.S. military assets and personnel mobilized in support of SOF units during their missions, such as drones and aircraft engaged for air support. If we are to expand the FCAC beyond the regulation of DOD personnel, the court should also have personal and subject matter jurisdiction over the SOF units fielded by components of the Intelligence Community, which perform clandestine functions similar to the SOF organized under the DOD.

The IPO should not be required to establish “admissibility” as is required for prosecutions in the ICC.^[240] The ICC faces a “core selectivity problem”^[241] because it cannot prosecute every individual violation of law that might fall under the immense sweep of its jurisdiction, and it instead limits itself to “the most serious crimes of concern to the international community as a whole.”^[242] The FCAC will seek to provide something closer to the coverage of national criminal and military legal systems, in which “selectivity—discretionary decisions not to prosecute even through prosecution appears warranted—operates largely at the margins.”^[243] This will maximize the deterrent and retributive effects of the criminal process.

4. Choice of Laws and the Nature of Sanctions.—Choice of laws and the nature of sanctions are enclosed in the same section because the sanctions imposed will flow from the prosecutor’s choice of law. The prosecutor will enjoy discretion over what laws on which to prosecute, but good policy dictates that, when prosecuting military personnel, the prosecutor should prioritize the military regulations governing actions taken during combat or service. So, if the FCAC were to hear the case of Navy SEAL Eddie Gallagher, who, among committing other crimes, posed for a celebratory picture with the decapitated head of the teenage ISIS captive he had recently stabbed to death, it would prosecute him under UCMJ Article 134, which proscribes “all conduct of a nature to bring discredit upon the armed forces[.]”^[244] The typically applicable sanctions—e.g., confinement in military jail or dishonorable discharge—would follow. Federal law generally can also be applied to conduct occurring within the course and scope of classified activities over which the FCAC has personal and subject matter jurisdiction, sweeping in, say, the narcotics trafficking that SOF personnel have engaged in while on duty, but with the benefit of more robust discovery powers that, in a federal district court, might be overridden by doctrines or procedural rules like the “state secrets privilege.”^[245] And because intelligence community personnel are not subject to the UCMJ, federal statutes may be the preferred choice of law for their prosecution.

Thus, federal and military law will be applied and adjudicated for purposes of punishment and sentencing, with the classified nature of the proceedings providing a forum where the issues can be more candidly and more efficiently analyzed and adjudicated than in a federal district or military court. However, the prosecutor will also have the power to charge SOF personnel with violations of international criminal law. If a defendant is convicted of such a violation, the violation will be recorded but will not provide a standalone basis for punishment. Notice of the violation must be reported to Congress, specifically the Senate and House committees that oversee the armed services and intelligence communities, and a running record of these violations will be kept for purposes of monitoring clandestine SOF activities abroad. Violations of international criminal law, such as the commission of war crimes, could also operate as aggravating factors at sentencing.

B. The Independent Prosecutor’s Office, or IPO

An additional word is due about the nature and powers of the IPO. Unlike the discretionary amicus appointments under FISA, the IPO will be a permanent institution, allowing for acquisition, retention, and transfer of the institutional culture and knowledge that will aid a more efficient prosecution process. The day-to-day function of the IPO will look very similar to that of the United States Attorney’s Offices but with the accommodations made for the proceedings’ secrecy and sensitivity. A head prosecutor will be appointed to serve in a role like that of a U.S. attorney, charged with executive and administrative functions, and her immediate subordinates will oversee the teams of line prosecutors who fulfill the necessary trial and appellate functions. Moreover, given their culture and institutional position, it is unlikely that SOF will be very forthcoming with inculpatory evidence, and it may be a while before new norms facilitating accountability can fully penetrate their units. A proposal for a court like the FCAC must therefore consider the scope of the prosecutor’s criminal discovery powers.

Ideally, SOCOM and the relevant intelligence arms will be required to deliver copies of all documentation, briefing and debriefing, video and photographic evidence, and other mission-related materials to the IPO after each mission, and the IPO will be tasked with reviewing these materials to identify potential violations of law. Congress would also do well to make the investigative process as “universal” as can be without compromising secrecy. The ICC’s mechanisms for “outsourcing” investigations can provide an important model here. Like the ICC, the IPO will not have the benefit of “an international police force” or a troop of detectives it can shuttle around the world for the purpose of investigating potential SOF crimes.^[246] Instead, Congress should empower the IPO’s investigative staff to tap into the “network of NGOs and UN entities focused on post-conflict justice work” that voluntarily collect and provide to the ICC “investigative reports, witness contacts, and copious historical detail about the situations under . . . investigation.”^[247] The IPO could also set up confidential, secure tip lines through which direct or collateral victims of SOF activity—be they individuals, firms, or states—can submit tips and documentation regarding potential violations of law.

Lastly, because counseling Congress about possible exposure under international criminal law might be akin to an advisory opinion that Article III courts are not constitutionally empowered to render,^[248] the IPO will be required to submit reports to Congress’s armed services and intelligence committees whenever it determines that SOF are potentially committing crimes that come within the competence and jurisdiction of the ICC.

Conclusion

The United States is at a crossroads, with much to gain and everything to lose depending on how it plays its current hand. When American war crimes flash through the headlines in foreign newspapers, foreign readers likely do not wave them away with excuses about the military necessity of the strikes involved and the inevitability of the civilian casualties incident to such things. They instead see a hegemon striking out at the world around it, violent and unapologetic and cavalier about the carnage, and for reasons that, to them, feel obscure or even arbitrary. African, Arab, and Pashtun ears are deaf to ideas like American exceptionalism or sententious grandstanding about the necessary evils that must be perpetrated in furtherance of some ultimate good, both of which recall the old Neil Young line, “[w]e got a kinder, gentler machine gun hand,”^[249] with the obvious irony being that no such thing could possibly exist. What they register—allies, adversaries, and everyone in between—is tragedy. As the world enters a new phase of multipolarity and the competition for political, economic, and military pull steepens, the United States can no longer afford to continue alienating the world around it.

More simply, we also owe the establishment of more robust accountability mechanisms to those who have been wrongfully killed and maimed by SOF missions and who have been denied even the pittance of an admission of wrongdoing. They are human beings whose lives are not disposable, regardless of how important the mission might be. To bring SOF to account for their crimes, wrongs, and mistakes not only signal to the world that we are ready and willing to play by the rules of an international order we helped found, thereby edifying our place in it; it also serves a measure of justice and dignitary restitution that we owe to the world purely by virtue of their being human.

1. . S. Res. 21, 94th Cong. (1975) (establishing “a select committee of the Senate to conduct an investigation and study of governmental operations with respect to intelligence activities”). The Select Committee became known as “the Church Committee” because Senator Frank Church served as the Committee’s chairman. See U.S. Senate Hist. Off., A History of Notable Senate Investigations 1 (n.d.), https://www.senate.gov/about/resources/pdf/church-committee-full-citations.pdf [https://perma.cc/KVU6-VL8F] (describing the origins, activities, and outcome of the Church Committee). ↑
2. . See generally Project MKULTRA, The CIA’s Program of Research in Behavioral Modification: Joint Hearing Before the Select Comm. on Intel. & the Subcomm. on Health & Sci. Rsch. of the S. Comm. on Hum. Res., 95th Cong. (1977) (discussing how the CIA used psychedelic drugs to alter human behavior). ↑
3. . S. Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Alleged Assassination Plots Involving Foreign Leaders, S. Rep. No. 94-465, at III–IV (1975). ↑
4. . S. Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Foreign and Military Intelligence: Book I, S. Rep. No. 94-755, at 195, 198–99 (1976); David P. Hadley, The Rising Clamor: The American Press, the Central Intelligence Agency, and the Cold War 3–4, 10 (2019). ↑
5. . See S. Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Foreign and Military Intelligence: Book II, S. Rep. No. 94-755, at 10–11 (1976) (reviewing specific tactics used by the FBI to undermine American civil rights organizations and neutralize their alleged threat to national security); Tim Weiner, Enemies: A History of the FBI 195, 197–201, 235–36, 250 (Penguin Books, 2013) (examining how the FBI used COINTELPRO to unlawfully subvert the Communist Party, NAACP, and Martin Luther King Jr.); Ward Churchill & Jim Vander Wall, The COINTELPRO Papers: Documents from the FBI’s Secret Wars Against Dissent in the United States 6, 112, 117–18, 229 (South End Press Collective ed., 1990) (discussing specific actions of the FBI under COINTELPRO). ↑
6. . S. Select Comm. to Study Governmental Operations with Respect to Intel. Activities, Foreign & Military Intelligence: Book II, S. Rep. No. 94-755, at 6 (1976). ↑
7. . Daniel Schorr, A Brief History of the NSA, NPR (Jan. 29, 2006, at 8:00 AM ET), https://www.npr.org/2006/01/29/5176847/a-brief-history-of-the-nsa [https://perma.cc/7FPN-MJXJ]. ↑
8. . James G. McAdams, III, Fed. L. Enf’t Training Ctr., Foreign Intelligence Surveillance Act (FISA): An Overview 2 (2007), https://www.fletc.gov/sites/
   default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research
   -by-subject/miscellaneous/ForeignIntelligenceSurveillanceAct.pdf [https://perma.cc/VY82-UESK]. ↑
9. . This Note is not the first publication to suggest this. See David Barno & Nora Bensahel, How to Fix U.S. Special Operations Forces, War on the Rocks (Feb. 25, 2020), https://warontherocks.com/2020/02/how-to-fix-u-s-special-operations-forces/ [https://perma.cc/LW7E-MVBT] (arguing that “Congress should charter a commission” to investigate the use and efficacy of SOF units). ↑
10. . For a discussion of the deficiencies that led to 9/11 and possible reforms, see generally Nat’l Comm’n on Terrorist Attacks Upon the U.S., The 9/11 Commission Report (2004). ↑
11. . 9/11 led to “the creation of the Department of Homeland Security (DHS) in March, 2003, bringing together 22 separate agencies and offices into a single, Cabinet-level department.” U.S. Dep’t of Homeland Sec., Implementing 9/11 Commission Recommendations 3 (2011), https://www.dhs.gov/implementing-911-commission-recommendations [https://perma.cc/V3CP-VTT3]. ↑
12. . Heidi M. Peters, Cong. Rsch. Serv., R40835, The Department of Defense’s Use of Private Security Contractors in Afghanistan and Iraq 1 (2011). ↑
13. . R.D. Hooker, Jr., America’s Special Operations Problem, Joint Force Q., 1st Quarter, Jan. 2023, at 50, 50–51. ↑
14. . Karen DeYoung & Greg Jaffe, U.S. ‘Secret War’ Expands Globally as Special Operations Forces Take Larger Role, Wash. Post (June 4, 2010), https://www.washingtonpost.com/wp-dyn/content/article/2010/06/03/AR2010060304965.html?nav=emailpage [https://perma.cc/MVV5-7S6Z]. ↑
15. . See id. (describing how “Special Operations forces [grew] both in number and budget[] and [were] deployed in 75 countries” by 2010). ↑
16. . See Greg Miller, Pentagon Establishes Defense Clandestine Service, New Espionage Unit, Wash. Post (Apr. 23, 2012), https://www.washingtonpost.com/world/national-security/pentagon-creates-new-espionage-unit/2012/04/23/gIQA9R7DcT_story.html [https://perma.cc/7KVC-8MD2] (“The newly created Defense Clandestine Service would work closely with the CIA . . . in an effort to bolster espionage operations overseas at a time when the missions of the agency and the military increasingly converge.”). ↑
17. . See Mark Mazzetti, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth 26, 46–47, 219, 267–68 (2013) (detailing how the CIA changed its modus operandi after the 9/11 attacks). ↑
18. . Seth Harp, The Fort Bragg Murders, Rolling Stone (Apr. 18, 2021), https://www.rollingstone.com/culture/culture-features/fort-bragg-murders-1153405/ [https://perma.cc/C4QR-CY33] [hereinafter Harp, The Fort Bragg Murders]. ↑
19. . See id. (using interviews from those affected by the Fort Bragg murders to demonstrate how SOF units form insular, tight-knit communities). ↑
20. . See Barno & Bensahel, supra note 9 (“[SOF] culture is increasingly characterized by a sense of entitlement . . . [their pressures and privileges] transform into entitlement and a sense that normal military standards and discipline no longer apply.”); see also Matthew Cole, The Crimes of SEAL Team 6, The Intercept (Jan. 10, 2017, at 6:01 AM) [hereinafter Cole, The Crimes of SEAL Team 6], https://theintercept.com/2017/01/10/the-crimes-of-seal-team-6/ [https://perma.cc/N993-ZLCJ] (“ . . . [SOF] have the hatchets to flaunt the law.”) ↑
21. . See Barno & Bensahel, supra note 9 (noting the additional demands and greater sense of importance placed on SOF units as compared to regular military personnel); Cole, The Crimes of SEAL Team 6, supra note 20 (describing an intentional culture of “nonconformity” that creates a sense of entitlement and being above the law). ↑
22. . See Dave Philipps, Pentagon Begins Independent Inquiry into Special Ops and War Crimes, N.Y. Times (Jan. 28, 2021), https://www.nytimes.com/2021/01/28/us/military-special-ops-investigation.html [https://perma.cc/HJ25-7ZFY] (recounting allegations of misconduct against SOF and how certain Administrations have responded). ↑
23. . James Kiras, Special Operations Warfare, Encyc. Britannica (Nov. 14, 2023), https://www.britannica.com/topic/special-operations-warfare [https://perma.cc/XR5Y-MD4M]. ↑
24. . Id. ↑
25. . See Clementine G. Starling & Alyxandra Marine, Stealth, Speed, and Adaptability: The Role of Special Operations Forces in Strategic Competition, Atl. Council (Mar. 7, 2024), https://www.atlanticcouncil.org/in-depth-research-reports/report/starling-marine-special-operations-forces-in-strategic-competition/ [https://perma.cc/YZM8-PXUK] (explaining the role of special forces in both direct and indirect engagement, such as strategic planning and collaboration with conventional sources). ↑
26. . Kiras, supra note 23. ↑
27. . Barbara Salazar Torreon & Andrew Feickert, Cong. Rsch. Serv., IF10545, Defense Primer: Special Operations Forces 1 (2024). ↑
28. . Id. at 1–2. ↑
29. . Jordan Smith, CIA Special Activities Center: The Third Option, Grey Dynamics (Dec. 6, 2024), https://greydynamics.com/cia-special-activities-center-the-third-option/ [https://perma.cc/
    2W54-SJ55]. See generally Michael E. DeVine, Cong. Rsch. Serv., R45191, Covert Action and Clandestine Activities of the Intelligence Community: Selected Congressional Notification Requirements (2023) (providing a review of the legal categories under which SOF activities most often fall). ↑
30. . U.S. Dep’t of Def., DOD Dictionary of Military and Associated Terms 37 (May 2019). ↑
31. . See Derek Leebaert, To Dare and to Conquer: Special Operations and the Destiny of Nations, from Achilles to Al Qaeda 4–7 (2006) (describing how special operations have played a unique role in global warfare for at least three thousand years). ↑
32. . See Virgil, The Aeneid 74–101 (Robert Fagles trans., Penguin Books 2008) (detailing how the Trojan horse played a key role in the fall of Troy). ↑
33. . See Robert Belot, Intelligence Considered as a War Weapon and a Global Power Tool: About the Birth of US Secret Services (1942–1945), 8 Icon, 2002 at 55, 55 (introducing the Office of Strategic Services as the “father of the CIA” and explaining how it transformed intelligence collection). See generally Tommaso Piffer, Office of Strategic Services Versus Special Operations Executive: Competition for the Italian Resistance, 1943–1945, J. Cold War Stud., Fall 2015 (detailing the role the U.S. Office of Strategic Services played in the Italian Resistance during World War II). ↑
34. . Naval Special Warfare, Naval Hist. & Heritage Command (Feb. 7, 2024, at 11:02 ET), https://www.history.navy.mil/browse-by-topic/communities/special-warfare.html [https://perma.cc/7YCW-2RCL]. ↑
35. . See, e.g., J. Patrice McSherry, Operation Condor: Clandestine Inter-American System, Soc. Just., Winter 1999, at 144, 144–45 (noting that top U.S. officials had full knowledge of Operation Condor, a clandestine program for hunting political dissidents in Latin America); Dale Andrade & James H. Willbanks, CORDS: Counterinsurgency Lessons from Vietnam for the Future, Mil. Rev., Mar.–Apr. 2006, at 9, 17–18 (outlining Phoenix, the U.S.-led operation to dismantle the Viet Cong’s human infrastructure); Olav Riste, “Stay Behind”: A Clandestine Cold War Phenomenon, J. Cold War Stud., Fall 2014, at 35, 42 (discussing “stay behind” networks coordinated by the United States to counter Soviet influence and serve as a resistance force in case of a Soviet invasion or communist takeover); Steve Galster, Introduction to Afghanistan: The Making of U.S. Policy, 1973–1990, reprinted in 2 The September 11th Sourcebooks: Afghanistan: Lessons from the Last War, Nat’l Sec. Archive (John Prados & Svetlana Savranskaya eds., 2001), https://nsarchive2.gwu.edu/NSAEBB/NSAEBB57/essay.html [https://perma.cc/4X5Y-TEPA] (noting the “ten years of effort and a multi-billion dollar project” to support anti-communism efforts in Afghanistan). ↑
36. .  See Thomas C. Field Jr., US and the Cold War in Latin America, Oxford Rsch. Encyclopedias: Latin Am. Hist. (June 25, 2019), https://doi.org/10.1093/acrefore/
    9780199366439.013.642 [https://perma.cc/H2P8-DL7T] (describing U.S. Cold War policy towards Latin America as a blend of covert action and overt diplomatic and economic cooperation, the instrumentalities of which often overlapped); McSherry, supra note 35, at 144–45 (discussing the United States’s involvement in Operation Condor, a “shadowy Latin American military network whose key members were Chile, Argentine, Uruguay, Bolivia, Paraguay, and Brazil”); Andrade & Willbanks, supra note 35, at 17–18 (discussing the Phoenix Program in Southeast Asia and the CIA’s involvement). ↑
37. . For an explanation of “containment” by its ultimate practitioner, see Henry Kissinger, Reflections on Containment, Foreign Affs., May/June 1994, at 113, 130 (“[C]ontainment was a doctrine that saw America through more than four decades of construction, struggle and, ultimately, triumph.”); see also Tim Weiner, Legacy of Ashes: The History of the CIA 86-87 (2008) (describing the development and implementation of the containment strategy by Eisenhower and CIA leadership). ↑
38. .  See Weiner, supra note 37, at 86–87; see also Joshua Kurlantzick, A Great Place to Have a War: America in Laos and the Birth of a Military CIA 10–13 (2017) (discussing the CIA’s covert war in Laos); Riste, supra note 35, at 35, 40–42 (describing how the United States aided anticommunists in vulnerable countries); Galster, supra note 35 (evaluating how Afghanistan became “a battleground for the bloodiest superpower proxy war of the 1980s”). ↑
39. . For an excellent review of the atrocities committed by U.S. troops during the Korean War, in Indochina, during the American intervention in Indonesia, and the intervention in El Salvador, see Alex J. Bellamy, Massacres & Morality: Mass Atrocities in an Age of Civilian Immunity 162–220 (2012). ↑
40. . See generally Vincent Bevins, The Jakarta Method (2020) (providing an overview of various clandestine Cold War programs). ↑
41. . McSherry, supra note 35, at 145, 150 (first describing Operation Condor as a “clandestine inter-American counterinsurgency system” in its own words; then quoting John Bohach, Jr. & Paul A. Coughlin, Department of Defense Intelligence Information Report: Special Operations Forces, Def. Intel. Agency (Oct. 1, 1976) (on file with Nat’l Sec. Archive, DOD Chile Declassification Project Tranche I) (1973–1978)), https://nsarchive.gwu.edu/document/22523-document-03-dia-special-operations-forces [https://perma.cc/4JXG-QN4B]). ↑
42. . McSherry, supra note 35, at 150. ↑
43. . See J. Patrice McSherry, Predatory States: Operation Condor and Covert War in Latin America 108–10, 114–15, 118–19, 122–25, 131–32, 242–43 (2005) (listing disappearances, deaths under suspicious circumstances, torture, and murders by state or paramilitary organizations under Operation Condor). ↑
44. . Id. at 119–20. ↑
45. . See McSherry, supra note 35, at 148–54 (suggesting extensive U.S. involvement in Operation Condor). Intriguingly, the School of the Americas, “[a] U.S. army facility critics have labeled a school for dictators, torturers and assassins,” was not closed until 2000 and only after considerable debate and scrutiny by Congress. Controversial ‘School of the Americas’ Closes, ABC News (Dec. 14, 2000, at 2:52 PM), https://abcnews.go.com/International/story?id=81917&page=1 [https://perma.cc/2RGA-DP3P]. ↑
46. . See McSherry, supra note 43, at 95–97 (explaining that Operation Condor had access to the U.S. government’s official communications channel, which provided support for covert operations). ↑
47. . Id. at 248–54; see also Pascale Bonnefoy, Chilean Court Rules U.S. Had Role in Murders, N.Y. Times (June 30, 2014), https://www.nytimes.com/2014/07/01/world/americas/chilean-court-rules-us-had-role-in-murders.html [https://perma.cc/6PG3-U72W] (discussing the breadth of U.S. operations in Chile, including intelligence collection and coordination with the Chilean military). ↑
48. . Bohach & Coughlin, supra note 41. ↑
49. . See McSherry, supra note 43, at 229 (detailing a specific ambush that U.S. special forces claimed to have participated in in Latin America). ↑
50. . See id. (detailing the torture and extra-judicial killing of a U.S. citizen at the hands of U.S. commandos); McSherry, supra note 35, at 156 (“The sanitized technical language masked the nature of the Condor system, which represented the internationalization of military repressive structures and operations respecting no civilian or constitutional law.”). ↑
51. . Bevins, supra note 40, at 266–67 (2020). ↑
52. . Id. at 218, 223 (2020). ↑
53. . Andrade & Willbanks, supra note 35, at 17–18. ↑
54. . Id. at 17. ↑
55. . Id. ↑
56. . Id. at 18–19; see also Douglas Valentine, The Phoenix Program 13 (2000) (discussing the Phoenix Program established in 1967 by the CIA to neutralize the Viet Cong human infrastructure across Vietnam). ↑
57. . Andrade & Willbanks, supra note 35, at 86. ↑
58. . Michael Otterman, American Torture: From the Cold War to Abu Ghraib and Beyond 62 (2007). ↑
59. . Id. But see James P. Sterba, The Controversial Operation Phoenix: How It Roots Out Vietcong Suspects, N.Y. Times (Feb. 18, 1970), https://www.nytimes.com/1970/02/18/archives/
    the-controversial-operation-phoenix-how-it-roots-out-vietcong.html [https://perma.cc/D94N-9B86] (stating at the time that Phoenix is not a killing organization and is more notorious for inefficiency and corruption than terror). Subsequent research gives us good reason to doubt this characterization. See generally Valentine, supra note 56 (characterizing and describing U.S. involvement in Phoenix as pervasive and terroristic). ↑
60. . Vietnam: Policy and Prospects, 1970: Hearings Before the S. Comm. on Foreign Relations on Civil Operations and Rural Dev. Support Program, 91st Cong. 398 (1970) [hereinafter Vietnam: Policy and Prospects]. ↑
61. . Otterman, supra note 58, at 65–70; see also Vietnam: Policy and Prospects, supra note 60, at 399 (giving other examples of torture methods). ↑
62. . Vietnam: Policy and Prospects, supra note 60, at 399. ↑
63. . Id. ↑
64. . Id. ↑
65. . See Valentine, supra note 56, at 13–14, 40, 43–44, 166 (2000) (recording the CIA’s involvement in creation, execution, and direction of Phoenix to accomplish its purpose). ↑
66. . Otterman, supra note 58, at 63; see Valentine, supra note 56, at 166 (quoting Navy Lieutenant John Wilbur that, “[t]he PRU program was American-controlled,” and that, “before July 1967 PRU teams were organized and directed by CIA advisors”). ↑
67. . Otterman, supra note 58, at 63; Robert Seals, MACV-SOG History, U.S. Army (Jan. 25, 2019), https://www.army.mil/article/216498/macv_sog_history [https://perma.cc/6V8V-VRBX] (“The first true [joint special operations task force] formed to support a theater campaign, the [Military Assistance Command, Vietnam, Studies and Observations Group], ‘blazed a trail’ for current Army and joint special operations task forces in the war against transnational terrorism.”); see also Vietnam: Policy and Prospects, supra note 60, at 398 (describing the systematic torture employed against both civilian and Viet Cong prisoners); Valentine, supra note 56, at 40, 43–44 (describing how U.S. forces modeled the counterinsurgency on the Viet Cong insurgency and copied “the dynamics of political warfare, as conceived by the Communists”). ↑
68. . Otterman, supra note 58, at 66, 70–71; Richard E. Ward, Phoenix Program Under House Inquiry, Nat’l Guardian, Oct. 18, 1972, https://www.cia.gov/readingroom/docs/CIA-RDP80R01720R001100090041-2.pdf [https://perma.cc/ZYT9-9D3N]; Valentine, supra note 56, at 13. ↑
69. . Valentine, supra note 56, at 13. ↑
70. . Andrade & Willbanks, supra note 35, at 19–20. ↑
71. . See Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 32, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (“The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands.”). Torture, rape, and “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” are proscribed by Article 7 of the Rome Statute. Rome Statute of the International Criminal Court, art. 7.1(f)–(g), (k), opened for signature July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. Honduras, Argentina, and Uruguay—all participants in Operation Condor or similar Latin American Cold War programs—are states-parties to the Rome Statute. States Parties to the ICC, Int’l Crim. Ct. Project, https://www.aba-icc.org/about-the-icc/states-parties-to-the-icc/ [https://perma.cc/R2FJ-4Y9V]; see Honduras, Ctr. for Just. & Accountability, https://cja.org/where-we-work/honduras/#:~:text=With%20the%20communist
    %20Sandinista%20government,2%5D [https://perma.cc/PEM5-J8R8] (describing similar United States-backed Latin American Cold War programs in Honduras). ↑
72. . Sean Naylor, Relentless Strike 106–08, 122–24 (2015). ↑
73. . Andrew L., Mick Mulroy & Kenneth Tovo, Irregular Warfare: A Case Study in CIA and US Army Special Forces Operations in Northern Iraq, 2002–03 6–7 (2021), https://www.mei.edu/publications/irregular-warfare-case-study-cia-and-us-army-special-forces-operations-northerniraq [https://perma.cc/3D3K-3BAT]. ↑
74. . Naval Hist. & Heritage Command, supra note 34. ↑
75. . See Forrest S. Crowell, Navy SEALs Gone Wild: Publicity, Fame, and the Loss of the Quiet Professional 2 (Dec. 2015) (M.S. thesis, Naval Postgraduate School) (explaining how Navy Seals have “received unprecedented publicity” since the 9/11 attacks); Press Release, Jack Lepien, U.S. Navy, Fall of a Tyrant: The Death of Osama bin Laden (Apr. 29, 2019), https://www.navy.mil/Press-Office/News-Stories/Article/2239558/fall-of-a-tyrant-the-death-of-osama-bin-laden/ [https://perma.cc/9UFG-D3KN]. ↑
76. . Harp, The Fort Bragg Murders, supra note 18. ↑
77. . DeYoung & Jaffe, supra note 14. ↑
78. . Nick Turse, A Wider World of War: Under Donald Trump, U.S. Special Forces Deployed to 149 Countries in 2017, Common Dreams (Dec. 14, 2017), https://www.commondreams.org/
    views/2017/12/14/wider-world-war-under-donald-trump-us-special-forces-deployed-149-countries-2017?utm [https://perma.cc/L672-CGPK]. ↑
79. . Torreon & Feickert, supra note 27, at 1. ↑
80. . Hooker, supra note 13, at 51. ↑
81. . Mark Pomerleau, Lawmakers Fearful of SOCOM Cuts, Possible Risk to Mission, DefenseScoop (Apr. 9, 2025), https://defensescoop.com/2025/04/09/lawmakers-fearful-of-socom-cuts-and-possible-risk-to-mission/ [https://perma.cc/BQT2-BVFQ]. ↑
82. . Harp, The Fort Bragg Murders, supra note 18 (quoting a private interview with Sean Naylor, author of Relentless Strike, a comprehensive history of JSOC through 2014). See generally Naylor, supra note 72. ↑
83. . See Phillip Carter & Andrew Swick, Why Were US Soldiers even in Niger? America’s Shadow Wars in Africa, Explained, Vox (Oct. 26, 2017, at 8:00 AM CDT), https://www.vox.com/world/2017/10/26/16547528/us-soldiers-niger-johnson-widow-africa-trump [https://perma.cc/T4JU-M4G2] (characterizing the SOF mission in Africa as largely out of the public eye by being a “fight that takes place largely in the shadows, led by small teams of US special operations forces”). ↑
84. . Michael Ware, How the U.S. Killed the Wrong Soldiers, TIME (Feb. 11, 2002, at 12:00 AM EST), https://time.com/archive/6665748/how-the-u-s-killed-the-wrong-soldiers/ [https://perma.cc/
    CY8Z-AYJL]; Marc Kaufman & Peter Baker, U.S. Mistakes Cost Innocent Lives, Afghan Leader Says, Wash. Post (Feb. 6, 2002), https://www.washingtonpost.com/archive/politics/
    2002/02/06/us-mistakes-cost-innocent-lives-afghan-leader-says/d175d454-fb45-4382-a81d-3705952755fa/ [https://perma.cc/Y8EK-CFK3]. ↑
85. . Seth Harp, The Fort Bragg Cartel: Drug Trafficking and Murder in the Special Forces 59–61 (2006) [hereinafter Harp, The Fort Bragg Cartel]. ↑
86. . ‘I Accepted Responsibility’: McChrystal on His ‘Share of the Task’, NPR (Jan. 13, 2013, at 7:40 AM ET), https://www.npr.org/transcripts/168966608 [https://perma.cc/WX8L-WVYG]. ↑
87. . Stanley McChrystal, My Share of the Task: A Memoir 179 (2012). ↑
88. . Harp, The Fort Bragg Cartel, supra note 85, at 63. ↑
89. . Id. at 67–68, 71–72. ↑
90. . Gen. Stanley McChrystal Relieved of Command, to be Replaced by Gen. David Petraeus, ABC News (June 23, 2010, at 6:46 AM), https://abcnews.go.com/Politics/stanley-mcchrystal-face-obama-rolling-stone-article/story?id=10989038 [https://perma.cc/4RC2-GWMT]. ↑
91. . Harp, The Fort Bragg Cartel, supra note 85, at 72–73; see also Naylor, supra note 72, at 358–71 (providing a highly detailed account of JSOC’s role in the Afghanistan troop surge, which culminated in Admiral McRaven, commander of JSOC, having to defend his night raid strategy before Congress). ↑
92. . Harp, The Fort Bragg Cartel, supra note 85, at 73; see also Naylor, supra note 72, at 362, 367 (describing a similar error rate in killings and abductions). ↑
93. . Naylor, supra note 72, at 356. ↑
94. . Id. at 368. ↑
95. . Specifically, the NSA’s triangulation of insurgent positions through intercepted cell phone communications. Compare id. at 360–61, with Harp, The Fort Bragg Cartel, supra note 85, at 63 (discussing such triangulation strategies used both in Iraq and in Afghanistan). ↑
96. . Harp, The Fort Bragg Cartel, supra note 85, at 100–04, 106–09. ↑
97. . Id. at 111. ↑
98. . See Troops in Contact: Airstrikes and Civilian Deaths in Afghanistan, Hum. Rts. Watch (Sep. 25, 2008), https://www.hrw.org/report/2008/09/25/troops-contact/airstrikes-and-civilian-deaths-afghanistan [https://perma.cc/ZQ5R-B27M] (cataloguing civilian casualties from United States and NATO forces in Afghanistan in 2007 and early 2008). ↑
99. . Id.; Ware, supra note 84. ↑
100. . See Hum. Rts. Watch, supra note 98 (stating that the Afghan government claimed forty-two civilians died during a U.S. Special Operations Forces airstrike in 2007); Willa Frej, Doctors Without Borders Enraged Over ‘Deliberate’ Kunduz Hospital Bombing, Huffington Post (Oct. 6, 2015, at 12:05 PM ET), https://www.huffpost.com/entry/doctors-without-borders-deliberate-hospital-bombing_n_5613dca5e4b0368a1a6108dd [https://perma.cc/4ETG-5W4H] (describing a U.S. airstrike in Afghanistan that killed twenty-two); The Fog of War – Investigating a U.S. Airstrike on an Afghan Wedding Party, Ass. for Diplomatic Studies and Training (June 2014), https://adst.org/2014/06/the-fog-of-war-investigating-a-u-s-airstrike-on-an-afghan-wedding-party/ [https://perma.cc/KLY8-DVH7] (describing a U.S. airstrike that killed dozens of civilians at a wedding party). ↑
101. . Amnesty Int’l, Left in the Dark: Failures of Accountability for Civilian Casualties Caused by International Military Operations in Afghanistan 10 (2014). ↑
102. . Craig Whitlock, The Afghanistan Papers: A Secret History of the War 177–78 (2021). ↑
103. . Hum. Rts. Watch, supra note 98. ↑
104. . See Cole, The Crimes of SEAL Team 6, supra note 20 (describing instances of a SEAL killing and mutilating the body of an unarmed man and of a SEAL killing three unarmed people in two separate missions without meaningful repercussions). ↑
105. . Id. ↑
106. . Matthew Cole, Code Over Country: The Tragedy and Corruption of SEAL Team Six 147–49 (2022). ↑
107. . Id. ↑
108. . Id. at 148–50 (describing a three-star General and two SEAL Team Captains who knew war crimes were being committed and did nothing in response). ↑
109. . Id. at 161–63. ↑
110. . Id. at 161. “[They] read the book The Devil’s Guard and believed it . . . . It’s a work of fiction billed as the Bible . . . .” Id. at 163. ↑
111. . Id. at 163. ↑
112. . Id. ↑
113. . Id. at 163–64. ↑
114. . Id. at 166. ↑
115. . Id. ↑
116. . Id. at 171–73. ↑
117. . Id. at 172. ↑
118. . Id. at 171–72. ↑
119. . Id. at 172. ↑
120. . Id. ↑
121. . Id. at 173. ↑
122. . Id. at 135 (“It was war porn . . . . No one would do anything about them.”). ↑
123. . Harp, The Fort Brag Cartel, supra note 85, at 118–19. ↑
124. . For a clean, edited collection of these leaked tapes, see dan, Delta Force Footage 04-05 (YouTube, Jan. 16, 2021), https://www.youtube.com/watch?v=mlb9Pdfrkuw [https://perma.cc/
     45Z9-7REB]. Viewer discretion is advised. ↑
125. . Jack Serle, Almost 2,500 Now Killed by Covert US Drone Strikes Since Obama Inauguration Six Years Ago: The Bureau’s Report for January 2015, The Bureau of Investigative Journalism (Feb. 2, 2015), https://www.thebureauinvestigates.com/stories/2015-02-02/almost-2-500-now-killed-by-covert-us-drone-strikes-since-obama-inauguration-six-years-ago-the-bureaus-report-for-january-2015 [https://perma.cc/45RB-T89N]. ↑
126. . Id. ↑
127. . Id. (emphasis added). ↑
128. . Siobhan Gorman, Adam Entous & Julian E. Barnes, U.S. to Shift Drone Command, Wall St. J. (Mar. 20, 2013, at 7:56 PM ET), https://www.wsj.com/articles/
     SB10001424127887324103504578372703357207828 [https://perma.cc/6SP9-JSXC]. ↑
129. . See Understanding Drones, Friends Comm. on Nat’l Legis. (Oct. 27, 2021), https://www.fcnl.org/updates/2021-10/understanding-drones [https://perma.cc/9S72-K6L8] (describing how drone program policies continue to switch directions due to changes in Administrations). ↑
130. . Id. ↑
131. . Trump Revokes Obama Rule on Reporting Drone Strike Deaths, BBC News (Mar. 7, 2019), https://www.bbc.com/news/world-us-canada-47480207 [https://perma.cc/M8DE-FF3T]. ↑
132. . Dave Philipps & Matthew Cole, How a Top Secret SEAL Team 6 Mission Into North Korea Fell Apart, N.Y. Times (Sep. 5, 2025), https://www.nytimes.com/2025/09/05/us/navy-seal-north-korea-trump-2019.html [https://perma.cc/W2T6-XBSY]. ↑
133. . Id. ↑
134. . Id. ↑
135. . Id. ↑
136. . George Herring, The Vietnam War and the My Lai Massacre, Gilder Lehrman Inst. Am. Hist.: Hist. Now, https://www.gilderlehrman.org/history-resources/essays/vietnam-war-and-my-lai-massacre [https://perma.cc/84TF-79HJ]. ↑
137. . Harp, The Fort Bragg Cartel, supra note 85, at 180, 259–61, 265–71, 278–79, 284–87, 294–97. Allegations that clandestine arms of the U.S. government have aided or facilitated drug trafficking have surfaced before. See id. at 83–84. See generally Alfred W. McCoy, The Politics of Heroin: CIA Complicity in the Global Drug Trade (Rev. ed., Lawrence Hill Books 2003) (documenting the CIA’s role in facilitating global drug trafficking). ↑
138. . Harp, The Fort Bragg Cartel, supra note 85, at 218, 286–87, 307. ↑
139. . Id. at 294–95. ↑
140. . Id. at 259–61. ↑
141. . See, e.g., id. at 204–13 (reporting on two murders of a Delta Force operative and a supply staffer at Fort Bragg determined to be related to a drug trafficking conspiracy); id. at 229, 241-42 (describing the death of a paratrooper that was found beheaded, likely with an ax or hatchet, congruent with execution methods used by Mexican cartels). ↑
142. . Id. at 211, 294. ↑
143. . Id. at 151–52. ↑
144. . United States v. Dedolph, NMCCA No. 202100150 (f rev), 2024 CCA LEXIS 255* (N-M. Ct. Crim. App. 2024) (per curiam). ↑
145. . See Harp, The Fort Bragg Cartel, supra note 85, at 11, 15, 97, 105, 127, 279 (noting instances of widespread drug abuse by servicemembers). ↑
146. . Harp, The Fort Bragg Murders, supra note 18. ↑
147. . Harp, The Fort Bragg Cartel, supra note 85, at 295–96. ↑
148. . Philipps, supra note 22 (emphasis added). See also Matthieu Aikins, How War-Crime Accusations Against Green Berets Were Denied and Buried, N.Y. Times (Sep. 30, 2025), https://www.nytimes.com/2025/09/30/magazine/green-beret-war-crimes-afghanistan.html [https://
     perma.cc/3UDK-9HMG] (describing a case where army authorities “quietly closed without charges” a case in which Green Berets were accused by local Afghan officials of murdering nine detainees, and despite compelling evidence). ↑
149. . Parker Yesko, The War Crimes That the Military Buried, New Yorker (Sep. 10, 2024), https://www.newyorker.com/podcast/in-the-dark/the-war-crimes-that-the-military-buried [https://
     perma.cc/4BDP-ZT9Z]. ↑
150. . Cole, The Crimes of SEAL Team 6, supra note 20; see also https://www.nytimes
     .com/2025/09/30/magazine/green-beret-war-crimes-afghanistan.html [https://perma.cc/3UDK-9HMG] (describing a recent case where army authorities “quietly closed without charges” a case in which Green Berets were accused by local Afghan officials of murdering nine detainees, and despite compelling evidence) ↑
151. . Dave Philipps, Navy SEALs Were Warned Against Reporting Their Chief for War Crimes, N.Y. Times (Apr. 23, 2019), https://www.nytimes.com/2019/04/23/us/navy-seals-crimes-of-war.html [https://perma.cc/WQC6-BDWQ]. ↑
152. . Philipps, supra note 22. ↑
153. . Jim Garamone, Review Finds No Systemic Ethical Problems in Special Ops, U.S. Dep’t Def. News (Jan. 28, 2020), https://www.defense.gov/News/News-Stories/Article/Article/
     2067911/review-finds-no-systemic-ethical-problems-in-special-ops/ [https://perma.cc/C4MT-W93U]. ↑
154. . Harp, The Fort Bragg Cartel, supra note 85, at 312. For a look into the original Pentagon report, see generally Inspector Gen., U.S. of Def., Rep. No. DODIG-2022-038, Evaluation of U.S. Central Command and U.S. Special Operations Command Implementation of the Administrative Requirements Related to the Department of Defense’s Law of War Policies (2021). ↑
155. . Charlie Savage & Helene Cooper, Boat Suspected of Smuggling Drugs Is Said to Have Turned Before U.S. Attacked, N.Y. Times (Sep. 11, 2025), https://www.nytimes.com/2025/09/10/
     us/trump-drug-boat-venezuela-strike.html [https://perma.cc/67RE-HC54]. ↑
156. . Id. ↑
157. . Video posted by The White House (@WhiteHouse), X, BE WARNED — IF YOU ARE TRANSPORTING DRUGS THAT CAN KILL AMERICANS, WE ARE HUNTING YOU!
     (Sep. 15, 2025, at 3:19 PM CT), https://x.com/WhiteHouse/status/1967684810106868197 [https://perma.cc/2FTJ-NTJW] (on file with the Texas Law Review); Haley Britzky, US Military Kills 3 in Second Deadly Strike Against ‘Narcoterrorists’ in International Waters, Trump Says, CNN Pol. (Sep. 15, 2025), https://www.cnn.com/2025/09/15/politics/trump-strike-international-waters [https://perma.cc/7K4A-TZPL]. ↑
158. . ABC News, Pete Hegseth speaks on ‘Department of War’, at 01:17 (YouTube, Sep. 5, 2025), https://www.youtube.com/watch?v=JWgcndjkUGs&t=77s [https://perma.cc/DK4D-SUCS] (on file with the Texas Law Review). ↑
159. . Carol Rosenberg, Charlie Savage & Eric Schmitt, The U.S. military killed 3 men Friday on a boat it accused of smuggling drugs for Colombian rebels, Hegseth says, N.Y. Times (Oct. 19, 2025), https://www.nytimes.com/2025/10/19/us/politics/trump-military-boat-strike-colombia.html [https://perma.cc/C7XU-4YQQ]. ↑
160. . Nathaniel W. Motley, U.S. Special Operations and Military Crime: The Post-9/11 Wartime Crimes of U.S. Special Operations Forces Compared to the Conventional U.S. Military, at ii (Apr. 2020) (M.A. thesis, Johns Hopkins University) (on file with the Sheridan Libraries, Johns Hopkins University). ↑
161. . See Cole, Code Over Country, supra note 106, at 135 (discussing the mental and psychological effects of such extreme violence and the varying ways SOF members responded). ↑
162. . See Philipps, supra note 151 (detailing the lasting effects of sustained combat and regular training on cognitive function). ↑
163. . The State Department regularly recites the need to promote democratic accountability, the rule of law, peace, or some such other value or objective. For statements to this effect, see, for example, Press Release, U.S. Dep’t of State, Sanctions on Iran’s Oil Network to Further Impose Maximum Pressure on Iran (Aug. 21, 2025), https://www.state.gov/releases/office-of-the-spokesperson/2025/08/sanctions-on-irans-oil-network-to-further-impose-maximum-pressure-on-iran/ [https://perma.cc/ME3T-8HUJ]; Press Release, Thomas Pigott, U.S. Dep’t of State, Sanctioning Facilitators of Iran’s Illicit Oil Sales (Aug. 21, 2025), https://www.state.gov/
     releases/office-of-the-spokesperson/2025/08/sanctioning-facilitators-of-irans-illicit-oil-sales/ [https://perma.cc/D4GF-6BRD]; Press Release, U.S. Dep’t of State, United States Appreciates Tanzania’s Repatriation of Displaced Persons from Northeast Syria (Aug. 20, 2025), https://www.state.gov/releases/office-of-the-spokesperson/2025/08/united-states-appreciates-tanzanias-repatriation-of-displaced-persons-from-northeast-syria/ [https://perma.cc/LQN7-3YWT]; Press Release, U.S. Dep’t of State, Joint Statement from the ALPS Group on the Humanitarian Situation in Sudan (Aug. 20, 2025), https://www.state.gov/
     releases/office-of-the-spokesperson/2025/08/joint-statement-from-the-alps-group-on-the-humanitarian-situation-in-sudan/ [https://perma.cc/T3PK-6XHL]. ↑
164. . See Motley, supra note 160, 3–4 (explaining how military crimes can spoil international relationships). ↑
165. . See generally Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century 350–96 (2008) (providing a comprehensive argument to this effect). ↑
166. . David Luban, Julie R. O’Sullivan, David P. Stewart & Neha Jain, International and Transnational Criminal Law 7003 (4th ed. 2023). ↑
167. . Id. (footnote omitted). ↑
168. . Id. (citing Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Art. 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶¶ 87, 96 (Apr. 12, 2019), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_02068.PDF [https://perma.cc/LT8E-HCJL]). ↑
169. . Situation in the Islamic Republic of Afghanistan, ICC-02/17-138 OA4, Judgment on the Appeal Against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶¶ 46, 79 (Mar. 5, 2020), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_00828.PDF [https://perma.cc/4LVM-VDYS]. ↑
170. . Exec. Order No. 13,928 § 1, 3 C.F.R. 372, 373 (2021) (imposing sanctions on ICC officials); Exec. Order No. 14,022, 3 C.F.R. 540, 540 (2022) (revoking Executive Order 13928); Exec. Order No. 14,148 § 2(dd), 90 Fed. Reg. 8237, 8238 (Jan. 28, 2025) (revoking Executive Order 14022); Exec. Order No. 14,203 § 1, 90 Fed. Reg. 9369, 9370 (Feb. 12, 2025) (reinstating sanctions on ICC officials and associated persons); Press Release, Marco Rubio, Sec’y of State, U.S. Dep’t of State, Imposing Further Sanctions in Response to the ICC’s Ongoing Threat to Americans and Israelis (Aug. 20, 2025), https://www.state.gov/releases/2025/08/imposing-further-sanctions-in-response-to-the-iccs-ongoing-threat-to-americans-and-israelis-2 [https://perma.cc/TD37-RDHL] (listing additional individuals subject to sanctions derived from Executive Order 14203). ↑
171. . Press Release, Int’l Crim. Ct., Situation in the State of Palestine: ICC Pre-Trial Chamber I Rejects the State of Israel’s Challenges to Jurisdiction and Issues Warrants of Arrest for Benjamin Netanyahu and Yoav Gallant (Nov. 21, 2024), https://www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges [https://perma.cc/2DXF-CNDC]. ↑
172. . E.g., Chimène Keitner, The ICC’s Unsurprising Decision on Arrest Warrants for Netanyahu, Gallant, and Deif, Lawfare (Nov. 25, 2024), https://www.lawfaremedia.org/

     article/the-icc-s-unsurprising-decision-on-arrest-warrants-for-netanyahu–gallant–and-deif [https://perma.cc/787G-UJ67] (noting the reputational impact of ICC warrants issued for senior Israeli officials). ↑

173. . Letter from John R. Bolton, Under Sec’y of State for Arms Control and Int’l Sec., to Kofi Annan, U.N. Sec’y Gen. (May 6, 2002), https://2001-2009.state.gov/r/pa/prs/ps/2002/9968.htm [https://perma.cc/7LCP-7659]. ↑
174. . Rome Statute, supra note 71, art. 12.2(a). ↑
175. . Situation in the Islamic Republic of Afghanistan, ICC-02/17-138 OA4, Judgment on the Appeal Against the Decision on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶¶ 73–74 (Mar. 5, 2020), https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_00828.PDF [https://perma.cc/4LVM-VDYS]. ↑
176. . Luban et al., supra note 166, at 682 (explaining the jurisdictional parameters of the Rome Statute, supra note 71, art. 12). ↑
177. . Rome Statute, supra note 71, art. 17.1(a). ↑
178. . Id. art. 17.1(b)–(c), 20.3. ↑
179. . Luban et al., supra note 166, at 673. ↑
180. . The ICC held that Libyan courts met the complementarity threshold. See Prosecutor v. Al-Senussi, ICC-01/11-01/11-565 OA6, Judgment on Appeal of the Decision of Admissibility, ¶¶ 196–200 (July 24, 2014) (announcing that Libya’s less-than-stable, post-NATO-intervention court system was sufficiently independent, willing, and able to prosecute a defendant wanted by the ICC and that the standard for complementarity had been met); see also Luban et al., supra note 166 at 719–24 (discussing Al Senussi’s successful bid to have the ICC declare the prosecuting authorities and Libyan courts sufficiently impartial and procedurally sound). This suggests that U.S. courts, which rank relatively highly in the World Justice Project’s Rule of Law Index, would also meet the complementarity threshold. WJP Rule of Law Index, World Just. Project, https://worldjusticeproject.org/rule-of-law-index/global [https://perma.cc/54CF-HABM]. ↑
181. . Counterintuitively, the sanctions against Russia following its loathsome invasion of Ukraine have led it to deepen its economic ties with Asian, Middle Eastern, African, and Latin American countries. Russia’s Total Export Values Increased After The West Imposed Sanctions, Russia’s Pivot to Asia (July 1, 2024), https://russiaspivottoasia.com/russias-total-export-values-increased-after-the-west-imposed-sanctions [https://perma.cc/C2VW-9T62]. ↑
182. . Daniel Drezner, Never mind hypocrisy, the West faces another challenge, Chatham House (Mar. 21, 2024), https://www.chathamhouse.org/publications/the-world-today/2024-02/never-mind-hypocrisy-west-faces-another-challenge [https://perma.cc/W2WB-G5TA]. ↑
183. . Cf. Oliver Stuenkel, Why the Global South Is Accusing America of Hypocrisy, Foreign Pol’y (Nov. 2, 2023), https://foreignpolicy.com/2023/11/02/israel-palestine-hamas-gaza-war-russia-ukraine-occupation-west-hypocrisy/ [https://perma.cc/C5VS-A8V6] (“Policymakers in developing countries have long viewed the United States’s claims to moral high ground as unnecessarily grating.”). ↑
184. . See Jon Henley, Europe Tries to Shore Up Fragile Unity as It Realises It Cannot Rely on US, The Guardian (Feb. 17, 2025), https://www.theguardian.com/world/2025/feb/17/europe-tries-to-shore-up-fragile-unity-as-it-realises-it-cannot-rely-on-us [https://perma.cc/C7WJ-JT7V] (describing alienation and divergence in values between the United States and European countries). But see Henry Foy, EU has ‘Turned the Page’ with Trump, says Bloc’s President, The Financial Times (Sep. 7, 2025), https://www.ft.com/content/17d0ffdb-f275-4c37-98bc-9b505db563b1 [https://perma.cc/AF2C-729B] (reporting that EU leadership has recently reached modus vivendi with President Trump despite a rocky start). ↑
185. . U.S. Const. art. I, § 8, cl. 11–13. ↑
186. . Id. ↑
187. . Fergal F. Davis & Fiona de Londras, Introduction: Counter-terrorism judicial review: beyond dichotomies, in Critical Debates on Counter-Terrorism Judicial Review 1, 2 (Fergal F. Davis & Fiona de Londras eds., 2014). ↑
188. . Carroll Doherty & Jocelyn Kiley, A Look Back at How Fear and False Beliefs Bolstered U.S. Public Support for War in Iraq, Pew Rsch. Ctr. (Mar. 14, 2023), https://www.pewresearch
     .org/politics/2023/03/14/a-look-back-at-how-fear-and-false-beliefs-bolstered-u-s-public-support-for-war-in-iraq/ [https://perma.cc/YW2R-D48K]. ↑
189. . Id. ↑
190. . Mohamed Younis, Confidence in U.S. Military Lowest in Over Two Decades, Gallup (July 31, 2023), https://news.gallup.com/poll/509189/confidence-military-lowest-two-decades
     .aspx [https://perma.cc/A6JV-8MZQ]. ↑
191. . Julia Gledhill, Friends Comm. on Nat’l Legis., The Failures of the War on Terror 16 (Eric Bond ed., 2022). ↑
192. . Robert P. Storch, Off. of the Inspector Gen., U.S. Dep’t of Def., Cardell K. Richardson, Sr., Off. of the Inspector Gen., U.S. Dep’t of State & Paul K. Martin, Off. of the Inspector Gen., U.S. Agency for Int’l Dev., Lead Inspector General Report to the United States Congress: Operation Inherent Resolve and other U.S. Government Activities Related to Iraq & Syria: April 1, 2024–June 30, 2024, at 8 (2024) (“The Operation Inherent Resolve (OIR) mission is to advise, assist, and enable partner forces until they can independently maintain the enduring defeat of ISIS in Iraq and designated areas of Syria to set conditions for long-term security cooperation frameworks.”). ↑
193. . Id. at 14, 16, 25. ↑
194. . See Doherty & Kiley, supra note 188 (stating that 62% of Americans believe the invasion of Iraq was “not worth fighting”). ↑
195. . S. Select Comm. on Intel., Report on Postwar Findings about Iraq’s WMD Programs and Links to Terrorism and How They Compare with Prewar Assessments, S. Rep. No. 109-331, at 52–59 (2006). ↑
196. . Joseph J. Collins, Defeat in Afghanistan: An Autopsy, U.S. Army War Coll. Q.: Parameters, Spring 2023, at 7, 7. ↑
197. . See Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 Texas L. Rev. 299, 355–56 (2008) (framing the balance between legislative and executive war powers as bounded by congressional discretion). ↑
198. . Cf. Brennan Center for Justice, Strengthening Intelligence Oversight 4 (Michael German, ed., 2015) (noting the same phenomenon as it pertained to the Church Committee). ↑
199. . U.S. Const. art. I § 8, cl. 12–14. ↑
200. . Chappell v. Wallace, 462 U.S. 296, 301 (1983). ↑
201. . U.S. Const. art. I § 8, cl. 11. ↑
202. . Prakash, supra note 197, at 354–55, 382. ↑
203. . Military Justice Overview, Dep’t Def. Victim and Witness Assistance, https://vwac
     .defense.gov/military.aspx [https://perma.cc/6CWT-6BR2]. ↑
204. . Id.; William Winthrop, Military Law and Precedents 47 (2d ed. 1920). ↑
205. . E.g., 10 U.S.C. § 920; 34 U.S.C. § 20931. ↑
206. . See Stephen I. Vladeck, Military Courts and Article III, 103 Geo. L. J. 933, 939, 956–57 (2015) (noting the long history of the Article III military exception and listing the traditional rationales behind it). ↑
207. . See Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 Harv. L. Rev. 869, 870–71 (2011) (introducing Congress’s power to establish Article III courts). ↑
208. . Cf. id. (surveying Congress’s power to define an Article III’s court jurisdiction generally). ↑
209. . Cf. Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence, 71 Vand. L. Rev. 465, 482–84 (providing an example of Congress creating a specialized Article III court). ↑
210. . 10 U.S.C. § 817. ↑
211. . See United States v. Curtiss-Wright Export Corp, 299 U.S. 304, 315–16, 319–20 (1936) (recognizing that unlike Congress, which enjoys discrete powers granted and enumerated in a finite list, the President is simply vested with an all-encompassing “executive power” that extends to all the traditional functions of a head of state, including war and intelligence). ↑
212. . McAdams, supra note 8, at 2–3. ↑
213. . Id. at 9. ↑
214. . Stephen I. Vladeck, The FISA Court and Article III, 72 Wash. & Lee L. Rev. 1161, 1164 (2015) (citations omitted). ↑
215. . See Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004) (recognizing that Congress permissibly authorized the application of certain rules of customary international law with the enactment of the Alien Tort Statute in 1789). ↑
216. . See generally Vladeck, supra note 214 (discussing the relationship between FISA and Article III and providing a framework within which to analyze Article III concerns). ↑
217. . In re Sealed Case, 310 F.3d 717, 732 n.19 (F.I.S.C.R. 2002) (per curiam); Vladeck, supra note 214, at 1167–69. ↑
218. . See Garamone, supra note 153 (recording a finding by the DOD itself that “U.S. special operations forces have no ‘systemic’ failures of ethics”); Harp, The Fort Bragg Cartel, supra note 85, at 312 (highlighting how the SOCOM war crimes review ordered by President Biden only recommended small changes to abstruse internal rules and procedures). ↑
219. . Brett Samuels, Trump Says He Stood Up to the ‘Deep State’ by Intervening in War Crime Cases, The Hill (Nov. 26, 2019), https://thehill.com/homenews/campaign/472201-trump-says-he-stood-up-to-the-deep-state-by-intervening-in-war-crime-cases/ [https://perma.cc/6DU4-2FKF]; Richard Luscombe, Navy Seal Pardoned of War Crimes by Trump Described by Colleagues as ‘Freaking Evil’, The Guardian (Dec. 27, 2019), https://www.theguardian.com/us-news/2019/dec/27/eddie-gallagher-trump-navy-seal-iraq [https://perma.cc/7RK6-T852]. ↑
220. . Andrew Kirell, Asawin Suebsaeng & Sam Brody, Fox News Host Pete Hegseth Privately Lobbied Trump to Pardon Accused War Criminals, Daily Beast (May 20, 2019), https://www.thedailybeast.com/fox-and-friends-host-pete-hegseth-privately-lobbied-trump-to-pardon-accused-war-criminals/ [https://perma.cc/YF5K-HW7Y]. ↑
221. . Samuels, supra note 219. ↑
222. . For example, the fact that the FCAC judges will be selected by the Chief Justice of United States Supreme Court—and not the Executive—precludes the Executive from stacking the court with judges it thinks will be unduly deferential to SOF personnel. See infra subpart III(A). ↑
223. .  “Unlike civilian communities, military commanders exercise discretion in deciding whether an offense should be charged and how the offenders should be punished.” Military Justice Overview, supra note 203. ↑
224. . For a discussion of this canoeing practice, see supra subpart I(C). ↑
225. . Hart, The Fort Bragg Cartel, supra note 85, at 297. ↑
226. .  See Philipps, supra note 22 (describing this mindset and culture amongst SOF operatives). Consider too that SOF have been subject to the jurisdiction of the courts-martial for the entire duration of the War on Terror, but very few have been prosecuted or even investigated for the war crimes they are alleged to have committed. See Yesko, supra note 149 (discussing the lack of prosecution for potential war crimes committed by U.S. troops during the War on Terror). ↑
227. . See 10 U.S.C. §§ 816, 818(a), 819(a), 820(a) (setting forth the three kinds of courts-martial and limiting their jurisdiction to offenses prohibited by the Uniform Code of Military Justice). ↑
228. . Rome Statute, supra note 71, art. 3.1. ↑
229. . See, e.g., Eric P. Schwartz, The United States and the International Criminal Court: The Case for “Dexterous Multilateralism”, 4 Chi. J. Int’l L. 223, 229 (2003) (providing a typical complaint against the ICC’s claimed jurisdiction over nonparty-state nationals along with party-state nationals). But see Oona A. Hathaway, Myths and Realities of Global Governance, 45 Harv. J.L. & Pub. Pol’y 31, 36 (2022) (countering that the ICC’s asserted jurisdiction over nonparty‑state nationals often relates to and is limited to acts committed in party‑state territory). ↑
230. . For a discussion of Omar Al Bashir’s flouting of the ICC arrest warrant against him, see Luban et al., supra note 166, at 711. ↑
231. . Id. at 107. ↑
232. . 50 U.S.C. § 1803(a)(1), (e)(1); About the Foreign Intelligence Surveillance Court, U.S. Foreign Intel. Surveillance Ct., https://www.fisc.uscourts.gov/about-foreign-intelligence-surveillance-court [https://perma.cc/U9DC-THFM]. ↑
233. . 50 U.S.C. § 1803(a)(1)–(b); see also U.S. Foreign Intel. Surveillance Ct., supra note 232 (explaining how these judges are selected). ↑
234. . McAdams, supra note 8, at 9. ↑
235. . 50 U.S.C. § 1803(i)(2)(A). ↑
236. . See Office of the Prosecutor, Int’l Crim. Ct., https://www.icc-cpi.int/about/otp [https://perma.cc/T37G-PGVD] (detailing the steps involved in the Office of the Prosecutor’s operations, from preliminary investigations to prosecutions). ↑
237. . 50 U.S.C. § 1803(b). ↑
238. . See id. (establishing who sits on the Foreign Intelligence Surveillance Court of Review). ↑
239. . Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999); see also United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005) (“Subject-matter jurisdiction is furnished by 18 U.S.C. § 3231, which covers all criminal prosecutions under the United States Code.”). ↑
240. . Luban, supra note 166, at 680–85. ↑
241. . Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 267 (2012). ↑
242. . Id. (quoting Rome Statute, supra note 71, at 91). ↑
243. . Id. at 268 (footnote omitted). ↑
244. . 10 U.S.C. § 934, art. 134. For further discussion on Eddie Gallagher, see supra notes 151, 220 and accompanying text. ↑
245. . See Sudha Setty, Litigating Secrets: Comparative Perspectives on the State Secrets Privilege, 75 Brook. L. Rev. 201, 201 (2009) (defining the state secrets privilege and its power); Bruce Fein, The “State Secrets” Privilege Is a Tool of Injustice, The Nation (Mar. 18, 2022), https://www.thenation.com/article/world/supreme-court-state-secrets/ [https://perma.cc/2EU5-9Z4Y] (arguing that the state secrets privilege has enabled the government to avoid accountability). ↑
246. . Elena Baylis, Outsourcing Investigations, 14 UCLA J. Int’l L. & Foreign Affs. 121, 124 (2009). ↑
247. . Id. at 122–23. ↑
248. . See United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947) (“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions.”). ↑
249. . Neil Young, Rockin’ in the Free World, on Freedom (Reprise Recs. Oct. 2, 1989). ↑