American service members are being deployed in situations in which they must make split-second decisions over whether to use defensive deadly force that could involve civilian casualties. Later they are often held accountable by individuals in government, politics, and the media who may not fully understand the tactical realities of a firefight.
Because U.S. military forces have been involved in nearly constant combat since 2002, for the first time since World War II a high percentage of that force has seen combat. A new generation of warriors is performing with as much distinction as the much-vaunted "greatest generation" of World War II; nevertheless, we insist on impeding them with pre-9/11 rules and post-shooting analyses.
We've made great strides toward providing our Soldiers with realistic tactical and weapons training. For example, the Army's Asymmetric Warfare Group's mobile training teams have shared their tactics, techniques, and procedures with the deployed force, and the Army Training and Doctrine Command (TRADOC) has instituted recent changes in its basic military training. Nevertheless, in many ways the military still behaves like a risk-averse peacetime force when it comes to rules of engagement drafting, implementation, and training.
Our Soldiers and Marines are increasingly thrust into situations that are more analogous to domestic law enforcement confrontations than traditional combat operations. Considerable disagreement remains as to their authority to use deadly force. Much of this confusion is based not on the rules themselves, but on how they are communicated to the lowest echelons.
The Department of Defense should develop and sustain a use-of-deadly-force instructor certification program that would ensure joint training standards. This would educate and prepare students not only in the law, but also in the tactical realities pertaining to deadly force encounters and small arms proficiency. Such training would greatly improve the United States' "strategic corporals'" chances of making proper decisions about whether to use deadly force, and it would increase the likelihood of killing the enemy and avoiding civilian casualties.1 To ensure uniformity across services, which are increasingly operating in the same locations, U.S. Joint Forces Command (USJFCOM) is the most logical and relevant command to run this program.
Law Enforcement or Combat Operations?
In Haditha on 19 November 2005, Lance Corporal Justin Sharratt, a veteran of combat operations in Fallujah, engaged four civilian-dressed military-aged males while conducting a house-to-house search just hours after his convoy was hit during a roadside IED attack. Following an intense investigation, Lance Corporal Sharratt was exonerated after a hearing conducted according to Article 32b of the Uniform Code of Military Justice. The convening authority, then-Lieutenant General James Mattis, (now Supreme Allied Commander Transformation and Commander, U.S. Joint Forces Command), wrote a two-page letter to Lance Corporal Sharratt dismissing the charges. In it he wrote:
The experience of combat is difficult to understand intellectually and very difficult to appreciate emotionally. One of our nation's most articulate Supreme Court justices, Oliver Wendell Holmes Jr., served as an infantryman during the Civil War and described war as an "incommunicable experience." He has also noted elsewhere that "detached reflection cannot be demanded in the presence of an uplifted knife."
All charges against Sharratt were eventually dismissed. But his case illustrates the point that service members are indeed being unnecessarily required to exhibit detached reflection in the presence of uplifted AK-47s. More important, many who are responsible for training our forces pre-combat, and those investigating our warriors post-combat, fail to appreciate the dynamics of tactical encounters in close-quarters combat.2 In fact, one of the few general officers with considerable close-quarters combat experience recently commented that the events at Haditha were the result of placing Marines who had been experienced in conducting traditional military operations in urban terrain tactics in a close-quarters combat environment.3 With little difficulty, individual Soldiers can be trained in law-enforcement methodology to make more precise decisions under stress.
Understanding the Laws of Self-Defense
No matter the tasks they will encounter, whether benign humanitarian assistance missions or counterinsurgency operations, most of the decisions our forces make will be predicated on the right of self-defense. Applying such decisions in the "three-block war" environment requires these Soldiers to understand their right and authority to use force in self-defense.4
The United States may enter into short- or long-term alliances, but should never submit to the collective will of the international community when determining what constitutes an act of self-defense. Collective opinion might reflect collective ignorance, as illustrated by UN restrictions on rules of engagement that have plagued General Bipin Rawat, an Indian officer who commands UN forces in the Democratic Republic of Congo:
Under their rules of engagement, Gen. Rawat's forces are always denied the advantage of surprise. They must shout verbal warnings and fire shots in the air before they can engage any rebels. Their operations are not allowed to risk a single civilian casualty.5
Fortunately, such rules apply to the targeting of forces rather than to using force in self-defense. Accordingly, there remains strong constitutional, common law, and international law support for collective and individual rights of self-defense. From humanitarian relief operations to force-on-force conflict, it's clear that the United States can lawfully support uses of force in self-defense and that these rules apply to all the services.
Despite mandatory guidance from the Chairman, Joint Chiefs of Staff that "commanders, at all levels, shall ensure that individuals within their respective units understand and are trained when and how to use force in self-defense," this mandate is not being satisfactorily carried out by the services.6 This creates not only a heightened risk for friendly forces, but also a greater likelihood of legally inappropriate uses of force that might undermine strategic successes, especially in the counterinsurgency fight.
Many service members and judge advocates also continue to misunderstand the level and degree of authority needed to engage lawful targets. This confusion leads to the mistaken belief that the status of an individual shot in self-defense must first be ascertained. Too often, Soldiers are briefed that they must have positive identification before engaging. This misconception is perpetuated by the repeated use of criminally-focused investigations into what are, in essence, line-of-duty shooting decisions.
A service member can lawfully employ deadly force when a target has been declared hostile by a competent authority or in response to a demonstrated hostile intent or act, intended to inflict death or serious bodily injury to self or friendly forces. (There are other circumstances, for example, to defend classified facilities or property.)
Once positive identification is established against a declared hostile, there is no legal obligation to detain, capture, or take less intrusive means. A Soldier could walk into a barracks room filled with sleeping enemy combatants who have been declared hostile and shoot them. In self-defense situations, however, positive identification is irrelevant and proportionality is rarely an issue. Soldiers need to understand that they can use reasonable force to quell such a threat until that threat is over.
A Dangerous Game
Nearly every line-of-duty shooting in Iraq is subject to an investigation. Sworn statements are taken and, contrary to the rights afforded civilian law-enforcement officers (including NCIS agents), Soldiers and Marines are questioned without the benefit of legal counsel, psychologists, or even chaplains. While it is necessary to ensure that service members follow the rules and use force appropriately, continually subjecting them to the wrong legal standard and improperly focused investigations inevitably results in hesitation and mistrust. The following October 2007 communiqu
from a young Army noncommissioned officer in Iraq illustrates this point:There is nothing to come of this except making my Soldiers scared to pull the trigger, and that's all that this is doing. They see me getting questioned every day over something as dumb as firing back when fired upon. God only knows what they would be trying to do if we accidentally killed one [of] the "wrong" people.7
Some commanders have been reluctant to authorize shooting insurgents clearly emplacing IEDs in roadways late at night. They have prevented targeting insurgents conducting probes of friendly positions, and they have failed to authorize the engagement of clearly identified hostile vehicles speeding away from a mortar "point of origin" as they "were not a threat at the time of acquisition."8
This last point is important to clarify; some less tactically aware judge advocates and commanders have written that "fleeing hostile actors can't be engaged." This ignores both the tactical concept of pursuit as well as the fact that the "fleeing hostile actors" continue to pose a threat. Even some civilian law enforcement codes recognize this.9
An e-mail from the U.S. Army's Center for Law and Military Operations to deployed legal offices on 16 January 2008 stated that "one of the most effective ways to drive home the importance of EOF to Soldiers [such as exercising fire discipline] at traffic control points and on convoys is by giving awards to Soldiers who do not shoot when the ROE may have allowed them to, thereby saving innocent lives."
The intent of this guidance, to save innocent civilian lives, is admirable. However, the result of incorrectly applying the strategic concept of minimum force to a tactical situation is unnecessarily to expose military forces to imminent threat of death or serious bodily injury. Recognizing that missions are often ambiguous and dangerous enough, neither good tactics nor the law require one to surrender the right and responsibility to exercise individual and collective self-defense.
The former deputy commanding general, U.S. Army Special Operations Command, Major General Gary L. Harrell recently stated, "The only tactical solution when confronted with an imminent threat of death or serious bodily injury is to immediately respond with overwhelming force and continue to apply that force until the threat is over."
No commander wakes up in the morning thinking "How can I throw my Soldiers under the bus today?" In fact, there are many EOF cases in Iraq that do not result in judicial or non-judicial punishment. However, we can do a much better job preparing our forces to make better decisions, both pre-shooting and post-shooting (i.e., explaining their decisions). We can better educate commanders, judge advocates, and investigators.
While general use of force guidelines can be set forth in the ROE annex of an operations order, and even more specific guidance handed out to subordinates via ROE cards, the answer to when and whether to use force is almost always incident-specific and based on the split-second judgment of the individual on the scene. In such situations ROE cards and EOF cards are nearly useless (and often dangerous), as they assume a linear linkage in a non-linear world, ignoring that deadly force situations are complex and not conducive to if-then solutions.
Accordingly, judgment-based training, the opposite of the usual rules-based training individuals typically receive in this area, is a better way to ensure compliance with the ROE. This can be accomplished through situational exercises, briefings, and firearms training focused on elevating the student's ability to assess threats quickly, dispassionately, and accurately and apply the relevant rules of engagement.
Judgment-Based Engagement Training (JET) Seminar
JET is an acronym developed by Captain Mark Kohart and Commander Thomas Mowell at the Navy Center for Security Forces in Little Creek, Virginia. They had successfully integrated the ROE/RUF tactical training seminar concept into their program of instruction for deploying naval forces performing in-lieu-of missions in Iraq and Afghanistan.
JET trains Soldiers, commanders, and their judge advocates to recognize when it is lawful and tactically sound to apply deadly force. The judgment-based curriculum is the opposite of the usual rules-based training and offers realistic situational and firearms instruction beyond that rendered by traditional lectures and marksmanship range training, done in isolation.
The two- and three-day seminars provide an overview on the law and the tactical dynamics of deadly force encounters, including the psycho-physiological reactions of humans in high-stress situations, and wound ballistics. Later, students experience what was discussed through various situational training exercises and devices, including Simunitions FX, Firearms Training System, Engagement Skills Trainer, and live-fire judgment-based targets on the range. Expert instructors, drawn from military special operations forces and civilian law enforcement agencies, provide classroom and tactical instruction.
By combining legal and force-on-force training, the program "inoculates" students to resist some of the deadlier aspects of stress. During the dynamic and interactive training regimens, students learn to rely on their immediate judgment, a skill that can only be gained by exposure to a variety of high-stress situations demanding rapid response.
Developing Master Use of Force Trainers
Army TRADOC, Air Force Expeditionary Center, and Navy Expeditionary Combat Command have incorporated many of the ROE/RUF tactical training seminar concepts in their escalation of force programs of instruction, and the JET seminar has been validated both from a requirement and efficiency perspective. The question is, how many mobile training teams can the Army's Asymmetric Warfare Group sustain to affect the whole force? A method for educating master trainers throughout the joint force on the correct legal and tactical standards must be rapidly fielded. This would ensure a common understanding of the rules of force, which is essential in the operating environment that Soldiers face on today's battlefield.
The DOD should establish a Use of Force Master Trainer Center of Excellence, where tactical trainers from the services would become certified in training legally and tactically sound judgment-based methodologies. In addition to tactical trainers, the course would instruct judge advocates and investigators responsible for assessing service members' line-of-duty use of force and improve the abilities of those who draft ROE. Eventually, only certified investigators would be empowered to conduct post-shooting investigations of U.S. service members. Since command-appointed investigating officers and special agents from the diverse criminal investigative agencies all derive authority from Title 10, the services have the authority to select investigators who have the proper credentials to conduct the inquiries.
USJFCOM is the logical choice to be the sponsoring command for such a center. Exercising its responsibilities for joint concept development and joint training, USJFCOM should coordinate this effort to ensure the integrity of the program.10 By instituting JET at each of the services' pre-deployment training sites, USJFCOM could ensure that tens of thousands of service members were properly trained prior to deployment.
To ignore the use-of-force training mandate in the SROE is dangerous. To substitute overly restrictive ROE and ill-focused investigations in lieu of this mandate constitutes a systemic dereliction of duty. We owe it to our armed forces to train them to the highest legal and tactical standards. In doing so, we will better help them survive and win in today's deadly force encounters. Moreover, we will help the United States' "strategic corporals" reach the goals as outlined in current strategic doctrine.
1. Donald Vandergriff, Military Recruiting: Finding and Preparing Future Soldiers (Westport: Praeger Security International, 2008, chapter 6). "A Strategic Corporal or lieutenant is a Soldier that possesses technical mastery in the skill of arms while being aware that his judgment, decision-making and action can all have strategic and political consequences that can affect the outcome of a given mission and the reputation of his country."
2. Robert G. Delaney, "Army Transformation: The Human Condition of Soldiering," Military Review (May-June 2004): 37, citing U.S. Army Regimental Training Circular 350-1-2, Close Quarters Combat Program of Instruction.
3. Major General Eldon Bargewell, USA (Ret.), author interview, August 2007. General Bargewell began his 40-year Army career as a Special Forces Soldier in Vietnam, where he was awarded, among other decorations, the Distinguished Service Cross. Throughout his career, he served at various levels of command, including command of 1st Special Forces Operational Detachment - Delta Force. He has been awarded the Purple Heart on 13 occasions.
4. Charles C. Krulak, "The Strategic Corporal: Leadership in the Three-Block War," Marines Magazine (January 1999).
5. David Blair, "UN Commander Says Hands Are Tied in Congo," The Daily Telegraph, London, 17 November, 2008.
6. CJCSI 3121.01B (13 June, 2005).
7. Undisclosed noncommissioned officer e-mail to the author, 12 October, 2007. The NCO's duties included providing squad-level escort duties to civilian members of diverse inter-agency task forces in the Iraqi theater.
8. From the author's duties, observations, and readings concerning diverse classified and unclassified situation reports from both Iraq and Afghanistan from March 2007 until June 2008. At the time, the author was working as deputy general counsel, Joint IED Defeat Organization, Counter IED Operational Integration Center (JIEDDO-COIC).
9. E.g., Chicago Police Department General Order 02-08-03, Section III stating in part that "[an officer may use deadly force against an escaping subject if the officer reasonably believes]:
a. has committed or has attempted to commit a forcible felony involving the infliction, threatened infliction, or threatened use of physical force likely to cause death or great bodily harm or;
b. is attempting to escape by use of a deadly weapon or;
c. otherwise indicates that he or she will endanger human life or inflict great bodily harm unless arrested without delay."
10. To staff the program, USJFCOM could initially draw on the JET seminar cadre of trainers. The U.S. Air Force Expeditionary Center at Fort Dix, New Jersey, already successfully uses this model several times a year by inviting JET seminar cadre to teach ROE/RUF classes to key and essential leaders, judge advocates and paralegals undergoing pre-deployment training. Already extant and operational pre-deployment training venues, like the Expeditionary Center, are readymade for hosting a Use of Force Master Trainer COE.