Dodging the Legal Bullets of this Postmodern World: the Right Way Back to Total War[1]
In this war, America’s ground combat forces have been in near-continuous contact with enemy forces since October 2001. It is with sadness, anger and frustration that we have witnessed first-hand the following:
- Our military and civilian leadership has failed to stand behind our warrior’s inherent, God-given right of self-defense; often investigating and prosecuting warriors based on ill conceived notions of the ethical, legal and tactical realities of deadly force encounters;
- Senior leaders cannot articulate why and whom we are fighting, leaving their subordinates to guess and, hence, gamble with their lives; and,
- Moral cowardice and incompetence amongst the collective Judge Advocate General’s Corps concerning training and prosecutorial components of their mission.
The Right of Self-defense in War and Peace
While our enemies have consistently violated the Law of Armed Conflict by inter alia not wearing uniforms, firing from protected places , using noncombatants as shields, bombing civilian markets, and committing other acts of perfidy; instead of prosecuting such grave breaches, military lawyers have reflexively gone after their own. Too many Soldiers, Sailors, Airmen and Marines have wrongfully been placed in the dock – some still in Leavenworth – for simply making “the wrong” call in the clear vision of 20/20 hindsight.
As Lieutenant Colonel John Taylor, USA (Ret.) and one of the authors noted in A Raid Scenario: Second-guessing Those at the Tip of the Spear (
http://www.huntingsaracens.org/2015/09/29/a-raid-scenario-second-guessing-those-at-the-tip-of-the-spear/):
“Certain government leaders are in a mild panic over the recent publication of Sean Naylor’s new book Relentless Strike: The Secret History of Joint Special Operations Command. Since it would be inappropriate to comment on the veracity of anything Naylor has written about that command, our focus is on one seemingly innocuous and completely unclassified portion of his book. The following paragraphs are within our particular skill sets – the laws and tactical realities surrounding deadly force encounters – and it bears commenting upon:
When “clearing” a building— i.e., moving through it and eliminating any threats— Rangers flowed through the structure like water, scanning each room in a synchronized choreography that was the result of hundreds of repetitions in training and combat. Only if they found any military-age men would the Rangers pause momentarily to leave a couple of soldiers to watch that room as the others continued through the building. It was not unusual for the Rangers to clear a compound in less than twenty seconds. The living room opened to a hallway that led to a corridor with several bedrooms. In the first, the squad leader and a young Ranger found a man and woman sleeping on mats. Using memorized Arabic, the squad leader, who was a battle-hardened staff sergeant, and the other soldier— a twenty-one-year-old specialist armed with a light machine gun called a squad automatic weapon— told the couple to put their hands up. Neither did. The two Rangers repeated the order, as their colleagues checked the corridor’s other rooms, finding two women and several children. But instead of putting his hands above his head as ordered, the man in the first room made as if to reach inside his robe. The squad leader’s finger tightened on the trigger of his M4. He had less than a second to make a life-or-death decision.
The squad leader made his decision. He pulled the trigger, shooting the man in the head. Realizing what his squad leader was going to do, the specialist did the same, firing a burst with his squad automatic weapon. Their reaction “was aggressive,” said another Ranger later, with studied understatement. If it turned out that the man was unarmed, there would be consequences. The squad leader reported the room “clear and secure” and left the specialist to guard the woman. Above them, the sniper team leader shot and killed the second gunman on the roof. But as soon as the squad leader had left the room, the woman dove toward the body of her husband. Again the specialist had to make a split-second decision. Again his instinct told him to pull the trigger. He fired a short burst and the woman’s head split apart. With the squad momentarily distracted by the firing, a figure darted from the last room left to be cleared and ran up the stairs clutching a pistol. He burst out of the cupola, only for the sniper team leader to put two bullets in his head. The gunman’s lifeless body toppled back through the cupola and fell to the ground floor, crashing into a Ranger, the impact tearing the latter’s night vision goggles from his face. Abu Khalaf was dead. The Rangers had been in the house for less than thirty seconds.
With the house finally cleared and all the adult males killed, the Rangers began the exploitation phase of the mission. An examination of the dead man in the first bedroom revealed a suicide vest. Had the two Rangers not fired when they did, they and perhaps several of their comrades would have died. Honed in nine combat deployments, the squad leader’s instinct had saved numerous lives, as had the specialist’s decision to open fire on the woman. She was the first woman that platoon had shot in about 200 missions. That there had been shooting at all was unusual. Only about 10 percent of the platoon’s missions involved gunfights.
While he is persona non grata at USSOCOM, Naylor has unwittingly hit upon a persistent misunderstanding concerning the use of force that exists among many members of the press, civilian leaders, civilian attorneys, military commanders, and military judge advocates, to wit: a Soldier or police officer who uses deadly force must always be right or correct in his decision to use deadly force for that use of deadly force to be lawful. This is absolutely false. Unfortunately, far too many military personnel are sitting in Leavenworth due to ignorance about this issue. Let’s quickly examine why we say this:
1. So, what if the suspect was unarmed and there was no suicide vest, would the young Ranger’s actions have been any less lawful? Absolutely not. Constitutional law in the United States does not require FBI agents and other law enforcement officers to be right; only reasonable. That same deference must be given to a company of Rangers in Afghanistan, operating under use of force rules that are clearly not intended to be more restrictive than those governing a law enforcement officer operating in a Constitutional Fourth Amendment environment in the United States.
2. Does the fact that the second suspect was a woman have any bearing on the lawfulness of the shoot? Absolutely not. A fourteen-year-old girl with an AK-47 can kill you just as dead as a 24-year-old committed Jihadist. Besides, isn’t the current Administration itching to get females into direct combat units? They can’t have it both ways.
3. Does the fact that 90% of the capture missions did not require the use of deadly force in any way impact the lawfulness of the two Rangers’ use of force? Not in the least. Police officers are assaulted at least 60,000 times a year – 15,500 times with a dangerous and deadly weapon – and they only kill approximately 600 suspects a year. One cannot use metrics to assess the reasonableness of shooting in self-defense. Each case must be judged according to its own merits.
So, the answer to all three questions, above, is an unequivocal “NO!” But, just as in domestic law enforcement shootings, too many commentators make a big deal about an irrelevancy: the now dead suspect was unarmed. Clucking their figurative tongues, they write as if that single issue is entirely dispositive on the question of whether a shooting by police was lawful. It may be one of many factors in the overall analysis or it may be entirely irrelevant to the ultimate lawfulness of the use of deadly force. It certainly is not the single dispositive factor that many assert. And citizens need to be educated about this because it is critically important both for military personnel and cops today in this increasingly violent insurgency that Fifth Column Islamists have started in The West.
In as easy a picture as we can paint, people who follow directions of cops or military personnel who are pointing guns at them are rarely if ever shot. The sad and frequently repeated situation occurs when a suspect or detainee fails to do what they're repeatedly told to do by lawful authorities or an authority figure and then or they make a furtive gesture or engage in some other threatening conduct. As a consequence of that refusal and accompanying conduct they get shot and sometimes killed. Then, the poor devils that shoot them, merely trying to survive and do their jobs, get prosecuted. And this, in a nutshell, is the source of frustration among cops and Soldiers across America and amongst experts in the use of deadly force…"Why are some members of the public siding with those here and abroad who disobey lawful authority figures and place themselves at greater risk by their own freely chosen misbehavior and ill conduct?”
Why indeed! The answer to this question is complex. In addition to commanders’ and their lawyers’ complete malfeasance in understanding the realities of a gun fight, the antecedent causes are the failure of our leadership to succinctly state the strategic purpose of our mission and, concomitantly, the failure of the services’ JAGs to understand their subject matter and mission.
Why Do We Fight ?
Any strategic leader facing that question in World War II would have simply stated, “To defeat Nazi Germany and Imperial Japan on the fields of battle in order to secure America and the World from tyranny!” Every warrior, from a young Private in the 29th Infantry Division on Omaha Beach to the Commander, Supreme Headquarters Allied Expeditionary Forces Europe (General Dwight D. Eisenhower), gets that reason. While, individually, they may be fighting to save their platoon mates; morally, they understood their strategic purpose. After about April 2002 – when American forces accomplished their mission in Afghanistan of destroying al Qaeda’s infrastructure and displacing the Taliban from power – things became muddled at best. Four-star after four-star, whether guest lecturing at one of the Senior Service Schools or briefing Congress, could never succinctly state why we were fighting. If they were delusional enough to believe that we could force 32 distinct and separate tribal entities to become a Jeffersonian Democracy at the point of a gun, then they were delusional enough to allow the prosecution and persecution of fellow Americans like Lieutenant Clint Lorance for ordering his platoon to engage suspected Muj or Special Forces Sergeant First Class Charles Martland for allegedly pushing a Muj policeman suspected of buggering a young boy.
If only we just drank three more cups of tea! Yeah, right. This is insanity, plain and simple. Perhaps it was driven by the greed of contractors after a Thursday informal breakfast with members of the Joint Resource Oversight Committee or by ignorant, lazy politicians who continue to view Islam through the rosy lens of Western Civilization. Anyone who bothered to read David Pryce-Jones’ 1989 classic The Closed Circle: An Interpretation of the Arabs, had an understanding of the history of Islam’s long fight against The West. Moreover, if they simply heeded the warnings of CIA Intel Analysts in the mid-Nineties they would understand that these people do not want to be Westernized … to them, it is anathema to their worldview. The modern Jihadist is a throwback to the Dark Ages. They possess an Apocalyptic, nihilistic worldview that cannot be understood by the normative Western values by which most Americans operate.
Why, then, did we keep sticking our face into the chainsaw, maiming, butchering and killing our Nation’s finest … then, prosecuting young warriors for what, at worst, were tactical errors in judgment? This, from a leadership perspective, is the definition of cowardice. Our senior leaders decided to use a hammer – the military – to conduct precision surgery and were surprised when trauma resulted to the patient! And, refusing to accept responsibility for such trauma, they go after the weakest victim of their perfidy: the warriors at the tip of the spear. In the bluntest terms, this enemy needs to be hunted down, root and branch, and destroyed just as ruthlessly as we did the Nazis and Imperial Japanese forces in WWII.
JAG Misfeasance
From at least early 2001, when the doyen on ROE and International Law for DoD, W. Hay Parks, tried to instill some sanity into the discussion of Self-defense in the Rules of Engagement in his seminal article in Naval Institute Proceedings article, Deadly Force is Authorized, a small but influential cabal of Army Judge Advocates have tried to undermine Parks’ logic and reason. We have personally witnessed Army Judge Advocates from the Judge Advocate General’s Legal Center and School in Charlottesville, Virginia teach such inane concepts as: “Don’t Shoot Fleeing Hostile Actors”, “Only Use Minimum Force (in self defense)”, “Shoot Once and Assess” or the fantastically ridiculous Five S’s of “Shout” “Show” “Shove” “Shoot” (warning)” and “Shoot” (to stop the threat)! Then, they helped construct fantastically confusing Escalation of Force (EOF) cards that were supposed to help a young Soldier discern between a hostile threat and an alleged innocent other. But, more often than not, such directives were used to punish those who allegedly failed to follow them. Such nonsensical legal guidance has no reference point in the Law of Armed Conflict. Instead, it attempts to supplant International Law with overly restrictive guidance meant to do one thing: provide top cover for senior leaders.
Commanders, guided by their ever-present counsel, never once consider the following realities:
1. Junior high school ballplayers practice an average of 400 hours a year at their sport and they still suck! Soldiers, akin to their civilian police counterparts, practice with their weapons approximately 4 hours a year (and most of that is silly qualification courses rather than realistic situational training exercises) and we are demanding NFL-levels of performance? And, even an NFL linebacker will misread a draw play on occasion. This, because that linebacker defaults to his recognition-primed decision-making based on practice. And, no matter how hard people train, the sad fact remains that they will make errors in judgment approximately 13% of the time (seeing a weapon when none is present 9% of the time and not seeing one when one is present 4% of the time).
2. One can’t change a tactical outcome – other than to get more Americans killed – by writing overly restrictive rules. Warriors at the tip of the spear understand this, so they either ignore silly rules and hopefully survive both the encounter and the ensuing investigation or follow them and get senselessly killed. “Don’t Shoot Fleeing Hostile Actors”[2] ignores basic military doctrines of pursuit and domination of the battlespace.
3. Most judge advocates - although well meaning - are simply ignorant in the art of war, yet too may commanders abdicate their responsibility and authority to lawyers to write and train ROE. A few examples from the past 14 years will suffice:
a. Most who have seen American Sniper are familiar with the final scenes in Baghdad where Soldiers are attempting to build a 30-foot concrete wall between Sadr City and the Green Zone. The movie focuses on the SEAL counter-sniper mission, which did occur. What was not captured in the movie was the decision by the 4th ID Brigade Commander, whose Soldiers continued to be killed and wounded by sniper fire, to call in an Apache CAS mission that dropped a few vacant buildings on the Muj snipers. This was a perfectly reasonable and lawful application of force. However, two weeks after the fact, an Army JAG assigned to the Aviation Battalion was reviewing the flight’s videotapes from the encounter. This legal genius, in the cool comfort of her trailer behind the wire, opined that the Hellfire strike was “excessive force.” This ill-founded opinion precipitated a six-week AR 15-6 investigation against the battalion commander conducted by a brigadier general. Then, to add insult to this injury, after the brigadier found the allegation to be unsubstantiated, the Division Commander (ostensibly to cover his ass) still issued a memorandum of reprimand!
b. Every commander ought to know that every weapon or munition issued has undergone an exhaustive legal review at DoD level (most often by the expertise of W. Hays Parks, the aforementioned author of Deadly Force is Authorized). Despite this fact, military snipers and precision riflemen in one theater were temporarily prevented from firing M118LR jacket hollow-point boat tail (like the Sierra MatchKing) ammunition from their weapons because one JAG opined that “the use of hollow point ammunition violates International Law.” We can’t make up this stuff! Had that JAG simply understood that DoD had already opined on this matter: end of story. Moreover, had that JAG understood that the open cannelure at the bullet’s tip was not there to cause grievous and inoperable injury, but rather to simply stabilize it in flight, again: end of story. Instead, as most military lawyers with “inch thick mile wide” expertise do, this JAG endangered our forces’ lives by inserting her nose into matters of which she knew nothing. This ill effect is often enhanced when the JAG offering such nonsense has a Ranger Tab. Too many commanders – and JAG superiors – give too much deference to JAGs with short tabs. As one of our Special Forces friends likes to say, “If you send an asshole through Ranger School, all you will get is an asshole with a Ranger Tab.” ‘Nuff said.
3. A SOF element had developed a TTP of simulating an IED attack by filling a HUMVEE with what looked to be grievously wounded soldiers and placing it smoking within a cleared kill zone. Knowing that Muj ground forces would oft flock to the scene or would conduct “drive-bys” at the site, the SOF team set up snipers on the fake IED site. You guessed it, this successful TTP was shut down when another JAG opined, “the enemy are merely practicing their right of civil disobedience”. Sadly, this incompetent lawyer insinuated himself into a tactical matter of which he was incompetent to assess: not recognizing a military-aged male in civilian clothes running toward an IED site firing an AK-47 or an RPG as a Hostile Actor who needs to be engaged is sheer malfeasance. Yet, time after time, commands have allowed such silliness to have a voice at the table. That voice then becomes a self-licking ice-cream cone that breeds hesitancy and overcautiousness throughout the command.
4. During the Battle of Fallujah I, the Army Commander owning the battle space was convinced by his JAG to write ROE that said that forces in Fallujah could not shoot military-aged males unless they were pointing or firing their weapons at friendly forces! Such insanity is the result both of woeful and willful ignorance of the dynamics of deadly force encounters. At the ground level, it is probably woeful. At TJAGLCS in Charlottesville, it is willful ignorance. For well over a decade, the authors (and others) have attempted to introduce the Judgment-based Engagement Training (JET) Program to the schoolhouse, which would better educate young JAGs to the realities of a gunfight. We consistently have been stiff-armed and even vilified by many in the throne of power. These Tartuffe’s have aligned themselves with their EU brethren, introducing and reinforcing the ridiculous notion that force must be “minimal” and that “Soldiers sometimes have to get shot first” in order to win the COIN fight. This is balderdash, un-American and Unconstitutional. If these nabobs are afraid of an intellectual knife fight on this matter, what good are they in a real one?
So, unless and until the seats of JAG power acknowledge their ignorance - and possible incompetence - in these matters, commanders and other leaders must do all they can to protect themselves and those in their charge from ill-founded investigations and potential criminal charges. To this end, we offer the following advice on how to behave if involved in a use of force situation:
Surviving a Use of Force Investigation
1. It is okay and expected to give a quick SitRep of what has occurred. This is important to give friendly forces situational awareness of enemy whereabouts and TTPs. It is not okay to give a sworn statement to an AR 15-6 Investigating Officer or, worse, a CID Agent without first consulting a competent attorney. And, please do not fall for that ridiculously stupid, “If you don’t have anything to hide, why do you need a lawyer?,” line of thinking. In these cases CID is not your friend and most agents are inexperienced young noncommissioned officers looking to make a case or “title” someone. Remember, even a trout would not get caught if it kept its mouth shut!
2. As a commander or leader, do not let anyone try to question your people or yourself until at least 24 hours post-incident. Contrary to popular belief, the most accurate statement may not be the one taken immediately following this type of incident. “The prevailing practice in law enforcement is to delay the official interview of the officer for some specified period of time after the event. This is strongly encouraged to provide a reflective interval for the officer to allow the distorting effects of flight or fight to dissipate, and for the trained and professional mind to reassert itself and recall events and sequences more accurately.”[3] While this is a matter subject to continuing research, the consensus amongst experts is that officers “experience perceptual and memory distortions during a critical incident, such as an Officer Involved Shooting.”[4] In order to obtain the most accurate recollection of such events, agencies usually allow the officer involved two to three sleep cycles before they undergo formal questioning and make a detailed statement. The consensus is that this produces the best recollection of what are incredibly traumatic events.
The FBI – as well as most Federal agencies that mimic the FBI Shooting Incident Review Team (SIRT) policy including CID – typically do not allow their special agents who are involved in a line-of-duty shooting to be questioned until at least twenty-four (24) hours post-incident. Moreover, their special agents are not to be questioned until they have been afforded the opportunity to speak with counsel, psychologist and chaplain (if they choose). Again, this is not obstructing justice, but rather intended to glean the most accurate account of what transpired. “Research indicates that “traumatic situations” inevitably result in some degree of memory impairment. The research suggests that officers may make more thorough and accurate statements if the interview is delayed at least 24 hours, and they get some sleep in the interim. Sleep helps integrate memories and facilitate both learning and memory integration.”[5]
So, what is good enough for CID, OSI and NCIS Special Agents is good enough for Soldiers, Sailors, Airmen and Marines. Do not be bullied by some badge-waving youngster into forcing yourself or one of your warriors into making a statement. (In full disclosure: a CID Agent once threatened one of the authors with “obstruction of justice” for advising his commander not to make an immediate statement. Rightfully, the author and his commander did not budge.)
3. The advice set forth in the above two paragraphs should be briefed to every single member of a command both prior to deployment and again in theater. Moreover, unless there has been clear and convincing evidence that one of your own has gone off the reservation (like the 25th Infantry Division Soldier that snuck off the compound to murder 13 civilians in town), stand behind your men. One of the best examples of this was what then-Lieutenant General James Mattis, USMC, who, in dismissing the charges preferred against one of his Marines involved in the Haditha case stated: “With the dismissal of these charges you may fairly conclude that you did your best to live up to the standards, followed by U.S. fighting men throughout our many wars, in the face of life or death decisions made by you in a matter of seconds in combat. And as you have always remained cloaked in the presumption of innocence, with this dismissal of charges, you remain in the eyes of the law – and in my eyes – innocent.”
Unfortunately, the likes of Jim Mattis within the force are scarce. The current political environment hastened the departure of such warriors and enhanced the advancement of moral cowards that would gladly throw a subordinate under the bus rather than push back against their evil superiors. We are in desperate straights when the military spends weeks celebrating alternate sexual preferences rather than teaching advanced weapons skills in an attempt to create self-sufficient steely-eyed killers. Whether we can survive this war – and, like it or not, we are at war with a determined enemy – remains to be seen. Regardless of who is our next civilian leader, our military will take years to rebuild. Its leaders would be well served to reevaluate the role and scope of its JAG Corps in future conflicts. Smart and competent attorneys can be a force multiplier for the command, but they must first be weeded from the areas they have grown unconstrained.
Fighting with a Total War Mindset
By whatever name it currently goes by – ISIS, al Qaeda or ISIL – the global, radical Jihadi movement is totally committed to destroying Judeo-Christian Western Civilization as we know and love it. And, the sad fact remains that the United States could kill every last one of them in Syria and wherever they operate if we simply removed the unnecessary encumbering rules of engagement by which our forces currently operate. Three (3) brigade combat teams, with supporting CAS enjoying Air Supremacy, could shortly eliminate ISIS as a fighting force in Syria… if the commanders were more concerned with killing bad guys than they were with winning the hearts and minds of the local populace and prosecuting their own for ROE violations! First of all, we will never win their hearts and minds unless we soundly defeat them. Secondly, unlike Nazi forces in WWII, Jihadi forces have no interest in living peaceably with The West: they need to be soundly thrashed just as Jan Sobieski did at the Gates of Vienna in 1683 or Charles “The Hammer” Martel did at the Battle of Tours in 732.
Illogical and legally unsound arguments abound for reasons why we ought not target Jihadi supporters who are not clearly “Direct Participants in Hostilities” under International Law. In other words, there are those that argue that a man can be a farmer during the day and a bomb-maker at night; so we can’t target him during the day because “he is not directly participating” in hostilities at the time! W. Hays Parks makes short shrift of such silliness in his seminal article in the New York University Journal of International Law and Politics:
Once authorized to commence combat operations and following rules of engagement and the law of war, and thus subject to law of war prohibitions or restrictions previously noted, soldiers are not constrained by the law of war from applying the full range of lawful weapons against enemy combatants and civilians taking a direct part in hostilities.[6] (Emphasis added)
Accordingly, Jihadi extremists – wherever they reside or operate – cannot hide behind the criminal statutes and protections afforded a criminal in a civilian case. It has mystified the authors why we allow non-US persons operating intelligence centers/combat outposts out of mosques in both foreign and domestic locales to be free from kinetic targeting. They are clearly direct participants in a global war being waged by their kinsman. Logic, reason and compassion are not only useless as tools against them, but they scorn such sentimentalities.
As witnessed by their decades of barbarism in the name of religion, this enemy is not playing by playground rules and neither should we. To do so not only unnecessarily exposes our young men and women in uniform to extreme disadvantage and danger, but also ignores the fact that this enemy will only be stopped by overwhelming force of arms. They do not seek economic parity or peaceable coexistence: they believe that we are living in end times. At a minimum, they seek to expand the area of Dar al-Islam (House of Islam) to the parts of the world once under Islamic domination, to include Spain, all of the Maghreb and Levant. Israel must be destroyed in the process. The West has a very narrow window of time to put this destructive genie back into the bottle. Once ISIS (or any equivalent radical Islamist group) obtains nuclear weapons or components to make a dirty bomb, or saturates Western nations with enough immigrants, the fight is as good as lost. Accordingly, we must defeat this foe by total warfare – short in duration, but violent of action – so that Europe and America (and others in the Free World) may live in constructive harmony.
