Deadly Force Is Authorized

Sidebar: Consequences of Compliance?

Overly restrictive and unsuitable rules of engagement handicap and endanger U.S. forces, especially ground troops on peace-support missions. Individual Marines, sailors, and soldiers need to know when they may resort to deadly force to protect their lives.
 
On 6 June 1975, Senator Barry Goldwater (R-AZ) introduced into the Congressional Record the rules of engagement (ROEs) for forces that had operated in the Republic of Vietnam. In doing so, he declared:

I am ashamed of my country for having had people who would have allowed such restrictions to have been placed upon men who were trained to fight, men who were trained to make decisions . . . and men who were risking their lives. . . . I pray . . . such foolish restrictions never be formed again and applied to our troops.1

Senator Goldwater's prayers were not heard. ROEs for U.S. forces on peace-support operations today place greater constraint on individual soldiers, sailors, airmen, and Marines than existed during the Vietnam War. Consider:

• In Bosnia, Special Forces personnel were threatened by a heavily armed mob. The senior soldier present directed his men to run to avoid the confrontation. As they began to run, the senior soldier was struck in the back by a club. Realizing that were he or any of his men to fall, they would be beaten and possibly killed, he drew his pistol and shot his assailant. Although his action clearly was in self-defense, authorities weighed his court-martial for violating ROEs before ordering him out of the area of operations.

• In Bosnia, Serbs armed with nail-tipped clubs assaulted four U.S. soldiers. Two of the soldiers were so severely injured they were discharged with medical disabilities. Although legally entitled to use deadly force, they endured the beatings because the senior soldier present ordered them not to use their weapons to protect themselves. He was awarded a medal for following his ROEs and exercising restraint.

• Following the attack on the USS Cole (DDG-67) in Yemen that severely damaged the ship and killed 17 of her crew, a Navy officer was quoted in The Washington Post as saying he would court-martial any sailor who fired on a boat participating in port support, even if the sailor perceived a threat. This is inconsistent with U.S. law, which authorizes deadly force if there is a reasonable belief of imminent threat of death or serious bodily harm.

These are representative rather than isolated incidents. In addition to frequent and repeated deployments on open-ended missions, overly restrictive ROEs are a key factor in the loss of confidence by company-grade officers and enlisted soldiers and Marines in their senior leaders and in the exodus of good men and women from the military. Worse, operating under bad ROEs invites mission failure, usually with fatal consequences to men and women who deserve better. The Kosovo beatings, the fatal shooting at point-blank range of a U.N. peacekeeper in Sierra Leone in May, and the murder of three U.N. workers in West Timor in September are examples of the risks faced by peace-support forces.

The problem is attributable to several factors.

One Document Does Not Fit All

Although rules of engagement have been with us for some time, their formalization is recent. In 1979, Admiral Thomas B. Hayward, Chief of Naval Operations, directed standardization of the Navy's peacetime maritime rules of engagement. The Joint Chiefs of Staff (JCS) adopted the Worldwide Peacetime Rules of Engagement for Seaborne Forces in 1981, their primary purpose being to protect carrier battle groups from a preemptive strike by the Soviet Navy.

During his tenure as Commander-in-Chief, U.S. Pacific Command, Admiral William J. Crowe Jr. directed that the Joint Chiefs' ROEs apply to all Pacific Fleet forces, including ground forces. Subsequently, as Chairman of the Joint Chiefs, he saw to their application to all forces in the renamed JCS Peacetime Rules of Engagement, adopted 26 June 1986.

General self-defense principles apply to all forces at the major unit or higher level, but applying ROEs written for blue-water naval operations to ground forces at all levels for all missions, or to a U.S. Navy ship in port, is forcing a square peg into a round hole. A ground forces annex was prepared hastily, but it consisted primarily of law of war principles, such as "do not murder prisoners of war" or "looting is prohibited," rather than ROEs.

Following the 17 May 1987 Exocet missile attack on the USS Stark (FFG-31) by an Iraqi F-1 Mirage fighter, the JCS rules of engagement were repromulgated. Their previous language was strengthened to emphasize that "these rules do not limit a commander's inherent authority and obligation to use all necessary means available and take all appropriate action in self-defense of the commander's unit and other U.S. forces in the vicinity." This mandate is repeated throughout the current JCS ROEs. It has not been followed, however, with respect to small-unit and individual self-defense in current operations.

Experience in Operations Just Cause (Panama, 1989-90) and Desert Shield and Storm (Saudi Arabia, Iraq, and Kuwait, 1990-91) made it clear that ground force ROEs needed improvement, particularly with respect to assisting small-unit leaders and individual soldiers, Marines, or sailors in determining when deadly force is authorized. At a post-Desert Storm meeting at the U.S. Army's Center for Law and Military Operations (CLAMO) senior Army and Marine Corps judge advocates improved the ground force annex and recommended that consideration be given to establishing ROEs for self-defense by individual servicemen.

Army and Marine Corps representatives supported the CLAMO recommendations at a JCS ROEs conference in January 1993. The recommendations were accepted, but Navy resistance to acknowledgment of individual self-defense relegated it to the glossary when the JCS Standing Rules of Engagement (JCS SROE) was promulgated on 1 October 1994.2

The problem was again highlighted when, on 17 May 1997, Marines supporting the U.S. Border Patrol in guarding the U.S.-Mexico border shot and killed a Mexican-American boy who had fired in their direction. The investigating officer asked me to determine whether the Marine who fired the fatal shot complied with Joint Task Force Six (JTF-6) rules of engagement. I declined, agreeing with the task force commander's decision not to do so because of his (and my) "inability to place myself in the shoes of the Marines on the ground and to fully understand and appreciate their thought processes while they moved from the point where they were initially fired upon to the point where the fatal shot occurred."

I did agree to review the ROEs and ROEs training, and I found each a recipe for failure. The source for the faulty JTF-6 rules of engagement—reviewed and approved by at least six echelons of lawyers, up to and including the legal counsel for the Chairman of the Joint Chiefs and the Department of Defense general counsel—was the JCS SROE. That document is based on the Charter of the United Nations. The Constitution of the United States, not the U.N. Charter, applies in domestic operations. The 1997 JTF-6 rules of engagement mirrored the poorly drafted, cobbled-together, highly ambiguous, and confusing ROEs being provided ground forces for peace support and other operations worldwide. The JCS SROE did not fit JTF-6 operations, and it does not fit current peace-support operations, particularly at the small-unit or individual level.

In the revised JCS Standing Rules of Engagement promulgated 15 January 2000, individual self-defense is given slightly greater focus, with the admonition that "commanders have the obligation to ensure that individuals within their respective units understand and are trained on when and how to use force in self-defense." That statement stands alone, however, unsupported by tools to assist the commander. The problem remains: the JCS SROE is a poor document for assisting an in-port ship commander or a ground force commander in informing individuals when they may use deadly force to protect themselves and others. The question for the individual soldier, Marine, or sailor remains as it was for U.S. forces in Vietnam, Beirut, Grenada, and Somalia: if a civilian whom I have been trained to respect and protect engages in acts that pose a direct threat of serious bodily harm or death, when may I use deadly force to protect myself? The JCS SROE provides no answer.

Micromanagement

 
Senior leaders who authorize air strikes, naval bombardments, and cruise missile attacks with slight attention to ROEs are for some reason drawn to the fine details of ground force ROEs like moths to a flame. A senior official in the Carter administration sought to require the forces executing the ill-fated April 1980 Iranian rescue mission to shoot to wound. During the Reagan administration, Marines in Beirut were subjected to ROE tampering at all levels, contributing to the deaths on 23 October 1983 of 241 service personnel in the Marine barracks bombing. Personal weapons (pistols only) for U.S. military advisers in El Salvador were specified in a National Security Council meeting. In the opening moments of Operation Just Cause, four SEALs from SEAL Team Four died and nine were seriously wounded in their seizure of Paitilla airfield, and the mission and members of SEAL Team Two in Balboa Harbor were jeopardized, in large measure because of unnecessarily restrictive ROEs. ROEs a carrier battle group commander and his seniors would reject out of hand were imposed from higher level down through the chain of command without so much as a hiccup from the SEALs' intermediate commanders.3

The Clinton administration began with two catastrophes. On 28 February 1993, Bureau of Alcohol, Tobacco, and Firearms agents launched a raid on the Mount Carmel Center, near Waco, Texas. Four agents were killed, as were six members of the Branch Davidian sect. After a 51-day standoff, a federal law enforcement assault resulted in the deaths of the remaining 74 men, women, and children sheltered there. On 3 October 1993, Task Force Ranger engaged in a day-long battle with the forces of Somali warlord Mohammed Farrah Aidid. When it ended, 18 U.S. soldiers and 500 Somali were dead. It was the second time within a year that the national leadership learned the hard way that bad things can happen when force is used. Reality eviscerated administration enthusiasm for Somalia operations, and U.S. troop withdrawal followed quickly.

Chastened, the national leadership conceived the policy of "do no harm"—meaning, harm no one, and let no one be harmed—for operations in which U.S. interests have been neither defined nor articulated. The resultant rules of engagement for the Balkans peace-support operation place the men and women serving there at undue risk while making U.S. forces the butt of jokes. At the American-British-Canadian-Australian Army meeting at Sandhurst in May 2000, the United States was berated constantly for its "ninja turtle" (heavily armed and armored, cowering within its shell) approach to peace-support operations by senior British officers, who suggested that U.S. forces were ineffective as a result of leadership timidity. It might be an unfair characterization of U.S. field commanders, who are constrained by administration-driven ROEs, but the British charges have foundation.

Rules of engagement are defined as "directives issued by a competent military commander which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered." This was altered from the earlier definition that stated "a government may establish" to emphasize the responsibility of the combatant commander and (in theory) to eliminate the Vietnam-era perception that all ROEs come from the National Command Authority. But national-level policy and supervision of peace-support operations have resulted in micromanagement for ground forces far worse than at any time during the Vietnam War. This has hindered development of effective individual self-defense rules of engagement. In the course of the Vietnam War, no soldier or Marine was prosecuted for violation of his ROEs, despite hundreds of confrontations daily with civilians who were potential threats. In current peace-support operations, the threat of prosecution for ROE violation looms large, prompting the view that "if I fire my weapon—even in self-defense and to save my own life—I'm in trouble."

The wide distribution of this e-mail by an anonymous author suggests it represents the perception of many.

Scenario: A soldier on a peace-support operation is walking down the road when he is confronted by a ten-year-old pointing an AK-47 rifle at him.

1. Following his rules of engagement, the soldier radios his platoon sergeant for permission to fire.

2. The platoon sergeant responds, "Wait one," and calls the platoon leader.

3. The platoon leader calls the company commander, who calls the battalion commander, who calls the brigade commander.

4. The brigade commander calls the division G-3.

5. The G-3 puts together a Power Point presentation for the division commander, laying out his options.

6. Following review and approval by the staff judge advocate, the presentation is briefed to the division chief of staff, who sends it back for revision.

7. Once it is approved, the G-3 makes the presentation to the division commander. He calls the corps commander, requesting permission to fire.

8. Division G-3 faxes a copy of the presentation to the corps G-3, who prepares a new presentation to brief the corps commander. The presentation is forwarded to the corps judge advocate, who reviews and approves it.

9. The corps commander is briefed. He accepts his staff's proposal that the soldier should engage the threat but holds clearance while he calls the combatant commander.

10. The combatant commander asks that the briefing be forwarded to him so he can pass it to higher authority.

11. He forwards it by message to the Chairman, Joint Chiefs of Staff, who places it on the schedule for the next tank session, necessitating preparation of a Joint Staff position, clearance by legal counsel to the Chairman, and coordination with the services.

12. Legal counsel to the Chairman discusses the recommended course of action with DoD general counsel and the legal adviser, Department of State, to determine whether a report to Congress consistent with the War Powers Resolution might be necessary.

13. During the JCS tank session, the Air Force and Navy announce they wish a part in the operation, now code-named Operation Return Fire.

14. After considering various options, the Chairman confers with the Secretary of Defense, who instructs the Chairman to prepare a briefing for the National Security Council (NSC). A colonel stays up for a week straight preparing slides and charts for the briefing.

15. At the NSC briefing, the President states that he wants an "eyes on target" assessment before proceeding with Operation Return Fire.

16. Special operations forces are dispatched after two days of planning and coordination. A carrier battle group in the Mediterranean is diverted to provide additional air cover to that being provided from bases in Italy. B-52 bombers at Barksdale Air Force Base, Louisiana, are placed on alert.

17. On reaching the point where the soldier reported the threat, the special operations team finds his bullet-riddled, badly decomposed body, still clutching a hand mike to his ear, looking as if he were waiting for a response to whatever question he asked.
 

Military and DoD civilian lawyers have eschewed federal case law relating to law enforcement use of deadly force because of the natural (and correct) reluctance to involve the military in domestic law enforcement, failing to distinguish between applying it and using its resources for assistance. This is wrong. Law enforcement officers daily face scenarios similar to those faced by the military in peace-support operations and, because this is the United States, the post-shooting litigation record is extensive. Judicial decisions provide a wealth of detail for deciding when resort to force is warranted. With one exception, military lawyers have ignored this valuable resource.5

Lacking a reference point, judge advocates have grasped for straws. Ironically they created ROEs from service deadly force directives, doctrine for military police, or domestic riot-control doctrine—each of which is more restrictive than U.S. case law for use of force by law enforcement authorities.

Many ROEs are based on the level of force continuum (see Figure 1). This continuum may be useful in basic law enforcement education, or for military police responding to a dispute at the Burger King at Camp Lejeune, but it is highly academic and unrealistic. It was to be and should only be used as a training aid, not as a basis for ROEs. The U.S. Supreme Court has made it clear that a law enforcement officer is not required to select the least intrusive alternative, only a reasonable one.6 The level of force continuum when used for ROEs incorrectly infers an obligation to exhaust all other means before resorting to deadly force, even when deadly force is warranted.

In the movie Raiders of the Lost Ark, a sword-wielding assailant threatens hero Indiana Jones. Standing out of range, Indy draws his pistol and disposes of the threat—an act consistent with U.S. law. Applying VEWPRIK or the Five Ss, Indy would have been required to close with his assailant, risking injury or death and giving the assailant an opportunity to take his firearm. In the United States, 9.1% of police officers feloniously killed died at the hands of an assailant using a weapon taken from the officer. The percentage increases markedly when one includes weapons taken from an officer's partner. The lesson of this sad experience has been lost in preparing ROEs.

Figure 1: Sample Rules of Engagement

Source: These and other ROEs are in CLAMO's "Rules of Engagement Handbook for Judge Advocates" (1 May 2000)
The third example in Figure 1 is wrong as a matter of law and common sense. "Minimum deadly force" is an oxymoron, as is "proportionate deadly force." Requirements to "shoot to wound" or to "fire no more rounds than necessary" indicate a serious lack of knowledge of the law, close-quarter marksmanship under stress against a hostile moving target, wound ballistics, and the impracticality of round counting in a gunfight. Wound ballistics expert Martin L. Fackler, MD, states:

The most common reaction to being struck in the torso by a bullet is to show no immediate sign of being hit. . . . [Law enforcement officers] often become confused and sometimes terrified because the person shot continued shooting back at them.

"One shot and stop" may happen in movies but seldom in reality. The contrast between peace-support operations' ROEs and present law enforcement guidelines for use of deadly force is telling:
Military ROE's

Commanders Must Lead

   1. Congressional Record (6 June 1975), pp. S17551-17558, at 17558. (back to article)
   2. The Navy origins of the JCS SROE resulted in opposition to individual self-defense on the theory that the Navy fights as units only. This ignores the Navy Special Warfare community and its missions. As units in peace-support operations extend their footprint by sending out two-man teams, it could be argued that the term unit could be applied to them, resolving this concern. (back to article)
   3. A critical analysis of the SEAL Team Two and Four ROE and missions is contained in LCdr. Michael S. Reilly, USN, "The Rules of Engagement for the Conduct of Special Operations" (thesis, Naval Postgraduate School, December 1996). (back to article)
   4. See, for example, Maj. Karen V. Fair, USA, "The Rules of Engagement in Somalia—A Judge Advocate's Primer," Small Wars and Insurgencies 8, no. 1 (Spring 1997), pp. 107-26. Major Fair's performance of duty was regarded by her superiors as exceptional. Not all units fare as well. (back to article)
   5. The single exception is Capt. David G. Bolgiano, USA, "Firearms Training System: A Proposal for Future Rules of Engagement Training," The Army Lawyer (December 1995), pp. 79-82. (back to article)
   6. Illinois v. Lafayette, 462 U.S. 640 (1983). (back to article)
   7. Department of Treasury (Secret Service) guidelines are similar. In a March incident in Baltimore, a man murdered four people before taking others hostage. Following several days of failed negotiations and threats to kill the hostages, a SWAT team assaulted the hostage site, killing the murderer, who was shot 27 times. The county attorney correctly observed, "When deadly force is warranted, it makes no difference whether a man is shot once or twenty-seven times." (back to article)

The silhouette numbers illustrate the fact that rapid incapacitation of a threat can be expected only with a high velocity shot to the cranial vault or severance of the spinal column (10). An assailant whose heart is destroyed by a shot will have enough oxygen in his brain to continue to function for 10-15 seconds. In a 1986 FBI gunfight, one assailant received a wound described by the medical examiner as "probably nonsurvivable" in the opening seconds. Before succumbing to this and other wounds, he killed two FBI agents and wounded five others, three seriously. This shows the fallacy of "shoot to wound."

Force protection is a responsibility, not a mission. Rules of engagement should not be used to cover up training or other failures. For example, some commanders rely on restrictive ROEs to avoid negligent discharge of firearms. Higher levels fail individual Marines, sailors, or soldiers by not providing adequate ammunition for training so they can learn to handle firearms competently and safely. There are unconfirmed reports of Marines and soldiers purchasing their own ammunition to accomplish annual weapons requalification, the minimum level of firearms training. The Cole investigation is likely to find her crew received little firearms or ROEs training for in-port protection and overly restrictive ROEs to compensate for these shortfalls. Restrictive ROEs that endanger lives should not be used to gloss over such deficiencies.

The FBI deadly force policy begins, "This policy is not to be construed to require Agents to assume unreasonable risks. In assessing the need to use deadly force, the paramount consideration should always be the safety of the Agents and the public." The current JCS SROE—or, if necessary, a new JCS document prepared by designated Navy Special Warfare and Army and Marine Corps infantry representatives—should begin with a similar premise.

U.S. Supreme Court Chief Justice William Rehnquist once commented, "It does this court no good to write rules that run counterintuitive to a law enforcement officer's well-honed sense of survival." Senior leaders, commanders, and ROEs drafters should substitute "servicemanÓ and tattoo this statement on their souls.

The FBI policy also declares, "The reasonableness of an Agent's decision to use deadly force . . . must be viewed from the perspective of the Agent on the scene—who may often be forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving—and without the advantage of 20/20 hindsight." This was the policy followed in Vietnam, with success. No one wants a soldier, sailor, airman, or Marine looking over his shoulder for approval at the time his attention should be on the threat.