The hand wringing that goes on in many command and legal circles concerning the application of deadly force in self-defense is perplexing when viewed in light of both the tactical realities of a firefight and the legal authorities available to support a more reasonable application of such force. When faced with an enemy or a declared hostile unit, our troops should be prepared tactically, legally, and mentally to apply the necessary force to defend themselves, address the threat, and carry out the mission. Commanders and their troops are always looking for simple, direct, and easily applied Rules of Engagement (ROE) that answer the fundamental question, "When can I pull the trigger?" Difficulty in coming up with clear answers is one of the most serious deficiencies in the individual tactical training provided to service members deploying to combat zones. These deficiencies are especially troubling in light of two other factors: the asymmetric threat and the absence of a clearly defined and readily identifiable hostile force.
Collectively and individually, the authors have noted the following problems after a service member has been ordered to deploy to a high threat area:
- Deficient legal briefings covering (ROE) and Use of Force authorities. These briefings and "ROE cards" create a risk-averse mentality concerning the authority to use force, and often contain false and misleading rules of law and tactics.
- Tactical training consisting of little more than qualifying with an individual weapon on a static target. Many times, the actual rounds fired total 50 or less.
- Inadequate intelligence briefings or threat analyses are provided despite the fact that al Qaeda and insurgent forces have openly boasted of and successfully carried out numerous attacks, kidnappings, and murders of U.S. and Coalition personnel.
These situations result from a number of factors, including a tendency to follow overly cautious legal and training doctrines and a failure to recognize the asymmetric threat, especially when it concerns the individual service member's response.
Understanding ROE and Use of Force
Too often commanders and legal officers provide overly restrictive interpretations of the ROE as they apply to the use of force in self-defense. For example, in spring 2004, unclassified portions of the Rules of Engagement designated members of Iraqi insurgency groups as hostile forces that could be engaged at will. Instead of taking advantage of this authority to kill bad guys, many subordinate units—to include Marines at Fallujah—layered on overly restrictive ROE. In addition to being unnecessarily dangerous and tactically foolish, such guidance was contrary to the authority provided by higher headquarters. Moreover, it was in direct contravention to the Marines' inherent right of self-defense.
Such dangerous and confusing incongruities have resulted from a number of factors, which include a misunderstanding or lack of knowledge of the tactical dynamics of a firefight; misunderstanding of the laws supporting the use of force, and the tendency of attorneys to "over-lawyer" a particular problem. The practice of protecting one's clients and erring on the side of caution may have merit in the corporate world, but it has no place on the battlefield. "One step back and to the right" has deadly consequences when it results in the diminution of both our operational effectiveness and service members' right of self-defense.
ROE as they apply to self-defense are judgment-based skills, not rules-based skills. Sound legal principles enunciated in our Standing Rules of Engagement and clearly understood at the higher levels of command too often become watered down and muddled by the time they reach the individual manning the rifle. An over-reliance on ROE cards and ROE briefings—too often repeating bad advice—needs to be replaced with sound tactical and situational training exercises combined with robust and empowering statements of the law. Only then will our combat forces have a better understanding of when they should pull the trigger.
Sadly, despite sage warnings from Pentagon official and retired Marine Colonel W. Hays Parks1 and the experience of many other combat veterans, recent ROE cards from Iraq still contain such tactically unsound and legally unnecessary advice such as "Shout, Shove, Show your weapon, Shoot" or legally unsupported and tactically silly advice such as "Use minimum force necessary" and "Don't shoot fleeing hostile actors."
Commanders, too, must step up to the plate and set forth clear support for their subordinates. One such component commander,2 during the early stages of Operation Iraqi Freedom, borrowed from the U.S. Supreme Court's guidance in Graham v. Connor,3 and set forth the following command guidance:
"If a soldier, sailor, airman or Marine of (this command) is faced with a threat of death or serious bodily injury, the use of force—to include deadly force—is authorized. No member of this command will be judged by the clear vision of 20-20 hindsight, but rather by how a reasonable service member would react under similar circumstances—circumstances that may be tense, uncertain, and rapidly evolving."
On at least one reported occasion early in the war in Iraq, this guidance saved the lives of members of the command and other innocents under their protection. As importantly, the commander provided the necessary political "top cover" for one of his soldiers when that individual made the decision to shoot an apparently unarmed Iraqi who was maneuvering a vehicle in a manner consistent with the conduct of a vehicular ambush.
Recently, we have observed this situation surface when U.S. forces fired upon a civilian vehicle in Iraq, killing an Italian intelligence officer who had just rescued an Italian journalist held hostage by insurgents. The 3rd Infantry Division soldiers involved in this incident were cleared of any wrongdoing precisely because early on their commander set forth clear policy guidance that promised that soldiers within that command would be judged on the reasonableness of their actions based on what they knew at the time of the shooting rather than what was learned in hindsight.
Such command support is not always present, however, as witnessed by the travail of Marine 2nd Lieutenant Ilario Pantano, charged with premeditated murder by the Corps at Camp Lejeune, North Carolina, after he killed two Iraqi insurgents in what he insisted was self-defense. While the Corps properly dismissed the charges on 25 May 2005, after conducting a preliminary inquiry pursuant to Article 32 of the Uniform Code of Military Justice, the fear of such command action is palpable throughout the force. We, as ROE/RUF Tactical Training Seminar instructors, are often asked questions such as the following posed by a young infantry officer at Fort Knox, Kentucky during a recent seminar: "Sir, I understand that the law and facts may support my decision to use deadly force, but what guarantee do I have that my chain of command will support me?"
Such concern is often expressed by young soldiers, sailors, airmen and Marines faced with the unenviable task of manning a traffic or entry control point in a hostile area. In January 2004, one of the authors interviewed five soldiers performing just such duties at the then-Coalition Provisional Authority complex in Baghdad's Green Zone. When queried about the circumstances in which deadly force would be authorized, the author received five different responses. More importantly, each soldier expressed fear that, regardless of the lawfulness of their decision, they would be in trouble if they fired their weapons in defense of self or innocent others.
Weapons Qualifications: Time to rethink static targets.
An exploration of the various services' individual weapons qualifications doctrines reveals serious shortcomings, even for those serving in combat units. Of great concern is the dangerously inadequate marksmanship requirement for combat support personnel. By way of example, in the Army, Category II (all non-Infantry, Combat Engineer, or Military Police personnel) soldiers are expected to zero with 18 rounds; practice fire with 40 rounds; record fire with 40 rounds; practice in chemical protective gear with 20 rounds; record fire with 20 rounds in protective gear; night practice with 20 rounds; and night qualify with 20 rounds.4 Annually, then, soldiers will meet their training requirement by shooting a total of 178 rounds of 5.56 mm ball ammunition at stationary targets that are not firing back at them. Often, especially for Reserve and National Guard forces, even this meager annual requirement is not met.
Recognizing that its support personnel have had insufficient weapons training, the Army has recently begun to change its methodology for apportionment so that those assigned to support units receive the same amount of ammunition as their combat arms brethren. But there has been no substantial change to the methodology by which soldiers are trained. With the exception of some recently mandated convoy live-fire exercises and marginal changes to the marksmanship strategy in its Initial Entry Training, the Army has simply doubled the ammunition allocated toward the same type of sterile, static training that has previously been conducted.
All soldiers, sailors, airmen, and Marines deploying to combat zones—regardless of their specialty—should undergo rigorous tactical training,5 to include: shooting on the move, immediate action drills (mounted and dismounted), defensive tactics, and realistic situational training exercises. Service members need to experience a full training progression from static (weapon familiarization and marksmanship) to dynamic (combat reloading and shoot on the move) to inter-active.
Threat Assessments: What are the bad guys doing?
In his book American Soldier, General Tommy Franks laments having "no actionable intelligence" concerning al Qaeda at critical junctures during Operation Enduring Freedom. General Franks' frustration is shared at a unit level on a daily basis by combat support and combat service support forces deploying into hostile fire zones. Often, these troops arrive at an airfield during evening hours, are hustled into transport vehicles, and placed in a convoy to their assigned duty location. They ride off without a clear understanding of the route, security in place, potential hostiles, or what to do if attacked.
Before any convoy operation, in addition to rehearsing vehicle battle drills and performing pre-combat checks, all participants should, at a minimum, have a clear understanding of the following:
- Radio call signs, frequencies, and medical evacuation procedures.
- How to call for assistance.
- Route of travel and alternate routes of travel.
- Up-to-date ROE and reminder of their inherent right of self-defense.
Lastly, the latest intelligence briefings concerning threat identification and the techniques, tactics, and procedures the enemy is using in the region need to be provided to the lowest levels. The bad guys are not wearing al Qaeda T-shirts, so each service member must be regularly trained on threat recognition. Absent a clearly defined hostile force, coalition forces are often behind the action-reaction power curve.
Devote more energy to little stuff . . . like combat-focused training!
RULES OF ENGAGEMENT
1. USE OF FORCE
DEADLY FORCE—You are authorized to use deadly force:
a. When you are faced with an IMMINENT THREAT of:
- DEATH
- SERIOUS INJURY (loss of limb, eye, broken bone, damage to internal organs, life threatening)
b. To protect equipment:
Inherently dangerous assets (weapons, ammo, explosives)
Assets declared by commander
c. Against declared hostile forces. Deadly force is authorized against any group that is declared hostile. They may be attacked on sight when positively identified (PID) (for example, by their clothing/ uniform) as a member of that group, unless they are surrendering or are wounded and no longer resisting. You will be briefed on groups that are declared hostile.
NON-DEADLY FORCE—In situations where deadly force is not authorized but force is necessary to accomplish the mission/protect the force, consider the following:
- VERBAL PERSUASION—[warnings to
- "HALT" or "STOP" and "DO NOT MOVE"
- UNARMED DEFENSE TECHNIQUES—blocking access, riot control formations
- Pepper spray/CS (if issued)
- Military Police working dogs
- Club/use of rifle as club
- Other lawful, non-deadly means
- Display Weapon
OTHER RULES
1. CROWDS: Control crowds, mobs, or rioters interfering with coalition forces or posing a threat with the use of force methods described on the other side of this card.
2. DETAINEES: You may stop and detain persons as required to protect the force/accomplish mission. Handle IAW the 5 Ss. When possible, females will be searched by females.
a. Deadly force is NOT authorized to detain unless the deadly force rules apply or you observe the commission of a major violent crime (murder, rape, armed robbery, violent assault).
b. DETAINEE APPREHENSION CARDS—you MUST fill out a detainee apprehension card with EVERY person you detain.
3. PREVENTING CRIME: You may use force to prevent designated criminal acts (murder, rape, armed robbery, violent assault, looting). Deadly Force may be used to prevent crime that is a threat of death or serious injury. Non-deadly force may be used to prevent other criminal acts.
4. PROPERTY: Do not seize property of others to accomplish your mission unless facing an imminent threat of death or serious injury. Follow contracting procedures to obtain supplies/equipment required for mission accomplishment.
5. MEDICAL TREATMENT: Emergency care may be provided to preserve the life, limb, or sight of noncombatants/civilians regardless of the source of injury. Anyone injured will be triaged, evacuated and treated with members of the force.
NOTHING IN THESE RULES LIMITS YOUR INHERENT RIGHT AND OBLIGATION TO DEFEND YOURSELF AND MEMBERS OF THE FORCES.
"If a Soldier, Sailor, Airmen or Marine of this command is faced with a threat of death or serious bodily injury, the use of force - to include deadly force - is authorized. No member of this command will be judged by the clear vision of 20-20 hindsight, but rather by how a reasonable service member would react under similar circumstances - circumstance that may be tense, uncertain and rapidly evolving."
Due to their ubiquity in the past two decades, commanders will likely demand that legal officers produce an ROE card for nearly every contingency. While the authors are not fans of these cards, the one above is an example of a tactically sound ROE card that can be used across the mission spectrum.
Much has been made recently concerning deficiencies of tactical equipment necessary to safely negotiate today's hostile fire zones. The fact remains that if service members do not possess the fundamental ability to observe, orient, decide, and act appropriately against a perceived threat and, as importantly, a clear understanding of their legal authority to do so, all the fancy equipment in the world will not save lives. Combat-focused training will. True combat-focused training must be relevant and realistic. Not every target that presents itself is hostile and not every situation requires deadly force. Moreover, true combat-focused training should incorporate battlefield stressors that flex service members' cognitively, emotionally, environmentally, and physiologically.
An example of such training that has been successfully implemented by a number of active duty and Reserve units is the ROE/RUF Tactical Training Seminar. The 175th Wing, Maryland Air National Guard (and its own 175th Security Forces Squadron), has taken the lead in developing and promoting this course.6 It has been taught, in various forms, to many Reserve, Guard, and active duty units.
This session familiarizes military attendees with the legal and tactical lessons learned by the U.S. Department of Justice and the civilian law enforcement community concerning the use of deadly force.
The classroom seminar combines a morning briefing on the law, wound ballistics (how and what bullets do to stop an adversary), and the psycho-physiological reactions under high stress tactical environments and shooting situations with two full days of static, dynamic and interactive practical exercises. The dynamic instruction includes defensive tactics and advanced reflexive shooting marksmanship training. The interactive exercises use the Firearms Training System, a scenario-driven video system that trains threat recognition and judgment, similar to the Army's Engagement Skills Trainer, and force-on-force training using Simunitions (plastic, dye-filled rounds fired safely from duty weapons).
Throughout both the dynamic and interactive training regimens, the students experience rapidly evolving deadly force judgment scenarios, where they encounter innocent civilians, friendly forces, and "bad guys," identifiable as such only by their actions. Students assess the potential enemy's behavior, determine whether a threat exists, and learn to react appropriately. The training also helps reinforce bedrock deadly force principles, such as "keep shooting until the threat has ended," rather than tactically unrealistic but familiar ROE card guidance such as "shoot to wound," or "stop firing as soon as the situation permits."
Students are forced to rely upon near-instantaneous judgment — judgment that can only be gained by exposing the student to a variety of complex situations requiring immediate detection, decision, and reaction. Students learn to make these judgments after receiving a legal foundation on use of deadly force citing situations the law already recognizes in Graham v. Connor, 490 U.S. 386 (1989), and earlier common law cases such as Brown v. United States, 41 S.Ct. 501, 502 (1921), which states, "Detached reflection cannot be demanded in the presence of an uplifted knife." Such legal authority is ubiquitous throughout American, English, and most civilized nations' body of jurisprudence—all having roots in the recognition of the right of self-defense. Why, then, are we demanding detached reflection in the presence of an uplifted AK-47?
In an attempt to answer this question, the seminar's classroom briefings debunk many legal and tactical myths concerning this issue. So, in addition to imparting very valuable, easily taught, and understood tactical skills, the seminar focuses on educating commanders and legal officers and other attendees on the law as it relates to using force in self-defense.
This combining of practical, tactical training with legal instruction has proven very successful when employed by federal law enforcement agencies and military Special Mission Units. Frequently in the Army and Air Force, legal "training" is checked off for individuals receiving legal briefings on ROE, given by the JAG, and "tactical" training is checked off by firearms qualification, where operational trainers ensure that personnel are "qualified" with their assigned weapon. Neither type of training adequately prepares personnel for decision-making under stress, nor do they always provide realistic shooting training. The Justice Department has found that combining the legal and tactical elements, while contrary to the "stay in your lane" specialization mentality, provides the best results in both areas. Units' operational trainers and legal officers must work together to quickly incorporate this lesson into military training methodologies.
Lastly, the seminar directly confronts a philosophical change that has occurred over the past four decades concerning attitudes towards weapons and weapons systems. For an entity that calls itself "the Armed Forces," most U.S. military members never develop an intimate and close relationship with firearms. Often to the contrary, service members are taught to fear rather than become masters of their individual weapons. Such fearful attitudes, often the result of Hollywood and media engendered misperceptions about firearms, are reinforced from first-time experiences at initial military training ranges. ROE/RUF Tactical Training Seminar instructors often spend hours assisting students in overcoming this learned fear.
Special Mission Unit operators routinely fire upwards to 500 rounds of small arms ammunition per week. While such ammunition expenditures are clearly not practical or necessary for others, the military needs to increase the amount of ammunition available for every soldier, sailor, airman, and Marine, especially those with a potential to deploy to a hostile fire zone. Until the industrial base can meet the needs of the total force, commanders can—with a little imagination and the force of will—come very close to the live-fire experience using such tools as the Engagement Skills Trainer, Laser-Convoy Counter Ambush Training System, paintball guns, and Simunitions. The latter two are low-cost supplements to live-fire training that enable realistic judgment-based training and provide the added benefit of enhancing individual weapons skills.
Major Bolgiano is currently assigned as Deputy Staff Judge Advocate, 175th Wing, Maryland Air National Guard. He served as Command Legal Advisor, Special Operations Command Central in Iraq and Afghanistan during Operations Enduring and Iraqi Freedom, and with the 82nd Airborne Division in Operation Desert Storm.
Lieutenant Colonel Larsen is an infantry officer currently assigned as Deputy Operations Officer (J3), Joint Special Operations Command. He has held command at the battalion and company levels, and has had combat experience in Afghanistan, Iraq, and Panama.
Master Sergeant Pullar is Law Office Manager of the 105th Airlift Wing, New York Air National Guard, with additional duties as the paralegal liaison to Team I, Air Mobility Command. She also serves as one of two Non-Commissioned Officers-in-Charge of the ROE/RUF Tactical Training Seminar.
1. W. Hays Parks, "Deadly Force Is Authorized," U.S. Naval Institute Proceedings, January 2001, pp. 32-37. back to article
2. Commander, Combined Forces Special Operations Component Command (COMCFSOCC). back to article
3. 490 U.S. 386 (1989) back to article
4. Department of the Army Pamphlet 350-38, Standards in Weapons Training, Chapter 5 (3 July 1997). back to article
5. See also, Master Chief Torpedoman's Mate M.R. Vimislik's comment and discussion in Proceedings, August 2004, at p.12. back to article
6. The 175th Wing, and the authors, owes a sincere debt of gratitude to both W. Hays Parks and retired FBI Supervisory Special Agent John C. Hall for being in the vanguard of the uphill battle to get the Department of Defense to buy off on this life-saving training methodology. back to article<table summary=">