Since 2001, concern over civilian casualties has grown, and, as a result, U.S. military personnel are being investigated nearly every time they fire a shot in a combat zone. While it is legally and morally prudent to require accountability for the use of force, the current legal and investigatory standards for assessing such accountability are subjective at best. Misunderstanding the ethical, legal, and tactical realities of using deadly force creates false or misleading strategic issues with coalition partners and the international community and confusion and hesitation among U.S. military personnel, dramatically increasing risks at the tactical level. And it unnecessarily exposes U.S. forces to administrative and criminal liability.
In 2007, regarding charges stemming from an incident in Haditha, Iraq, then–Lieutenant General James Mattis wrote a two-page letter to a young Marine dismissing the charges against him.1 In part, General Mattis noted:
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.”2
To protect U.S. service members and ensure effective combat performance, the military should study how the Federal Bureau of Investigation (FBI) investigates line-of-duty shootings. It is a fair and accurate process and would be more effective than simply assigning Manual of the Judge Advocate General Article 15-6 investigating officers or appointing an Article 32 investigating officer. Criminally focused investigations should be the last resort—and only in cases when criminal intent (not a bad result) has been demonstrated.
When an FBI special agent uses deadly force in self-defense, before he or she can be questioned, the agent must: (1) be allowed two full sleep cycles; (2) be assigned competent legal counsel who can help the agent articulate the pre-assaultive behaviors and facts leading to the use of force; and (3) be allowed to speak in confidence to a chaplain and a psychologist. This does not happen for U.S. soldiers, sailors, airmen, and Marines, who often are questioned under oath shortly after incidents and without the benefit of counsel, rest, or moral support.
In addition, warriors need competent judge advocate assistance in clearly describing the pre-assaultive behaviors they observed in a firefight or engagement that justified the use of force. It is not enough merely to state, “I was in fear for my life,” because a coward may be in fear for his life without adequate provocation and a fool may never be. Establishing the facts that support a reasonable belief that an imminent threat under the rules of engagement was present requires more. The moral agency of our military personnel and units requires such a clear description and the ability to articulate it.
1. U.S. Marines Corps, U.S. Marine Forces Central Command, “Dismissal of Charge and Specifications in the Case of United States v. Lance Corporal Justin L. Sharratt,” 8 August 2007.
2. The quotes come from Holmes’ speech, “The Soldier’s Faith,” delivered on Memorial Day, 30 May 1895 to the graduating class of Harvard University, and from Brown v. United States, 256 U.S. 335, 343 (1921).
