SFC Taylor, the Fog of War and Army duplicity

[socal1200r]

Therein lies the rub...according to the article, he did not positively ID the victim as a threat, and did not positively ID this person's intent, before shooting her, which are both violations of the revised ROEs. If this is in fact what happened, then the Army has a case. Of course everyone has the inherent right to self defense, no ROE can take that away. But if his personal safety or the safety of those around him was not threatened by this person, then he's got an uphill battle on his hands. The days of "shoot first, ask questions later" are long gone. How many videos have you seen where the Apache pilot has to ask over and over again that he's cleared to engage against hostiles, just to be sure there are no ROE violations?

[Polarbear1605]

So the question is ....Exactly how is he supposed to establish positive ID? is it a matter of seeing a weapon in a suspects hand? is he suppose to walk up to the lady driving a suspected VBIED and ask? or do we say it was a military necessity to protect wounded? Is the purpose of positive ID, before engaging using the ROI, to protect Afghan citizens or to protect US service men. ROI's talk about a soldiers right to self defense...and any potential threat...are they saying that the ROI is there to protect host nation citizens at the expense of a soldiers right to self defense?? I think "he" did positive ID the person as a threat...hence the shooting. Personally, I think dogma has taken the place of doctrine at the expense of our warriors.

[davidbfpo]

I know it maybe difficult, but if this incident's key features happened in the USA (armed threat context, ambush, new suspects arrive and response) would there be a criminal trial?

[Polarbear1605]

I know it maybe difficult, but if this incident's key features happened in the USA (armed threat context, ambush, new suspects arrive and response) would there be a criminal trial?

I was going to say absolutely...but let me pull back a bit on that. If we assume SFC Taylor was a police offcer ... and he accidently shot a passing civilian there would definitely been an investigation utilizing the US Rule of Law (think the TV series "Law and Order" here)...but, and this is where I think the US military gets it wrong, this incident occured in another country where the US constitution and the Rule of Law does not apply. What does apply is the Laws of War. The law of war has very different principles ...like military necessity that basically says you should not kill civilians but we do kill civilians legally (under the laws of war) all the time with things like drone stikes in Pakistan and in any number of other ways. How do we get away with that? Answer: It was a military necessity. This soldier was operating under a ROE based on the laws of war. Normally they say something like the soldier has a right to self-defense from any threat...but the preception of that threat is left up to him. Based on what I have been hearing from Afghanistan, if a known enemy is not carrying a weapon he can not be IDed as a threat. Seems easiest enough...don't agree with it but... In my mind, the issue is did the soldier preceive the Dr as a threat because she was driving a possible VBIED...I know I would have as long as I was operating under the laws of war. If we assume a scenario where she was driving a VBIED and the soldier did not use his weapon and the car bomb kill him and the wounded, would the commanding officer then say things like..."They died for the greater good"? It is interesting when you ask a militray lawyer what is the difference between the Rule of Law and the Laws of War, they instantly say, there is no difference, they are the same thing. I don't buy that. I also believe that any law of war, combatant on combatant, death can be call murder under the rule of law. For proof of murder under the rule of law, all you need is intent and a body...and on a battle field there is usually plenty of both.

[J Wolfsberger]

It is interesting when you ask a military lawyer what is the difference between the Rule of Law and the Laws of War, they instantly say, there is no difference, they are the same thing.

I not only don't buy that, I'll go further and suggest a. they should be relieved and discharged, and b. that they can't tell the difference is a stunning indictment of legal education.

If we (meaning NATO) are in Afghanistan as international cops intervening in a domestic dispute, then I'm all for pulling out and letting the unhappy couple have at it. If we are there because the former government made the place a safe haven for terrorists, we ended the policy with the regime, and we want to ensure that we don't get a repeat, we need ROEs that reflect war time operations, and we need to get rid of fools who don't know or want to know the difference between war and civil law enforcement.

[socal1200r]

That's why the military should NOT be used for law enforcement. But that's not what's going on in this case. They were reacting to an IED, and the original posting mentions a "seasoned" Army sergeant and a "possible" bombing, yet we know the outcome in this particular instance. I still say, based on what's been reported, the Army has a case, in that he clearly violated the ROEs.

When we did our pre-convoy briefings before going outside the wire in Kirkuk, I made it a point to tell everyone that it's common in the Iraqi culture for men to carry weapons, so that in and of itself did not pose an immediate threat to us. However, if they pointed those weapons at us, that was a threat, and we could engage. Just as when we approached overpasses, it was a standard convoy TTP for our lead and rear gun trucks to unpin their crew-served weapons and point them at whoever was walking or standing on those overpasses.

No arguing it's a fine line between self-defense and being a KIA/WIA statistic. But again, it's hard to win the "hearts and minds" of the locals if we end up killing or wounding them unnecessarily. That's what the ROEs are supposed to help prevent.

[Polarbear1605]

Trying to clarify here…because I am too old and senile for combat zones to observe how this now works…
Based on what you just said…a soldier achieves positive ID of an immediate threat when someone dressed as a civilian puts an AK-47 into their shoulder pointed in the soldier’s general direction …or is just general direction good enough for positive ID of an immediate threat under the existing ROE?
The question now becomes what is the difference between IDing the immediate threat of an AK-47 pointed in your general direction or one driving a VBIED in your general area (ECR) in a county full of suicide car bombers?
Next question…does the ROE, as written, specifically say, “weapon pointed at you” or does it say something more like a soldier has a right of self-defense when an “imminent threat” presents itself to the soldier? Imminent threat, in the laws of war, is described as "instant, overwhelming, and leaving no choice of means, and no moment for deliberation” and applies to both the state and the individual. Generally speaking, I think the “weapon pointed at you part” is a commander’s “dogmatic” interpreted SOP of immediate threat when imminent threat has to be decided at the individual level under the laws of war self-defense rule.
Tactically, this does not work (and I recognize you are agreeing) because we are trying to mix the laws of war and the rule of war and the problem at the strategic level is way worse. For example, you stated:

When we did our pre-convoy briefings before going outside the wire in Kirkuk, I made it a point to tell everyone that it's common in the Iraqi culture for men to carry weapons, so that in and of itself did not pose an immediate threat to us.

(no offense intended here, but when you think about it, at least in my mind, that is like saying we are going to hold mail call until moral improves.)

Under the laws of war anyone who picks up a weapon is a combatant…even if you put it down later you are still a combatant. Once a combatant, the question then becomes, whose side you are on and under the laws of war the principle of distinction is supposed to solve that problem. The enemy, in Afghanistan and Iraq, purposely violates the principle of distinction, in order to hide in the population. The US military (and NATO) is the only organization in the whole wide world that allows citizens to turn themselves into combatants as a step to prove that the rule of law exists in a combat zone. We did this in Iraq and we are doing it in Afghanistan and it is madness. The SFC Taylor case is not only a symptom of mixing the laws or war and the rule of war, but also it demonstrates the enablement of a bad host nation leader with a bad strategic practice of “strategic legalism” (and we are doing it at the expense of our own people). Both at the tactical and strategic level, we are mounting our white horse, pulling our pistol and shooting ourselves in the foot.

[slapout9]

I know it maybe difficult, but if this incident's key features happened in the USA (armed threat context, ambush, new suspects arrive and response) would there be a criminal trial?

No. Police Officers have limited immunity, which means if he was acting lawfully but simply made a mistake he would not face prosecution.