U.S. troops face Afghan enemy too young to kill

[jmm99]

So, what factors have led to what has become a "confusing mess" to some SJAs and LEGADs ?

Frankly, part of the problem lies in international coalitions and organizations. For example, this gem focusing on the Congo:

On such fundamental concerns as self-defense, America may enter into short or long-term alliances, but must never submit to the will of the collective international masses when discerning what constitutes a justifiable act of self-defense. This is because collective thought might reflect collective ignorance as evidenced by the restrictions imposed by the United Nations (UN) that have plagued General Bipin Rawat, an Indian officer who commands UN forces in Democratic Republic of Congo:

Under their rules of engagement, Gen Rawat's forces are always denied the advantage of surprise. They must shout verbal warnings and fire shots in the air before they can engage any rebels. Their operations are not allowed to risk a single civilian casualty. [26]

26. David Blair, “UN commander says hands are tied in Congo,” The Daily Telegraph, London, November 17, 2008.

A second - and probably more deadly example of "collective thought" or "collective ignorance" in the long run - has been the presumptive criminalization of Soldiers and Marines who shoot hostile combatants:

For years now, nearly every line of duty shooting incident in Iraq has been subject to an often criminally-focused investigation whereby sworn statements are taken and service members are questioned without the benefit of legal counsel, psychologists, or even chaplains. While it is necessary to ensure that service members follow the rules and use force appropriately, the perception and reality is that continually subjecting our forces to the wrong legal standard and improperly-focused investigations inevitably results in hesitation and mistrust.

The following October 2007 communiqué from a young Army noncommissioned officer in Iraq highlights this folly:

There is nothing to come of this except making my Soldiers scared to pull the trigger and that's all that this is doing. They see me getting questioned everyday over something as dumb as firing back when fired upon. God only knows what they would be trying to do if we accidentally killed one[of] the ‘wrong’ people. [31]

31. Undisclosed noncommissioned officer (NCO) e-mail to the author, October 12, 2007. The NCO’s duties included providing squad-level escort duties to civilian members of diverse interagency task forces in the Iraqi theater.

and:

The frustration with the tactical – legal – policy interface is highlighted by the following account from an infantry battalion commander recently returned from Iraq:

My battalion along with other elements of my BCT spent six months training up for our OIF rotation. We completed the mandatory training events to include a JRTC rotation preparing us well for “full spectrum” kinetic and non-kinetic operations at the tactical and operational levels. When we would have an escalation of force that involved any shots fired, it was a CCIR to my higher headquarters. Initially the BCT SJA would review each incident and recommend that the BCT Commander issue letters of concern to Soldiers for any and all EOF’s [escalations of force]. This practice confused and frustrated my Soldiers. These young men were working in difficult, challenging, and potentially deadly situations. In my opinion it did not require a legal review for every EOF that had warning shots fired. In every case that I reviewed regarding an EOF they were doing the right thing with all the right intentions, and doing what they needed to do to protect themselves and others in the unit. I was eventually able to get through to the BCT Commander that the SJA was applying a CYA, one size fits all mentality from the comfort of his air conditioned office. These letters of concern from the BCT Commander made my Soldiers and my unit more vulnerable to frustration and hesitation in a dangerous game in which you can’t just stick in a green key and do it over. [33]

33 Colonel Ben Corell, USA, US Army War College Class of 2009, Seminar 4, interview by author, 15 Oct 2008.

The upshot is, at the least, missed military advantages; at the worst, dead Marines or Soldiers:

Sniper teams in Iraq or Afghanistan performing counter IED missions may engage persons conducting overt hostile acts (such as actively emplacing an IED in a roadway surface) or persons demonstrating hostile intent (a lookout using a cell phone while communicating the approach of coalition forces), both clear examples of using force in self-defense. That same team may also be employed to engage a designated hostile force or enemy combatant, and may engage without regard as to whether that hostile force presents an imminent threat. This concept extends to fleeing subjects previously identified as hostile by adjacent friendly forces.

Some commanders have been reluctant to authorize the shooting of insurgents clearly emplacing IEDs in roadways late at night. They have prevented the targeting of insurgents conducting probes of friendly positions; and, have also failed to authorize the kinetic engagement of clearly identified hostile vehicles speeding away from a mortar “point of origin” as they “were not a threat at the time of acquisition.” [34]

34. From the author’s duties, observations and readings concerning diverse classified and unclassified situation reports from both Iraq and Afghanistan from March 2007 until June 2008. At the time, the author was working as Deputy General Counsel, Joint IED Defeat Organization, Counter IED Operational Integration Center (JIEDDO-COIC).

This last point is important to clarify; some less tactically aware judge advocates and commanders have opined that “fleeing hostile actors can’t be engaged.” To so state ignores both the tactical concept of pursuit as well as the hard reality that such a fleeing subject continues to be a threat. To put it even more bluntly: nothing in the law allows a hostile actor to fire a weapon at coalition forces, then drop the weapon and flee without fear of being targeted and killed.

The upshot may be to place Soldiers and Marines in a less safe position than a cop on the homefront:

Even in civilian law enforcement settings, such fleeing hostile actors are well-recognized as a continuing threat that may be engaged. [35]

35. E.g., Chicago Police Department General Order 02-08-03, Section III stating in pertinent part that “[an officer may use deadly force against an escaping subject if the officer reasonably believes]:

a. has committed or has attempted to commit a forcible felony involves the infliction, threatened infliction, or threatened use of physical force likely to cause death or great bodily harm or;

b. is attempting to escape by use of a deadly weapon or;

c. otherwise indicates that he or she will endanger human life or inflict great bodily harm unless arrested without delay.”

[JMM: see also, Tennessee v. Garner, 471 U.S. 1 (1985)]

Added to a failure to recognize well-established self-defense and community-defense concepts from the civilian world, is a misguided attempt to make war more humane - and to give awards for "humanitarian conduct" (an idea which apparently came out of CLAMO):

Some well-intentioned but ill-informed judge advocates have recently opined that

“one of the most effective ways to drive home the importance of EOF to soldiers [such as exercising fire discipline] at traffic control points and on convoys is by giving awards to soldiers who DO NOT SHOOT when the ROE may have allowed them to, thereby saving innocent lives.” [36]

36. United States Army’s Center for Law and Military Operations (CLAMO) e-mail message to deployed legal offices, January 16, 2008.

The intent of this guidance – to save innocent civilian lives – is admirable, but the end result of incorrectly trying to apply the strategic concept of “minimum force” to a tactical situation is to unnecessarily expose military forces to imminent threat of death or serious bodily injury. Recognizing that missions are often ambiguous and dangerous enough, neither good tactics nor the law require one surrender the right and responsibility to exercise individual and collective self-defense.

And so it goes in the battle against one strain of "collective thought"-"collective ignorance"; perhaps better defined as "trained indifference" to the fate of the individual Marine or Soldier.

Regards

Mike