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

[JMA]

hear, hear!

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

[Bob's World]

Is it true what they say that the US have more lawyers in Afghanistan than helicopters?

...I'm not ready to laugh about it yet

(though for all my frustrations on this topic with said legad, over all she did a tremendous job and was a great lady (also a good inch taller than me and a trained boxer, so I was always sure to either mind my manners or at least pay attention to if I had room to take a quick step back or not)).

The fact is that the law is a mess for these things, and she was merely representing that mess.

Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."


Really??? Perhaps that is something we should seriously consider. I am resolved that insurgency is a civil emergency and should be addressed as such, with local civil authorities in clear lead, and any military involvement being brought in under the same auspices that we do for any other MSCA event. HN military first, and any foreign military behind and subordinate to that of the HN.

"Sorry, we'd really like to stay and help you with this mess, but the only proper way to do that is illegal, so we'll be going now..."

[jmm99]

is exactly what you describe:

from you
Another example, I got into a discussion on my belief that we were better served by employing legal terms, such as "reasonable suspicion" and "probable cause" to drive engagements over the current vague "Positive ID" that is leading to so many inappropriate engagements under the current ROE and Tactical Directives. "Impossible" "That would imply law enforcement rather than war, and while we are authorized to wage war in Afghanistan, we are not authorized to conduct law enforcement." "We would have to leave if this were a law enforcement matter."

One of the "magic" terms in the PID definitions is a "reasonable certainty".

Now I know what a "certainty" is (probability = 1.0000....); but what is a "reasonable certainty" ? Do we have such a thing as an "unreasonable certainty" - apparently so, else "reasonable certainty" has no juxtaposition.

The term "reasonable certainty" is in fact lifted from civil litigation - as in: "Doctor, do you have an opinion within a degree of reasonable medical certainty." That phrase has neither a legal nor a medical meaning - and to find out, object to the question and voir dire both the lawyer and the doctor for supporting authorities. The doc will say I thought that's a legal term; the lawyer will say I thought that's a medical term - and both will be wrong.

Without due respect for your pugulist distaff LEGAD, her presentations cited by you lack "rigour" (as the Wilf might say). But, that's what happens when her masters attempt to satisfy multiple sets of conflicting LOACs.

The result in fact raises the bar over what would be allowed under a correct law enforcement approach (the paradigm you want), or a correct Laws of War approach (my take - aka the White Bear Construct).

Now, JMA, you may now proceed with your barrister and/or solicitor jokes.

Regards

Mike

[jmm99]

Here is the answer (re: "reasonable certainty") from one of the cases that the Bear and I have followed:

LA Times, IRAQ: To shoot or not to shoot is the question, July 2, 2008

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors - one a lawyer, the other a battalion executive officer - and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled ''Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

So, definition means the difference between a criminal indictment or a valor citation.

LEGADs can spout all they want about international law and international relations; but responsibility 1 should be to the rifleman at the tip of the spear.

Regards

Mike

[jmm99]

My last post touts Dave Bolgiano's book. This one covers his Strategy Research Report at the War College, Bolgiano, Training America's Strategic Corporals (2008), a short 30-page summary of key ROE points and training methodology.

Here are two key points. The first is a declared hostile force, where PID is material (a status determination):

There are two – sometimes distinct – manners by which a military member can lawfully employ deadly force: (1) subject to a target being declared hostile by competent authority or (2) in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces).

Against a declared hostile, once PID is established, then there is no legal obligation to detain, capture or otherwise take less intrusive means. By way of example, a Soldier could walk into a barracks room filled with sleeping enemy combatants who have been declared hostile and shoot them. There is no legal obligation to wake them, capture them or make it a “fair” fight. By direct analogy, if a tactical operations center can lawfully drop a 2,000 lb laser-guided bomb on that barracks room (subject to collateral damage and proportionality analysis), then it is axiomatic that a lone Soldier could kill them with his M-4. For some reason, however, when some judge advocates and commanders review these close-in killing situations, they mistakenly analyze them under a self-defense methodology as set forth below.

The second is self defense, where PID is not material but hostile acts or threats thereof are very material (a situational determination):

In matters of individual or unit self-defense, as spelled out in the unclassified portions of the Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF) for U.S. Forces [30], service members possess an inherent right of self-defense predicated solely on a reasonable response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces). In self-defense situations, PID is irrelevant and proportionality is rarely an issue. Soldiers need to understand that they can use reasonable force to quell such a threat until that threat is over.

30. CJCSI 3121.01B (13 June 2005)

And, emphasizing the right of self-defense in several other quotes:

First, Understand the Law: Self-Defense

"One ought never to turn one's back on a threatened danger and try to run away from it. If you do that, you will double the danger. But if you meet it promptly and without flinching, you will reduce the danger by half. Never run away from anything. Never!" [11]

11. Oracle Homeland Security Solutions, “Leveraging Information Technology to Secure America” (2003), quoting Sir Winston Churchill.

and:

As recently stated by Major General Gary L. Harrell, [37] USA (Ret.), former Deputy Commanding General, US Army Special Operations Command,

"The only tactical solution when confronted with an imminent threat of death or serious bodily injury is to immediately respond with overwhelming force and continue to apply that force until the threat is over.”

37. Major General Harrell made these comments in 2006 in a video-taped interview for the Navy’s Center for Security Forces as it was developing its own Judgment-based Engagement Training for its Riverine Forces. General Harrell formerly commanded Special Operations Command Central during OEF and OIF, 1st Special Forces Operational Detachment-Delta (Delta Force), and at the Company, Troop, and Squadron level commands at that unit.

Too often, commanders and judge advocates with little or no true CQC experience, attempt to substitute their own notions of reasonableness for the warrior on the scene.

The Supreme Court of the United States [38] has consistently recognized this as folly for our domestic police forces,

… such reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight … the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation in circumstances that are tense, uncertain, and rapidly evolving.

38 Graham v. Connor, 490 U.S. 386 (1989).

This is nothing new under the sun in US law - in fact, it is US law (FM 27-10 is still doctrinal).

Calm reflection and legal analysis cannot be imposed in the face of a raised dagger or an AK muzzle.

cont. - next post

Regards

Mike

[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

[davidbfpo]

jmm99,

Two interesting posts for the "armchair" observer. One question, in the US military do the lawyers have to serve in a front line role before a posting to legal adviser etc?

I know British officers who were to serve in the Imperial Indian Army did a year with a British unit and have a vaguer recollection that USMC pilots do a year as a squad leader. Not the same, but the principle is the same - see for yourself beforehand.