For America’s combat forces in Iraq and Afghanistan – especially sniper teams – a disturbing yet totally unnecessary shadow has been cast over them by tactically and legally ignorant commanders and their lawyers. The end result is our young warriors’ persistent exposure to criminal liability for the perceived “crime” of killing the enemy. While tragic for our warriors as individuals, this trend is a dangerous catastrophe on the strategic level. Never before has America sent it’s young to war with the untenable burden of being judged in the clear vision of 20-20 hindsight over the manner by which they carry out the very job we sent them to do. This phenomenon demonstrates that we may no longer have the morale and legal will to fight a shadowy and adaptive enemy in the West’s worldwide struggle against Islamic extremism.

For years now, nearly every shooting incident in Iraq has been subject to an often criminally focused investigation whereby sworn statements are taken and soldiers are questioned without the benefit of legal counsel, psychologists or even chaplains. Such insanity will only be exacerbated by the recent allegations against the civilian contracting firm of Blackwater Inc. Without evidence of any wrongdoing on the part of Blackwater – absent 17 dead “civilians” killed in a raging firefight – the cacophony of the press is deafening, and the government’s march to the sound of “investigation” is predictable. By all appearances, the Blackwater operators properly defended their State Department principals (interestingly enough, no State Department employee under Blackwater’s protection has perished in Iraq – one might assume they have done their job well). Despite this, the knee-jerk reaction from State has been to ratchet down on the rules of engagement.

The end result of this disturbing trend is, as one soldier recently put it, “Battle Command via 15-6” – referring to Army Regulation 15-6, the rulebook for conducting command-directed investigations. Such investigations often improperly judge the righteousness of a line-of-duty engagement by the end result or the amount of political fallout it generates.

To understand the breadth of the problem one must understand a bit about the law governing killing in warfare. Generally there are two – sometimes distinct – manners by which a military member can lawfully employ deadly force: 1) that person has been declared hostile by competent authority; or 2) in self-defense to a demonstrated hostile intent or hostile act (an act intended to inflict death or serious bodily injury).

Once a positive identification, or PID, is established against a declared hostile, there is no legal obligation to detain, capture or otherwise take less intrusive means of removing that threat. 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 where they lie. 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 conduct a kinetic strike via the air 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 carbine.

For some reason, however, when some judge advocates and commanders look at close-in killing situations, they incorrectly begin to analyze under a self-defense methodology. Or, as apparently Lt. Gen. Frank Kearney recently did in the case of the Special Forces sniper team from Fort Bragg, mistakenly believe a legal obligation exists to effect a capture or detention rather than lethal targeting. No such obligation exists. Moreover, a commander (or, worse, a lawyer) should never substitute their personal notions of reasonableness for that of the warrior on the ground.

In matters of individual or unit self-defense, as spelled out in the unclassified portions of CJCS Instruction 3121.01B; CJCS Standing Rules of Engagement (SROE) and Standing Rules for the Use of Force (SRUF) for U.S. Forces, 13 June 2005, soldiers possess an inherent right of self-defense predicated solely on a reasonable response to demonstrated hostile intent or a 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. Often times, such “reasonable force” may be the force and means immediately available rather than the precise weapon one may wish for in a particular engagement. Paraphrasing former Secretary of Defense Donald Rumsfeld: “You go to war with the Army you have, not the one you wish you had.”

Continually subjecting our forces to the wrong legal standard and improperly focused investigations inevitably results in hesitation and mistrust, as exemplified by the following recent communiqu? from a young noncommissioned officer in the midst of such folly in Iraq:

“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 every day 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 the ‘wrong’ people.”

This insanity is exacerbated by placing ill-informed and unprepared legal advisers down at the lowest echelons of our combat formations. Commanders have been reluctant to authorize the shooting of insurgents clearly emplacing IEDs in roadways late at night; they have prevented the targeting of clearly uniformed insurgents conducting probes of friendly positions; they have failed to authorize counter-fire against clearly identified vehicles driving speeding away from a mortar “point of origin” as they “were not a threat at the time of acquisition.” This is no way to fight and win against a determined enemy. Moreover, culturally, it displays a weakness that is scorned rather than appreciated in the Arab-Muslim culture.

When our soldiers do fire their weapons against a hostile actor, we don’t slap them on the back and offer encouragement, we investigate them. The military is an extremely blunt instrument. We should not try to effect precision surgery with that blunt instrument and then punish the blunt instrument when trauma results to the patient. We demand our young men and woman go to war when and where we send them. The very least we can do is support them when they must make decisions under situations that are tense, uncertain and quickly evolving.

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David Bolgiano, a former paratrooper, is author of “Combat-Self Defense: Saving America’s Warriors from risk-averse Commanders and their Lawyers.” Jim Patterson is a former Special Forces soldier and current operational law attorney. Their opinions do not necessarily represent those of the Department of Defense.

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