Concerning Snipers, Rules of Engagement and General Kearney

BY Herschel Smith
6 years, 11 months ago

Problem Statement

From all appearances, two more soldiers will be in military court defending their actions in battle due to the current rules of engagement – or [mis]application of them.  From the New York Times:

FORT BRAGG, N.C., Sept. 17 — From his position about 100 yards away, Master Sgt. Troy Anderson had a clear shot at the Afghan man standing outside a residential compound in a village near the Pakistan border last October. When Capt. Dave Staffel, the Special Forces officer in charge, gave the order to shoot, Sergeant Anderson fired a bullet into the man’s head, killing him.

In June, Captain Staffel and Sergeant Anderson were charged with premeditated murder. On Tuesday, in a rare public examination of the rules that govern the actions of Special Operations troops in Afghanistan, a military hearing will convene at Fort Bragg to weigh the evidence against the two men, both Green Berets.

The case revolves around differing interpretations of the kind of force that the Special Forces team that hunted and killed the man, Nawab Buntangyar, were allowed to use once they found him, apparently unarmed.

To the Special Forces soldiers and their 12-man detachment, the shooting, near the village of Ster Kalay, was a textbook example of a classified mission completed in accordance with the American rules of engagement. They said those rules allowed the killing of Mr. Buntangyar, whom the American Special Operations Command here has called an “enemy combatant.?

Mr. Buntangyar had organized suicide and roadside bomb attacks, Captain Staffel’s lawyer said.

But to the two-star general in charge of the Special Operations forces in Afghanistan at the time, Frank H. Kearney, who has since become a three-star general, the episode appeared to be an unauthorized, illegal killing. In June, after two military investigations, General Kearney moved to have murder charges brought against Captain Staffel and Sergeant Anderson — respectively, the junior commissioned and senior noncommissioned officers of Operational Detachment Alpha 374, Third Battalion, Third Special Forces Group.

The soldiers’ cases also highlight the level of scrutiny that General Kearney, who also ordered swift investigations into an elite Marine unit accused of killing Afghan civilians last March, has given to the actions of some of the most specialized and independent American troops fighting Taliban and insurgent forces along the border with Pakistan.

Mark Waple, a civilian lawyer representing Captain Staffel, said the charges against his client and Sergeant Anderson carry a whiff of “military politics.? In an interview, Mr. Waple said that General Kearney proceeded with murder charges against the two soldiers even after an investigation by the Army’s Criminal Investigation Command concluded in April that the shooting had been “justifiable homicide? …

On Oct. 13, 2006, when Captain Staffel learned that Mr. Buntangyar could be found in a home near the village where his detachment was guarding a medical convoy, he ordered a seven-man team to investigate the tip.

Driving toward Ster Kalay in two government vans, the Americans called the Afghan national police and border patrol officers to assist them, Mr. Waple said. Mr. Buntangyar had already been “vetted as a target? by American commanders, as an enemy combatant who could be legally killed once he was positively identified, Mr. Waple said.

After the Afghan police called Mr. Buntangyar outside and twice asked him to identify himself, they signaled, using a prearranged hand gesture, to Sergeant Anderson, concealed with a rifle about 100 yards away, Mr. Waple said.

From a vehicle a few hundred yards farther away, Captain Staffel radioed Sergeant Anderson, Mr. Waple said. “If you have a clear shot,? he told the sergeant, “take it.?

Confirming the order, Sergeant Anderson fired once, killing Mr. Buntangyar. The American team drove to the village center to explain to the local residents, “This is who we are, this is what we just did and this is why we did it,? Mr. Waple said …

Also scheduled to testify is Sgt. First Class Scott R. Haarer, a paralegal on General Kearney’s staff last October who, as part of the military justice procedure, signed the forms that charged Captain Staffel and Sergeant Anderson with murder.

In a notarized statement, Sergeant Haarer told defense lawyers last week that he would not have accused the soldiers of any crime if he had known that the Criminal Investigation Command had determined that the shooting was justified.

Analysis & Commentary

We have only the facts before us with which to form judgments, but this case can be instructive irrespective of its final disposition because it wraps a number of elements together in a manner that forces us to face difficult questions on the nature of the conflicts in Iraq and Afghanistan, and conflicts in which we will be engaged in the future.

In our extensive coverage of rules of engagement, the comments and discussion (and ensuing e-mail communications) usually focus first on how heavy-handed rules of engagement creates more insurgents than it kills, then moves on to our dutiful obedience to the Law of Armed Conflict and various international treaties, and then sometimes devolves into commenters asserting certain pejorative things about the intelligence level of either the article author or other commenters.  There are notable and shining exceptions.

Slab at OpFor (an active duty Marine Captain) and I concurred over an article I wrote entitled Recon by Fire, in which I linked YouTube video of combat action in the Anbar Province showing a tactic that was designed to kill known insurgents while also protecting the lives of Marines, while also causing at least one noncombatant casualty.  This video is highly recommended, and is important for understanding the issue of snipers simply for one reason: it involved an offensive rather than a defensive battle space posture.  I will return to this idea later.

It is important to get the origins of the issue correct, including consideration of the cultural milieu and legal backdrop.  In Tennessee v. Garner, 471 U.S. 1 (1985), the SCOTUS (White, Brennan, Marshall, Blackmun, Powell and Stevens, with O’Conner and Rehnquist dissenting) weighed the use of deadly force for the apprehension of criminals:

The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.  It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee.

The decision would change the face of law enforcement across the nation (even for those police departments who had already implemented something like the SCOTUS decision into policy):

Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis.

This legal framework, among other things, has made its way into rules for the use of force for not only the military involved in so-called peacetime operations such as border security, but for federally-employed border guards as well (this is one reason that the border with Mexico will likely never be securred).  The notions contained in the legal framework and rules that this framework has propagated all revolve around two important faces of the same coin: force protection and self defense.  There is little consideration of offensive combat operations.

When Ramadi was particularly problematic the sniper problem was at its zenith.  The two went hand-in-hand.  In Snipers Having Tragic Success Against U.S. Troops, I covered the sniper problem in Ramadi along with potential solutions (also in the comments section): better body armor coverage (i.e., side SAPI plates that hug the body better), satellite patrols, etc.  But body armor can only weigh so much and still be carried by the Marine or Soldier, and the sniper problem must be met head on.  Therefore, I recommended distributed operations and Marine countersnipers in Unleash the Snipers!  But a problem immediately became apparent, restricting the success of Marine snipers.

The military has also tightened rules of engagement as the war has progressed, toughening the requirements before a sniper may shoot an Iraqi. Potential targets must be engaged in a hostile act, or show clear hostile intent.

The marines say insurgents know the rules, and now rarely carry weapons in the open. Instead, they pose as civilians and keep their weapons concealed in cars or buildings until just before they need them. Later, when they are done shooting, they put them swiftly out of sight and mingle with civilians.

There are other conditions in which snipers will be left unmolested.  Michael Totten notes an instance of a sniper domicile being left in place due to its being located on top of a Mosque.  This is not dissimilar from the example Michael Fumento brought back to the states after his embed, in which sinpers were shooting from minarets and left unmolested because it was a Mosque.

Make no mistake about it, snipers are still a problem.  While the Anbar Province is all but pacified, Noah Shachtman of Danger Room was recently in Tarmiyah, where 4-9th infantry is stationed.

We’re in an ugly, overgrown village called Tarmiyah, about 25 kilometers north of Baghdad.  It is an extremely bad place.  A professional-grade sniper has been terrorizing the town, killing two members of the 4-9th Infantry Regiment stationed here, and wounding seven more.  4-9’s Comanche company, primarily responsible for holding the town, has handed out 25 Purple Hearts in just five months.  That’s about a fifth of the men in the company.  To keep from handing out more Purple Hearts, the soldiers here go out as little as possible during the day.  They do their work at night.  And they sometimes take over local houses to crash out, in between missions.

And here we have touched on the root[s] of the problem.  First, countersniper operations are offensive, having nothing to do with immediate self defense, and second, even if self defense is involved, religious locales are avoided and thus are free movement zones for the insurgents.  The rules of engagement focus on self defense and rules for the escalation of force.  And like we have seen with the Soldiers of 4-9th, failure to kill the snipers results in U.S. fatalities.

Assuming the accuracy of the story above from the two soldiers under investigation, i.e., an enemy was positively identified and a U.S. sniper went into action to get the kill, the prosecution of the soldiers involved shows that the rules of engagement – and their specific application by officers sometimes fearful of career-ending prosecution – are a reflection of the conflicted society that created them.

Society believes in the rehabilitative powers of imprisonment, and thus the prisons are overflowing in Iraq, with some prisoners released every day to make room for new detainees.  Society also believes that we are engaged in a gigantic policing operation, where Soldiers and Marines are equivalent to the local police in Anywheretown, U.S.A.  Capturing or detaining the enemy is preferred to killing him, and every chance is afforded him to surrender, many times at the expense of announcing the location and presence of U.S. troops (while Carlos Hathcock rolls over in his grave).

American society does not yet believe in the global war in which we are currently engaged, and the rules and their application mirror this uncertainty.  To some extent this is to be expected from society at large.  But when a General pushes forward with murder charges for U.S. snipers who removed an enemy from the battle space, we have reached a critical point where the enlisted men no longer trust in either their leadership or the system.  However much civilian society may be conflicted over the duties of military personnel, there is no excuse for military leadership to be conflicted.  They are supposed to be above that.

Prior:

  1. The Swing of the Pendulum
  2. Warfare and Lawfare: An Unstable Alchemy
  3. Mosques, Snipers and Rules of Engagement
  4. ROE Experiences in Iraq
  5. Recon by Fire
  6. More Confusion on Rules of Engagement
  7. Rules of Engagement and Pre-Theoretical Commitments
  8. Proceduralized Rules of Engagement Prevent Engagement
  9. More Evidence Against the Rules of Engagement
  10. The NCOs Speak on Rules of Engagement
  11. Politically Correct Rules of Engagement Endanger Troops


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  • gmwashingtondc

    Vote for Murtha/Kearney in ’08…There is hope for the Taliban!

  • gmwashingtondc

    The two Green Berets have been cleared of all charges in the Article 32 case. Announcement on 9-28-07. See Fayetteville Observer article on Sept 28 or 29th. This is the same Kearney that declared the marines in Afghanistan convicted before the investigation was even under way. Said “no evidence of taking on fire” later proved by Jag that they did take on fire. He also appoligized to the Afghan families. These guys are still fighting for their lives. On a side note: The two green berets have been covered on O’Reilly Television program. Check archives online and watch for additional coverage. O’Reilly said he’s going after Kearney. It’s about time somebody did.

  • gmwashingtondc

    Fayetteville Observer 9-29-07 Green Berets Cleared in Article 32

    Kearney

    “The Article 32 investigation accomplished my intent,? Kearney said. “An experienced Special Forces officer provided an independent and thorough review of the facts in this case. The Article 32 investigation resolved the conflicting findings of the two previous investigations and the results demonstrate the effectiveness of the Military Justice System.?
    ********************************
    There were no conflicting findings in the two previous investigations and the Military Justice System failing because it allowed an ***hole like Kearney to file charges in a case where the soldiers were cleared. Kearney is going to try and hide behind this crap… Follow O’Reilly for more coverage on Kearney. He said he’s going after Kearney. Somebody should!

  • http://www.captainsjournal.com/ Herschel Smith

    I am convinced that there is much more to this story. Further, I am going to follow up on the Marine Recon boys who were forced out of A-stan by Kearney.

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You are currently reading "Concerning Snipers, Rules of Engagement and General Kearney", entry #624 on The Captain's Journal.

This article is filed under the category(s) Afghanistan,Distributed Operations,Iraq,Rules of Engagement,Snipers and was published September 21st, 2007 by Herschel Smith.

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