Archive for the 'Rules of Engagement' Category

Problem

From Military.com (h/t Andy McCarthy at National Review’s Corner).

A top Taliban commander linked to the deaths of British soldiers has escaped German special forces because they were not allowed to kill him under their rules of engagement.

It highlights growing fears that NATO forces in Afghanistan are not fighting to the same set of rules as each other.

The commander who escaped is known as the Baghlan Bomber after masterminding a 2007 attack on a factory in Baghlan province which killed 79 people.

German special forces recently had him in their sights in Afghanistan.

But he escaped capture by the elite KSK troops and the German government will only let their soldiers fire in self-defence.

The bomber has also organised ambushes against British military convoys.

Assessment

Any review of the standing rules of engagement CJCSI 3121.01A (along with supporting or source documentation, LOAC, LAW, white papers, opinions, etc.) or rules for the use of force CJCSI 3121.02 or the theater-specific rules of engagement for Iraq (Wikileak) brings immediate attention to the position - whether right or wrong, implemented correctly or not - that the combatant may defend himself.

What isn’t apparent is that he can take any offensive action.  This is why General Kearney gave two U.S. snipers such undeserved grief about eight months ago for positively identifying and targeting a Taliban commander (threatening charges of murder against them).  The Taliban commander had not picked up a weapon and targeted the snipers.  After this, we had predicted that the billet of sniper would disappear from the scene in the Army (and maybe Marines).

Lawyers and theoreticians (and some very disconnected Army Generals) wish to connect snipers and distributed operations to the notion of assassinations.  The Congressional Research Service has weighed in on this very thing.

In time of war, assassination appears to be distinguished in some discussions from cases of lawful killing, because the former is carried out in a “treacherous” manner.  “Treacherous” is not defined in the Hague Convention IV, but does not appear to be interpreted to foreclose operations in time of war involving the element of surprise.  However, putting a price on the head of an enemy appears to be regarded by some as an act which would render a resulting killing an assassination, as distinguished from a lawful attack on legitimate military targets, including the enemy chain of command.  A review of historical discussions of assassination suggests that this may be, in part, because by putting a price on the head of an enemy, one could be encouraging treachery by those close to the target.

So putting a price on someone’s head may be interpreted as encouraging “treachery,” but the rules do not appear to foreclose operations in time of war involving the element of surprise.  But this is an interpretation, and without clear direction from command, military leadership reflexively returns to the rules of engagement which do not include any concept of offensive operations.  Self defense is the hub upon which the rules turn.  Snipers and countersnipers are always on offensive maneuvers, having nothing to do with immediate self defense (unless something has gone wrong).

Most NATO forces have approximately the same rules of engagment.  Polish snipers have previously worked under different rules when operating in Fallujah.

Eighteen elite Special Operations snipers hid inside the city, picking targets and reporting back on enemy movements. Polish snipers working alongside U.S. forces had been given less restrictive rules of engagement by their government, said a senior U.S. intelligence official with direct access to information about them. “The Poles could kill people we couldn’t,” he said. For example, he said, American snipers couldn’t shoot unless they saw a weapon in the target’s hands, while the Poles were allowed to fire at anyone on the streets of Fallujah holding a cell phone after 8:00 p.m. “They had an eighty percent kill rate at six hundred yards,” the intelligence official said. “That’s incredible range.”

The work of snipers is roughly the same as was the case here which is why the comparison is being made.  The offending practice is offensive operations.  Thus, no matter who is escaping and how certain one is of the identity of the enemy, if no weapon is being brandished, no shot can be taken.

The Taliban commander lives to kill U.S. or NATO warriors yet another day, and lawcraft wins again over against the proper conduct of war.

Prior: Rules of Engagement

In Concerning Snipers, Rules of Engagement and General Kearney, we discussed sniping being mainly an offensive operation, a notion fairly well removed from the framework of rules for the use of force and rules of engagement which focus on force escalation and allowable responses for self defense and force protection.  The Washington Post published an article today that is sure to turn heads and educe the righteous indignation of the establishment.

A Pentagon group has encouraged some U.S. military snipers in Iraq to target suspected insurgents by scattering pieces of “bait,” such as detonation cords, plastic explosives and ammunition, and then killing Iraqis who pick up the items, according to military court documents.

The classified program was described in investigative documents related to recently filed murder charges against three snipers who are accused of planting evidence on Iraqis they killed.

“Baiting is putting an object out there that we know they will use, with the intention of destroying the enemy,” Capt. Matthew P. Didier, the leader of an elite sniper scout platoon attached to the 1st Battalion of the 501st Infantry Regiment, said in a sworn statement. “Basically, we would put an item out there and watch it. If someone found the item, picked it up and attempted to leave with the item, we would engage the individual as I saw this as a sign they would use the item against U.S. Forces.”

From a tactical standpoint, this would seem to be a fairly dubious approach, meaning that we cannot see a way to gauge success (perhaps an insurgent is picking up the weapons for the purpose of harm to U.S. forces, or perhaps rather than an insurgent, he is the head of a family picking up ammunition for the purpose of use with the single AK-47 he is allowed to have for self and home defense - how would we know?).  However, here at TCJ, we smell a rat.  Will enlisted men and lower level officers go down for programs born and nurtured way above their rank?

In documents obtained by The Washington Post from family members of the accused soldiers, Didier said members of the U.S. military’s Asymmetric Warfare Group visited his unit in January and later passed along ammunition boxes filled with the “drop items” to be used “to disrupt the AIF [Anti-Iraq Forces] attempts at harming Coalition Forces and give us the upper hand in a fight” …

Soldiers said that about a dozen platoon members were aware of the program, and that numerous others knew about the “drop items” but did not know their purpose. Two soldiers who had not been officially informed about the program came forward with allegations of wrongdoing after they learned they were going to be punished for falling asleep on a sniper mission, according to the documents.

Army officials declined to discuss the classified program, details of which appear in unclassified investigative documents and in transcripts of court testimony. Criminal investigators wrote that they found materials related to the program in a white cardboard box and an ammunition can at the sniper unit’s base.

“We don’t discuss specific methods targeting enemy combatants,” said Paul Boyce, an Army spokesman. “The accused are charged with murder and wrongfully placing weapons on the remains of Iraqi nationals. There are no classified programs that authorize the murder of local nationals and the use of ‘drop weapons’ to make killings appear legally justified.”

There is the rat that stunk so badly, served up to us from an “Army spokesman.”  Of course there are no programs authorizing the “murder” of local nationals.  Sniping the enemy is not murder.  The responsible low level officer explained exactly the purpose of the weapons, i.e., as “bait.”  Whether this is an effective approach can be debated (we called it dubious).  But the argument has been framed by the “Army spokesman” in a way that presupposes that no one in higher levels of leadership would have approved this and thus these men concocted the tactic all on their own.  It must be the fault of the lower ranking officers and enlisted men, the “spokesman” implies.

As for placing items near the bodies of alleged insurgents to justify kills, the story gets somewhat murky.

Spec. Jorge Sandoval and Staff Sgt. Michael Hensley are accused by the military of placing a spool of wire into the pocket of an Iraqi man Sandoval had shot on April 27 on Hensley’s order. The man had been cutting grass with a rusty sickle when he was shot, according to court documents.

The military alleges that the killing of the man carrying the sickle was inappropriate. Hensley and Sandoval have been charged with murder and with planting evidence.

As Sandoval and Hensley approached the corpse, according to testimony and court documents, they allegedly placed a spool of wire, often used by insurgents to detonate roadside bombs, into the man’s pocket in an attempt to make the case for the kill ironclad.

One soldier who came forward with the allegations, Pfc. David C. Petta, told the same court that he believed the classified items were for dropping on people the unit had killed, “to enforce if we killed somebody that we knew was a bad guy but we didn’t have the evidence to show for it.” Petta had not been officially briefed about the program.

In The Sniper of Tarmiyah, we advocated distributed operations and latitude for snipers to engage insurgents even if they were not brandishing a weapon or actively engaged in hostilities (this leaves a significant amount of latitude to the shooter and his NCOs who need to be trained to make these judgments).  So under our schema, the “evidence” would never have been necessary and thus would not have been “planted.”  To be clearer, while at TCJ we doubt the effectiveness of a plan that baits insurgents due to lack of certainty of who has been killed, we support the idea of snipers being given latitude to shoot outside of the strictures of self defense.

The Pentagon doesn’t buy into our schema, and so we are left with snipers feeling as though they need to “justify” kills in order to save themselves from prosecution.  In the end, who will pay for this program?

Vela’s father, Curtis Carnahan, said he thinks the military is rushing the cases and is holding the proceedings in a war zone to shield facts from the U.S. public.

“It’s an injustice that is being done to them,” Carnahan said. “I feel like you can’t prosecute our soldiers for acts of war and threaten them with years and years of confinement when this program, if it comes to the light of day, was clearly coming from higher levels. . . . All those people who said ‘go use this stuff’ just disappeared, like they never sanctioned it.”

Certainly not the brass.  Let’s be clear here about what is happening.  In Concerning Snipers, Rules of Engagement and General Kearney, we provided a link to the book White Feather, the authorized biography of Marine Gunnery Sergeant Carlos Hathcock who had 93 confirmed sniping kills in the Vietnam war, more than any other in military history, and who to this day serves as an inspiration from the grave for all new sniper trainees in the Army and Marines.

Carlos Hathcock is the shining example of distributed operations.  He was alone in the field for long periods of time, his decisions were tried and true, his investment in the kill extreme, and his knowledge of the enemy impeccable.  This is the model for sniping, and as a military tactic, it brings risk - and conversely, very high payoff.

While not all snipers will be equivalent to Carlos Hathcock (perhaps none will), the problem is that we are witnessing the end of sniping as a military tactic.  The rules of engagement prevent targeting the enemy in Iraq or Afghanistan if they do not fall within the precise stipulations (e.g., self defense, engaged in hostile acts, etc.).  Within the current framework, we may as well end the sniper schools and rely on standard service rifle training of infantry.  The number of sniping kills due to defensive operations doesn’t justify the expense of the schools.

The military establishment knows that many of the kills by past snipers such as Carlos Hathcock did not meet these stipulations.  They know that there has been a sea change in the cultural acceptability of these necessary military tactics, and use of them - or failure to punish people who use them - could be career-ending for top brass.  In this case, the top brass is running for cover and the lower ranks are left hanging out to dry, even when their plans were approved by top brass.  Carlos Hathcock may have been heroic and an interesting and admirable artifact of military history, but sadly, his day is coming to an end.

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

In 1942, Russia was fully engaged in a battle for its very survival along the Eastern front.  Stalin was demanding that the Allies open a second front in the West.  Britain had tried day bombing, but it had proven too difficult to protect its pilots in the daylight, and many pilots and aircraft were lost.  Neither Britain nor the United States was anywhere near ready to conduct a land invasion of Europe, but both nations might offer such aid as an air attack might bring.

At the end of 1942, the British Chiefs of Staff called for “the progessive destruction and dislocation of the enemy’s war industrial and economic system, and the undermining of his morale to a point where his capacity for armed resistance is fatally weakened.”  No fleet of bombers could yet accurately deliver enough high explosives to raze a city.  But if the bombloads were incendiary, then massed aircraft might combine their destructiveness.

On July 24, 1943, the bombing of Hamburg began.  As noted by Richard Rhodes in The Making of the Atomic Bomb, a flight lieutenant remarks of the scene (pg 473):

The burning of Hamburg that night was remarkable in that I saw not many fires but one.  Set in the darkness was a turbulent dome of bright red fire, lighted and ignited like the glowing heart of a vast brazier.  I saw no flames, no outlines of buildings, only brighter fires which flared like yellow torches against a background of bright red ash.  Above the city was a misty red haze.  I looked down, fascinated but aghast, satisfied yet horrified.  I had never seen a fire like that before and was never to see its like again.

Roads melted, and some people were seen stuck in the melted asphalt, having put their hands out to try to get out, only to get their hands stuck as well.  Many were seen on fire, eventually melting in their own fat.  Eight square miles of Hamburg were completely burned out that night, killing 45,000 Germans.

Here Richard Rhodes is setting up the discussion at the end of the book in which the reader engages in the ethical choice to drop the atomic bomb on Japan, or commit 200,000 men to a land invasion of Japan, possibly losing many or even a majority of them.  This book is a technical, sobering and difficult read, but highly recommended.  It is meant only for the serious thinker.

The pendulum has swung to its apex in the opposite direction.  A recent Washington Times commentary gives us food for thought concerning application of rules of engagement in combat action in Afghanistan.

Now that Marcus Luttrell’s book “Lone Survivor: The Eyewitness Account of Operation Redwing and the Lost Heroes of Seal Team 10″ is a national bestseller, maybe Americans are ready to start discussing the core issue his story brings to light: the inverted morality, even insanity, of the American military’s rules of engagement (ROE).

On a stark mountaintop in Afghanistan in 2005, Leading Petty Officer Luttrell and three Navy SEAL teammates found themselves having just such a discussion. Dropped behind enemy lines to kill or capture a Taliban kingpin who commanded between 150-200 fighters, the SEAL team was unexpectedly discovered in the early stages of a mission whose success, of course, depended on secrecy. Three unarmed Afghan goatherds, one a teenager, had stumbled across the Americans’ position.

This presented the soldiers with an urgent dilemma: What should they do? If they let the Afghans go, they would probably alert the Taliban to the their whereabouts. This would mean a battle in which the Americans were outnumbered by at least 35 to 1. “Little Big Horn in turbans,” as Marcus Luttrell would describe it. If the Americans didn’t let the goatherds go — if they killed them, there being no way to hold them — the Americans would avoid detection and, most likely, leave the area safely. On a treeless mountainscape far from home, four of our bravest patriots came to the ghastly conclusion that the only way to save themselves was forbidden by the rules of engagement. Such an action would set off a media firestorm, and lead to murder charges for all.

It is agonizing to read their tense debate as Mr. Luttrell recounts it, the “lone survivor” of the disastrous mission. Each of the SEALs was aware of “the strictly correct military decision” — namely, that it would be suicide to let the goatherds live. But they were also aware that their own country, for which they were fighting, would ultimately turn on them if they made that decision. It was as if committing suicide had become the only politically correct option. For fighting men ordered behind enemy lines, such rules are not only insane. They’re immoral.

The SEALs sent the goatherds on their way. One hour later, a sizeable Taliban force attacked, beginning a horrendous battle that resulted not only in the deaths of Mr. Luttrell’s three SEAL teammates, but also the deaths of 16 would-be rescuers — eight additional SEALS and eight Army special operations soldiers whose helicopter was shot down by a Taliban rocket-propelled grenade.

“Look at me right now in my story,” Mr. Luttrell writes. “Helpless, tortured, shot, blown up, my best buddies all dead, and all because we were afraid of the liberals back home, afraid to do what was necessary to save our own lives. Afraid of American civilian lawyers. I have only one piece of advice for what it’s worth: If you don’t want to get into a war where things go wrong, where the wrong people sometimes get killed, where innocent people sometimes have to die, then stay the hell out of it in the first place.”

It might have been that firing on the goatherds would have divulged their position to the enemy.  But assuming the accuracy of the scenario given to us above, i.e., it is possible for Luttrell and his team to have killed the goatherds and avoided the combat caused by divulging their position, then a different choice should have been made in this instance.

Another complicating factor is that the Luttrells’s team could only surmise that the goatherds would give away their position.  They could not know with absolute certainty.  In the end, they were right in their suspicion, but either way, the moral of the story is that in such situations certainty is not possible and thus should not be required.

No one wants to see civilians burning in streets of melted asphalt.  Similarly, no one wants to see teams of U.S. forces hamstrung by rules that are made out to be rigid and inflexible when taught to them, but which cannot possibly be applied that way in a broken and complex world.  Latitude and professional judgment should be the order of the day.  A pendulum that isn’t swinging is the best approach.

Postscript: This article has elicited a visceral reaction.  Just to cover a few basics, (1) yes, I know what the LOAC is, (2) no, I am not advocating changing it, or even the written ROE, necessarily, (3) my position is somewhat more nuanced than that, with greater emphasis on judgment during battle, and more discrete judicial and prosecutorial temperament, and finally (4) no, allowing the killing of U.S. troops didn’t “win hearts and minds” in Afghanistan.

This last week saw a significant air strike on a large Taliban gathering in Afghanistan.

The Afghan defence ministry says an air strike on a large Taliban gathering has killed dozens of rebels, with at least 30 civilians wounded and unconfirmed reports of many more killed.

The US-led coalition forces say they had conducted a “precision air strike” against two notorious Taliban commanders meeting in the rebel-controlled and remote area of Baghran district, in the southern province of Helmand.

Afghan defence ministry spokesman General Mohammed Zahir Azimi says the gathering was to execute four people on charges of cooperating with the government, and had attracted several militant leaders including top Taliban military commander Mansour Dadullah.

Mansour was the brother of top Taliban military commander Mullah Dadullah, who was killed by U.S. forces in early May of 2007.  Mansour had apparently taken over for Mullah upon his death.  The Combined Joint Task Force press release contains some interesting words concerning the strike, obviously responding to the allegations that noncombatants were killed.

Coalition forces conducted a precision air strike against two notorious Taliban commanders conducting a leadership meeting in a remote area of the Baghran district, Helmand province today.

Coalition forces gained actionable intelligence on the location of two Helmand-area Taliban commanders and monitored their movements near the village of Qaleh Chah.  During a sizable meeting of senior Taliban commanders, Coalition forces employed precision guided munitions on their location after ensuring there were no innocent Afghans in the surrounding area.  

“This operation shows that there is no safe haven for the insurgents,�? said Army Maj. Chris Belcher, a Combined Joint Task Force- 82 spokesperson.  “It will take some time to determine if both targets were killed.�?

But what if there had been noncombatants in the surrounding area?  Would the air strike still have been conducted?  Would the presence of a single noncombatant have cancelled the mission?  Against the backdrop of questions such as these, Major General Charles J. Dunlap, Jr., weighs in on the potential dangers of lawfare amid warfare (his Washington Times Commentary is entirely reproduced below).

“Is warfare turning into lawfare?” When I posed that question in a 2001 essay for Harvard’s Carr Center, I was expressing concern about the increasing frequency with which international law was being used — and abused — by America’s opponents.

At the time, I was trying to focus on the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting American military power. Make it appear that the United States is fighting in an illegal or immoral way, and the damage inflicted upon the public support the forces of a democracy need to wage war is as real as any caused by a traditional defeat.

Six years later it is clear that lawfare has become a key aspect of modern war. The abuses at Abu Ghraib and elsewhere produced effects more damaging than any imposed by our enemies by force of arms. What makes it especially maddening is that these are self-inflicted wounds; wholly preventable incidents where adherence to the rule law would have avoided the disastrous consequences that still plague America’s war-fighting effort.

Today, another form of lawfare is appearing. It too is a self-inflicted wound, and it is likewise avoidable by merely adhering to the rule of law.

Consider how reports that NATO airstrikes are causing civilian casualties are being handled by the International Security Assistance Force (ISAF) in Afghanistan. In response to queries about a report of such deaths, a spokesman insisted recently that “NATO would not fire on positions if it knew there were civilians nearby.” No doubt this assertion reflects a well-meant effort to prevent the noncombatant losses that every honorable soldier always wants to avoid. It also seems aimed at assuaging populations — both in Afghanistan and in NATO countries — who are understandably concerned when civilians are killed. Each such death is a terrible tragedy.

But this statement does not reflect the law, and in fact could put even more of the truly innocent at risk. First the law. While international law forbids, of course, the direct targeting of civilians, it does recognize that they are incidentally put at risk during otherwise legitimate attacks on combatants.

What the law does require is that the risk to noncombatants not be excessive in relation to the concrete and direct military advantage anticipated. That “military advantage” includes killing terrorists and other enemy fighters who threaten both friendly forces and bonafide civilians.

Clearly, the law calls upon commanders to make very difficult judgments, but nevertheless understands that sometimes the legitimate pursuit of military objectives will foreseeably — and inevitably — cause the deaths of noncombatants. It is important that this tenet of international law be thoroughly understood.

Of course, it is not illegal to establish a policy of “zero tolerance” of civilian casualties even though the law does not require it. Doing so, however, creates unnecessary and often counterproductive results. Among other things, the unrealistic and unachievable expectations produced stimulate a sense of betrayal when such casualties occur, and — despite all efforts — they will always occur in war.

Moreover, foreclosing an attack simply because of civilians in the area may, ironically, condemn many more innocents to be victimized in a future rampage of gunfire, improvised explosive devices or suicide bombing by the terrorists that escape. Though excessive civilian losses must always be avoided, it may very well be more humane approach to kill bad guys when the opportunity presents itself even though some civilian losses may also occur.

Establishing a paradigm of “zero tolerance” for casualties may well come back to haunt us in yet another way. Specifically, it encourages the enemy to do exactly what we do not want them to do: surround themselves with innocent civilians so as to virtually immunize themselves from attack. It creates a sanctuary that the bad guys are not entitled to enjoy, and sends them exactly the wrong message.

International law is the friend of civilized societies and the military forces they field. However, if we impose restraints as a matter of policy in a misguided attempt to “improve” upon it, we play into the hands of those who would use it to wage lawfare against us.

In Recon by Fire, I replied to reporter Brian Palmer (who used the comments section of the article to defend his reporting - as was his right), with the following words:

… from a utilitarian perspective, I am not convinced that in the end softer ROE helps to WHAM. In fact, I would claim that the fact that the ROE have prevented the proper engagement of many insurgents in homes, making homes a safe location for them, has hurt our efforts. Had the U.S. not given quarter, the insurgents would not be making use of them today (see my piece on Air Power in Small Wars).  Also note the awful, horrible situation in Basra today (see Calamity in Basra and British Rules of Engagement). The Brits have summarily made fun of and ridiculed our ROE. Ironically, Anbar is becoming pacified, while Basra has gotten progressively worse and is in the biggest mess today that it has ever seen. Those soft ROE have not worked out so well for the Brits.

In a recent report from Baghdad, Michael Totten briefly opines on the issue of security and what it means to the population.  “Few Westerners think of personal security as a human right, but if you show up in Baghdad I’ll bet you will. Personal security may, in fact, be the most important human right. Without it the others mean little. People aren’t free if they have to hide in their homes from death squads and car bombs.”

The professional counterinsurgency community famously points out the unintended consequences of inadvertent noncombatant deaths resulting from U.S. kinetic operations, i.e., that they could negatively impact winning the hearts and minds of the population.  As we have discussed here before in our coverage of rules of engagement, Dunlap turns this on its head and forces us to ponder the fact that this notion can be carried too far and have the equivalent unintended effect of lack of security, thus losing the battle for the hearts of the people.