Recently, the Secretary of the Navy ordered a comprehensive review of the Navy and Marine Corps Judge Advocate General’s Corps (JAGC). The Army and Air Force JAGC should also be included in such reviews as the issue of virtue – moral courage, competency, self-control and fairness – should be the hallmark of those entrusted with enforcing discipline in the force. In a joint operating environment, the sins or omissions of one service may bleed over onto another. This article focuses on one crucial aspect of competency in that mission: the investigation of those using deadly force in combat. Its resolution becomes a strategic concern both to battlefield success and individual justice.
The authors base their observations and professional opinions on over 90 years of combined service. This service includes command time as a Special Forces Detachment, Battalion and Group Commander in diverse combat zones and multiple combat tours as a Command Judge Advocates for line and Special Operations Forces in Bosnia, Iraq and Afghanistan. All of us have been personally involved in deadly force encounters. This is also based on their experience as peace officers as well as defense experts and counsel in hundreds of use of force cases involving law enforcement and military personnel. The examples of abuse of authority and misapplication of law are legion, but time and space are limited. Accordingly, we have provided exemplars that are merely a tip of the problem’s iceberg.
Since 2001 – with the ever-increasing yet often specious command obsession over purported civilian casualties – America’s warriors are being investigated nearly every time they fire a shot in combat zones. While it is legally and morally prudent to require accountability for using force, the sad reality is that the present legal and investigatory standard for assessing such accountability is subjective at best and frequently rises to the level of outright malevolence at worst. Misunderstanding the ethical, legal and tactical realities of using deadly force creates false or misleading strategic issues with coalition partners and the international community and confusion and hesitation among U.S. military personnel, dramatically increasing risks at the tactical level. And, unnecessarily exposing our force to administrative and criminal liability.
Some commanders argue that so-called “excessive use of force” queers the counter-insurgency mission by alienating civilian populace or creating more insurgents. This seeming dichotomy is a chimera for a number of reasons. First, no commander – and certainly not us – are advocating for a “shoot first, ask questions later” tactic. Conversely, the better we train our forces on threat recognition and response, the less civilian casualties we will have. Also, the enemy appears unconcerned with civilian casualties, desecration of religious or historical monuments and most of the proscriptions of the Geneva and Hague Conventions. And, since WWII, the United States or its Allies have never held them legally responsible for such violations.
While it remains true that command ought to find ways to lessen the possibility of noncombatant casualties, especially in a counter-insurgency (COIN) environment, the inherent right of self-defense always remains. While it is admirable that U.S. forces remain vigilant about the collateral damage effects of ordnance, it remains improper to attempt to limit casualties by restricting the individual’s right of self-defense. No commander worth his salt would knowingly do so, but the corrosive effect of poorly investigating and judging our forces in the clear vision of 20-20 hindsight has the same effect.
These problems are toxic not only to combat effectiveness, but also to individual and unit moral as well as recruiting and retention. At an institutional level such misapplications of the law risks violating the social contract between our government and its citizen warriors. What parent wants to send their child into harm’s way knowing that they might not be judged not by a fair and competent rule of law? Additionally, why has it become the norm for Soldiers, Sailors, Airmen and Marines in combat zones to be subjected to more scrutiny than domestic law enforcement officers receive?[i] This problem must be remedied both for the moral and ethical welfare of our forces as well as the overarching strategic interest of winning future conflicts.
A Soldier’s, Sailor’s Airman’s or Marine’s duty, like that of a police officer, is perilous enough. Investigations of warriors for what are empirically lawful acts simply to placate or to prove to our enemies – who don’t care anyway – that we follow “the rule of law” creates hesitation in situations that should demand the immediate application of force. This unnecessarily places our force at greater risk. As FBI studies have shown, hesitation in the face of a threat unduly increases risk of death or serious injury to our own forces.[ii]
When one of the authors taught in the Department of National Security & Strategy at the U.S. Army War College, it was not uncommon to hear from students coming out of brigade or battalion command in combat that either they or men in their command were investigated by folks that did not have the slightest inkling of the human performance dynamics and other realities extant in a firefight: only that command was upset over a result perceived to be counter to strategic goals.
In one of the cases stemming out of Haditha, the Courts-Martial convening authority, then-Lieutenant General James Mattis (later SECDEF) wrote a two-page letter to Lance Corporal Sharratt dismissing the charges against him.[iii] The relevant portions of General Mattis’ poignant dismissal letter are set forth as follows:
The experience of combat is difficult to understand intellectually and very difficult to appreciate emotionally. One of our Nation’s most articulate Supreme Court Justices, Oliver Wendell Holmes, Jr., served as an Infantryman during the Civil War and described war as an “incommunicable experience.”[iv] He has also noted elsewhere that “detached reflection cannot be demanded in the presence of an uplifted knife.[v]”
Investigations and charges against service members are being unnecessarily subjected to detached reflection in the presence of uplifted AK-47s. Could one imagine such an inquiry resulting from the actions of Easy Company from Band of Brothers fame?
Even if our civilian and military leadership insists on such practices many of those responsible for investigating our warriors post-combat are ignorant of the human performance and tactical dynamics experienced in close quarters combat (CQC) and are therefore ill equipped to judge the conduct of others.[vi] It is not uncommon for command to appoint an officer with little or no combat experience to be an AR 15-6 or JAGMAN Investigation Officer (IO). This leads to the IO substituting their personal notions of reasonableness for the actions of others under situations that are “tense, uncertain and rapidly evolving.”[vii]
– In April 2004, in the Battle of Fallujah I in Iraq, military-aged males who were scurrying around while carrying an AK-47 or rocket-propelled grenade (RPG) should have been unhesitatingly targeted. Such targeting would have been completely consistent with the Rules of Engagement (ROE) in effect at the time, which declared that Iraqi military aged males who were found to be armed while in public were hostile forces that could be targeted immediately. Instead, Command, with Judge Advocate (JAG) impetus and concurrence, wrote supplemental ROE stating that the marines could not fire unless a suspected enemy pointed or fired their weapons at them.[viii] To allow a clearly identifiable enemy the deadly tactical advantage of initiating combat by firing the first shot, which usually follows the pointed weapon by milliseconds, is ludicrous, counter-productive to the mission, and results in higher friendly force casualty rates. As Pogo said, “We have met the enemy and it is us!”
– In 2008, a U.S. Army brigade assigned to the 4th Infantry Division was charged with keeping the peace in east Baghdad, including the notorious Sadr City. While building a wall around portions of the protected area, a number of the brigade’s Soldiers were killed and wounded by enemy sniper fire coming from an abandoned building adjacent to the wall’s construction site.[ix] This scene was depicted in both the movie and book American Sniper. The brigade commander, a seasoned infantry officer, first attempted to attenuate the situation by employing counter-sniper fire to the suspected sniper hides. After a while, tired of missing the enemy sniper and suffering more casualties, this wise commander called in an AH-64 Apache helicopter strike. Six Hellfire missiles razed the abandoned building and quelled the dangerous and deadly sniper fire.
One might think that at least a “hurrah” or “job well done” would be in order. But no, three weeks later, a brigade legal advisor assigned to the aviation brigade to whom the Apaches were assigned reviewed the gun tapes of the mission. Safely and in the cool comfort of her legal trailer inside the wire of a forward operating base, and with her dearth of tactical knowledge, she declared such use of the Hellfire excessive force. The brigade commander and the Apache team endured a month-long investigation led by a General Officer. Ignoring the obvious question, “don’t our generals have anything better to do,” the investigation eventually exonerated the brigade commander. But the question remains, at what cost? Another interesting point apparently lost on the legal advisor and in the ensuing investigation(s) is, “Against whom was the “excessive force” exercised… a building?”[x]
– In the recent fight against ISIS in Syria and Western Iraq, an Army Company Commander ordered his dedicated marksman to fire on a fleeing ISIS fighter immediately after a fire fight.[xi] The Soldier refused to fire, arguing, “Sir, he is no longer a threat.” Besides being an incorrect assessment of the continuing tactical threat, as well as the current ROE, which clearly indicates that the clearly identified ISIS fighter is a “Hostile Actor” and can be targeted regardless of what he is doing, unless he is surrendering or out of combat due to wounds, the Soldier was applying an incorrect authority to kill a positively identified enemy. The commander grabbed the SR-25 out of the Soldier’s hands and personally engaged the fleeing ISIS fighter. But, in these days of extreme scrutiny and prosecutions of our warriors for killing the enemy, the Soldier’s unwillingness to fire is understandable.
– In 2014, a Marine EOD NCO shot a suspect placing an improvised explosive device (IED) just outside the wire at a forward operating base in Afghanistan. It was not a “close call” but a reasonable action in light of a real and imminent threat in accordance with the SROE.[xii] Everyone within the chain of command at the base concurred with the NCO’s decision. However, a closed-circuit TV camera picked up the incident. Miles away senior (O-6 level) Marine commander and judge advocate watched the soundless video footage and “non-concurred” because they substituted their subjective beliefs for the reality on the ground. Our courts and the law have repetitively warned against doing so. This resulted in General Courts-Martial charges for murder being levelled against the NCO. The charges were dismissed after an Article 32 hearing, but not after a Marine was titled (formally arrested, fingerprinted, charged and his name forever in the National Criminal Database as a suspect in a murder case) and put through extreme and unnecessary angst. Unnecessary because had those senior officers acted virtuously, applying competency, justice, self-control and moral courage, this never would have happened.
Such incidents are legion and widespread among combat forces, causing them to often fear the follow-on investigation more than combat engagements. This is antithetical to effective employment of ground combat forces in our current fights. As discussed below, it may well be disastrous in a fight against a peer or near-peer competitor
A Better Way
When a Special Agent assigned to the Federal Bureau of Investigation (FBI) uses deadly force in self-defense, before he or she can be questioned, the agent must: (a) be allowed two full sleep cycles; (b) be assigned competent legal counsel who can help the agent articulate the pre-assaultive behaviors and facts leading to the use of force; and, (c) be allowed to speak in confidence to a chaplain and a psychologist. This is not happening to our Soldiers, Sailors, Airmen and Marines, who are often questioned under oath shortly after incidents and without the benefit of counsel, rest, or moral support. This is done not to obfuscate the truth, rather because peer reviewed studies have shown that memories are much more accurate after such sleep cycles.
Warriors need assistance in clearly articulating the pre-assaultive behaviors extant in a firefight or engagement. It is not enough to merely state, “I was in fear of my life” because a coward may be in fear of his life without adequate provocation and a fool may never be. Therefore, setting forth the facts predicate to underpin a reasonable belief that an imminent threat under the ROE was present requires more. Lastly, the moral agency of our individuals and units require such clear articulation.
The military should study how the FBI investigates line-of-duty shootings as a means of ensuring legal and appropriate use of force while protecting the Soldier and ensuring effective combat performance. It is a fair and accurate process and would be more effective than simply assigning Article 15-6/JAGMAN Investigating Officers or, heaven forbid, an Article 32 officer. Criminally focused investigations should be the last resort, not the first. And, only after criminal intent (not a bad result) is demonstrated.
Until this happens and speaking directly to both commanders and our warriors who may be the subject or target of a use of force investigation: Do not be intimidated by AR 15-6 investigators, CID, NCIS, OSI or anyone else. If you use deadly force in the line of duty, follow these guidelines:
- Avail yourself of switched-on counsel before making a statement, especially a sworn statement. The right to counsel is not only for criminals, it is a right guaranteed for all Americans. It is perfectly reasonable to provide a quick Situational Report (SITREP) to your chain of command. They have a need to know enemy TTPs and a need to provide higher headquarters with situational awareness on the incident. It is not reasonable, however, to question and obtain sworn statements from a Soldier at two in the morning thirty minutes post-incident, particularly when that Soldier is going on their 12th or 13th hour being awake.
A Soldier, feeling guilty or upset about an otherwise lawful use of force, may make self-incriminating, factually incorrect statements. The human mind, after a deadly force encounter, is often encumbered with intrusive thoughts, elation, guilt, and multiple compressed, inaccurate memories. For these reasons alone, it is provident to wait at least forty-eight hours before making a statement.
- Understand the pre-assaultive behaviors of the enemy (or any other threat) and be prepared to articulate them. Knowledge of common enemy TTPs in the current environment leads to sounder decision making in an intense and highly stressful moment in time. A knowledgeable and tactically aware attorney can help articulate these in a sworn statement when the time is appropriate.
- Do not succumb to the arguments of investigators such as, “If you don’t have anything to hide, why not make a statement?” This is a bullying tactic that should be saved for criminals, not service members whose lives were recently endangered by enemy actions. Moreover, if the law gives such a privilege as the right to remain silent to criminals it certainly owes the same deference to the fine Americans making life-or-death decisions in the line of duty.
Absent a paradigm shift in how we train leaders and subordinates to kill prospective enemies, such words remain hollow. A true warrior ethos that celebrates victory over an opponent and rewards self-defense needs to be inculcated in law, training and execution. This is a strategically important mindset that must come from the top down.
Whether engaging terrorists today or peer competitors tomorrow, our success on the battlefield will be based on the willingness of our forces to engage the enemy with force. In order to do so, their fear of being unfairly second guessed by investigators must be removed.
[i] Some may argue that the rules for domestic law enforcement are substantively different that military rules of engagement. This is true when it comes to force-on-force combat, where the only question is positive identification of the enemy. But the argument is false when it comes to interpreting use of force in self-defense under the CJCS Standing Rules of Engagement. Threat identification is the same under both constructs: the only question is “Whether the individual reasonably perceived an imminent threat of grievous bodily harm.”
[ii] Thomas D. Petrowski, “Use-of-Force Policies and Training: A Reasoned Approach,” FBI Law Enforcement Bulletin, October 2002, 25-32
[iii] United States Marines Corps, U.S. Marines Forces Central Command, Dismissal of Charge and Specifications in the Case of United States v. Lance Corporal Justin L. Sharratt, August 8, 2007.
[iv] From Holmes speech, “The Soldier’s Faith,” delivered on Memorial Day, May 30, 1895 to the graduating class of Harvard University.
[v] Brown v. United States, 256 U.S. 335, 343 (1921)
[vi] Robert G. Delaney, “Army Transformation: The Human Condition of Soldiering,” Military Review (May -June 2004): 37, citing U.S. Army Regimental Training Circular 350-1-2, Close Quarters Combat Program of Instruction.
[vii] Graham v. Connor, 490 U.S. 386 (1989), the seminal U.S. Supreme Court case on reasonable of force in self-defense, applied to Title 10 forces in Saucier v. Katz, 533 U.S. 194 (2001).
[viii] 2005 conversation with Colonel James. P., then Command Judge Advocate for a special operations unit that provided tactical overwatch in battle. See infra, Fighting Today’s Wars.
[ix] To gain a glimpse into the intensity of the fighting endured during the building of the wall around Sadr City, see Battle of Sadr City, which first aired on CBS News’ 60 Minutes, 12 October 2008. http://www.cbsnews.com/stories/2008/10/09/60minutes/main4511800.shtml or on Youtube at http://www.youtube.com/watch?v=qGpqXDbkp-M
[x] David Bolgiano and James Patterson, Fighting Today’s Wars, Stackpole 2012.
[xi] As told by the commanding officer in question to author Bolgiano at the United States Military Academy, West Point, New York in April 2016.
[xii] Article 32 UCMJ, Report of Investigation Officer, United States v. Lahmon, LtCol David M. Jones, USMC 8SEP2014.
Colonel Steven “Randy” Watt, USA (Ret.)
Steven R. Watt served in the United States Army and the Utah Army National Guard for a total of 34 years. His was a Special Forces NCO, an Infantry Officer, and as a Special Forces Officer. His wartime assignments included AOB Commander in east central Afghanistan, 2002, Counterterrorism Advisor to the Ministry of Interior, Baghdad, 2006-2007, and J5, JFSOCC-I, Iraq, 2010-2011. COL Watt’s command experience includes Company, Battalion, and Group Command of the 19th Special Forces Group (Airborne). His combat awards include the CIB, BSM-V, BSM (3 OLC), Afghanistan Campaign and Iraq Campaign Medals, and the GWOT Expeditionary and Service Medals. He was a Master Parachutist and a Military Free Fall Parachutist, and a 2010 graduate of the resident US Army War College. COL Watt is the Chief of Police of the Ogden Police Department in Ogden, Utah. His service to the Police Department has spanned 35 years and includes service at all levels of leadership within the Department. His awards include the Department’s Medal of Valor, twice awarded, and numerous others. He holds a Bachelor of Police Science Degree from Weber State University, a Master’s Degree in Business, and a Master’s Degree in Strategic Studies.
Lieutenant Colonel John Taylor, USA (Ret.)
Taylor retired having served as a Judge Advocate for 22 years. He held various assignments as an attorney and legal advisor in Army units across the spectrum of conflict, including in combat. These include serving as the Command Judge Advocate for the First Special Forces Operational Detachment-Delta (Delta Force), the 3d Special Forces Group (Airborne), and Task Force Bowie in Bagram, Afghanistan during the opening stages of the Afghan War from 2001-2002. After retiring from the Army Taylor became a law enforcement officer and served as both a sworn officer and Police Attorney, achieving the rank of second in command of his agency while starting and running what was then the largest digital forensics crime lab in Georgia. He is a Georgia POST certified General, Firearms and EVOC instructor, as well as a Glock certified instructor and armorer. In addition to teaching at the Georgia Public Training Center Police Academy, he was also an adjunct faculty member in the Criminal Justice Department at Armstrong State University, teaching a graduate course entitled “Computer Crime Law.”
Lieutenant David G. Bolgiano, USAF (Ret.)
Bolgiano teaches and writes on the Ethical, Constitutional and Tactical Dynamics of Deadly Force Encounters to diverse military and law enforcement agencies and public interest audiences. He most recently served on faculty in the Department of National Security and Strategy at the U.S. Army War College in Carlisle. He twice-deployed to Afghanistan, Qatar and Iraq as legal advisor to Commander, Special Operations Command Central (SOCCENT) during Operations ENDURING FREEDOM and IRAQI FREEDOM. His previous active duty Army tours include duty with the 82nd Airborne Division during Operations DESERT SHIELD and STORM.
His civilian experience includes duty as a sworn law enforcement officer in Baltimore, Maryland; Senior Attorney, US Drug Enforcement Administration; and, Deputy General Counsel, Joint IED Defeat Organization – Counter IED Operational Integration Center (JIEDDO-COIC) in Northern Virginia. He is currently Of Counselwith the firm of Tully-Rinckey in Washington, D.C. and Maher Legal Services in Chicago.
He earned his Bachelor of Arts (English/Writing) from Loyola University of Maryland; Juris Doctorate for the University of Baltimore School of Law; and, Masters of Strategic Studies from the U.S. Army War College (in-residence). He is also a graduate of Baltimore County Police Department’s High-Risk Entry School and Force Science Institute’s Certification Course.
The author of Combat Self-Defense: Saving America’s Warriors from Risk-Averse Commanders and their Lawyers. He is co-author of Fighting Today’s Wars: How America’s Leaders Have Failed Our Warriors and Virtuous Policing: Bridging America’s Gulf Between Police and Populace. He has been published by: Orbis; Military Review; FBI Law Enforcement Bulletin; Naval Institute Proceedings, Infantry Magazine, University of Baltimore Law Review; The Wall Street Journal, The Washington Times; Maryland Bar Journal and, The Baltimore Sun.
His military awards and decorations include the Bronze Star Medal, Meritorious Service Medal (w/2 Oak Leaf Clusters), Joint Service Commendation Medal, Army Commendation Medal (w/Oak Leaf Cluster), Air Force Commendation Medal, Army Achievement Medal, Joint Meritorious Unit Award, Army Meritorious Unit Award, Armed Forces Expeditionary Medal, Southwest Asia Service Medal (w/2 Service Bronze Stars), Afghanistan Campaign Medal, Iraq Campaign Medal, Global War on Terror Expeditionary Medal, Kuwait Liberation Medal (Kingdom of Saudi Arabia), Kuwait Liberation Medal (Government of Kuwait), United States, German and Republic of China Parachutist Badges.