I just read some articles on your SSgt Wuterich case at Pendleton. I know I am preaching to the choir and do not mean to butt in during this busy time, but panel really needs to understand that PID has no relevance in a line-of-duty, self-defense shooting situation! Marine (and other services) JAGs consistently confuse this; conflating the targeting concept of PID into self-defense shootings. I have appended, below, Chapter 11 out of Jim Patterson's and my new book.
I hope you find it helpful to your client and any future cases. I would be happy ... health permitting ... to assist in any manner.
Commanders and warriors are always looking for simple, direct, and easily applied ROE that answer their fundamental use-of-force question: “When should I pull the trigger?” While general guidelines for upper command levels can be set forth in the ROE Annex of an Operations Order, and even more particular guidance handed out to subordinate echelons via ROE cards, the answer to such a question is almost always incident specific and must be based on the split-second judgment of the individual on the scene. In such situations ROE cards and Escalation of Force (EOF) cards remain nearly useless (and often needlessly dangerous) as they assume a linear linkage in a nonlinear world. Paralleling the problem that critics of effects-based operations have identified--that the “nearly limitless ways that an action might ricochet
through an interactively complex or nonlinear system mean that for all practical purposes, the interactions within the system exceed the calculative capacities for any computer to follow, at least in any meaningful way”--ROE or EOF cards ignore the fact that deadly force situations are complex and not conducive to if-then solutions. ROE cards make poor field expedient toilet paper and even less efficacious legal and tactical guidance. Yet they remain ubiquitous in the modern force. Commanders like them as talismans or proof that they briefed the ROE to their troops and judge advocates like them as evidence of their contribution to the fight. Neither party explores the option of training forces correctly and adequately (more evidence of the violation of Occam’s razor).
There are also recurring misunderstandings by many service members and judge advocates concerning the level and degree of authority needed to engage lawful targets. This misunderstanding and confusion leads to the mistaken belief that the actual status of an individual shot in self-defense must first be ascertained. Too often warriors are briefed that they must have PID (positive identification) before engaging. Such ill-founded beliefs are perpetuated by the repeated use of criminally-focused investigations into what are, in essence, line-of-duty shooting decisions.
Killing another without lawful authority constitutes murder, manslaughter, or negligent homicide. This applies in the military, too. There are several manners by which a military member can lawfully employ deadly force, such as defense of certain classified facilities or property, but the most relevant and prevalent two are discussed here. The first is subject to a target being declared hostile by competent authority and the second is in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces).
Declarations of a hostile force come from the highest levels of government: generally the president and secretary of defense. Such declarations specifically designate an enemy force or group. Now unclassified, members of the Iraqi military, certain paramilitary groups, and designated alphabet soup of terrorist organizations were designated as hostile forces during the initial phase of Operation Iraqi Freedom in 2003.
Against a declared hostile, once PID is established, then there is no legal obligation to detain, capture, or otherwise take less intrusive means in engaging that target. And they are--indeed--a target. 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. Similarly if a tactical operations center can lawfully drop a 2,000-pound laser-guided bomb on that barracks room, then a lone soldier should be able to kill them with his M-4. One need look no further than the furor over the killing of bin Laden to illustrate this. For some reason, however, when some judge advocates and commanders review these close-in killing situations, they become squeamish and mistakenly
analyze them under a self-defense methodology as set forth below.
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, 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, as it matters little if the threat is a hardcore member of al Qaeda or a crazed pizza delivery man, 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. As the marines say, “Shoot them into the ground.”
Misunderstanding these rules breeds unnecessary confusion and hesitation among the force. This confusion results not only in unnecessary risks to our forces but also in our young warriors’ persistent exposure to criminal liability for the perceived crime of killing the enemy. We mistakenly equate American lives with those of the enemy. Again we should take to heart Winston Churchill’s quote, “I refuse to remain neutral between the fire and the fire brigade.”
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 chaplains. While it is necessary for proper discipline to ensure that service members follow the rules and use force appropriately--i.e., no wanton killing of civilian noncombatants as occurred at My Lai--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:
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 [of] the “wrong” people.
Another noncommissioned officer--a sniper--was recently court-martialed over the killing of three Iraqis suspected, among other things, of emplacing IEDs. While he and his team possessed the legal authority to kill the targeted individuals, without understanding their inherent authority, they mistakenly believed they had to plant evidence on bodies after what were in reality legitimate kills. This perception results directly from failing to properly educate our forces on the legal authority extant for making judgment-based shooting decisions and conducting criminally focused investigations on soldiers’ decisions to use force in combat. The sniper was acquitted of the murder charges but convicted of obstruction of justice for planting evidence.
An infantry battalion commander who returned from Iraq in 2008 voiced his frustration with the tactical/legal policy in the following account:
My battalion along with other elements of my BCT [Brigade Combat Team] spent six months training up for our OIF [Operation Iraqi Freedom] rotation. We completed the mandatory training events to include a JRTC [Joint Readiness Training Center] 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 [Commanders Critical Incident Report] to my higher headquarters. Initially the BCT SJA [Staff Judge Advocate] 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 [cover your ass], 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.
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 or who self-identify as being a hostile as when the ROE in force says words to the effect of “all members of al Qaeda in Iraq and ‘those actively assisting them’ can be engaged.” This is exactly what happened to a unit when, due to the tactical situation, they could not immediately engage a subject they witnessed emplacing an IED. They were unable to immediately engage this subject when the bad guy triggered the IED on the unit. However, days later, one of the patrol members saw the same subject in the marketplace. The subject had very distinctive and recognizable facial features. Rapid discussion on the spot led the patrol to let the <I>muj<I> get
away as he “wasn’t currently a threat.” During a discussion with the frustrated legal NCOs of that unit, one of the authors explained that both under the rules of self-defense and the ROE – the fact that terrorist had self-identified himself as a hostile – the terrorist could be killed. The NCO replied, “Yeah, I hear ya, but the command ain’t gonna like this.” Just what was there not to like? See a terrorist, shoot him dead. Simple. But not in the minds of the New Age poseurs we have in command of some units who would otherwise say, "But he doesn't have a weapon"; or "there was no imminence to the threat." Tough. This is war, not a playground game of tag. Yet, too often, this game-of-tag mentality is what passes as legal advice and command judgment in our war on terror.
Some commanders have even 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 (like early probes by Mahdi militia of marine positions in Fallujah) 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.”
This last point is important to clarify as some less tactically aware judge advocates and commanders have said that “fleeing hostile actors can’t be engaged.” To so state ignores at least three legal and tactical realities: the vehicle and occupants clearly identified themselves as hostile by firing mortars at U.S. forces; the concept of pursuit; and 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 and then drop the weapon and flee without fear of being targeted and killed. Even in civilian law enforcement settings, such fleeing hostile actors are well recognized as a continuing threat that may be engaged.
Some perhaps well-intentioned but ill-informed judge advocates have recently said 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.” The intent of this guidance--to save innocent civilian lives--might be admirable in a prayer service, 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. Missions are often ambiguous and dangerous enough; neither good tactics nor the law require a soldier surrender
the right and responsibility to exercise either individual or collective self-defense. You have to question the judgment of anyone who would want to walk a patrol with someone who has been given medals for <I>not<I> firing at the enemy.
Many times, judge advocates assigned to special operations force commands find creative and cutting-edge solutions to perceived legal impediments in order to give the warriors assigned to such commands a better opportunity for mission success. Unfortunately, many times these judge advocates are accused by the JAG superiors of going native. This is supposed to be a pejorative--and in the hidebound depths of the Pentagon one might suppose it is--but judge advocates assigned to such units that don’t go native most likely don’t understand the mission. Moreover they most likely will not achieve the trust and confidence of their fellow warriors within that unit.
As stated by Major General Gary L. Harrell, USA (Ret.), former Deputy Commanding General, U.S. 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.” Too often commanders and judge advocates with little or no true close quarters combat experience attempt to substitute their own notions of reasonableness for the warrior on the scene. The Supreme Court of the United States 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.
In situations that often mirror those encountered by civilian law enforcement, soldiers must be able make split-second deadly force decisions. Despite this tactical reality, they often are exposed to unnecessary and ill-advised legal and operational scrutiny.