By David French
Monday, December 21, 2015
The car was moving at high speed. It had just broken a
blockade of American and Iraqi forces and was trying to escape into the
gathering dusk. American soldiers, driving larger and slower armored vehicles,
mostly the large and unwieldy MRAPs (mine-resistant, ambush-protected
vehicles), gave chase.
They were intensely interested in the target. Acting on
intelligence that high-value al-Qaeda leaders might be present, a cavalry troop
— working with Iraqi allies — surrounded an isolated village near the Iranian
border. The mission was simple: to search the village and kill or capture
identified members of al-Qaeda. It was the kind of mission that the troopers
had executed countless times before.
It wasn’t uncommon to encounter “squirters” — small
groups of insurgents who try to sneak or race through American lines and
disappear into the desert. Sometimes they were on motorcycles, sometimes on
foot, but often they were in cars, armed to the teeth and ready to fight to the
death. On occasion the squirters weren’t insurgents at all — just harmless,
terrified civilians trying to escape a deadly war.
This evening, however, our troopers believed that the car
ahead wasn’t full of civilians. The driver was too skilled, his tactics too
knowing for a carload of shepherds. As the car disappeared into the night, the
senior officer on the scene radioed for permission to fire.
His request went to the TOC, the tactical operations
center, which is the beating heart of command and control in the battlefield
environment. There the “battle captain,” or the senior officer in the chain of
command, would decide — shoot or don’t shoot.
But first there was a call for the battle captain to
make, all the way to brigade headquarters, where a JAG officer — an Army lawyer
— was on call 24 hours a day, seven days a week. His job was to analyze the
request, apply the governing rules of engagement, and make a recommendation to
the chain of command. While the commander made the ultimate decision, he rarely
contradicted JAG recommendations. After all, if soldiers opened fire after a
lawyer had deemed the attack outside the rules, they would risk discipline —
even prosecution — if the engagement went awry.
Acting on the best available information — including a
description of the suspect vehicle, a description of its tactics, analysis of
relevant intelligence, and any available video feeds — the JAG officer had to
determine whether there was sufficient evidence of “hostile intent” to
authorize the use of deadly force. He had to make a life-or-death decision in
mere minutes.
In this case, the lawyer said no — insufficient evidence.
No deadly force. Move to detain rather than shoot to kill. The commander
deferred. No shot. Move to detain.
So the chase continued, across roads and open desert. The
suspect vehicle did its best to shake free, but at last it was cornered by
converging American forces. There was no escape. Four men emerged from the car.
American soldiers dismounted from their MRAPs, and with one man in the lead,
weapons raised, they ordered the Iraqis to surrender.
Those who were in the TOC that night initially thought
someone had stepped on a land mine. Watching on video feed, they saw the screen
go white, then black. For several agonizing minutes, no one knew what had
happened.
Then the call came. Suicide bomber. One of the suspects
had self-detonated, and Americans were hurt. One badly — very badly. Despite
desperate efforts to save his life, he died just before he arrived at a
functioning aid station. Another casualty of the rules of engagement.
***
Imagine if the United States had fought World War II with
a mandate to avoid any attack when civilians were likely to be present. Imagine
Patton’s charge through Western Europe constrained by granting the SS safe
haven whenever it sheltered among civilians. If you can imagine this reality,
then you can also imagine a world without a D-Day, a world where America’s
greatest generals are war criminals, and where the mighty machinery of Hitler’s
industrial base produces planes, tanks, and guns unmolested. In other words,
you can imagine a world where our Army is a glorified police force and our
commanders face prosecution for fighting a real war. That describes our wars in
Iraq and Afghanistan.
For more than a decade, complaints about the rules of
engagement have bubbled up on soldiers’ message boards, in stray comments —
often by soldiers’ parents — on conservative websites, and in the occasional
article in the mainstream press. Frequently, this comes in the context of
lauding the military for its restraint. Yet despite being such a vital — and
sometimes decisive — factor in a more than decade-long war, the rules of
engagement are still poorly understood, and their impact is largely unknown. As
ISIS continues to grow and its reach expands from the Middle East to Europe,
the United States, and beyond, it’s time to consider the true cost of America’s
self-imposed constraints.
Rules of engagement are separate from — but related to —
the actual law of armed conflict. The law of armed conflict (LOAC) is a
comprehensive, complex body of law developed largely by the Western powers in
an effort to render war more humane. Its principles are relatively simple —
designed to limit the use of force to military targets and to treat captives
with proper care and respect — but have become almost mind-numbingly complex in
application. The Department of Defense’s new Law of War Manual stretches to a staggering 1,176 pages and
purports not just to define general principles but also to govern specific
applications in a granular level of detail. But no soldier, no commander, and
indeed few military lawyers can master these rules in all their complexity. And
so they learn generalities.
In general, the LOAC is now governed by the principles of
necessity, humanity, proportionality, and distinction. The principle of
necessity, to quote the Law of War Manual,
“justifies certain actions necessary to defeat the enemy as quickly and
efficiently as possible.” Humanity “forbids actions unnecessary to achieve that
object.” Proportionality requires that even when actions may be justified by military
necessity, such actions must not be unreasonable or excessive. Distinction
imposes on the parties an obligation to distinguish between military and
civilian targets and to facilitate distinctions by clearly marking military
personnel and military vehicles.
In his introductory letter to the Law of War Manual, Department of Defense general counsel Stephen
Preston declares the law of war to be “part of our military heritage” and says
that “obeying it is the right thing to do.” He further argues that the
doctrines are no impediment to “fighting well and prevailing.” In other words,
these legal doctrines are said to allow American soldiers to fight under the
highest of moral standards and still win wars.
These are noble principles, but unfortunately their
applicability peaked more than a century ago, when warring states in Europe —
exhausted by the Wars of Religion — fought battles on open fields between
militaries wearing the most distinctive of uniforms. Think of the battle of
Waterloo in what is now Belgium or, here in the United States, the battles of
Gettysburg and Chancellorsville. The United States hasn’t fought a conflict
governed by the law of war in almost a century. Indeed, just as the law of war
is part of America’s military heritage, so is the modern concept of “total war”
— a nation mobilizes its full resources to destroy not just the military of an
opposing country but also its very capacity to wage war.
America’s enemies, moreover, have consistently and
flagrantly disregarded the laws of war. Arguably, the United States has not
fought a nation that substantially complied with the LOAC since it squared off
against the Germans in the trenches of Western Europe in World War I. Instead,
both the regular armies (Nazis, Japanese, North Koreans, Chinese, and North
Vietnamese) and the insurgencies (Viet Cong, Taliban, and al-Qaeda) have
brazenly violated the law at every turn.
The modern result is a military farce. American forces
play by the rules while our enemies exploit those same rules to limit our
freedom of action, create sanctuaries where they can rest and rearm, and then
launch international propaganda campaigns when our painstaking targeting proves
to be the least bit imprecise.
Yet — and here’s the crucial point — through their rules
of engagement, American soldiers don’t just comply with the law of war. They go
beyond the requirements of the LOAC to impose additional and legally
unnecessary restrictions on the use of military force. Rules of engagement
represent true war-by-wonk, in which a deadly brew of lawyers, politicians,
soldiers, and social scientists endeavors to fine-tune the use of military
force to somehow kill the enemy while “winning over” the local population even
as the local population is in the direct line of fire.
Defenders of the rules of engagement often speak as if
they represent nothing more than military common sense — after all, wouldn’t it
be better if American soldiers killed only insurgents? Don’t civilian deaths
inflame the population? General Stanley McChrystal famously told his troops in
Afghanistan that they should spend 95 percent of their time “building
relationships” and “meeting the needs” of the Afghan people. Only 5 percent
should be spent fighting the Taliban.
In establishing these priorities, McChrystal was
purporting to apply the counterinsurgency principle of “protecting the
population,” but it is difficult to protect a population when the rules of
engagement grant the enemy enormous freedom of movement and access to civilians
and civilian sites. By imposing restrictive rules of engagement, McChrystal
(like commanders before and since) was making it more difficult for his troops
both to clear the Taliban from towns and villages and to hold territory against
inevitable counterattacks. Counterinsurgency is always long and painful, but
when troops are unable to clear and hold territory, they can’t truly enter the
important “build” phase, in which soldiers transition from constant combat to
supporting local allies and building local militaries in an environment
relatively free of threat.
Thus, rather than learning and applying the true laws of
war, soldiers are taught an absurd distortion of them — rules that have grown
more restrictive throughout the War on Terror, culminating most recently in the
Obama administration’s reported decisions in the air war against ISIS to leave
known military targets intact for fear of inflicting even a single civilian
death.
While the precise rules of engagement in any given
theater of operations tend to be classified, their general parameters are well
known and give American soldiers the option of using force only in the face of
a “hostile act” or “hostile intent,” or when an enemy fighter has been
“positively identified.” Once the enemy is engaged, the rules then govern the
types of weapons that may be used, how they may be used, where they may be
used, and the various levels of command that can authorize the use of each kind
of weapon. So unless a soldier is using his personal weapons system to engage
an enemy who is actively firing on him, there is all too often confusion and delay
on the battlefield. Sometimes troops must consult lawyers even during active
firefights. The results are often grim. Americans die.
***
The intelligence was solid. Multiple, reliable sources
had revealed the time and location for the meeting of an al-Qaeda leader with
an operational cell specializing in improvised explosive devices (IEDs). The
location was a village in Diyala province, north of the town of Balad Ruz. The
time was just after noon on Friday. But there was a problem — a big problem:
The meeting was in a mosque, and the al-Qaeda leader was the imam.
While tribal leaders pleaded for American forces to
strike, Army lawyers were writing legal memos, sending requests for permission
to raid the mosque (complete with legal arguments) up the chain of command. The
clock ticked as the command deliberated. Finally, the word came: Permission
denied. The potential secondary effects of a raid — complete with possible
visuals of American soldiers storming a mosque — outweighed the benefits of an
attack.
But there are also effects of not acting. Days later, an
American patrol was attacked by a massive, remote-detonated IED. A Humvee
reinforced with extra armor was blown into the air. Four Americans died. One
soldier miraculously escaped, but with crippling, life-altering injuries. The
IED cell had struck again.
The effects continued. Within weeks of the IED strike,
the cell ambushed another American patrol — this time with elements of the
al-Qaeda group firing from, yes, a mosque. One American was seriously injured,
and the resulting firefight lasted 36 hours, inflicting massive damage. Much of
the village was destroyed as American and al-Qaeda troops traded fire, locked
in house-to-house combat. The rules of engagement saved a mosque but destroyed
a village — and likely four more American lives.
***
Talk to combat veterans and the stories like this will
come pouring out, often variations on the same theme: We knew where the enemy
was, but we couldn’t pursue him. And when we fought him, we couldn’t kill him.
Bing West, a retired Marine infantry officer, the author
of multiple books on the War on Terror, and a journalist who has embedded over
two dozen times with troops on the ground in Iraq and Afghanistan, believes the
rules of engagement often rob American soldiers of their military advantage.
With body armor, ammunition, and other gear weighing in excess of 90 pounds,
infantry can’t “press home attacks,” West says. “Fire and maneuver does not
exist, so troops have to apply massive firepower.” Yet the rules block access
to the firepower needed to win engagements.
Few engagements show this reality more starkly than the
battle of Ganjgal, featured in the book West co-authored with Medal of Honor
recipient Dakota Meyer, Into the Fire.
Members of Meyer’s small team of Marine advisers to an Afghan-army unit walked
into a Taliban ambush and soon found themselves pinned down, unable to
effectively return fire or safely retreat. In prior wars — indeed, earlier in
the Afghan War — this was exactly the time when Marines could call for
artillery support or an air strike and use the American military’s immense
firepower advantage not only to save their own lives but to destroy the
attacking enemy force.
But not this time. Under the rules of engagement, the
directive was clear: “Do not employ ‘air-to-ground or indirect fires against
residential compounds, defined as any structure or building known or likely to
contain civilians, unless the ground force commander has verified that no
civilians are present.’” Marines watched F-15E Eagles circle, impotently.
Artillery was silent. In the meantime, Meyer launched a desperate effort — with
Army captain Will Swenson — to find and rescue his lost comrades. Meyer rescued
Afghan allies and fought — sometimes hand to hand — to reach his team, only to
find it was too late. His friends, his brothers, were dead.
As West notes, “you cannot fight a major battle with the
current rules of engagement.” Some units were so paralyzed in their ability to
mount offensive operations that they were reduced to rolling outside of their
base and waiting to be fired upon. Only then was it truly clear that they could
respond, though not with the full power at their disposal, and so long as civilians
were likely present, they were often prohibited from responding even with the
precision-guided weapons that make the American military theoretically the
deadliest in the world.
In Iraq and Syria, American pilots have watched as ISIS
fighters moved freely among civilians, and they’ve held fire rather than bomb
ISIS oil trucks that are funding the jihadist war, out of concern that some of
the truck drivers might not be jihadists. In one notorious incident, pilots
dropped leaflets to warn of an imminent attack and made fake bombing runs to
try to clear the area of civilians. Indeed, the fake bombing run is common
enough that insurgents now understand that “fly-bys” can be a signal not of
imminent doom but rather of safety. After all, if they were in real danger, the
bomb would have already dropped. By some reports, up to 75 percent of sorties
end without dropping bombs, and West reports that some pilots fear
court-martial if they don’t adequately question a ground controller’s request
for a strike.
Here’s the final irony of our concern for the laws of war
and civilian casualties: Our rules of engagement not only create an additional
incentive for enemy law-breaking, they ultimately lead to mass-scale civilian
casualties at the hands of unconstrained jihadists.
Fully aware of American restrictions, enemy fighters not
only refuse to wear uniforms, they often do their best to blend in with the
civilian population, eschewing distinctive dress, armbands, or any other
insignia that brands them as members of a terrorist militia. Rather than
congregate in isolated outposts, they cluster in mosques, around hospitals, and
even in private homes. While such tactics are frequent in guerrilla warfare,
they are neither legal nor moral, and our jihadist opponents have reached
appalling lows even by the rough and brutal standards of insurgencies. During
my deployment in Iraq, I watched on live feed as a fleeing insurgent picked up
a small child and carried him as a human shield to escape pursuing forces. I’ve
seen al-Qaeda cells hold meetings in the courtyards of farmhouses while
surrounded by young children. And so they live to fight — and kill — again.
Civilians in jihadist-held areas are shot, stabbed,
crucified, burned alive, beheaded, and thrown from tall buildings. When they
take new cities, jihadists fire indiscriminately in civilian areas, often
killing anything that moves. To keep their oppressive peace, they sometimes
massacre entire villages. As a result, in its own military campaigns, America
often saves the few only to watch the many die horrific deaths.
American military success has been tied to looser rules
of engagement. From the initial lightning march through Iraq to Baghdad, to the
decisive battles of the Iraq troop surge, American forces win when they take
the gloves off. Though most “routine” operations during the Surge were covered
by the now-standard rules of engagement, resulting in the tragic incidents
described above, during key battles, commanders often loosened the rules,
granting greater discretion to leaders in the field and more freedom of action
to soldiers to identify and engage the enemy.
For example, soldiers were empowered to engage the enemy
whenever they encountered known enemy tactics, techniques, and procedures
(known as “TTPs”), even when no weapons were evident. And the number and nature
of identified TTPs was expanded to encompass the latest intelligence.
Indeed, as the Surge indicates, the choice isn’t between
the mass destruction of total war and the purported surgical precision and
humanity of wonk war. Seasoned American veterans can and do make good decisions
under pressure. They can distinguish friend from foe in a complex battlefield.
They wield their weapons with precision and skill. Intentional killing of
civilians is exceedingly rare. Of course war is never easy, and choices are
always fraught with danger. Loosening the rules of engagement and delegating
greater authority to the troops in the field will likely lead to increased
civilian casualties, but granting warriors the ability to close with, and
destroy, opposing forces has proven to diminish enemy combat power, clear
civilian areas of enemy influence, and enable soldiers to hold on to
hard-fought gains.
While JAG officers’ concern with the terrible
consequences of poor decision-making under pressure is well meaning and
understandable, the current rules have effectively taken combat decision-making
away from experienced warriors and put it in the hands of far less experienced
lawyers. Again and again, lawyers prevent warriors from engaging targets the
warriors know are hostile but cannot prove to the standards required by the
relevant rules.
Moreover, no true oversight exists. Political leaders
increasingly don’t understand the military, much less the weapons and tactics
needed to prevail on the battlefield. Every branch of government blanches in
the face of left-wing critics who speak as if by reflex of “war crimes” any
time civilians die.
***
To be sure, reforming the rules of engagement will not by
itself lead to American victory in the War on Terror, particularly because it
confronts an amorphous group of violent religious ideologues rather than a
fixed set of powers. But reforming the rules of engagement will make the
American military more effective wherever and however that happens.
The Left is fond of claiming that the outcome of American
military engagements in Iraq and Afghanistan reveals the “profound limitations”
of American military power. In reality, however, they reveal only the profound
limitations of a military so lawyered up that it can’t drop a bomb or fire an
artillery round without a J.D. on the line. Our enemies — who disregard every
limit in their quest to kill, destroy, and expand the scope of their striking
power — benefit, and are delighted. ISIS is seeking to deploy chemical weapons.
America is looking for excuses not to drop bombs.
In this circumstance, soldiers and families suffer.
Mothers lose their children. Wives lose their husbands. Soldiers lose their
brothers. The holes in our hearts are gaping, and the psychic wounds are made
rawer by the fact that so many of those losses were unnecessary. I knew men who
died because lawyers and politicians failed them. Those who served, and their
loved ones, are left to pick up the pieces, visiting graves, comforting
families, and feeling a deep and lasting sorrow. Our nation doesn’t trust its
warriors, and its warriors are paying the price.
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