21st-Century Rules of Engagement

At a dusty checkpoint on a February afternoon, a squad of young cavalry scouts was in a challenging situation. As an unidentified civilian male approached their checkpoint on foot, the squad leader gave the order to halt when the man closed to within 100 meters of the barrier. The man, who shifted his hands to his front jacket pockets, continued to walk for approximately 15 meters, where he stopped in the middle of the road, glancing nervously from side to side. The squad leader called for the man to remove his hands from his pockets — there was a noticeable bulge beneath his jacket at chest level. The man kept his hands concealed, now shifting forward and backward a few steps and mumbling under his breath. From covered positions, the scouts trained their weapons on the man as the squad leader called back to the tactical operations center (TOC) with the report. For the next 10 minutes, a standoff ensued — the scouts assumed the man was a suicide bomber who had intended to get closer to the checkpoint before detonating, only to now find himself unable to go any farther, forward or backward, without being shot. Maybe he had lost his nerve; maybe the device had malfunctioned; maybe he wasn’t a threat at all. The man began to call out loudly, falling to his knees and then rising again in a quick walk toward the checkpoint. The scouts called again and again for him to halt. The squad leader froze in a moment of uncertainty. When the man closed to within 20 meters of the barrier, a young private squeezed off three rounds at center mass. The shots seemed to jar loose the air of gridlock, and another two privates first class engaged their M16s as well. The unidentified man fell dead — 15 meters short of the checkpoint. That’s when end of exercise (ENDEX) was called. The checkpoint had not been on the outskirts of the green zone or the mountain passes of eastern Afghanistan, but was instead located in Training Area 3, Fort Knox, Kentucky. The scouts were not from the 2d Armored Cavalry Regiment, 1st Cavalry Division, or 3d Infantry Division, but were 19D10 one-station unit training (OSUT) soldiers from the 5th Squadron, 15th U. S. Cavalry, most with less than 120 days in the Army. In the after-action review (AAR) that followed the incident, the scouts-to-be were concerned: “Was it OK that we shot him?” “I thought I saw something under his jacket, but I can’t be sure.” “Did we let him get too close to us?” “Should we have shot him if he turned to run away?” And the question on every mind: “Would we get in trouble if this had been real?” In light of these questions, one can’t help but see both the good news and bad news of the situation. The good news is the privates genuinely cared about doing the right thing, and demonstrated that they are smart, motivated, responsible young men. The bad news is they were concerned with “getting in trouble,” which caused hesitancy; that hesitancy would have likely gotten them killed or seriously wounded. Situations, such as the one illustrated above, as well as others, were among topics discussed by a panel of U. S. Army and Air Force Staff Judge Advocates and Federal Law Enforcement Officers during a recent visit to Fort Knox as part of the Rules of Engagement/Rules of the Use of Force Tactical Training Seminar. The seminar, similar to those presented at Special Operations Central Command (SOCCENT), Fort Stewart, Georgia, the United States Military Academy, and the FBI Academy, serves to familiarize attendees with legal and tactical lessons learned by the U. S. Department of Justice (DOJ) and the civilian law enforcement community concerning the application of use of force — particularly deadly force. Such dialogue is useful given the fact that operations within the contemporary operating environment (COE) are increasingly encompassing tasks that bear resemblance to what law enforcement officers face each day. Additionally, the historical record of the U. S. Armed Forces in understanding and applying threat recognition, rules of self-defense, and use of appropriate defensive postures in nontraditional tactical environments, arguably leaves much room for improvement. There is a clearly defined need for review and revision of how rules of engagement (ROE) are conceptualized, developed, and published, as well as how we as leaders train soldiers to make the right decisions in defending themselves and protecting others. Guest speakers at the seminar discussed the foundational knowledge regarding the full spectrum of use of force issues and debates. The development of use of force policies in a given theater of operations is a detailed process that must consider national policy, the laws of land warfare, and the characteristics of the operational environment to achieve an end product for implementation. The challenge exists in identifying legally supportable rules concerning the use of deadly force that remain tactically sound enough to avoid placing a soldier’s life in unnecessary danger. Compounding this challenge is the verbiage used as the start point of most ROE, “You may use force, including deadly force, when you reasonably believe yourself or others to be in imminent danger of death or serious bodily harm (AFI 31-207 1.4.1).”1 Such language leaves the man on the ground with the overarching question: “What constitutes imminent danger?” The difficulties of developing and managing ROE/rules of the use of force (RUF) issues led some commanders to impose certain control measures to mitigate virtually any threat of perceived impropriety. Many of these measures contributed to, rather than alleviated, confusion amongst the rank and file of deployed personnel, and resulted in ROE/RUF policies that put soldiers at risk and security in question. The seminar highlighted some of these policies inciting various real-world examples from across the front. These examples extended along the spectrum of response: prohibiting troops on guard duty from inserting magazines into their wells; use of “minimum force necessary;” guarded authorization of “use of deadly force as a last resort;” and provisions against shooting a fleeing hostile actor from the scene of an attack. Such examples represent a larger trend toward imbalance between the risk-averse and the risk-inclined. This imbalance is weighted by a latent fear of using force, paranoia of the “accidental” discharge, and a dual misunderstanding of both the dynamics of a deadly force encounter and the laws justifying such force. In discussing these issues, the seminar focused on providing an understanding of both the applicable law and the dynamics of such encounters as they relate to one another. A greater appreciation of this relationship is generally accepted as the fundamental building block on which tactically-minded, legally supportable ROE may be drafted for use in theaters of conflict. Not surprisingly, much of the legal precedence regarding the use of deadly force is grounded in civilian, not military, law. The seminar focused on historic decisions that helped to establish one of the key legal considerations in drafting any ROE; a rigorous balance must exist between the perception of a reasonable response to a threat, and how unique conditions of the event are weighed in passing final judgment. For example, in Graham v. Connor, the judicial opinion addressed the fact that determining the reasonableness of a shoot/no-shoot encounter is not reliably accomplished through the sterile eyes of a detached observer, but rather to be balanced within the physical and mental circumstances of the incident, “…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 reasonable- “There is a clearly defined need for review and re vision of how rules of engagement (ROE) are conceptualized, developed, and published, as well as how we as leaders train soldiers to make the right decisions in defending themselves and protecting others.” 24 — ness 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.” [Graham v. Connor, 490 U. S. 386 (1989)] In another case, the published opinion cautioned against the idea that law enforcement officers must fully exercise the capability to pause and analyze the intent of an attacker before using deadly force, “Detached Reflection cannot be demanded in the presence of an uplifted knife.” [Brown v. United States, 41 S. Ct. 501, 502 (1921)] The seminar then posed the subsequent dilemma as to how, then, certain ROE still demand such detached reflection in the presence of an uplifted AK-47? With legal precedence supporting the notion that reasonableness of action is weighed against the circumstances of the encounter, it is helpful to devote some thought as to just how varied those circumstances may be. The dynamics of a deadly force encounter are part of a psychologically and physiologically complex process, and it is indeed a process; a systematic series of events that unfold both consciously and subconsciously in the mind’s eye of the soldier. That process requires the soldier to first recognize the threat, then choose the appropriate level of response for the threat, and finally implement that response, all in a matter of seconds. Even under the best conditions, it is a challenging and highly charged event. Add to this the variables of: limited visibility; innocent civilians intermixed within the battlespace; rapid and unpredictable movement by shooter and target(s); the life and death stress of sudden, close, personal violence; and any myriad of sudden, unexpected circumstances, and such encounters become even more demanding. What remains is the fundamental importance of ROE/RUF policymakers understanding the intricacies of the tactical situation on the ground before drafting regulations that decrease overall security and threaten the safety of both soldiers and civilians. It is important to note that this article is not an argument for more liberal ROE that ignore the equally complex and sensitive political-military environment of a combat zone. There is no mistaking that the job of those who draft and approve ROE for use in theater involves an extraordinary balance of issues of monumental importance. Critics voiced pronounced concern that the seminar advocated and encouraged a trigger-happy mentality amongst attendees; that it created a dangerous opportunity for an individual to cover himself in a protective blanket of the circumstantial. But to the contrary, the real message encouraged everyone to think more broadly and more tactically about security and security-related policies and procedures. The true value of the information presented encouraged a positive change in the cultural mindset of officers and noncommissioned officers, leaders who might otherwise be reluctant to break apart the 20th-century formula for drafting ROE and rethink to reconfigure all of the factors that embody such policy. The 21st-century battlefield demands nothing less. Notes 1Air Force Instruction (AFI) 31-207, Arming and Use of Force by Air Force Personnel, U. S. Government Printing Office, Washington, DC., 1 September 1999, paragraph 1.4.1. Captain Louis Netherland is currently serving as commander, Headquarters and Headquarters Troop, 5th Squadron, 15th (5-15th) U. S. Cavalry, Fort Knox, KY. He received a B. A. from Carson-Newman College and an M. A. from Troy State University. His military education includes Armor Officer Basic Course, Armor Captains Career Course, Combined Arms and Services Staff School, and Scout Leaders Course. He has served in various command and staff positions, including commander, B Troop, 5- 15th Cavalry, Fort Knox; XO, A Troop, 1st Squadron, 4th (1-4) U. S. Cavalry, Schweinfurt, GE; scout platoon leader, B Troop, 1-4 Cavalry, Schweinfurt; and tank platoon leader, B Troop, 1-4 Cavalry, Schweinfurt. “The dynamics of a deadly force encounter are part of a psychologically and physiologically complex process, and it is indeed a process; a systematic series of events that unfold both consciously and subconsciously in the mind’s eye of the soldier. That process requires the soldier to first recognize the threat, then choose the appropriate level of response for the threat, and finally implement that response, all in a matter of seconds.” — 25