2. Understand the pre-assaultive behaviors of the enemy and seek assistance when asked to articulate them. A switched-on attorney can help articulate these in a sworn statement. Also, it is not enough to say, “I was in fear for my life.” A coward may be in fear unwarrantedly, while a fool may never be in fear.
3. Do not succumb to the arguments of investigators that imply, “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 warriors. Moreover, if the law gives a privilege such 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. And in the end, so long as you act reasonably, all will end well. The law, for the foreseeable future, is on your side. Interestingly enough, by policy, federal law enforcement agencies will not allow their agents who are involved in line-of-duty shootings to make a statement for at least twenty-four hours post-incident, and then only after the agent has had an opportunity to decompress and speak with a counsel, psychologist, or chaplain if he chooses. Tactical leaders should provide the same courtesies to warriors who make decisions in situations that are often more tense and dangerous than those facing law enforcement.
UNDERSTANDING THE RELATIONSHIP BETWEEN LAW AND TACTICS
The Law of War is the body of law, both codified and common, that concerns itself with the acceptable conduct of war. It addresses both jus ad bellum, the justifications for engaging in war, and jus in bello, acceptable wartime actions or conduct. Some of the central principles underlying the laws of war are that war should be limited to achieving the defined political goals that started the war; war should not include unnecessary destruction; and war should be ended as quickly as possible.
Oftentimes, America’s warriors are placed into situations where the demands of jus ad bellum and jus in bello become unclear. Counterinsurgency (COIN) doctrine, at the strategic level, may call for the use of minimum force. For instance, commanders at the operational and strategic levels may decide to use a squad of infantry to clear a village instead of using indirect fire against a target within that village. This decision to use strategic “minimum force” should in no way limit the tactical decision to use force when confronted by a hostile actor. This misunderstanding and misapplication of a strategic concept at the tactical level has created a wrong impression as to what is the proper legal standard to apply when confronted by dangerous actors at the tactical level.
Since soldiers, sailors, airmen, and marines on the ground at the tip of the spear have little say in how they will be deployed, it is very important that they understand their authorities and responsibilities concerning the use of force. Too often, warriors are advised, “You can’t shoot unless you have positive identification or PID!” This is misleading and legally incorrect, for when you use force in self-defense, the identity of the person posing an imminent threat is irrelevant at the time force is applied. This is because you do not have time to ascertain PID. As explained below, PID is only relevant when targeting an individual or group that has been declared hostile pursuant to the Rules of Engagement.
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:
1.When engaging a target that has been declared hostile by competent authority under your ROE.
2.When in response to a demonstrated hostile intent or hostile act (intended to inflict death or serious bodily injury to self or friendly forces).
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. 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. 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 US Forces, servicemembers 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 deliveryman, 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: the number of rounds fired is irrelevant. One shoots until the threat is over.
Apart from conflicts where America’s national leadership has declared a force or group to be “hostile” or designated them as “enemy combatants,” soldiers, sailors, airmen, and marines will always be responding to a hostile act or demonstrated hostile intent much as police officers do on a daily basis in the United States. Moreover, even when a group like al Qaeda has been declared hostile, they don’t wear al Qaeda T-shirts or distinctive uniforms, so you are nearly always responding in a self-defense mode because the bad guys attack first. Accordingly your servicemembers need to be educated on threat identification or else they risk getting shot in the face before even recognizing that a threat exists.
Most leaders—even many infantry officers—are not very skilled in the martial arts of close personal violence and gun fighting. Quite simply, they are not gun guys. They fear the primary tool in their soldiers’ toolkits—the individual weapon—as a necessary evil that should only be handled or taken out of the box when on actual combat operations. The wise tactical leader will take the time to train his warriors to be both intimate and proficient with their sidearm.
For whatever reasons, we have shifted from a nation that respected and relied on firearms to one that views weapons as either intrinsically evil or, at best, instruments to be feared. This has resulted in a military population that needs to be indoctrinated into the gun culture. Weapons don’t “accidentally discharge” or shoot themselves. They fire only when a trigger finger or other object is inserted into the trigger-housing group. Skilled handling of a weapon requires repetitive, good practice. It is also a perishable skill. A clearing barrel is not the first time a soldier should be faced with the task of clearing a weapon in a crowded area.
If one were to ask the average soldier, sailor, airman, or marine how often he used a computer keyboard in the performance of his duty or privately, the answer would be on a near-daily basis. Consequently, such an individual would be intimate with the functioning of that keyboard, never needing to look to find the space bar or shift key. On the other hand, if one were to ask the average soldier, sailor, airman, or marine to manipulate the selector switch on his M-4 or M-9 weapon, most would have to look to do so. This is because the military, except for select units, does not encourage intimacy with the servicemember’s individual weapon. Instead, the military focuses upon “weapons qualification” and safety. Qualification courses, while fine for demonstrating a soldier’s ability to use the weapon to actually hit a stationary target that is not firing back, lend very little utility to a soldier’s ability to fight and win in combat. They are merely a liability reducer, not a lifesaver. Qualification is not training, and training is not qualification. This is a subtle yet key distinction that leaders must grasp. Moreover, there is precious little instruction given to the average soldier on how to identify and react to an imminent threat of death or serious bodily injury.