1 Deadly Force Is Authorized, but Also Trained 1 Lieutenant Colonel Mark S. Martins Staff Judge Advocate 1st Armored Division Wiesbaden Army Airfield, Germany Parks’ extended argument is sweeping in scope and damning Introduction in tone. He condemns the current Joint Chiefs of Staff Standing 6 Rules of Engagement (SROE) , Colonel In the January issue of Naval Institute Proceedings —a document that has evolved Hays Parks, U.S. Marine Corps Reserve (Retired), warns that from maritime origins and contains tolerably clear guidance for 2 restrictive and unsuitable rules of engagement (ROE) commanding officers on the open seas. Parks maintains the today SROE is a poor vehicle for commanders to inform individuals handicap and endanger U.S. forces, especially ground troops on in port or on the ground when they may use deadly force to pro- peace-support missions. Identifying the problem as one of tect themselves and others. The lack of commanders’ “tools” ignorance on the part of individual Marines, sailors, and sol- in the SROE on the matter of individual self defense, he claims, diers, including service judge advocates, over when deadly combined with a propensity fo r micromanagement on the part force is authorized, Parks sounds an alarm that America’s of senior administration officials naïve to the bad things that young men and women in uniform “need to know when they 3 can happen when force is used, has resulted in peace-support may resort to deadly force to protect their lives.” 7 ROE that place servicemen and women at undue risk. Parks further argues that military lawyers writing ROE for Parks’ Argument field commands compound the problem. They misapply inter- national law, he says, cut and paste ROE from bogus sources, Parks second-guesses assorted real-life decisions in which fail to read U.S. court decisions relating to use of deadly force ground troops have refrained from opening fire, suggesting by domestic law enforcement agents, and ignore basic truths these decisions were caused by foolish ROE. In one of these about wound ballistics and close-quarters marksmanship under examples, he derides the official commendation of a young stress. Parks holds military commanders ultimately responsi- U.S. Army sergeant whose platoon held its fire even as he and ble, however, because they delegate ROE drafting and training his soldiers were being struck by Bosnian Serbs bearing rocks to lawyers, because they hide behind ROE to avoid making and clubs. This situation, Parks urges, placed the soldiers in a tough decisions, because they rarely have the spine to stand up situation where they were “legally entitled to use deadly 4 to civilian leaders when restri ctive rules are being imposed, or force.” In another example, he cites unspecified “Kosovo because they fail to provide soldiers, sailors, and Marines suf- beatings” to illustrate risks faced by peace-support forces. ficient firearms training to be effective in a gunfight or other Parks maintains that these and other instances of restraint are 8 violent confrontation. “representative rather than isol ated incidents,” and he cautions that “operating under bad ROEs invites mission failure, usually with fatal consequences to men and women who deserve bet- At various points during this argument, Parks suggests cur- 5 ter.” ative measures. The most import ant of these appears to be the military’s adoption—with input from Navy Special Warfare 1. I thank the following people for their assistance in preparing this article: Captain Larry Gwaltney, Lieutenant Colonel Mike Ellerbe, Major Paul Wilson, Staff l Jeff Lau, Captain Mike Rob- Sergeant Rod Celestaine, Lieutenant Colonel Bill Hudson, Colonel Dan Wright, Lieutenant Colonel Kevin Govern, Lieutenant Colone erts, Captain Koby Langley, Major Kevin Hendricks, Colonel Dan Bolger, Colonel John Scroggins, Lieutenant Colonel Renn Gade, Li eutenant Colonel Ted Westhus- any errors. ing, Brigadier General Dave Petraeus, Major General John Ryneska, and Major General John Altenburg. I alone am responsible for mitations under which forces will 2. Rules of engagement are defined as “Directives issued by competent military authority which specify the circumstances and li OINT C HIEFS OF S TAFF , J OINT P UB . 1-02, DOD D ICTIONARY OF - ILITARY AND A SSO M initiate and/or continue combat engagement with other forces encountered.” J T (19 Mar. 1998). CIATED ERMS W. Hays Parks, 3. Is Authorized , U.S. N Deadly Force AVAL I NST . P ROC ., Jan. 2001, at 32-37, available at PROparks1.html. Id. at 33. 4. 5. Id. ORCES U.S. F HAIRMAN OF THE J OINT C HIEFS (15 Jan. 2000) [hereinafter SROE]. S TAFF , I NSTR . 3121.01A, S TANDING R ULES OF E NGAGEMENT FOR OF C 6. note 3, at 33-34. supra 7. Parks, 1 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

2 that soldiers and units are well-t rained and equipped for the sit- and Army and Marine Corps infantry representatives—of a uni- uations they face. form deadly force policy and training system similar to that used by the Federal Bureau of Investigation (FBI). Colonel Parks contends that every young American on point for the 9 Ready and Willing to Fire, if Necessary nation should know how to defend himself when attacked. On the morning of 7 March 2001, U.S. Army soldiers moved Parks’ aims are undoubtedly noble, and his track record is by foot into the village of Mijak, near the border between Kos- that of someone who has wrestled with the predicaments faced ovo and the Former Yugoslav Republic of Macedonia by individual soldiers, sailors, and Marines for much of his pro- (FYROM), with the mission of conducting a search for weap- fessional life. Certainly, his recommendation for meaningful ons and armed ethnic Albanian guerrillas that had been reported involvement by ground force commanders in top-level policy 11 in the town. on use of force also has considerable merit. They secured the town and began entering build- ings in their search. At about 9 a.m., an armed man walked toward soldiers at an observation point. The soldiers detained him. Minutes later, five armed men departed one of the build- Respectfully, Sir, That’s Not Quite Right ings under observation. The men maneuvered toward the sol- dier’s position, took up firing positions, and oriented weapons Still, there is much to disagree with in Parks’ argument, at toward the soldiers. The soldiers fired their weapons, wound- . He overstates several pre- Proceedings least as presented in ing two of the men. One of the men was shot in the abdomen mises and incompletely recounts important facts. More signif- and in the leg. Unknown individuals dragged the other icant, he mistakes the problem—subtly but critically—at its wounded man into a nearby building, and his condition remains core. unknown. No U.S. soldiers were injured. There was no sec- ond-guessing of the soldiers’ decision to shoot their armed Individual soldiers, sailors, and Marines facing bad actors or 12 adversaries. nasty crowds get no help from legal formulas for when deadly force is authorized. The document used by the FBI and offered by Parks as a model states that “the necessity to use deadly The Mijak incident was typical of the operation. Between force arises when all other avai lable means of preventing immi- June 1999 and May 2000, the month when Parks was defending nent and grave danger to officers or other persons have failed or the honor of American military men and women in Sandhurst 13 at use of deadly force “must be would be likely to fail” and th against ninja turtle jokes delivered by British officers, Amer- objectively reasonable under all the circumstances known to ican soldiers and Marines in Kosovo were executing tens of 10 the officer at the time.” thousands of squad-sized missions, some of them deadly vio- To know these verbal incantations is 14 lent. to know nothing particularly helpful in a jam. In contrast to the suggestio n by Parks that U.S. forces in the Balkans are trigger shy and cowering within their shells, Far more important to a soldier in a firefight are those trained these data support a different picture—one of seriousness and 15 reactions that enable the sold ier to deal with the bad actor strength. appropriately and before the bad actor can do him harm. Far more important to a soldier facing a nasty crowd are those The soldiers who accomplished their mission at Mijak did so trained actions that produce a conditioned response and enable well trained for that scenario, because they and their unit were the unit to accomplish its task and purpose while protecting the beginning in basic training and continuing through mission pre- force. The successful missions performed by thousands of deployment. In basic rifle marksmanship, trained first upon ini- brave and dedicated young Americans in the Balkans are the tial entry, periodically thereafte r, and again in the weeks imme- strongest evidence available that leaders have gone well diately prior to heading to Kosovo, the soldiers fired hundreds beyond merely authorizing deadly force: They have ensured of rounds from prone and foxhole positions at popup silhouette 8. Id. at 35-37. 9. Id. at 36-37. 10. U.S. D A EP ’ T . OF J USTICE , O FFICE OF I NVESTIGATIVE GENCY P OLICIES , P OLICY S TATEMENT : U SE OF D EADLY F ORCE para. III (Oct. 16, 1995) [hereinafter DOJ D EADLY F ORCE OLICY ] (Commentary on the Use of Deadly Force in Non-Custodial Situations). The deadly force policy adopted by the Department of Ju stice resulted from P NVESTIGATION EP ’ T OF J USTICE , F EDERAL B UREAU NDER OF I U , E NSURING P UBLIC S AFETY AND N ATIONAL S ECURITY U.S. D leadership by the FBI to establish uniformity. See FBI 1993-1998, 75 (1999). The Department of Treasury adopted a policy closely resembling R ULE OF L AW : A R EPORT TO THE A MERICAN P EOPLE ON THE W ORK OF THE THE ON (Oct. 17, 1995) [hereinafter ORCE EP ’ T OF T REASURY , T REASURY O RDER 105-12, P OLICY F THE U SE OF that of the Department of Justice the very next day. See U.S. D 105-12]. REASURY O RDER T 11. Memorandum for Record, CPT Koby Langley, U.S. Army, subject: Summary of TF 1-325 Airborne Infantry Regiment Direct Fire Eng agement with Ethnic Alba- nian Armed Group (9 Mar. 2001) (on file with author) (providing details about the Mijak incident). 12. Id. 2 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

3 16 This training pre- were devised with appreci- These discriminating techniques targets between fifty and 300 meters away. pared soldiers for success in their Kosovo mission. ation for precisely the physiological responses and wound bal- 18 listics Colonel Parks discovered at the FBI Academy. Army doctrine properly touts these techniques as the most effective way to accomplish Military Operations Other Than War Close-Quarters Training: Hard But Effective (MOOTW) missions that have turned violent. Such missions ng friendly losses, avoiding are accomplished “while minimizi Because the infantry unit was likely to be given cordon- unnecessary noncombatant casualties, and conserving ammuni- search, checkpoint, and similar missions in built-up areas of 19 tion and demolitions for subsequent operations.” Kosovo, their soldiers also received many hours of close-quar- ters combat training before deployment. This involved repeti- tive and stressful training of close-quarters techniques on Although the soldiers at Mijak never needed it, they received several Fort Bragg ranges. The soldiers mastered methods of training in reflexive shooting, and specifically the “aimed quick 20 movement, firing stances, weapon positioning, and reflexive kill” technique, which requires the most practice. It involves 17 shooting. a departure of point of aim from “center of mass,” taught in 21 basic training, to the center of the cranium. Parks notes that a 13. Parks, supra note 3, at 34. Parks relates: At the American-British-Canadian-Australian Army meeting at Sandhurst in May 2000, the United States was berated constantly for its “ninja turtle” (heavily armed and armored, cowering within its shell) approach to peace-support operations by senior British officers, who suggested manders, who are that U.S. forces were ineffective as a result of leadership timidity. It might be an unfair characterization of U.S. field com constrained by administration-driven ROEs, but the British charges have foundation. Id. 14. About fifty incidents involved the firing of shots in the vicinity of U.S. forces. Although many of these consisted of Koso var-on-Kosovar violence, in no fewer than twenty incidents, U.S. ground troops were attacked or threatened with deadly attack and responded by firing a variety of a rms, including M16s, MK19s, and s fired were shots to kill: more than M203s. The troops fired at least 450 rounds during these incidents, and probably many more. Interestingly, not all U.S. round tion rounds. Also, during an April twenty were warning shots, which enjoyed varying degrees of effectiveness in dispersing crowds, and more than ten were illumina 1999 civil disturbance in Sevce, military police fired ninety-two nonlethal M203 rounds and released two canisters of CS gas to disperse a large crowd. In all, four U.S. soldiers and Marines received minor injuries. Three assailants were killed, four were seriously wounded, and dozens were detained in these engagements. Mem- orandum, Commanding General, 1st Infantry Division, to Chief of Staff, Army, subject: Authorization for Wear of Shoulder Sleev e Insignia-Former Wartime Service (SSI-FWS) for Soldiers Assigned to Selected Task Force Falcon Units (25 Sept. 2000) (on file with author) (including spreadshee t describing these incidents in Kos- ovo). 15. Journalist Frank Viviano provided a more insightful alternative to the “ninja turtle” description. A visitor is immediately impressed with the conduct of the GIs in Bosnia. With their discipline, seriousness of purpose—and li teral sobriety. Unlike their counterparts from Britain, France, Russia and other allied nations, American soldiers are not allowed to drink alc oholic beverages in Bosnia, not even on U.S. bases . . . . There are no American soldiers looking for girls in Tuzla or what’s left of Brcko. N o drunken GIs [are] looking for fights. AN F RANCISCO C HRONICLE , Nov. 3, 1997, at A1. Frank Viviano, GIs Try to Keep Bosnia’s Uneasy Peace: U.S. Soldiers Know “Something” Could Happen Any Time , S 16. Telephone Interview with MAJ Willard Burleson, Operations Officer, 1st Battalion, 325th Airborne Infantry Regiment (Mar. 28, 2001) [hereinafter Burleson RMY 23-9, M16A1 ’ T OF A EP , F IELD M ANUAL AND M16A2 R IFLE U.S. D Interview] (conducted while MAJ Burleson was deployed to Vitina, Kosovo). See generally M ARKSMANSHIP (3 July 1989) (basic marksmanship requires aiming at center of mass and mastery of sighting, breathing, and adjusting windage or elevation). 17. Burleson Interview, supra note 16. See generally U.S. D EP ’ T OF A RMY , F IELD M ANUAL 90-10-1, A N I NFANTRYMAN ’ S G UIDE T O C OMBAT I N B UILT -U P A REAS app. K (3 Oct. 1995) [hereinafter FM 90-10-1] (describing the training techniques referred to in this section of the article). supra note 3, at 36-37. In addition to its close-quarters combat ranges on many installations, the Army’s training facilities includ e state-of-the art MOUT 18. Parks, (military operations on urban terrain) towns at Fort Knox, Kentucky, Fort Polk, Louisiana, and Fort Benning, Georgia. Also, th irteen Fire Arms Training Simulators (FATS) of the type described favorably by Parks are coming on line in U.S. Army, Europe’s 7th Army Training Center. Press Rele ase, John Morelli, Firearms Training Systems, Inc. Announces Contract Award to Support U.S. Army Deployed Forces (Sept. 29, 2000). At Fort Bragg, North Carolina, two Engagement Skills Trainers (EST) were installed on 1 May 2001. An additional thirteen trainers, consisting of ten lanes each will be installed in coming months. The EST is a next-generation simulation system that replicates individual and collective marksmanship environments. E-mail from Michael Lynch, Fort Bragg R eadiness Business Center, to author (Apr. 16, 2001) (on file with author). 19. FM 90-10-1, supra note 17, app. K-1. 20. Burleson Interview, supra note 16. supra note 17, app. K-1. 21. FM 90-10-1, 3 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

4 22 effective use of an interpreter and negotiation based on princi- shot so placed is more likely to achieve rapid incapacitation. ple. They learned not only how to call for air or artillery sup- Such a shot also avoids the protective vests that may be worn port, but also how to coordinate operations with international by adversaries. Early in the unit's preparation, infantry rifle police forces in the area. The price tag: An estimated 11 mil- squads also conducted collective live fire training on the most lion dollars. It was not cheap, to be sure, yet few who have fundamental of battle drills—React to Contact. This drill forms 23 experienced an MRE—and seen how well it prepares soldiers the nucleus of the rifle squad’s collective skill set. and units to accomplish a difficult mission and come home 26 safely—doubt that it is money well spent. IRT, STX and Mission Rehearsal Effective training with issued weapons was part of a com- The Standing ROE: Find Another Punching Bag prehensive predeployment training program designed specifi- 24 cally to ensure that soldiers could handle situations like Mijak. Some of Parks’ criticism of the SROE is overdone and obscures the true nature of the challenge commanders face in Individual readiness training (IRT) and situational training providing clear guidance to ground troops on self defense. exercises (STX) featuring uncooperative role players con- True, the SROE acknowledges U.S. commitments under the fronted soldiers and squads with a variety of dangerous situa- United Nations (U.N.) Charter—and indeed all of its interna- tions, including snipers, landmines, crowd disturbances, 27 tional agreements criminal acts by Kosovars, and speeding vehicles and armed —because any responsible national security persons at checkpoints. Immediately before deployment, the policy document must do so. Reasonable people, however, can unit underwent an intensive Mission Rehearsal Exercise disagree with Park’s statement that, “Nothing in the history of that culminates in individ- (MRE)—a heavily resourced event the Charter suggests that it was intended to apply to the actions 28 ual and collective training designed to test soldiers, teams, and of individual service personnel . . . .” The Charter expressly 29 25 leaders in a stressful, Kosovo-like environment. incorporates previously assumed international obligations, among them treaties and customary law dealing with war crimes. As a matter of international law, an individual defen- The most recent MRE, held at the Army’s Joint Readiness criminal charge, just as a defen- dant can plead self-defense to a Training Center in Louisiana, replicated the towns, movement dant in an excessive use of force prosecution can plead self- routes, base camps, and border areas of the Multinational Bri- 30 defense under U.S. domestic law. gade (East) area, that part of the Kosovo province secured by Thus, Parks’ statement is U.S. forces. In addition to reinforcing all of the individual and questionable. Also, regardless of personal self-defense guaran- team tasks already trained, the MRE gave soldiers and leaders tees under international law, the SROE is replete with caveats firsthand experience with interpreters speaking the Balkan lan- that make clear that no international obligation may be inter- 31 guages, with civil authorities, with nongovernmental officials preted to infringe upon individual self-defense. and private international organizations, with officers from the Polish and Greek battalions serving alongside U.S. forces in Army judge advocates expressly invoked one of these SROE Kosovo, and with the specific demographics, economic, and caveats in late 1999. This was necessary after NATO attorneys security characteristics of individual neighborhoods. at higher headquarters responded to a hypothetical but very 32 possible encounter with a “Mad Mortarman” in Kosovo. At the MRE, soldiers and leaders practiced not only fire and Their response—that U.S. forces could not fire upon the fleeing movement against ethnic Albanian armed guerrillas, but also supra note 3, at 37. 22. Parks, 23. Burleson Interview, supra note 16. 24. Id. The commander refined his mission essential task list (METL) to account for the tasks, threats, terrain, and environmental fact ors extant and expected in Kosovo. He and the senior noncommissioned officers in the unit ensured that training on individual tasks supported the collect ive tasks on the METL. The commander understood conditions on the ground in the theater of operations, because he and other unit leaders had conducted a leaders’ re connaissance, poured over after-action reports provided by previous units in Kosovo, and maintained communication with leaders still in Kosovo throughout the training process. Id. This predeployment (15 Nov. 1988). ORCE F EP ’ T OF A RMY , F IELD M ANUAL 25-100, T RAINING THE U.S. D training process followed Army training doctrine. See 25. Interview with MAJ Mark Gerges, XVIII Airborne Corps Assistan t Operations Officer for KFOR and SFOR Missions, at Fort Polk, La. (Mar. 28, 2001). 26. The training provided at the MRE includes skills extolled by James Fyfe, an expert on training appropriate use of force, in Zuchel v. City and County of Denver , 997 F.2d. 730, 739 (10th Cir. 1993). 27. SROE, supra note 6, encl. A, para. 1c(3). 28. Parks, supra note 3, at 35. HARTER , pmbl, art. 1, sec. 1. 29. U.N. C 4 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

5 lawyers quoted the SROE and offered analogous examples mortarman—infringed upon the right of self-defense as cap- 35 from U.S. case law relating to fleeing felons. tured in the SROE caveat, which states: US forces assigned to the operational control It is difficult to understand Parks’ frustration with the self- (OPCON) or tactical control (TACON) of a defense principles stated in the SROE. The SROE separates multinational force will follow the ROE of self-defense into two major elements—necessity and propor- the multinational force for mission accom- tionality. Necessity exists “when a hostile act occurs or when a 36 plishment if authorized by the NCA. US force or terrorist(s) exhibits hostile intent.” A proportionate forces always retain the right to use neces- response is one whose nature, duration, and scope do not sary and proportional force for unit and indi- decisively counter the hostile exceed “that which is required to vidual self-defense in response to a hostile act or demonstrated hostile intent and to ensure the continued 33 act or demonstrated hostile intent. protection of US forces or other protected personnel or prop- 37 erty.” When one gets past Parks’ apparent suspicion of the SROE as a maritime rather than a ground-force product, one This hypothetical involves an individual who is discovered at strains to figure out his objection to these SROE self-defense the precise grid coordinate where a Q36 radar acquired a mortar principles. round being fired moments earlier. The individual’s actions— running away from KFOR soldiers toward a nearby vehicle, Admittedly, the term “hostile intent” requires elaboration uggest complicity in a pattern of carrying a mortar base plate—s and further definition through concrete examples of intent indi- mortar attacks over the preceding weeks on various targets cators, and determining proportionality is a lawyerly balancing from nearby points. Some of those targets were close to KFOR act type that irritates laymen. Yet these are not problems unique bases, and the attacks claimed Kosovar lives, though no KFOR 34 to the SROE’s formulation of individual self-defense. The FBI soldiers were injured. policy preferred by Parks also includes a version of “necessity” that is incomprehensible without reference to specific exam- Army judge advocates in Kosovo correctly argued that, even ples. Also, American law enfo rcement officers comply with an though the immediate attack had ended, the individual’s failure unlabeled doctrine of proportionality, because necessity only to obey commands to halt, along with his continuing ability and arises “when all other availabl e means of preventing imminent opportunity to fire again, constitute “hostile intent” sufficient to and grave danger to officers or other persons have failed or engage him with deadly force. In addition to informing higher 38 would be likely to fail.” NATO headquarters that U.S. forces would not be bound by the restrictive response of NATO attorneys (that is, suggesting U.S. forces could not fire upon the fleeing mortarman), the Army NITED 30. See, e.g. , U AR N ATIONS W C RIMES C OMMISSION , XIII L AW R EPORTS OF T RIALS OF W AR C RIMINALS 149-51 (1949). The finding of the Court [to acquit Erich Weiss and Wilhem Mundo, tried on 9-10 November 1945 by he alleged U.S. military commission for t an exonerating unlawful killing of an American prisoner] is evidence that self-defence which, according to general principles of penal law is circumstance in the field of common penal law offenses when properly established, is also relevant, on similar grounds, in the sphere of war crimes. L. 82, 91 (1938). . J. I NT ’ L M The Caroline and MacLeod Cases , Id. See also R.Y. Jennings, 32 A Even Webster, in his letter of April 24, 1841, the source of the formulation of the classic definition of self-defense, says: “ It is admitted that a just right of self-defence attaches always to nations as well as to individuals, and is equally necessary for the preservation of both.” Id. See, e.g. , SROE, supra note 6, encl A, paras. 2a, 3a, 5e. 31. 32. Interview with CPT Larry Gwaltney, Deputy Legal Advisor (Dec. 1999-June 2000), Task Force Falcon, at Fort Polk, La. (Mar. 28 , 2001) [hereinafter Gwaltney Interview]. 33. SROE, supra note 6, encl A, para. 1c. 34. Gwaltney Interview, note 32. supra 35. Id. 36. SROE, supra note 6, encl. A, para. 5f(1). 37. Id. encl. A, para. 8a(2). supra note 10, para. III (Commentary on the Use of Deadly Force in Non-Custodial Situations). , EADLY F ORCE P OLICY 38. DOJ D 5 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

6 tasks, organization, weapons, and operations are different from Perhaps, as Parks urges, the SROE should contain the FBI military ones, and domestic legal fights over police use of policy’s reminder that “the reasonableness of a decision to use deadly force are raised in contex ts governed by distinct consti- deadly force must be viewed from the perspective of the man tutional and statutory provisions. The military is properly wary on the scene—who may often be forced to make split-second 41 of borrowing too much from a law enforcement model. decisions in circumstances that are tense, uncertain, and rapidly 39 evolving—and without the advantage of 20/20 hindsight.” Parks’ concern about what he calls “the level of force con- tinuum” is understandable, but his broadside against military This valuable standard forecloses most second-guessing. Still, 42 judge advocates is unfair. it is difficult to imagine a single scenario in which the self- He states that lawyer-inspired ROE defense standard under domestic federal law differs from the “require” gradualism, yet consider these typical cautions 40 self-defense standard under the SROE. against gradualism excluded from Parks’ analysis: This notion, that by following the SROE we are sacrificing soldiers’ inalienable (1) , apply a graduated escalation If possible rights on the altar of international cooperation, simply does not of force. persuade. if time and circum- (2) Measure your force, . stances permit Making a Federal Case Out of Force Continuums (3) Omit lower level . . . measures if the threat Parks finds appealing the federal cases and policies relating quickly grows deadly. force. Yet law enforcement to law enforcement use of deadly 39. This language is drawn almost verbatim from Graham v. Connor , 490 U.S. 386, 396-97 (1989). 40. Though interesting as a matter of comparative legal studies, the differences in self-defense formulations between jurisdicti ons noted by Lieutenant Colonel W.A. Stafford, USMC, are academic distinctions on which no actual criminal convictions have turned. Lieutenant Colonel W.A. Stafford, How to Keep Military Per- See sonnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE and the Rules of Deadly Force , A RMY L AW ., Nov. 2000, at 1. The case of Corporal Banuelos, who shot and killed a civilian in Texas on 20 May 1997, is of central interest to both Colonel Parks and Lieutenant Colonel Sta fford. Though grand jury investigations by Texas and the U.S. Department of Justice occurred, and though Texas law was interpreted to apply, no indictments resulted. Id. at 1-2. Parks’ own intervention surely helped bring about this good outcome. By its own terms, the SROE does not apply in domestic operations. SROE, supra note 6, encl. A, para. 3a. I certainly agree with Parks to the extent he is arguing that basic self-defense rules should be applied wherever a soldier is, and that so ldiers and Marines should not have to learn different formulations in Texas, California, and Thailand. 41. Wariness of that model in the domestic context stems also from the traditional—and statutory—exclusion of the military from law enforcement duties in the See 18 U.S.C. §1385 (2000). United States. 42. Historically, ground force operations orders and soldier cards have indeed included something described in Army doctrine as “scale of force/challenging proce- dure.” By the author’s estimate, this rubric is one of ten functional categories of rules that have fit technically, if someti mes uncomfortably, within the official defi- . 1, 30-33 (1994). EV . L. R IL , 143 M Mark Martins, See nition of “rules of engagement.” Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering ions have been almost as numerous as missions and units. Ye t with all of their risks and perceived The ten functional categories follow no rigorous format, and variat litary orders and plans since the 1960s. advantages to commanders and staffs, they fit within the technical definition of ROE and have been issued as such in various mi The ten functional categories are: Hostility Criteria Type I: Type II: Scale of Force/Challenging Procedure Type III: Protection of Property and Foreign Nationals Type IV: Weapons Control Status/Alert Conditions Type V: Arming Orders Type VI: Approval to Use Weapons Systems Eyes on Target Type VII: Type VIII: Territorial or Geographic Restraints Type IX: Restrictions on Manpower Restrictions on Point Targets and Means of Warfare Type X: is helpful in identifying the risks and These are not mere academic distinctions. Recognition that military headquarters tend to transmit ROE in these different ways benefits of including a specific type in an operations order while at the same time referring to it as a “ rule of engagement.” In addition to taking aim at Type II, Parks also, properly, blasts Type V in his discussion of the 1986 Ranger Regiment example and in his speculation about whether the cr ew of the U.S.S. Cole was subjected to restrictions on carrying loaded firearms. Recognition that not all types need to be known by every soldier also recommends the packaging of the basic SROE self defense principles of necessity and proportionality, along with Types I, II, and III, into a memorable form to permit vignette training. It was this idea of packaging for a training purpose that led to the development of the RAMP training aid. See id. at 86-90. In his third example, Parks excerpts a continuum of force that merely suggests techniques for the “M” element when confronting an unarmed and unfriendly crowd (“Measure the amount of force that you use, if time and circumstances permit”). He misleadingly makes no reference to the base line principle. He also swaps two very different notions of the word “rule”—that is “requirement” ve rsus “technique”—when he says that ROE “require” soldiers to proceed sequentially along a force note 3, at 36. supra continuum. Parks, 6 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

7 The force continuum is also firmly embedded within the (4) : Initiative may suffer if soldiers Risks ing with extraordinary, large- time-tested techniques for deal feel the need to progress sequentially through 43 scale civil disturbances. In addition to verbal warnings, shoves, the measures on the scale. holds, and pepper spray, such techniques include use of riot sticks and shields, as well as extreme-force options involving Note also that deadly force is nowhere characterized in the ROE 47 volley fire of nonlethal projectiles, and deadly force. training aids as a “last resort.” It is easy to concur with Parks, Men- however, that “last resort” language should be expunged from tioning options such as use of pepper spray or firing nonlethal the ROE vocabulary because it can too easily be interpreted to projectiles in the text of a training aid can create a healthy stim- mean that a shot must be last in a chronological sequence of ulus for leaders to obtain, issue, and train soldiers on such non- 44 measures. lethal weapons, because soldiers who face crowd But here, Parks has misfired. confrontations will inevitably ask the sensible question, “Sir, when are we going to be issued pepper spray and sponge gre- Parks wrongly accuses fellow lawyers of imposing “an obli- nades?” gation to exhaust all other means before resorting to deadly 45 force, even when deadly force is warranted.” Moreover, he Parks’ aversion to the level of force continuum is still more seems to forget that law enforcement officers daily use tech- 46 curious in light of the Justice Department’s own requirement niques along a force continuum. Center for Army Lessons Learned, ROE Training , CALL N EWSLETTER 43. 96-6 (1996) (Appendix B, Performance Measure 5); Martins, supra note 42, at 111. See See, e.g. , U.S. D 44. “Last resort” language appears in several military references. ’ T OF A RMY , R EG . 190-14, C ARRYING O F F SE AND U EP O F F ORCE F OR L AW IREARMS E A ND S ECURITY D UTIES paras. 3-1a, 3-2f (12 Mar. 1993) [hereinafter AR 190-14]; U.S. D EP ’ T OF D EFENSE , I NSTR . 5210.56, U SE OF D EADLY F ORCE AND NFORCEMENT THE C OF F IREARMS BY DOD P ERSONNEL E NGAGED ARRYING L AW E NFORCEMENT AND S ECURITY D UTIES para. B (25 Feb. 1992) [hereinafter DODI 5210.56]. Note that the IN provisions of the Army regulation do not apply to DA personnel engaged in military operations and subject to rules of engagemen t. AR 190-14, supra , para. 1-5e. 45. Parks, supra note 3, at 36. 46. It is well established that police use of force typically occurs at the lower end of the force spectrum and involves grabbin g, pushing, or shoving. In one study of 7,512 adult custody arrests, for example, roughly 80% of arrests in which police resorted to force involved weaponless tactics. Grabbing was used about half the time. y, were resorted to most frequently. Only about 2.1% of all arrests involved use of weapons by police. When weapons were used, chemical agents, such as pepper spra OF EP T OF J USTICE , O FFICE OF J USTICE P ROGRAMS , U SE OF F ORCE BY P OLICE : O VERVIEW ’ N ATIONAL AND L OCAL D ATA Firearms were used least often (.2% of cases). U.S. D vii (1999). Samuel D. Faulkner & Larry P. Danaher , Controlling Subjects: Realistic Training v. Magic Bullets, L. E NFORCEMENT B ULL ., Feb. 1997, See also available at No device or physical maneuver guarantees 100 percent success when confronting subjects. Therefore, training should provide off icers with various methods to address combative subjects and surprise assaults. It then should prepare officers to be flexible in their re sponses to confron- tations. Id. Ken Hubbs, Riot Response: An Innovative (15 Nov. 1985) [hereinafter FM 19-15]; ISTURBANCES EP ’ T OF A RMY , F IELD M ANUAL 19-15, C IVIL D U.S. D See generally 47. , L. E Approach B ULL ., Jan. 1997, available at It is significant that the continuum of civil distur- NFORCEMENT bance measures is to be applied only after a unit has undergone careful task organization (such as squad arrangement, skirmish line formation, leader positioning, riot control agent dispersers, selected firer of nonlethal force projectiles, and special reaction teams), threat analysis, mission planning, and specialized, stressful, repetitive training involving all equipment and well-rehearsed role players. FM 19-15, supra . Soldiers who have dealt with civil disturbances attest that, far from handicapping them or obligating them to exhaust every avenue in checklist fashion, these many options give them greater ability to accomplis h the larger mission and come away , Aug. 15, 2000, at 1. Data collected by Tom McEwen of the Department LIER F ALCON , F Civil Disturbance Training See, e.g uninjured. ., Specialist Gary C. Goodman, of Justice support this conclusion that nonlethal weapons are effective tools. One way of organizing data collection and analysis falls under the category of a force continuum, which envisions a range of op tions available thal weapons now to police officers from verbalization techniques to deadly force. In the middle of that range lies the variety of less-than-le available to police. Tom McEwen and Frank Leahy . . . discuss several types of less-than-lethal weapons under four general cat egories: • Impact weapons (for instance, batons and flashlights) • Chemical weapons (for example, pepper spray) • Electrical weapons (for instance, electronic stun guns) • Other less-than-lethal weapons (such as stunning devices and projectile launchers) In their survey of police departments and sheriffs’ agencies, McEwen and Leahy found that 93% reported at least one type of imp act weapon available, 71% had chemical weapons, and 16% had electrical weapons. With regard to the incidence of use of less-than-lethal t echnologies, an article in the Law Enforcement News reported that use of pepper spray--a cayenne pepper-based chemical spray--by New York Ci ty police officers has increased dramatically with use of the spray in 603 arrests during the first 10 months of 1995, compared to 217 us es for the same period in 1994. By comparison, nightsticks were employed 188 times during the same 10 months of 1995, and 158 times in 1994. The prolif- eration of these less-than-lethal technologies, especially chemical agents such as pepper spray, expands the data collection ef fort on use of force. 21-23 (1996) (internal citations omitted). ORCE F OM M C E WEN , N ATIONAL D ATA C OLLECTION O N P OLICE U SE O F T 7 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

8 The fact is that Parks’ preferred method, articulated in the that a verbal warning be given, if feasible, and in view of its Department of Justice deadly force guidelines and its imple- than deadly force reasonably statement that “if other force menting documents, contains a force continuum. These appears to be sufficient to accomplish an arrest or otherwise sources incorporate, albeit in a wordy and confusing formula, accomplish the law enforcement purpose, deadly force is not 48 the very proportionality principle that Parks mocks. necessary.” Parks further claims that, under military ROE, Indiana Jones would be required to risk death by closing with his sword- Warning Shots: Don’t Overuse, but Don’t Ban . This assertion is wielding assailant in Raiders of the Lost Ark simply false. Under the “RAMP” training device outlined in Parks’ claim that “Justice Department Guidelines [and] U.S. 53 49 U.S. Army doctrine, Law . . . [prohibit] warning shots” Indy’s decision to shoot the threat is an is not strictly correct. The excellent example of “A-Anticipate Attack.” Indy—like the Justice Department’s guidelines expressly permit warning shots their prospective attackers in Army soldiers who fired at in the prison context “if reasonably necessary to deter or pre- vent the subject from escaping from a secure facility” or “if rea- Mijak—had seen hostile intent that required immediate appli- cation of deadly force. sonably necessary to deter or prevent the subject’s use of deadly 50 force or force likely to cause grievous bodily harm.” More- An FBI agent’s training at the Academy in Quantico on a over, a ban on warning shots, such as that imposed by the Jus- similar scenario might have emphasized the difference between tice Department outside the prison context, is not necessarily 54 “imminent” appropriate for soldiers in a MOOTW. and “instantaneous” harm to help the agent 55 understand the concept of “objective reasonableness.” A sol- Soldiers and leaders on the ground, without the benefit of dier’s training, however, causes him to look at the subject’s other nonlethal means, may suddenly encounter unarmed but hands, activity, and weapon to judge whether he is under 56 unfriendly civilians. Prohibiting warning shots under such cir- attack. Military training on the use of force specifically cumstances would deny soldiers a useful, nonlethal option to stresses that, before killing an attacker, a soldier need neither 51 maintain control and accomplish the mission. take the first shot nor surrender an advantage provided by the In the official 57 standoff range of his weapon. commentary to its deadly force policy, the Department of Jus- Measuring force, captured 58 tice acknowledges the importance of a force continuum: under the “M” in “RAMP,” simply does not apply, and it is through repetitive training, rather than talk, that soldiers The Department of Justice recognizes and become conditioned to shoot instead of measuring force in this respects the integrity and paramount value of scenario. all human life. Consistent with that primary value, but beyond the scope of the principles articulated here, is the Department’s full The “Shoot to Wound” Fallacy: A Straw Man commitment to take all reasonable steps to prevent the need to use deadly force, as Parks’ criticism of “shoot to wound,” “shoot to disable,” or reflected in Department al training and proce- “injure with fire,” though understandable, is aimed at a straw 52 dures. at, “Requirements to ‘shoot to man. Consider his comment th F ORCE P EADLY , supra note 10, para. II (Policy Statement: Use of Deadly Force). 48. DOJ D OLICY supra note 3, at 36. 49. Parks, EADLY ORCE F P OLICY , supra note 10, para. IV, attachment B. 50. DOJ D 51. Interview with Lieutenant Colonel Michael Ellerbe, Commander, 3d Battalion, 504th Infantry Regiment (Sep. 1999-Mar. 2000), a t Fort Polk, La. (Mar. 28, 2001). ots must always consider their twin risks of endangering bys tanders and encouraging gradualism, Though they are not always effective and though users of warning sh See supra note 14. they have been a useful option for soldiers in the Balkans on more than twenty occasions. note 10, para. III. EADLY F ORCE P OLICY , supra 52. DOJ D See U.S. D 53. EP ’ T OF A RMY , F IELD M ANUAL 27-100, L EGAL S UPPORT TO O PERATIONS 8-15 (1 Mar. 2000). , EADLY F ORCE P OLICY supra note 10, para. III (Commentary Regarding the Use of Deadly Force in Non-Custodial Situations). See DOJ D 54. As used in this policy, ‘imminent’ has a broader meaning than ‘immediate’ or ‘instantaneous.’ The concept of ‘imminent’ should be understood to be elastic, that is, involving a period of time dependent on the circumstances, rather than the fixed point of time implicit in the concept of ‘immediate’ or ‘instantaneous. Id. (“Use of deadly force must be objectively reasonable under all the circumstances known to the officer at the time.”). Id. 55. 8 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

9 placement for “reflexive shooting” is trained wound’ . . . indicate a serious lack of knowledge of the law, 62 accordingly; close-quarter marksmanship under stress against a hostile mov- ing target, wound ballistics, and the impracticality of round 59 counting in a gunfight.” This comment is misdirected for sev- (4) Much military training is dynamic and specifically designed to inculcate effective eral reasons. responses under the stress of a deadly force (1) The word “requirement” appears encounter, when visual narrowing, auditory exclusion, decreased fine motor skills, and nowhere in any of the ROE training aids cited 63 other symptoms are to be expected; by Parks, and training vignettes do not sug- gest a soldier should fire lethal munitions 60 other than to kill; (5) Parks is fixated on a particular scenario— involving elements of “close quarter,” “hos- tile moving target,” and “gun”—while useful (2) Fire by a covered soldier aiming an M203 decision models in training materials need to grenade launcher loaded with nonlethal 64 be geared for a range of scenarios; munitions, even as other soldiers remain and armed and ready with M16A2s, can be help- ful in dispersing a crowd and maintaining (6) Several military sources, which are out- 61 control; dated but nonetheless still in effect, continue to direct or imply attempts at disabling, if 65 feasible, to lower-level commands. (3) Army close-quarters marksmanship train- ers are fully aware that rapid incapacitation While federal law enforcement training with firearms dis- rally be expected only of the threat can gene courages shooting to wound, the body of federal law endorsed with high velocity shots to the head, and shot See, e.g. , D ANIEL ILL OLGER , T HE B ATTLE FOR H UNGER H 56. : T HE 1 ST B ATTALION , 327 TH I NFANTRY R EGIMENT AT THE J OINT R EADINESS T RAINING C ENTER 94-100 (1997). P. B Did R mean you must eat the first hostile shot? Not at all, said A, because it stood for “Anticipate attack.” Here [the RAMP training aid] urged location, uniform, soldiers to use the same target evaluation skills schooled since induction training. Shooters should check the size, activity, ust because a guy time available, and equipment, with special scrutiny of the potential target’s hands. Policemen know this method very well. J holds an AK-47 does not necessarily make him a badnik. It all depends on what he’s doing with the item. Here is discipline di stilled to its essence—to shoot or not to shoot, with each individual rifleman calling his shot. at 99. Id. 57. “Anticipate attack” is consistent with the SROE’s restatement of the legal principle of necessity, and while this American n otion of “anticipatory self defense” occasionally comes under international criticism for being too robust, the better reasoned view is that it is fully compliant w ith domestic as well as international law. (1988). ORAM D INSTEIN , W AR , A GGRESSION , AND S ELF -D EFENCE Y See generally 58. See Bolger, supra note 56, at 100. “These suggestions, ranging from a shout to a shot, applied only when trying to control civilians or a crowd that had not yet turned ugly. If the jokers fired or got ready to fire, then R and A applied.” Id. note 3, at 36. 59. Parks, supra 60. See supra notes 42-43 and accompanying text. trained to use them in certain situations. 61. Issue of nonlethal munitions in the Army is generally limited to military police, though other soldiers may be equipped and See generally Captain Michael Kirschner, Staff Sergeant Chris Callan, and Staff Sergeant Ray Zumwalt, Task Force Falcon Mobile Training Team , Non-Lethal Muni- tion Training PowerPoint Presentation (Feb. 2000) (Camp Bondsteel, Kosovo). When soldiers do not have such munitions, commande rs have readily adapted the supra VEWPRIK memory aid, Martins, supra note 56, at 99 (making note 42, at 120, to eliminate wounding shots from these nonlethal weapons. , Bolger, See, e.g. s in Bosnia 1999-2000 (2000) the “I” in VEWPRIK “Injure with Bayonet”); Captain Keith Puls, U.S. Army, After Action Report, 10th Mountain Division Operation (changing “VEWPRIK” to “VENS” in the “RAMP Acronyms” section) (on file with the Center for Law and Military Operations). note 17, app. K-20 to K-21. 62. FM 90-10-1, supra , F EP T OF A RMY ’ IELD M ANUAL 100-5, O PERATIONS 14-2 (14 June 1993). See, e.g. 63. , U.S. D Loneliness and fear on the battlefield increase the fog of war. They can be overcome by effective training, unit cohesion, and a sense of lead- ership so imbued in the members of a unit that each soldier, in turn, is prepared to step forward and give direction toward mis sion accomplish- ment. SYCHOLOGICAL P IDDLE , S HARPENING THE W ARRIOR ’ S E DGE : T HE P SYCHOLOGY AND S CIENCE OF T RAINING 121 (1995); D AVE G ROSSMAN , O N K ILLING : T HE B.K. S Id. See also C OST OF L EARNING TO K ILL IN W AR AND S OCIETY (1995); George T. Williams, Reluctance to Use Deadly Force , L. E NFORCEMENT B ULL ., Oct. 99, at 1 (“Taking their cue from the military, law enforcement agencies have developed training methods to ensure that their officers will employ deadly fo rce when the need arises.”); cf. U REY 16 (1989). FFECTIVENESS W. P ATRICK , FBI A CADEMY F IREARMS T RAINING U NIT , H ANDGUN W OUNDING F ACTORS AND E 9 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

10 by Parks induces no clear and eternal damnation of such shoot- may have intentionally aimed to disable suggests that such a ing. Parks’ statement, “Justice Department Guidelines [and] policy would damage the credibility of the law enforcement 68 U.S. Law . . . [forbids] shoot to wound” is not strictly accurate, community. as federal law enforcement deadly force policy does not actu- ally forbid shooting to disable. Instead, it states: “Attempts to ained agent—in the rare cir- Whenever an especially well-tr unrealistic and, because of high shoot to wound or to injure are cumstances where he enjoys the luxuries of time, cover, con- miss rates and poor stopping effectiveness, can prove danger- cealment, standoff range, a good firing position, a suitable ous for the officer and others. Therefore, shooting merely to firearm, and a controlled heart rate—shoots a limb or even the 66 disable is strongly discouraged.” handgun out of a suspect’s hands, howls are understandably While not forbidden, the heard in police academies. Such a feat is risky, and a pattern of wariness of the federal law enforcement community about increased shooting to disable could someday cause judges to shooting to disable provides insight into how policy interacts raise the bar for every agent accused of excessive force in a 42 with training and litigation. It also exposes subtle differences 69 U.S.C. §1983 complaint. between police officers and soldiers. This was brought into focus r ecently after a member of the In addition, Parks’ assertion that military lawyers have 70 Secret Service Emergency Response Team (ERT) shot a man ignored the post-shooting litigation record is incorrect. Bor- volver while walking along the who brandished a .38 caliber re rowing good ideas and techniques from domestic law enforce- 71 south fence line of the White House. Though the shot struck the The leading Supreme Court cases ment cases is nothing new. 72 73 ent’s point of aim was center man in the right knee, the ag of Graham v. Connor and their and Tennessee v. Garner , 67 mass. progeny, make good professional reading for military law- Still, uninformed media speculation that a federal agent 64. See Dean T. Olson, Deadly Force Decision-Making , L. E NFORCEMENT B ULL ., Feb. 1998, at 1. The implication of the decision is that traditional instruction—consisting of periodic firearms qualifications on the gun range, the use Zuchel of classroom shoot/don’t shoot scenarios, and other closed motor skills training strategies—does not adequately prepare law enf orcement offic- ers to make effective deadly force decisions. To meet the higher standard imposed by the Zuchel decision, deadly force training also must develop decision-making skills that enable officers to avoid confrontations when possible and to minimize the escalation of for ce when practi- cal. Dynamic training meets this standard. Id. at 5 (citations omitted). 65. See DODI 5210.56, supra note 44, para. E2.1.6.2. When a firearm is discharged, it will be fired with the intent of rendering the person(s) at whom it is discharged incapable of continuing the activity or course of behavior prompting the individual to shoot. Id. See supra note 44, para. 3-2g(3) (containing the same language). Similar language is used in the SROE: AR 190-14, or demonstration An attack to disable or destroy a hostile force is authorized when such action is the only prudent means by which a hostile act of hostile intent can be prevented or terminated. , RMY A EP ’ T OF ill.” U.S. D supra SROE, note 6, encl. A, para. 8a(3). Finally, a 1991 source advises, “When firing is necessary, if possible, shoot to wound, not to k EPARTMENT OF D EFENSE C ) C-8-A-1 (15 Feb. 1991). D ISTURBANCE P LAN (G ARDEN P LOT IVIL D note 10, para. IV (Commentary Regarding the Use of Deadly Force in Non-Custodial Situations). Treasury Department guid- EADLY F ORCE P OLICY , supra 66. DOJ D O RDER 105-12, supra note 10. REASURY ance contains the same language pertaining to shooting to disable. T eferred to remain anonymous). 67. Telephone Interview with Official from Federal Law Enforcement Training Center, Glynco, Ga. (Mar. 26, 2000) (the official pr See, e.g. , Jane Prendergast, Cops Not Trained To Wing Armed Suspects Such As Pickett , C 68. E NQUIRER , Feb. 9, 2001, at A10. INCINNATI 69. John C. Hall discusses raising the standard of reasonableness. Noting that most of the major law enforcement agencies had apparently already adopted more stringent policy standards than the common law fleeing felon rule, the Court reasoned that a constitutional standard that does the same thing was not likely to have any signi ficant detrimental impact on law enforcement interests. The Court observed: “We would hesitate to declare a police practice of long standing ‘un reasonable’ if doing so would severely hamper effective law enforcement.” ., Apr. 1997 (citing Tennessee v. Garner, 471 U.S. 1, 19 (1985)). Firearms ULL B NFORCEMENT , L. E John C. Hall, Liability Implications of Departmental Policy Violations training divisions at law enforcement academies well know that there are a few showoffs in every class who occasionally shoot t o disable in training and who must be indoctrinated with the need to follow the deadly force guidance in the agency’s policy statement. If they depart from that statement and their risky shot goes awry, they will be defending themselves in court alone, and their chances of obtaining summary judgment under a qualified immunity de fense will be severely damaged. Hence, they are drilled: never shoot to wound; shoot to eliminate the threat; aim center mass; fire at the torso, if visible; or, if the torso is not visible, fire at the center a. (March 27, 2000) (the firearms of mass of what the subject exposes. Telephone Interview with Official from Federal Law Enforcement Training Center, Glynco, G training expert preferred to remain anonymous). 10 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

11 74 questions about ROE. In addition to, “When can I shoot?,” sol- Specific military examples from Beirut, Madden Dam, yers. diers ask: Brcko, or Mijak, though, are more useful for training soldiers. This is because police objectives, organization, weapons, and (1) Can you give me some real examples of operations are significantly different even from military coun- when soldiers shot and when they did not? terparts in a peace-support mission. Also, domestic litigation is raised in distinct constitutional and statutory contexts related to (2) What happened to those soldiers? liability and immunity, so the value of the litigation record is (3) What are some ideas on other things I can limited. do if my buddies and I are not immediately threatened? While discussion of domestic excessive force prosecutions (4) Will we get any other equipment if con- or civil liability cases involving deadly force may help prepare trolling crowds becomes a problem? ss-examination on the witness police agents for hostile cro (5) Will the chain of command back me if I stand, is this precisely the approach commanders should use for am trying to do the right thing and I shoot? training young soldiers? For one thing, although the Supreme What if I don’t shoot? Court has indeed developed a doctrine of “reasonableness” that sensibly refrains from second-guessing officers staring down Soldiers get answers to these questions and achieve the balance the barrel of a gun, not all federal case results tend to quiet the between initiative and restraint through briefbacks, STXs fears of those who are enforcing the law and keeping the 75 involving hostile role players, and open, frank discussions with peace. Accordingly, when the onion of domestic litigation leaders built upon a foundation of trust and values. Soldiers are extolled by Parks is peeled back, it does not yield the claimed 76 expected to be aggressive and al ways try to do the right thing. benefits. They have to understand that, in spite of best efforts, mistakes will occur. Leaders underwrite honest mistakes and tell sol- diers that such mistakes help the entire task force improve at Commanders Do Lead performing difficult missions. Because these leaders’ expres- sions of support are consistent with their all-important support- Commanders and judge advocates with experience in devel- ive actions after a shooting or violent encounter, trust is further oping the right balance of initiative and restraint in soldiers reinforced, thus mitigating the extremes of inaction and over heading to Kosovo and Bosnia learn that soldiers ask typical aggression. This fully prepares soldiers not only to defend supra note 3, at 35 n.5 (citing, as the only exception, Captain David G. Bolgiano, Firearms Training System: A Proposal for Future Rules of Engagement 70. Parks, Training , A RMY L AW ., Dec. 1995, at 79). Two years before the article Parks cites as the single exception, the author was advised by at least nin e hard thinkers on use of force in the Army and the Marine Corps to probe that very litigation record while a student in the Army’s Judge Advocate Gra duate Course. These were then Brigadier General Walt Huffman, Colonels John Altenburg, Frederic k Lorenz, Pete Lescynzski, Hays Parks, and Lieutenant Colonels Dave Petraeus and Dan Bolger, received instruction from Special and Majors Marc Warren and Mac Warner, along with law enforcement experts Jim Fyfe and Sergeant Sean Hayes. Later, the author Agent John C. Hall at the FBI Academy in Quantico, underwent orientation training on Firearms Training System (FATS) scenarios in the Spring of 1996, and bene- time, several judge advocates have fited from the insights of former policemen David Bolgiano, whose article on the subject is complimented by Parks. Since that drawn from federal case law for persuasive (if not strictly binding) authority on ROE questions. See supra notes 32-34 and accompanying text (discussing judge advocates efforts to address the “Mad Mortarman” question). See, e.g. , Martins, supra 71. note 42, at 101 & n.329. 72. 490 U.S. 386 (1989). 73. 471 U.S. 1 (1985). 74. Those cases, when combined with practical knowledge of police policies, training, and procedures gained from law enforcement officers, do in fact furnish helpful NFORCEMENT B ULL ., Feb. 1995. See, e.g ., John C. Hall, Deadly Force: A Question of Necessity lessons about when deadly force is authorized. , L. E 75. Consider that in one recent five-year period, the Civil Rights Division of the Department of Justice filed charges against 2 46 law enforcement officers. During that same period, the Division culled through 45,000 citizen complaints and reviewed about 12,500 FBI investigations. The matt ers deemed by the Division to be nety-one indictments and forty-five most significant were presented to 142 federal grand juries around the country, and formal charges were filed that generated ni acquittals, yielding a conviction rate of criminal informations. The results of these charges: 107 guilty pleas, sixty-two jury trials, fifty-two convictions, and ten harm in flagrant violation of law and 73.4%. Now, close study of these cases frequently reveals intentional wrongdoing by a tiny fraction of officers who set out do See James P. Turner, Civil Rights: Police Accountability in the Federal System , policy. Still, these are not reassuring statistics to America’s law enforcement officers. . 991 (1999). C G EORGE L. R EV 30 M hat of the law enforcement 76. The law enforcement community is not immune from surprise opinions issued by courts whose reasoning does not exactly track t academy legal counsel. See, e.g. , Hall, supra note 69. The author attempts to reconcile the court’s reasoning in Bradford v. City of Los Angeles with the standard of “reasonableness” articulated in leading cases. The court in Bradford concluded it would let a jury decide whether an officer had been reasonable in using deadly force (in this case a vehicle) to eliminate a threat. The jury found that under the circumstances it was not reasonable because othe r alternatives (such as driving in front of Id. the subject) existed. 11 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

12 What the court termed “ROE” violations here—specifically themselves and accomplish unit mi ssions, but also to serve as violations of the commanding general’s order relating to weap- representatives of American strength and fairness—eternal 77 ons safety—were incidental to other serious wrongs. themes of national foreign policy. Commanders go to great length s to avoid second-guessing soldiers’ good faith use of deadly force in situations where ROE Command Backing violations are rumored or informally alleged. Parks’ inability to cite examples of criminal convictions for ROE violations is are more inclined to court- Parks suggests that commanders telling. Isolated instances in which post-shooting investiga- martial a soldier after a shooting incident than to stand up tions have occurred, perhaps with the side-effect of chilling against restrictive ROE before an operation. The facts do not 78 82 other soldiers’ initiative, support this assertion. should serve as lessons to all that, Only two reported appellate cases when possible, a review of the circumstances should be under- involve charges founded in violations of the rules of engage- 79 ment. Both of these cases— United States v. McMonagle taken as an after-action review rather than as an investigation. and 80 United States v. Finsel — arose in Panama, following Opera- Meanwhile, commanders aggressively challenge ROE tion Just Cause. issued by higher headquarters. The 1986 Honduras example cited by Parks, in which the 75th Ranger Regiment Commander in the prosecution of either Restrictive ROE played no part insisted upon authority for live and chambered rounds, is repre- McMonegle or Finsel. These two soldiers were subject to pros- sentative rather than unusual. The Dayton process, which ecution because, on the night in question, they were drinking involved close involvement by senior military commanders and alcohol in violation of a no-drinking order, having sex with a resulted in a “robust” Military Annex to the General Frame- woman in a local brothel despite an order prohibiting intimate work Agreement for Peace, is another example in which politi- contact with Panamanians, stag ing an elaborate mock firefight cal and diplomatic considerations were not permitted to dilute to cover up Sergeant Finsel’s loss of a 9 mm pistol, and finally 83 81 the soldiers’ employment of force. killing an innocent bystander who fell victim to a wild shot. A final example is the 77. Parks applauds the rules for use of force by ground forces in Vietnam and asserts that ROE for U.S. forces on peace-support operations today place greater con- straint on individual soldiers than existed during that conflict. Parks, supra note 3, at 35, 37. Any comparison between wartime and peacetime rules is like comparing apples and oranges, however, because during war, enemy soldiers l reason more constraining. Also, can be shot on sight. Rules in a MOOTW are for this fundamenta ., T HE REPENEVICH , J R F. K NDREW A RMY AND Parks’ implied assertion that the Vietnam rules “served us well” would not go unchallenged in some quarters. ., A See, e.g IETNAM 199 (1986). V 78. Regarding an incident in Bosnia that occurred in the Spring of 1999, Parks writes: In Bosnia, Special Forces personnel were threatened by a heavily armed mob. The senior soldier present directed his men to run to avoid the confrontation. As they began to run, the senior soldier was struck in the back by a club. Realizing that were he or any of hi s men to fall, they would be beaten and possibly killed, he drew his pistol and shot his assailant. Although his action clearly was in self-defens e, authorities weighed his court-martial for violating ROEs before ordering him out of the area of operations. supra note 3, at 33. This account is strongly denied by individuals who were close to the situation. See, e.g. , E-Mail from Colonel Michael Kerschner, Com- Parks, mander of the Combined Joint Special Operations Task Force (at the time of this incident), to multiple addressees, subject: Co mment on Deadly Force Is Authorized by Colonel W. Hays Parks (Jan. 19, 2001). The only feedback the soldier in question ever received from his chain of command was--he had done exactly the right thing . . . . The NCO d contact with was moved out of country, not for disciplinary reasons, but for his own protection. His team experienced frequent and prolonge the civilian populace of the region and I did not want him to become a target for Serb retaliation. Id. 79. 34 M.J. 825 (A.C.M.R. 1992). 80. 33 M.J. 739 (A.C.M.R. 1991). McMonagle , 34 M.J. at 856-57, 865; Finsel , 33 M.J. at 740, 747. 81. 82. See Martin, supra note 42, at 64-67 (discussing the Mowris and Conde cases). 83. See, e.g. , Walter B. Slocombe, Undersecretary of Defense for Policy, Prepared Statement Before the House International Relations Committ ee (Mar. 12, 1998). First, the force will be fully able to protect itself. Although the follow-on force will be smaller, it will be sufficient, as judged by our military ROEs. As has commanders, in numbers and in equipment to achieve its mission and to protect itself in safety. It will continue NATO’s robust been true throughout, force protection is our highest priority. Id. 12 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

13 ing mission. There, soldiers and the bridge were well protected planning and orders-writing process that preceded operations in 87 by earthen barriers, concertina wire, and more Bradleys. Kosovo, when U.S. Army commanders refused to rest until they received interpretations of NATO ROE consistent with 84 self-defense and mission success. By late morning, the situat ion escalated. The crowd had grown to several thousand, many of whom were bused to the demonstration by organizers loyal to Bosnian Serb leader 88 Karadzic. A few in the crowd had Molotov cocktails and CS The Real Story in Brcko canisters; women with babies and elderly people were being 89 Events in Brcko, Bosnia, in late August 1997, reveal that pushed toward the front of the crowd. commanders are stepping up and leading as their soldiers face tough decisions. Those events, among the ones summarized The American company in Brcko was part of the Stabiliza- all-too-briefly by Parks at the start of his article, provide a help- tion Force that was implementin g the 1994 General Framework ful context for discerning the true role of authority to use deadly Agreement for Peace negotiated at Dayton. Control over the 85 force in a military operation. That role is often quite limited. town was so contentious that it could not be decided within the it was deferred for decision Framework agreement; rather, at both of the former warring through an arbitration process th Around 2 a.m. on 28 August 1997, sirens went off in the factions were still attempting to influence in August 1997. The town of Brcko. Serb radio had announced that backers of a Serb Republic realistically felt that it could not exist without moderate, elected Serb official were going to attempt to assume control of Brcko because the razor-thin Posavina Corridor on control over the local police station. The siren served as a sig- which Brcko rests is the sole land link between the two halves nal for an orchestrated demonstration to begin. A U.S. com- 90 of the Serb state. pany-sized task force, providing presence in the town during the anticipated change in civil power, was deployed into a perimeter and at several intersections. Within an hour, a large The Muslim-Croat Federation, meanwhile, felt it would be Serb crowd—about 400-strong—had gathered near the police fatally weakened by the loss of the corridor. Such a loss would station, armed with stones and clubs, and many Serbs were isolate Sarajevo from the rest of Europe and weaken the throwing stones, bricks, and flower pots at the American sol- defenses of Tuzla, Bosnia's only major industrial city. Also, to diers from rooftops. The company commander reported the give control to the Serbs would seemingly condone one of the growing disturbance in the town and began moving the task war’s clearest examples of “ethnic cleansing.” On 28 August force to a reinforced position at the nearby Brcko bridge, 1997, Brcko’s population of 34,000 was 98% Serb. Just before remaining in frequent contact with his battalion and division the war, in 1992, the population had been 40% Muslim, 30% 91 headquarters, which would soon have the town under close Serb and 30% Croat or “other.” 86 aerial observation. The company commander maintained excellent command and control throughout the day. The angry crowd was kept at Two dismounted squads of soldiers, overwatched by a Bra- bay with a variety of measures, which included the conspicuous r platoon sergeant in the turret, dley Fighting Vehicle with thei locking and loading of weapons, butt-strokes to individuals were starting their movement from an intersection when a who came too close, small arms warning shots, CS grenades crowd member climbed up on the Bradley and struck the pla- and canisters, and eventually a burst of fire from an M240C, toon sergeant with a two-by-four. The assailant then slipped 7.62 mm, coaxially mounted machin e gun, over the heads of the down into the crowd. The company continued its orderly 92 demonstrators and into a nearby building. movement to the bridge, the protection of which was a continu- 84. The commanding generals of Task Force Falcon (Brigadier General Bantz Craddock), 1st Infantry Division (Major General Dave G range), V Corps (Lieutenant General John Hendrix), and United States Army Europe (General Montgomery Meigs), and their judge advocates, were personally and closely involved in the process of obtaining clarifications from NATO relating to use of force rules. 85. Telephone Interview with Major Kevin Hendricks, Former Company Commander, C Company, 2d Battalion, 2d Infantry Regiment (Mar . 28, 2001) [hereinafter Hendricks Interview]; Telephone Interview with Lieutenant Colonel Jeff Lau, Former Executive Officer, 1st Battalion, 77th Armor Regiment (Mar. 26, 2001). The facts in this account of the August 1997 Brcko incident are drawn from these two telephone interviews. 86. Hendricks Interview, supra note 85. 87. Id. 88. Ortho-chlorobenzylidene malononitrile or “tear gas.” 89. Hendricks Interview, supra note 85. 90. Id. Id. 91. 13 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

14 The discipline and resolve of the U.S. forces to remain on the and several other men received that day were well-deserved, d leaders to call an end to the bridge eventually caused the crow like any other commendation given to a soldier for placing him- disturbance. Many of the soldiers sustained wounds from self at risk to accomplish a greater good. rocks and tussles with the crowd, and five injuries—including the platoon sergeant hit with the two-by-four—required medi- The greater good in this case was significant: In addition to ose eye was injured, eventually cal treatment. One soldier, wh bringing an end to the disturbance without the loss of a single left the Army with a 10% disability; but he has since re-enlisted soldier or civilian life, the fragile stability in the Balkans began and is stationed at Fort Bragg. to take hold. With the 2000 election in Belgrade of a regime committed to democratic reforms, the discipline, resolve, and Although some in the international media portrayed the situational awareness of our soldiers and leaders in Brcko and events as a victory for Serb nationalists because the platoon on elsewhere in the Balkans paid enormous dividends for U.S. the bridge did not kill any of the demonstrators, informed national security interests. observers are convinced that Serbs would have achieved their objectives by inciting the soldiers to open fire on them. Pre- Another troubling part of Parks’ analysis is the extent to sumably, Parks believes U.S. soldiers should have fired on the which he takes the individual “right” to fire, an idea that com- crowd the moment they had legal authority to do so. This petes with Parks’ exhortation that “commanders must lead.” when rock throwers, Molotov would have been the instant Soldiers in a platoon, more so than a policeman responding to cocktail hurlers, and club wielders gave the soldiers a reason- a call with his partner in a patrol car, take action within a chain able belief that they were in imminent danger of serious physi- of command. The prerogative of individual decision-making cal injury. Setting aside the difficult question of which targets occurs only as the soldier’s actions—say, while on sentry duty the soldiers should have shot if the threats were submerged in a or during clearing operations in urban terrain—require him to crowd of unarmed persons, most could agree that legal author- operate independently. Soldiers are required to follow orders. ity to fire was present at various points throughout the long The need for any operation against a determined and ingenious day—during which the crowd disturbances ebbed and adversary to be coordinated and strongly led is one of the deep- flowed—and that excessive use of force allegations might have est military truths and is captured in the principle “unity of run a short course in a post-shooting process under domestic command.” Does Parks honestly believe that each soldier has federal policy and law. the unqualified and personal right to fire at will in a Brcko Bridge scenario, even when every soldier continues to enjoy Part of the trouble with Parks’ analysis is that soldiers were clear communication with a sergeant or officer-in-charge on the not holding fire because they feared a lack of legal authority, scene who are in a better position to gauge the risk of fratri- 94 something they certainly also had under ROE disseminated and cide? Deadly Force Is One cannot tell by reading Parks’ trained by the unit. They held fire rather because shooting . The distinction in the SROE between ROE for Authorized 95 would not have eliminated the threat, would have helped the self-defense and ROE for “mission accomplishment” at least Serbs achieve their destabilizing aims, would have precluded acknowledges that unit goals and individual self-interest are not other techniques, and would have risked spinning the situation identical. 93 in Brcko out of control. The decorations the platoon sergeant 92. Id. that holding fire is not the result of 93. United States soldiers who dealt successfully with civil disturbances in Strpce and Mitrovica, Kosovo, in early 2000 concur rmer Commander, 3d Battalion, 504th ignorance about where the legal line of authority to use deadly force lies. Interview with Lieutenant Colonel Mike Ellerbe, Fo Parachute Infantry Regiment, at Fort Polk, La. (Mar. 26, 2001). Parker v. Levy 94. Consider , 417 U.S. 733 (1974): This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We ha ve also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences b etween the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fig ht wars should the occasion arise.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). In , 137, U.S. 147, 153 (1890), the Court observed: In re Grimley “An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.” More recently we noted that “the military constitutes a specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby , 345 U.S. 83, 94 (1953), and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . .” Burns v. Wilson, 346 U.S. 137, 1 40 (1953) (plu- rality opinion. Id. at 743-44. id. encl. K, para. 3. 95. SROE, supra note 6, paras. 1a, 6b, 6c, 7; id. encl. A, paras. 1a, 1c(1), 3b; 14 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

15 ? g s SROE-Based Department of Justice i n i ? V. h s e c v Training Aid Deadly Force Policy u i i f t h n c i o r W t C s Necessity. R-A-M-P e e r The officer “may use deadly force only when necessary, that is, (Army FM 27-100) R o when the officer has a reasonable belief that the subject of such force e R-Return Fire with r M poses an imminent danger of death or serious physical injury to the o . Return force Aimed Fire officer or to another person.” with force. You always M have the right to repel Reasonable Belief Non-Deadly Force hostile acts with necessary “Probable cause, reason to believe or a “If other force than deadly force force. reasonable belief, for purposes of this reasonably appears to be sufficient to A-Anticipate Attack. Use policy, means facts and circumstances, accomplish an arrest or otherwise force first if you see clear including the reasonable inferences accomplish the law enforcement indicators of hostile intent. drawn therefrom, known to the officer at purpose, deadly force is not the time of the use of deadly force, that necessary.” M-Measure the amount of would cause a reasonable officer to Force that you use, if time conclude that the point at issue is Verbal Warning and circumstances probably true.” “If feasible and if to do so would not Use only the permit. increase the danger to the officer or others, amount of force necessary Mere Suspicion a verbal warning to submit to the authority to protect lives and “Deadly force should never be used of the officer shall be given prior to the accomplish the mission. upon mere suspicion that a crime, no use of deadly force.” P-Protect with deadly matter how serious, was committed, force only human life, and or simply upon the officer's Objective Reasonableness property designated by determination that probable cause “Use of deadly force must be your commander. Stop would support the arrest of the objectively reasonable under all the short of deadly force when person being pursued or arrested for circumstances known to the officer at protecting other property. the commission of a crime.” the time.” as well as through improved overall physical conditioning and We’re All Hicks’ Now 98 other influences. Repetitive practice is the hallmark of the Parks criticizes commanders for ignoring Hicks’ law. Yet aining” system, and effective Army’s “performance-oriented tr while they may not know it by name, military commanders leaders of all services incorporate these same insights into drills actually employ training techniques for use of force that are for improving time and quality of performance on a multitude fully built upon the insight of Hicks’ law and related concepts of tasks. of information processing. Cognitive psychology models describe three sequential stages for neural information process- A federal law enforcement agent, who is required by policy ing related to movement output: (1) stimulus identification; (2) issue a verbal warning if fea- to consider nonlethal force and to 96 response selection; and (3) response programming. sible, faces no fewer alternatives than a similarly armed and sit- All three uated soldier. Operant conditioning quickens both the agent’s stages require time. Hick’s law, which relates to the second and the soldier’s response time in firing at identified threats. In ection time increases as the num- stage, states that response sel 97 a close-quarters firefight, there are only two options: Shoot or ber of alternatives increases. don’t shoot. Repetition during firearms training must ensure that defensive movements become natural and decisive. At this Research shows that response selection time decreases as deadly moment, a training aid’s list of continuum of force alternatives are ordered within schemas. Further, all three options or a vague policy reference to nonlethal force must not information-processing stages can be shortened through repeti- hamper the response of the threatened soldier or agent. Again, tive practice in a progressively more distracting environment, 99 training rather than legal drafting is the key. L : A B EHAVIORAL E MPHASIS , M ch. 4 (1988). 96. R.A. S CHMIDT EARNING OTOR ONTROL AND C 97. Id. 428, 428-33 ERONTOLOGY See 98. The Effect of Practice on Age Differences in Central Perceptual Processing , 31 J. G C.K. Hertzog, M.V. Williams & D.A. Walsh, (1976); W.W. Spirduso & P. Clifford, Replication of Age and Physical Activity Effects on Reaction and Movement Time , 33 J. G ERONTOLOGY 26, 26-30 (1978); David P HEORETICAL M ODELS 33-58 (Harry Singer & Robert B. Ruddell eds., 3d ed. EADING R OF ROCESSES AND , in E. Rumelhart, Schemata: The Building Blocks of Cognition T 1980). 99. Described in terms of the RAMP decision model, a soldier needs a strong foundation of repetitive training in the “A-Anticipa te Attack” before all else, and when a threat appears, his or her judgment must have been trained such that the response is instantaneous. This is one of the poten tial risks associated with RAMP, in that like any other collection of words, it is a poor substitute for the actual training that can develop the good, rapid judgments and muscle memory crucial to effective defense of self and others. To the extent that it is regarded as more than a training aid, it is unhelpful and even counterpro ductive. 15 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

16 not related to individual self-defense (such as geographic Conclusion restrictions, weapons approval authorities, and alert condi- tions). The lack of consistent language and format, however, Rules of engagement are not handicapping and endangering has impeded adoption of a uniform training approach at service ground troops on peace-support missions. United States troops 100 schools and initial entry bases. are well organized, equipped, supported, armed, led, and— most significantly—trained. That training, though at times similar to the training of domestic law enforcement agents, is Commanders reassure soldiers with uneven success that appropriately geared to military rather than police functions. actions taken in tense, uncertain, and rapidly evolving circum- High-level policy statements as well as training materials stances will not be second-guessed with 20/20 hindsight. Most regarding self-defense and the authority to use deadly force nt job at this important lead- commanders, though, do an excelle must also recognize the distinction between soldiers and cops. ership task. The ability of units and soldiers to transition imme- diately from low threat to high threat and wartime scenarios All is certainly not perfect with the current materials used to remains an elusive and essential goal. Not all units perform convey guidance to units and soldiers on the use of force. Oper- enough marksmanship and close-qu arters combat training. The ations orders, soldier cards, and even specific vignettes con- term “ROE” itself is applied to so many varied types of direc- tinue to incorporate a variety of terms and verbal formulas e military vocabulary is needed. tives that greater precision in th addressing individual self-defense. Force continuums lacking precautions against gradualism and “last resort” language Yet improvement upon these and other aspects of the current describing deadly force contain troubling boilerplate language. system is frustrated rather than advanced by sensationalism. Vignettes also often lack grounding in real situations that have Because he ignites easy biases against other services, against been faced by soldiers situated similarly to the training audi- peace support operations, against political and international ence. constraints, and against lawyers, Hays Parks obscures the train- ing imperatives that provide clues to a better way. Deadly force Commanders and staffs have wrestled, unsuccessfully to is indeed authorized, but a burn ing focus on legal authorization date, to find a standard way of disseminating ground force ROE rather than training creat es more heat than light. 100. I recognize the difficulties in standardizing the dissemination of these higher order rules. For a variety of reasons, I n ow believe that the “ROECONs” system that I recommended in 1994 is not the answer. See Martins, supra note 42, at 83 n.280, 92-94, app. D. Still, the basic idea of that system—to standardize ROE dis- semination in unit Standing Operating Procedures (SOPs)—has merit and would benefit from further effort at Corps and Division s taffs throughout the Army. 16 SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346

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