- The Washington Times - Thursday, December 28, 2000

According to an Associated Press report, sailors guarding the USS Cole when terrorists bombed it in Yemen did not have ammunition in their weapons and were instructed not to shoot unless fired upon. The report further claimed that crew members stated that their "rules of engagement" prevented them from firing without obtaining permission from the ship's captain or another officer.

More recently, Russian fighter aircraft reportedly approached within 200 feet of the aircraft carrier USS Kitty Hawk, allegedly buzzing its bridge. Incredibly, no interceptors were scrambled from the American aircraft carrier's deck to provide defensive cover for this strategic asset.

If true, such reports are disturbing, but hardly surprising in light of the systemic misapplication of law in our military's standing rules of engagement (ROE). Moreover, they reflect a serious diminution of the great respect once afforded a United States man-of-war.

In a military command structure more and more reliant on attorneys to define mission parameters, it is ironic that the legal advice provided appears to be more concerned with CYA (covering your rearend) rather than legitimate ROE. A simple overview of U.S. constitutional law, as well as English common law, concerning the lawful use of force demonstrates that the law allows for a much more robust and reasoned response to threats than is currently afforded our ships and service members serving in hot spots throughout the world.

A multitude of U.S. Supreme Court and lower federal court cases have consistently stated that there is no requirement for law-enforcement personnel to respond with anything less than deadly force when confronted with a dangerous, quickly evolving threat. A police officer, when threatened with imminent danger to himself or others, may instantly resort to deadly force. At a more elementary level, the common law allows for the use of deadly force in legitimate self-defense when confronted with such an imminent danger.

Not so with our service members. In confusing and cumbersome ROE probably similar to those written for the USS Cole service members are ordered to use "escalating force," "warning shots," and "the least amount of force necessary." They are further tasked with seeking permission from higher headquarters for a relaxation of the ROE. Can you imagine a police officer on the street radioing back to headquarters seeking approval for using his service weapon when confronted by an armed and dangerous criminal? Yet this is exactly what is incorrectly foisted upon our line officers leading soldiers, sailors and Marines into harm's way.

Moreover, in an effort to maintain control over a use of force situation, commanders often do not issue live ammunition to subordinates tasked with unit self-defense. One can hardly blame the commanders for such folly. Why? Because the political leadership would have skewered the skipper of the Cole if the sailors standing guard fired upon the Yemeni terrorists before the attack could be carried out. Ironically, these same politicians will most likely now skewer the same individual for not firing.

Regardless of the mission, our service personnel should always be afforded the right of self-defense so long as it does not interfere with the tactical mission at hand. Certainly, there may be some circumstances whereby an individual's right of self-defense may be trumped by operational necessity. In an ambush situation for instance, a soldier otherwise entitled to utilize deadly force against an dangerous adversary may have to hold his fire until permitted by proper command authority. Under such limited tactical circumstances, however, force applications decisions should nearly always be made by the unit commander instead of imposed by ROE written at the National Command Authority level.

A serious review of our armed force's ROE needs to be undertaken at once. The law does not require the overly restrictive language typically found in current military operation orders. Change needs to come from both the civilian and military leadership. First, both should take the time to understand better the laws concerning use of force. Politically, such knowledge provides a moral high ground in the world arena. Militarily, the law provides commanders much more leeway to tailor ROE that provide effective force protection. Our volunteer force throughout the world deserves no less. At the strategic level, our military forces often need to tread softly. But to maintain any semblance of deterrence, they must also carry the big stick.

Hamstrung by overly restrictive ROE, our military assets will be reduced to a laughing stock at best and a target of opportunity at worst.

David Bolgiano is a former Army judge advocate and paratrooper.

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