While American civilians and politicians debate when and whether to withdraw troops from Iraq, the buzz among some military lawyers has been a recent Pentagon rule change that they say potentially limits service members' ability to defend themselves.
In June, the Pentagon changed its Standing Rules of Engagement to allow commanders to limit individual self-defense by members of their unit. Interpreted for me by two Army judge advocate general officers (JAGs), this essentially means that soldiers and Marines may not have the individual prerogative to fire upon an enemy when they are faced with an imminent threat of death or serious injury.
That belongs only to commanders, who may not be present to make a decision every time a soldier or Marine faces a deadly threat.
The impetus behind the rule change likely evolved from concerns that a soldier might misinterpret a danger and kill an innocent instead of a bad actor. But critics say the solution to this ever-present tension is better training, not more restrictive rules.
Commanders and JAGs close to the debate say the rule change poses numerous potential problems and contradicts the guiding principle in all of America's rules of engagement, which is that nothing in these rules limits the inherent right of self-defense. If a soldier or Marine can't make a split-second decision to kill or be killed, even at the risk of making an erroneous judgment, he or she may eventually hesitate, fumble the wrong way, and end up dead.
Not only does this new rule defy common sense and place service people at undue risk, say military lawyers with whom I've spoken, but it could make recruiting difficult. One, in an opinion piece he submitted to the Army Times, wrote:
"If the Army thinks it has a recruiting problem now, wait until the mothers and fathers of prospective recruits learn that the military is trying to give more legal protections to possible Al Qaeda members demonstrating hostile intent than the Fourth Amendment currently gives to criminals in the United States."
His commentary was never published. He asks that I not name him out of concern for possible retribution.
The JAG officers also question whether the regulation can be lawfully implemented, as restricting self-defense potentially contradicts the military Code of Conduct, which states that American fighting forces should not surrender when they have the means to resist. Of potentially greater consequence, they say, is that the U.S. Supreme Court has ruled that one's work position cannot diminish one's inherent right to self-defense, because its "inherent." Soldiers and Marines in theaters like Iraq are already at a disadvantage given that most tactical situations they face require split-second judgments where the enemy already has the initiative and the advantages. By changing the SROE in ways that reduce their ability to respond to imminent danger, they're at an even greater disadvantage. Forget about the deficiencies of armored Humvees and other tactical equipment. If soldiers and Marines can't act quickly when dangers arise, even the best equipment won't save lives.
Just as important as the ability to fire when threatened is a soldier's understanding that his command will stand behind him. To believe otherwise could cause hesitation and indecision, leading to deadly consequences.
The machinations of military bureaucracy have long been a concern to those in the trenches, especially to the soldier-lawyers who must interpret rules hatched in civilian cubicles and apply them to the chaotic instants of war. Witness another bureaucratic gem that has been circulating the past several days - an "escalation of force" flow chart from the Commander of the Multi-National Coalition-Iraq.
To see this thing is to not believe it. Picture a page loaded to the margins with boxes filled with tiny print and arrows pointing the way through a series of steps from "training" through "use-of-force" to how to disburse "condolence $$" to Iraqi claimants. If a soldier or Marine can find his way through this maze, he should skip Iraq and head straight for Harvard Business School and his new career as dean.
Whatever the theory behind these kinds of directives from on high, the trickle-down effect is hesitancy, concern over command support, and increased confusion on the ground. The potential for an adverse effect on morale goes without saying. As one Army officer who asked not to be identified put it: "We've got to get some warfighters over there who understand how to actually win, not look for ways to evade responsibility for 'lethal force decisions'."
Not everyone agrees that the new rule places limits on self-defense, even though the language seems plain enough. Some believe the rule should be read very narrowly: that such command limitation isn't likely to happen except in rare circumstances.
But where there's disagreement, there's room for doubt, which can be deadly under fire. At the very least, the new rule bears close scrutiny if any future interpretation could lead to a soldier or Marine hesitating because they haven't clearly been told that they have an inherent right to defend themselves.