ASCF Report| 7.1.15
By Alan W. Dowd

The Pentagon has just released its newest edition of the U.S. Law of War Manual. At 1,176 pages, the new rulebook for America’s warriors is longer than Gerhard Weinberg’s magisterial history of World War II, longer than Paul Johnson’s weighty summary of the 20th century, longer than Webster’s dictionary, longer than most English translations of the Bible. It’s a ready and apt metaphor for the smothering layers of rules being piled onto the backs of those who defend us—and the JAG officers who advise them.

First things first: The impulse to use the force of American law to constrain and contain the conduct of war is understandable, even laudable. We are a nation of laws. Our system of government is grounded in the rule of law, in civilian control over the military, in placing limits on power. We rely on lawyers to interpret what the law means—and how, where and when it should be applied. But in a broader sense, the trend toward larding up battlefield decision-making with legal second-guessing is self-defeating and downright dangerous. Those who defend us shouldn’t have to fight legal battles before, during or after fighting the enemy. Yet they are. Here some of the numerous examples.

Palsied by Lawyers
The 9/11 Commission Report is peppered with references to, and examples of, lawyers constraining or sidetracking efforts to share information between agencies and kill Osama bin Laden.

For example, in the late 1990s, after almost a decade of terrorist attacks against U.S. targets, bin Laden was a known enemy of the United States. CIA operations teams advocated killing the terror mastermind, but their plan “drew sharp criticism from lawyers throughout the executive branch,” George Mason University law professor Nathan Sales explains in a revealing studyon legal constraints and national security. Before 9/11, government lawyers would countenance the killing of bin Laden only if “his death was the accidental byproduct of an otherwise legitimate capture attempt.”

As Michael Scheuer, who led of the CIA’s bin Laden unit, concludes, “The U.S. intelligence community is palsied by lawyers. When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden’s safety and his comfort than they were with the officers charged with capturing him.”

More than a year before the 9/11 attacks, as The New York Times reported, “a small, highly classified military intelligence unit identified Mohammed Atta and three other future hijackers as likely members of a cell of al Qaeda operating in the United States” and recommended that the information be shared with the FBI. But that recommendation “was rejected and the information was not shared,” apparently because of how someone interpreted the law relating to intelligence-collection operations and legal protections for U.S. citizens and green-card holders. Importantly, “That protection does not extend to visa holders,” which is what Atta was.

Things didn’t get much better after 9/11. In October 2001, just days into combat operations in Afghanistan, a Central Command JAG officer blocked U.S. forces from attacking a convoy carrying Taliban leader Mullah Mohammed Omar. In so doing, that military lawyer arguably ensured a longer war and more American casualties. Fourteen years later, the man who opened Afghanistan to al Qaeda is still at large, still rallying the Taliban against the United States.

Reports that some federal agencies were pushing the military to treat captured terrorists like suspects in a stateside criminal case promptedSen. Jeff Sessions to propose legislation to “preempt any federal executive…requirement that our troops in the field, in Afghanistan and Iraq, read Miranda warnings to al-Qaeda terrorists whom they capture.”

According to a New York Times review, Naval aviators, keenly aware of the microscope they were under in Afghanistan in 2009-10, “worked with military lawyers” to plan and conduct non-lethal responses to insurgent attacks.

Fast-forward to today’s hamstrung air campaign against ISIS, and U.S. pilots anonymously reporthaving “groups of ISIS fighters” in their sights but being unable to “get clearance to engage.”

Citing testimony from the Joint Chiefs, Military.com reports that “75 percent of the sorties flown [against ISIS targets in Iraq and Syria] have returned to base without firing weapons.” This is largely due to highly restrictive rules of engagement (ROE). Lt. Gen. David Deptula (U.S. Air Force-RET), former head of air operations in Afghanistan, arguesthat “excessive procedures…are handing our adversary an advantage.”

Rep. Martha McSally, a veteran A-10 pilot, concludes that “we are deciding not to hit a legitimate target because there may be a civilian casualty” and warns that trying to conduct an air campaign under such straightjacket rules of engagement is turning the American way of war on its head.  Not coincidentally, there are five ongoing investigations related to U.S. airstrikes targeting ISIS, according to Military.com.

Shifting back to ground operations, Army Times reportedin 2012 that when Marines in Afghanistan’s Helmand province saw a “known insurgent…digging a hole for a homemade mine beneath a well-traveled dirt road,” they had to call battalion headquarters to seek and receive “what military lawyers call ‘positive identification’” before they could launch an operation against the insurgent.

After U.S. snipers neutralized the threat, civilians placed the wounded insurgent onto a tractor. The young Marine in charge of the operation then “ordered his snipers to fire at the tractor’s engine block, to disable it until a Marine foot patrol could arrive to detain the man.”

To most Americans, that sounds like a Marine finding a way to complete his mission, while doing everything possible to protect noncombatants. But what the military lawyers saw in their after-action review was “civilians conducting a medical evacuation…firing on them was a potential war crime.”

The incident triggered months of investigations and cost the Marine his post as unit commander.

The unintended consequences of these sorts of legal intrusions onto the battlefield can be deadly. As rules of engagement grew more restrictive in Afghanistan, according to Army Times, “Evidence suggests war fighters began to overcompensate—in some cases becoming exceptionally cautious.”

Lt. Col. Jeffrey Addicott(U.S. Army-RET), a former JAG officer and now a professor at St. Mary’s University, agrees. “Service members are often unsure what the ROE entail and may simply choose to do nothing for fear of violating them,” he explains.

Addicott notes that troops deployed downrange not only have to ask for permission before engaging the enemy, but also are usually ordered to “use the least intrusive method” to neutralize the threat. This invariably exposes our forces to more danger. In both Iraq and Afghanistan, “overbroad restrictions on the use of force,” according to Addicott, “have directly contributed to large numbers of American causalities.”

As one Marine in Afghanistan said of the rules of engagement he must fight under (and against), “We’re not putting fear into the enemy, only our own troops.”

JAG officers are not solely to blame for this legal minefield. In most cases, they are saluting and performing their assigned mission with skill, just like the troops downrange. However, we should take a hard look at the system under which military lawyers learn and conduct their unique trade—and under which U.S. troops are expected to defend us.

“The Pentagon has become home to more than 10,000 lawyers,” former Defense Secretary Don Rumsfeld observes in his book Rumsfeld’s Rules. “The Pentagon has more lawyers than the Department of Justice.” He notes that “A lawyer’s job, by definition, is to advise which courses of action are legal. Before long, in the interest of ‘protecting’ the department, lawyers can become barriers against taking action at all…I get concerned when lawyers start making decisions for policymakers or for those on the firing line, rather than giving legal advice to them.”

Love him or hate, Rumsfeld is right about this.

Sales, for instance, reports that certain JAG officers “have begun to review military operations not just for their legality, but for their prudence. Judge advocates sometimes recommend against strikes that are, in fact, lawful but that are thought to be undesirable for other reasons…One military lawyer has argued that, when deciding whether to approve a mission, the JAG corps should weigh ‘moral, economic, social and political factors’ in addition to purely legal considerations. That expanded role is said to be necessary because American Armed Forces should not just refrain from violating the laws of war. They should also refrain from any lawful action that adversaries might falsely denounce as a war crime.”

Think about that for a moment: This military lawyer is advising fellow military lawyers that U.S. forces—in combat, in the middle of global war—should avoid taking even a “lawful action” that the enemy “might falsely denounce as a war crime.” Given that the enemy could call anything a war crime—and has done exactly that in the Vietnam War, the Gulf War and the war on terror—this approach takes virtually everything off the table and effectively disarms our troops. It is the very definition of self-defeating.

As Addicottpoints out, “We’re fighting totalitarian regimes that have no regard for the laws of war and that use our rules of engagement against us.”

What too many policymakers fail to grasp is that the law only protects those of us who respect it; the law does nothing to protect us from those who flout it, oppose it and trample it. The only thing that protects us from them is force—or more accurately, those willing to use force on our behalf. It is warriors, not lawyers, who keep us safe.

*Dowd is a senior fellow with the American Security Council Foundation, where he writes The Dowd Report, a monthly review of international events and their impact on U.S. national security.