Lingering Rules of Engagement for our War Fighters

By Major General Paul E. Vallely, U.S. Army (Ret.)

“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

– George Washington

There are two aspects to planning and executing a war. The first is the Strategy, and the other is the Rules Of Engagement. These two elements develop and adjust over time, just as the enemies and battlefield change over time. While basic principles remain the same, the approach to war is never “one-size-fits-all” because the enemies and the reasons for war evolve. It is vital to look at these two elements as they are currently imposed on the military. Because the two, as they now are, have created disturbing chaos that makes it almost impossible for our military to appropriately fight an enemy while protecting themselves.

What Are The Rules Of Engagement (ROE) ?

It would take an entire book to fully describe all the intricacies of the ROE. In Chapter Five of the Army’s Manual this simple introduction is given:

“A. Rules of Engagement (ROE) are the primary tools for regulating the use of force, making them a cornerstone of the Operational Law discipline. The legal factors that provide the foundation for ROE, including customary and conventional law principles regarding the right of self-defense and the laws of war, are varied and complex. However, they do not stand alone; non-legal issues, such as political objectives and military mission limitations, also are essential to the construction and application of ROE. As a result of this multidisciplinary reach, judge advocates (JA) participate significantly in the preparation, dissemination and training of ROE. Although JAs play an important role, ROE ultimately are the commander’s rules that must be implemented by the Soldier, Sailor, Airman or Marine who executes the mission.”

This sounds like a straightforward explanation of the ROE and it makes sense that the ROE should be in place so military forces know what is legal and not legal for them to do as a part of winning a war. These rules are in place for reasons that both protect the military and respect the international conventions of war. Unfortunately, the ROE can be conveniently manipulated by the “political objectives and military mission limitations… essential to the construction and application of ROE.” In other words, ROE are strong guides for our soldiers in the battlefield, but the ROE can be entangled with political agendas and philosophies.

Despite the American Revolutionary War against the British crown, the U.S. military laws like the ROE find their origins in the United Kingdom. The guiding document for the Rules of Engagement, how the military conducts combat, arises from the U.S. Articles of War. General George Washington adopted the Articles of War word-for-word from the British Articles of War, which created a distinction between the Army and the Navy.

The next major transformation occurred after the Civil War when Colonel William Winthrop wrote his treatise, “Military law and precedents.” Winthrop’s seminal work became the definitive guide to military law until Congress created the Uniform Code of Military Justice (UCMJ) in 1950. This uniform code brought all branches of the military together under one set of laws.

Things have changed again for the U.S. Forces in today’s battles because the fight is not being run strictly by the Americans. The ROE being carried out in Afghanistan applies to all International Security Assistance Forces (ISAF) and are subject first to International Law, and are standardized across 47 nations. Beyond International Law, the media, the Red Crescent, the politicians and Human Rights Non-Governmental Organizations (NGO’s) take a lower position of influence in both strategy and ROE.

General Stanley McChrystal authored the Rules of Engagement for the battlefields of Iraq and Afghanistan using decrees authored by Deputy Defense Secretary Gordon England and his subordinate, Hesham Islam. General David Petraeus later loosened some of the restrictions to the ROE. It is worth noting that a firestorm of controversy in 2008 caused Hesham Islam to step down from his post as a top Pentagon aide because, “FBI officials believe Islam is involved with the U.S. branch of the Muslim Brotherhood and is helping its front groups run ‘influence operations’ against the U.S. government.”

The ROEs are a now a good fit with the current strategy, yet it is the pro-Islam equivocating strategy that is deeply flawed, immoral and anti-American in the zones of combat. It should also be noted that the ROE and the strategy also apply to all intelligence agencies, all NATO membership countries and law groups.

What Is The Current Military Strategy And How Does It Interact With The ROE?

A major bone of contention are the conflicting stories and explanations the families were given about the ROE. In one briefing the families were told that the ROE were the reason that no pre-assault fire was provided for the chopper. In the same briefing they were told that the military could not fire on the enemy after they shot the RPG because, in essence, “friendlies” (Afghan civilians) may have been in the building. The implication was that if friendlies were hurt then the people of Afghanistan would be upset and that would conflict with the strategy of “winning their hearts and minds.”

This is where the confusion among our military leadership sets up a storm of confusion in theater. The concept of “winning hearts and minds” is not a rule, it is a strategy, and a poor one at that. It is the job of the military commanders to interpret the current strategy so that the military lawyers can then prepare and disseminate the legal training of the coinciding ROE to the military forces. The military lawyers play a dual role. They are both responsible for training the military on the ROE and they also may either defend or prosecute the military, in a military court, if the rules are broken. Where greater confusion may occur is that the military are trained and advised by the military lawyers , but as the Army Manual states, “ROE ultimately are the commander’s rules that must be implemented by the Soldier, Sailor, Airman or Marine who executes the mission.” Therefore, even though the lawyers are training the military forces on the legalities of the ROE, the forces have to seek their commanders’ interpretation of what to actually do when a question arises on the battlefield.

Serving these two masters (the military law and the commander) only works if the two are in complete harmony. Otherwise, the military forces are left on the battlefield, in some instances, wondering, “Do I follow the military law and protect myself legally or do I follow my commander, which I am duty bound to do?” They may also be wondering, “If I end up in court, which defense will help me? ‘I was following my legal training given to me by the JA’ or ‘I was following orders?’” This sounds like a joke, but these types of scenarios are playing out in military courts today.

Doing a brief Internet search on the “rules of engagement” will lead to several articles that demonstrate the confusion that the current military strategy of “winning hearts and minds” has caused. The issue is that often the ability to win hearts and minds comes at the cost of safety to the U.S. forces. For example, in 2010, Diana West published an article entitled, “US Marine: The Rules of Engagement Prevent Me from Doing My Job.” In the article she quotes a news story from the Telegraph by Jason Gutierrez:

“On a base near Marjah, a Taliban stronghold in Helmand province, Marines are grieving the deaths of a sergeant and a corporal killed by the remote-controlled bombs that have become the scourge of the long-running conflict.”

“Commanders try to keep the men’s rage in check, aware that winning over an Afghan public wary of the foreign military presence and furious about civilian casualties is as important as battlefield success.”

“It causes a lot of frustration. My men want revenge – that is only natural,” says First Lieutenant Aaron MacLean, 2nd Platoon commander of the 1st Battalion, 6th Regiment Charlie Company.

“But I keep telling them that the rules are the rules for a reason. If we simply go crazy and start shooting at everything, in the long run we will lose this war because we will lose the support of the population.”

“He too is frustrated, accusing the Taliban of manipulating the rules of engagement by using women and children as shields and shooting from hidden positions before dropping their weapons and standing out in the open.”

“They know we can’t shoot them if they don’t carry guns or without positive identification. They are fighting us at another level now,” MacLean said…

“… On the day of the ambush, Marines hunkered down in tents inside the camp as information about the encounter came in. Some had tears in their eyes as the names of casualties were made known. Others held tightly to their weapons and yelled at their enemy on the horizon.”

“We were attacked treacherously. We came under fire from everywhere, but the rules of engagement prevent me from doing my job,” said Lance Corporal Mark Duzick, who was in the unit that was ambushed.”

In response, West makes this comment:

“The rules of engagement prevent him from doing his job — under attack in the midst of an ambush that lasted several hours in which two men were grievously wounded and killed. The people behind this order, this whole heinous policy should be summoned to testify in Congress today. “

It is clear to see from this article that, whether or not a General Petraeus, a General McChrystal or an Admiral McRaven level commander believes his orders are being taken as an order to stand down and let the enemy get away with murder, that is the consensus on the battlefield. To allow this confusion is criminal. There is another article that is important to cite here that explains the tremendous confusion as it is being passed down from the highest-ranking military commanders to the men and woman in combat. The article was posted in the Christian Science Monitor as General Stanley McChrystal was being replaced by General David Petraeus in Afghanistan. The article began:

“On Wednesday General Petraeus revised the Afghanistan rules of engagement, which are guidelines for when and how the US and other NATO troops under his command can shoot to kill. At the time of his confirmation that a rethink of the strict rules put in place by his predecessor Gen. Stanley McChrystal – which many combat troops complained put protecting Afghan civilians ahead of protecting them – was likely.”

After briefly describing the complex “wining hearts and minds” strategy the article continues:

“Petraeus also says that troops should not be placed at any more risk than necessary: We must remember that it is a moral imperative both to protect Afghan civilians and to bring all assets to bear to protect our men and women in uniform and the Afghan security forces with whom we are fighting shoulder-to-shoulder when they are in a tough spot, Petraeus writes [Emphasis in original]. “This directive, as with the other previous version, does not prevent commanders from protecting the lives of their men and women as a matter of self-defense where it is determined no other options are available to effectively counter the threat.”

It is easy to see where this deadly confusion is being born. Petraeus stated, “Troops should not be placed at any more risk than necessary” but then follows it up with, “We must remember that it is a moral imperative both to protect Afghan civilians…” Even though Petraeus emphasized that the men and women in uniform must be protected, in the field the Commanders are listening to both the U.S commanders and the OCG that answers to the government of Afghanistan. As demonstrated in the article above, First Lieutenant Aaron MacLean is under tremendous pressure that places all the importance of protections away from his Marines to those of the civilians. The enemy knows this and uses that knowledge against them.

Due to this confusion, the ROE now create an unwanted psychology in our soldiers because they cannot focus on targeting and defeating the enemy. The fear of retribution and the fear of being court-martialed pre-destine the forces to lose against the nation’s enemies. In fact, the ROE have become an enemy. Soldiers are afraid to take risks. They have to ask for permission for so many things to clear themselves of any blame that they end up fighting two battles at once. One battle is against the ROE and the other is against the enemy. So when permission is denied to engage the enemy, they may have fulfilled the rules, but they could also end up dead. Former Congressman, LTC Allen West (Ret) made this very ominous statement, “Those of us that have ever been in a firefight know that within 2 to 3 seconds, someone starts to lose their life. And for us to tell our men in women in combat that they cannot fire upon people who are firing upon them, that is unconscionable.”

Understanding all this, it is important for all Americans to put themselves in the place of a soldier or a Special Ops team member. Traditionally, one would imagine the first thing on your mind is to disrupt or destroy the enemy while protecting yourself and your buddies. In other words, get in, do your job, get out safely. But that is not the game anymore. The game is, do your job, but do not break the rules. The government is telling the troops they are expendable and that their safety is not that important. Breaking the rules is worse than if they or their buddies get hurt. And just to make sure they do not break the rules, there are military lawyers standing by.

What Effect Does the Current Strategy And The ROE Have In The Battlefield?

The strategy of “winning the hearts and minds” is superimposed on the ROE and gets interpreted in theater as the goal to minimize civilian casualties. Whether or not the Military Brass intended for this to become the sole priority overseas, there is much evidence that is what has happened. Here is a narrative given in a Washington Post article by soldiers in an Army platoon discussing ROE with a combat correspondent:

“In country [Afghanistan], we have Escalation of Force Kits. These keep people away in a non-lethal manner. To do that, they used to contain “KEEP BACK” signs we’d put on our trucks during a convoy and the kits also had small flares we could fire. These things were taken away and instead we were told to drive with the same courtesy we would use if driving in the U.S.”

“That means if cars get backed up behind us, we are to pull over and let them pass.”

“This takes our buffer — our zone of safety — completely away. Because once we pull over, the cars get to pass right up against us and that opens the door for suicide bombers, suicide bombs, and gunfire.”

“We allow people to get so close to our vehicles that we have no time to react should they try to do something. ”

General Jerry Boykin described the convoluted strategy in an interview with Blaze TV.

“This is a counterinsurgency that we’re running there and, as such, you’re targeting specific individuals. You’re not taking the hill. You’re not taking facilities. You’re not taking bridges and key pieces of terrain, you’re going after people, individuals….Let’s look at that situation. First of all, it is my understanding from talking to people inside, that the Rangers were not about to be overrun. They were not about to lose the battle. They were actually calling for support because people were getting away from the target. People they wanted to capture were escaping as the Rangers fought this firefight.”

What General Boykin described here is that the U.S. forces cannot go after the hill, the bridge or the building where the enemy is camped out as is done in conventional warfare. Instead, they have to go after an individual they have confirmed is an enemy and not hurt anyone else. Because the enemy lives side-by-side with the civilians, it is like picking a needle out of a haystack that is loaded with dynamite. If the military sticks their hands in for the needle, they are bound to lose a hand. But if they choose conventional warfare and blow up the haystack, they may be breaking the ROE and go to prison. This is a lose-lose situation! This method of warfare is not winnable!

If this madness is going to continue, much like the Surgeon General’s Warning on tobacco products, the military leadership needs to slap a label on every piece of military equipment to warn them of the COIN strategy:

MILITARY GENERAL’S WARNING:

Fighting under COIN will restrict your use of weapons, assets, technologies and the basic wisdom you need to win this war. For political purposes, you will be prevented from actual fighting, denied training, arsenal and proper tactics with no endgame of victory. Now, carry on.

Here is a haunting thought to ponder: U.S. Attorney General Eric Holder seems particularly set on moving Islamic Terrorists into the U.S. Federal Court System where they are given full rights, under the law, and a fair trial that should be reserved and only afforded to U.S. Citizens. The same Administration hangs a heavy anchor over the heads of the U.S. military by ensuring that a military court, which holds an unprecedented conviction rate, applies very severe penalties and strips them of the rights afforded to normal U.S. Citizens, awaits them if they break the “rules.” Who exactly is being treated like the enemy here? And what kind of untold pressure does this “ax over their heads” mean to U.S. forces?

MG Paul Vallely is Chairman of Stand Up America

Senior SUA Military Editor – Colonel Bob Broyles.

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[1]CJCSI 3121.01B, Standing Rules of Engagement/Standing Rules for the Use of Force for U.S. Forces (13 June 2005)

[2] “Embattled Muslim Aide to Leave Pentagon Job.” WND. N.p., 11 Feb. 2008. Web. 03 Aug. 2013. .

[3] West, Diana. “The Death of the Grown-Up | Diana West Home – US Marine: “The Rules of Engagement Prevent Me From Doing My Job”” Weblog post. The Death of the Grown-Up | Diana West Home – US Marine: “The Rules of Engagement Prevent Me From Doing My Job” N.p., 02 Feb. 2010. Web. .

[4] Murphy, Dan. “Afghanistan War: Will the New Petraeus Rules of Engagement Make Troops Safer?” The Christian Science Monitor. The Christian Science Monitor, 05 Aug. 2010. Web. .

[5] West, Allen. National Press Conference. National Press Club, Washington, D.C. 9 May 2013. Speech.

[6] Hawkins, Awr (2012) Breitbart – “Soldier’s: Obama’s rules of engagement costing US lives in Afghanistan.“

[7] Dhue, Laurie. (2013) “Title of Documentary” For the Record. TheBlazeTV: June 27, 2013.

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