THE ARMY LAWYER - Library of Congress

1 Department of the army Pamphlet 27-50-346 September/October 2001 ArticlesDeadly Force Is Authorized, but Also TrainedLieutenant colonel Mark S. MartinsLegal and Practical Aspects of Debriefings: Adding Value to the Procurement ProcessSteven W. FeldmanTJAGSA Practice NoteFaculty, The Judge Advocate General s School, ArmyContract and Fiscal Law Note (Procurement Disabilities Initiative Takes Effect)CLE NewsCurrent Materials of InterestTHEARMYLAWYERH eadquarters, Department of the ArmyEditor s NoteThe Judge Advocate General s School, army , published the seventh edition of Military Citation in August 2001, and it may bedownloaded at (Publications/Military Citation, Seventh Edition).Editor, Captain Todd S.

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5 Inside Back CoverSEPTEMBER/OCTOBER 2001 THE army LAWYER DA PAM 27-50-346iSEPTEMBER/OCTOBER 2001 THE army LAWYER DA PAM 27-50-3461 Deadly Force Is Authorized, but Also TrainedLieutenant colonel Mark S. Martins1 Staff Judge Advocate1st Armored Division Wiesbaden army Airfield, GermanyIntroductionIn the January issue of Naval Institute Proceedings, ColonelHays Parks, Marine Corps Reserve (Retired), warns thatrestrictive and unsuitable rules of engagement (ROE)2 todayhandicap and endanger forces, especially ground troops onpeace-support missions. Identifying the problem as one ofignorance on the part of individual Marines, sailors, and sol-diers, including service judge advocates, over when deadlyforce is authorized, Parks sounds an alarm that America syoung men and women in uniform need to know when theymay resort to deadly force to protect their lives.

6 3 Parks ArgumentParks second-guesses assorted real-life decisions in whichground troops have refrained from opening fire, suggestingthese decisions were caused by foolish ROE. In one of theseexamples, he derides the official commendation of a army sergeant whose platoon held its fire even as he andhis soldiers were being struck by Bosnian Serbs bearing rocksand clubs. This situation, Parks urges, placed the soldiers in asituation where they were legally entitled to use deadlyforce. 4 In another example, he cites unspecified Kosovobeatings to illustrate risks faced by peace-support maintains that these and other instances of restraint are representative rather than isolated incidents, and he cautionsthat operating under bad ROEs invites mission failure, usuallywith fatal consequences to men and women who deserve bet-ter.

7 5 Parks extended argument is sweeping in scope and damningin tone. He condemns the current Joint Chiefs of Staff StandingRules of Engagement (SROE)6 a document that has evolvedfrom maritime origins and contains tolerably clear guidance forcommanding officers on the open seas. Parks maintains theSROE is a poor vehicle for commanders to inform individualsin port or on the ground when they may use deadly force to pro-tect themselves and others. The lack of commanders tools in the SROE on the matter of individual self defense, he claims,combined with a propensity for micromanagement on the partof senior administration officials na ve to the bad things thatcan happen when force is used, has resulted in peace-supportROE that place servicemen and women at undue Parks further argues that military lawyers writing ROE forfield commands compound the problem.

8 They misapply inter-national law, he says, cut and paste ROE from bogus sources,fail to read court decisions relating to use of deadly forceby domestic law enforcement agents, and ignore basic truthsabout wound ballistics and close-quarters marksmanship understress. Parks holds military commanders ultimately responsi-ble, however, because they delegate ROE drafting and trainingto lawyers , because they hide behind ROE to avoid makingtough decisions, because they rarely have the spine to stand upto civilian leaders when restrictive rules are being imposed, orbecause they fail to provide soldiers, sailors, and Marines suf-ficient firearms training to be effective in a gunfight or otherviolent various points during this argument, Parks suggests cur-ative measures.

9 The most important of these appears to be themilitary s adoption with input from Navy Special thank the following people for their assistance in preparing this article: Captain Larry Gwaltney, lieutenant colonel Mike Ellerbe, Major Paul Wilson, StaffSergeant Rod Celestaine, lieutenant colonel Bill Hudson, colonel Dan Wright, lieutenant colonel Kevin Govern, lieutenant colonel Jeff Lau, Captain Mike Rob-erts, Captain Koby Langley, Major Kevin Hendricks, colonel Dan Bolger, colonel John Scroggins, lieutenant colonel Renn Gade, lieutenant colonel Ted Westhus-ing, Brigadier General Dave Petraeus, Major General John Ryneska, and Major General John Altenburg. I alone am responsible for any Rules of engagement are defined as Directives issued by competent military authority which specify the circumstances and limitations under which forces willinitiate and/or continue combat engagement with other forces encountered.

10 JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DOD DICTIONARY OF MILITARY AND ASSO-CIATED TERMS (19 Mar. 1998). Hays Parks, Deadly Force Is Authorized, NAVAL INST. PROC., Jan. 2001, at 32-37, available at at OF THE JOINT CHIEFS OF STAFF, INSTR. , STANDING RULES OF ENGAGEMENT FOR FORCES (15 Jan. 2000) [hereinafter SROE]. , supra note 3, at 2001 THE army LAWYER DA PAM 27-50-3462and army and Marine Corps infantry representatives of a uni-form deadly force policy and training system similar to thatused by the Federal Bureau of Investigation (FBI). ColonelParks contends that every young American on point for thenation should know how to defend himself when aims are undoubtedly noble, and his track record isthat of someone who has wrestled with the predicaments facedby individual soldiers, sailors, and Marines for much of his pro-fessional life.