“Taking Terrorism and ROE Seriously”

Taking Terrorism and ROE Seriously

Ted Westhusing[1]

Lieutenant Colonel, U.S. Army, and Ph.D. Student, Philosophy Department, Emory University, Atlanta GA 30322. Fax: 404.727.4959. Email twesthu@emory.edu.

Given terrorism and the rise of military ‘peace’ operations, I argue for a pragmatic approach to justice and war. My argument results in three amendments to the received view of the war and justice model. I claim that Rules of Engagement (ROE) concerning self-defense for deploying forces in counter-terrorism or peace operations should be at least consistent with self-defense ROE employed by law-enforcement officials operating domestically. Policymakers in determining deployments in support of such operations must therefore deliberately decide, as part of their own Ad Bellum procedure, whether or not military ROE will be consistent with such a law-enforcement baseline. I also argue that peace and counter-terrorism operations require an explicit acknowledgment of both the commander’s moral responsibility for force protection and the military member’s moral justification to defend himself fully. The method I employ in making my case is a detailed analysis of moral principle operative within three U.S. realms of law--U.S. Constitutional law, international law, and ROE--and through a close consideration of several recent U.S. military operations.

Keywords: Rules of Engagement (ROE), moral principle, terror, peace operations, rights, law, due risk, due care, pragmatism.

1. ROE (Rules of Engagement) in Action.

Kosovo, 2000. 82d Airborne Division paratroopers from the 1^st Battalion, 325 Airborne Infantry Regiment, part of a larger U.N.-approved, NATO peace enforcement force, enter a restaurant during a routine patrol. Spotting a suspected extremist, the troopers ask him to step outside for questioning. Because one trooper suspects him to have a concealed firearm in his waist belt, the squad leader orders that he be searched. Panicking, the suspect pushes the trooper holding him and flees on foot. Two troopers pursue, shouting for him to halt–-he refuses. During the pursuit, the belligerent reaches into his pants and draws a pistol. The belligerent is shot once in the left shoulder as he turns towards his pursuers as if to fire. He stumbles yet continues to flee. Troopers decide not to engage the belligerent again out of fear of possible harm to innocents located in a nearby café. After cordoning off the area, U.S. paratroopers subsequently detain the belligerent without incident (XVIII Airborne Corps 2000).

Aden, Yemen, October 12, 2000. The USS Cole (DDG-67), an Arleigh Burke-class destroyer, becomes the target of a terrorist attack during a scheduled refueling. The attack kills seventeen crew members and injures thirty-nine others. Sentries on duty aboard the deck of the USS Cole do not engage the suicide bombers. Findings from a detailed Department of Defense (DOD) investigation determine that “Chairman, Joint Chiefs of Staff (CJCS) Standing Rules of Engagement (SROE)[2] for U.S. Forces are adequate against the terrorist threat,” but that U.S. Forces “need to shift transitioning units from an entirely reactive posture to a posture that more effectively deters terrorist attacks.” Units and individuals now in transit overseas from the U.S. must consequently pursue active force protection measures. Whereas before September 11, 2001, the presumption was one of little threat to the lives and safety of U.S. personnel in transit overseas, the prudent and required assumption today is that an active threat against U.S. Forces exists, possessing a significant capability to harm. In spite of this finding, the Commission determined that the facts of the case did not warrant any punitive action against any member of the chain of command (DOD Crouch-Gehman Commission Report, 2000). The report instead found the chain of command collectively responsible for this failure. Such findings of collective responsibility are much less likely in the future.

Use of U.S. Forces and other allied military forces in peace operations abroad continues to increase, to include once again the naval service of the USS Cole (as of April, 2002). The terrorist massacres of September 11, 2001 have also placed the U.S. and other militaries on a war footing against an enemy capable of striking anywhere, at anytime, against both combatant and innocent alike. If you wear a U.S. uniform, you are especially at risk abroad-–anywhere, and at anytime. The mobilization of over eighty thousand National Guard and Reserve Forces for homeland defense makes the future application of military ROE within the borders of the United States more likely. Furthermore, the exigencies of the current terrorist threat may even call for the use of ROE by active military forces within the United States, in spite of restrictions placed by The Posse Comitatus[3] Act on the domestic use of active duty military forces for law enforcement operations. Given these rapid and ongoing developments, what lessons should we learn from recent cases such as those sketched above for a more consistent formulation of ROE in this new and dangerous climate?

Should American Constitutional Law governing the use of deadly force by law enforcement officers, and U.S. Department Of Justice (DOJ) ROE, be employed to inform better military ROE in light of this new threat? Traditionally, the U.S. military has resisted drawing upon lessons learned from DOJ ROE in crafting military ROE. Is such resistance justified, or should the U.S. military learn from their law enforcement counterparts? And should Constitutional guidelines help the U.S. military craft more efficient ROE? Furthermore, what is the solution to the tension between policy decisions resulting in the deployment of U.S. Forces overseas into politically sensitive peace operations, and ROE which may put those same U.S. Forces at significant risk in the execution of those duties? In Part Two that follows, I determine what the relevant factors are for ROE development and what the lessons are we should draw from both recent U.S. ROE successes as well as failures. In Part Three, I make a case that recent U.S. court cases, legally grounding Department of Justice ROE for the Federal Bureau of Investigation, help provide some answers to problems identified concerning self-defense in military roles. Part Three results in two proposed amendments to the Two Levels of War and Justice model to account for exigencies within peace and counter-terrorism operations.

In Part Three, I also seek to determine the proper relationship between the three forms of law that may inform the use of deadly force by the U.S. military–-U.S. Constitutional Law, military ROE, and international law embodied within the Laws of Land Warfare (LLW). Combining Ronald Dworkin’s approach, as outlined in Taking Rights Seriously, and Anthony Hartle’s partial differentiation approach to the military profession as argued for in Moral Issues in Military Decision Making, I claim we have a fruitful theoretical account for moral consistency within ROE formulation. I shall show how this combined framework helps to rectify possible inconsistencies in approaches to ROE from these different fields of law. In Part Four, I will argue for the last of three suggested amendments to the Two Levels of War and Justice model, conceived for peace and counter-terrorism operations. This last revision captures the important moral obligation commanders assume for the safety and welfare of the forces under their care.

Finally and perhaps most importantly, what adjustments must be made to the received view of Just War Theory? Just War Theory morally grounds military ROE, international law and is consistent with the American Professional Military Ethic (PME). Given what we have learned from recent events involving terrorism and peace operations, legal theorizing about them, and the moral principles embodied in U.S. Constitutional law, what adjustments are required in our moral theorizing? In this last part, my argument assumes a more general form applicable to all nations and militaries. Distilling from both the bad and good lessons learned from recent U.S. experiences with ROE, I claim that revisions to our moral understanding of war and justice are required.

The suggestions for which I shall argue are these. Concerning peace and counter-terrorism operations, one criterion, what I call ”Due Risk,” should be added to the traditional seven Jus Ad Bellum criteria for deliberating about deployments in support of such operations at the lower end of the use-of-force spectrum. Two moral considerations (“Self-Defense” and “Due Risk”) should also be added to the traditional moral considerations acknowledged within Jus In Bello for peace and counter-terrorism operations. These revisions, as I will argue in turn within this paper, will assist military commanders of all nations in achieving moral consistency within their many difficult judgments.

2. The Factors Relevant to ROE and Lessons Learned.

ROE, Rules of Engagement, as the name implies, serve as prescriptive guidelines governing the application of military force, promulgated by some authority. ROE in some form always serve as constraints on military operations, regardless of context, and even within the most brutal of military engagements. At the most basic level, any rule for employing force is ipso facto a rule of engagement, if promulgated by some governing authority. ROE are also military law, embodied in standing orders like Standing Rules Of Engagement (SROE), Standard Operating Procedures (SOPs), operations orders governing the conduct of particular operations, and verbal orders that all convey within the military context the force of legislative or judicial law.

In general, ROE serve to proscribe certain uses of unreasonable force. Short of such proscriptions, other ROE are justified by their instrumental value for achieving the political or military end sought within constraints imposed by moral principle and law. Doctrinally, the U.S. military defines ROE as “directives issued by a competent military commander which delineate the circumstances and limitations under which United States Forces will initiate and/or continue combat engagement with other forces encountered” (DOD 1998: xx). ROE cover the gamut of military operations, from the high end of the use of force spectrum, the traditional ‘high-intensity’ combat operations, to the low end, ‘Operations Other Than War.’ But common to any military operation of any nation within that spectrum, certain relevant factors inevitably appear.

The relevant factors which govern the formulation and application of ROE throughout this spectrum of engagement are three: the exigencies or functional requirements of the profession of military service, the fundamental values of the society engaged in its particular form of war at some point in the use-of-force spectrum, and the international laws of war (Hartle 1989: 35). ROE may of course vary within a particular nation’s PME, depending on how each nation’s authorities construe each factor. While international laws of war remain stable in their application for the signatory nations to the various conventions, the other two factors may differ. Variations in national values, and variance explained in part by Dworkin’s distinctions between background and institutional rights on the one hand, and abstract and concrete rights on the other, can contribute to differences across nations in military ROE craft. In this paper, I will focus only on the proper understanding of the U.S. PME. But I will also suggest that such a particular understanding is applicable in more general form via some suggested adjustments to our understanding of war and justice theory.

Preeminent in terms of the exigencies of the military profession is mission accomplishment. The U.S. military, like all militaries, exists to fight and win its nation’s wars, wherever it finds itself within the use-of-force spectrum. Correctly understanding the required means of military force for achieving our nation’s political ends is therefore crucial. But because the means for mission accomplishment for U.S. Forces are always construed in terms of ends fixed by civilian authorities, we within the military, beholden to civilian control, must understand and act consistent with the values constraining the National Command Authority’s justification of means. Our civilian authorities are themselves constrained by the values embodied within the U.S. Constitution; thus, the exigencies of our mission accomplishment in military action must also be constrained by those same values.

Moreover, since U.S. officers have taken an oath to “support and defend the Constitution against all enemies, foreign and domestic” they themselves are obligated to act consistent with those same Constitutional values and principles. Rights talk and moral principle provide two convenient ways for understanding those values. In the Two Levels of War and Justice model that I develop here, I employ the framework of moral principle. The use of a framework of moral principle has the added advantage of permitting the insights gleaned--within a more generalizable form--to be applicable to other militaries facing similar problems.

Via Article VI, Clause 2 of the U.S. Constitution, U.S. military officers are also obligated to abide by and enforce international laws of warfare because they have a force equal to that of laws passed by the Congress. DOD Directive 5100.17, 5 November 1974, is the current governing DOD document governing the DOD Law of War Program. It further specifies that the law of war applies to the Armed Forces of the U.S. in the conduct of military operations within military conflict regardless of how such conflicts are characterized. The individual services themselves also go further by offering their own implementing regulations conveyed with the force of law (Hartle 1989: 55).

Within any state’s military operation, in any military conflict however characterized, five moral principles must be operative. After careful study, I believe each is consistent with all three factors influencing the American PME. But only the first three of the five listed are ever consistently recognized in various versions of Just War Theory. While all five are consistent with the values demanded of the U.S. PME, and which are embodied within the U.S. Constitution and the international law of war, our current situation helps in understanding why the last two principles may be less acknowledged.[4] These Moral Principles (MP) are:

MP1: “It is wrong to intentionally harm innocent human beings,”

MP2: “One is sometimes obligated to protect innocent human beings from harm” (Christopher 1994: 173),

MP3: “Human suffering ought to be minimized” (Hartle 1989: 71),[5]

MP4: “A combatant always maintains the right to self-defense,” and

MP5: “Commanders are always obligated to protect subordinates under their care.”

How do these principles, in the abstract, apply within the concrete context of ROE at the lower end of the use-of-force spectrum? An analysis of that question will reveal several lacunae within current conceptions of Just War Theory, or what I call the Two Levels of War and Justice model.

At the low end of this use-of-force spectrum, the U.S. military makes a further distinction between peacekeeping operations and peace enforcement operations. At the lowest end of this spectrum are peacekeeping operations. For purposes of this paper, I use the term ‘peacekeeping’ to mean military operations designed for maintaining peace between two or more opposing belligerents. Commanders employing the relevant moral principles within any such peacekeeping operation seek to achieve impartiality, and to maintain the perception of impartiality, between the conflicting groups. By maintaining impartiality, peacekeeping forces best posture themselves to achieve success in separating within space or time the contending parties of the dispute. Since any violation of impartiality may unfavorably tilt the balance of perception concerning the role of the peacekeeping forces, strict obedience to MP1 and MP3 is paramount.

While impartiality is the overarching norm for achieving success in peacekeeping operations between two or more conflicting parties, MP2, MP4 and MP5 carry greater weight at this end of the spectrum than in more conventional forms of warfare. Why? In traditional warfare, MP2 and MP5 (derivable from MP2), become instantiated once a nation declares war. By declaring war, a nation transforms, usually by legal fiat, a certain class of its innocent citizens into active combatants. That group of combatants then assumes the positive obligation to protect the rest of the citizenry from harm, an obligation justified by MP2. Commanders therefore become obligated not only to execute military operations to protect citizenry for whom they serve, but also to husband the lives under their charge who are the executors of that obligation of protection. At this end of the spectrum, self-defense, MP4, is often best justified in response to the threats from one enemy combatant group. Complications only arise concerning how to discriminate between combatant and innocent and the proportionate use of force required to meet that threat.

Yet in peacekeeping operations, combatants are also obligated by MP2 to protect both factions in conflict from one another and to defend themselves from both potentially belligerent factions if required. In some cases of peacekeeping operations, the number of warring factions may extend to more than two. Commanders therefore become obligated to ensure such protection in its many complicating forms is successfully accomplished. Further bedeviling matters, the terrorist threat today requires that the obligations entailed by MP2 and MP5 now become instantiated as soon as a soldier, sailor, airman or marine takes his or her enlistment oath. This change in commanders’ responsibilities toward force protection and MP5 could not be more profound, especially when abroad, where military forces are subject to the contingencies of host nation law enforcement efforts.

Military forces can only accomplish this difficult obligation to protect factions from one another provided domestic support for the use of peacekeeping forces abroad is maintained. Domestic support for peacekeeping force deployment depends in large part on the safety and well-being of the force deployed. Hence, defending peacekeeping forces and the protection of their equipment becomes in large measure the only justification for the use of deadly force. The current craft of peacekeeping ROE reflects this principled concern with self-defense. Ongoing military operations on Bosnia are paradigmatic of peacekeeping operations thus understood.

Peace enforcement operations, on the other hand, often go beyond the more restrictive constraints on the use of military force found in peacekeeping operations. Akin to domestic law enforcement operations, the nation may require military formations involved in peace enforcement to become offensive, to use force actively against belligerent parties. Thus, ROE within the peace enforcement context are distinct from peacekeeping ROE. Peace enforcement requires forces to shed the impartial stance found in peacekeeping operations. Peace enforcers must take sides in the conflict to defeat or destroy factions seeking to upset the conditions for peaceful coexistence between competing parties. Peace enforcement operations (likewise possible even within peacekeeping operations) may escalate into operations indistinguishable from traditional high-intensity combat operations. ROE within peace enforcement operations, less restrictive than peacekeeping, thus deal less with specifying when and how the use of deadly force in self-defense is authorized. Instead, ROE in this realm of the use-of-force spectrum employ the more traditional Jus In Bello (JIB), or Justice In War, principles of discrimination (justified by MP1) and proportionality (justified by MP3). MP5 carries the same weight with commanders as found in peacekeeping operations since domestic opinion and support of the deployment remain shaped in large part by how well commanders ensure the safety and well-being of the units under their charge. The current terrorist threat serves to further exacerbate the commander’s obligations under MP5 in the context of peace enforcement.

Since public support of peace enforcement operations is as contingent as that for peacekeeping, if not more so given the greater risk involved, self-defense concerns, justified by MP4, are also magnified. Commanders rightly worry about any constraints placed upon their soldiers to defend themselves adequately within this threatening environment. Self-defense concerns become even more important whenever peace enforcement forces transition into law-enforcement roles, as often happens. Successful NATO peace enforcement operations ongoing in Kosovo, or those unsuccessful peace enforcement operations conducted in Somalia in 1993, are illustrative of operations occupying this portion of the use-of-force spectrum.

I attempt to capture this far too brief discussion of the origin of U. S. military ROE and the relevant factors which inform them across the full spectrum of military engagement by Figure 1.[6] Abrief note about proportionality therein. Many argue that notions of proportionality are hopelessly muddled in Just War Theory. I think they are wrong. There are actually three forms of proportionality operative. One (P1) within jus ad bellum, weighing the good of the war versus the bad, and two (P2 and P3) within jus in bello. Within jus in bello, one (P2) is within double effect, which weighs the good of the military objective versus the suffering of innocents, and one (P3) balances the good sought from the military objective with the suffering of combatants. P1 subsumes P2 and P3. P2 and P3 range over differing classes, and P2 is preeminent over P3 within jus in bello.

Figure 1: The Two Levels of War and Justice

The Two Moral Principles (MP) operative in Jus Ad Bellum: MP1: We should never intentionally harm innocents; MP2: We should sometimes protect innocents.

Level 1: Critical Level (Primarily a Political Responsibility)

Jus Ad Bellum (JAB): MP2 can override MP1.

War? MP2 overrides MP1. No war? MP1 overrides MP2. Employ these decision-making criteria to justify war:

1. Just Cause

2. Proportionality (P1) Good achieved by political ends of war > suffering from war.

3. Legitimate Authority

4. Publicly Declared

5. Reasonable Chance of Success

6. Right Intention

7. Last Resort

----------------------------------------Moral Independence of JAB and JIB----------------------------------------

Level 2: Intuitive Level (Principally a Military Responsibility)

Jus In Bello (JIB): MP1 always[7] overrides MP2.

JIB1: Discrimination[8] (Intentional Harm).

-JIB1 justified by MP1: We should never intentionally harm innocents.

-ROE: Who to harm? Combatant.

Who not? Innocent or Prisoner.

Unintentional Harm?

Principle of Double Effect applies. A Practical Rule. Double Effect is:

1) Bad effects unintended.

2) Proportionality (P2): Good achieved by military objective > bad effects,

e.g., suffering of innocents (to include collateral damage to cultural artifacts/buildings, etc.).

3) Bad effects cannot be direct means to good effect.

4) Due Care. Military must minimize bad effects even if doing so entails risk to

combatants.

JIB2: Proportionality (P3): Good achieved by military objective > suffering of combatants.

-JIB2 justified by MP3: We should minimize human suffering.

-ROE: How to harm? Weapon limits, minimize friendly casualties and (where possible) enemy casualties.

Given this understanding of the moral principles grounding particular ROE, what lessons should we draw from the two examples cited at the beginning of this paper--Kosovo and the terrorist attack on the USS Cole? It seems to me that there are at least five. (1) In formulating and executing ROE, military commanders at all levels throughout any military are in a position roughly comparable to Dworkin’s “judge Hercules” (Dworkin 1978: 105). Commanders strive, to varying degrees of success, to possess the “superhuman skill, learning, patience, and acumen” (Dworkin 1978: 105) demanded of them to put this version of the Two Levels of War and Justice model in Figure 1, or others like it, consistently into practice.

At a minimum, commanders seek to achieve within their units consistent moral behavior given the three varying and sometimes competing factors of (1) the functional requirements of military service (requirements of duty, discipline, and winning, for example); (2) the values embodied by the society which they have sworn to protect [within the U.S., for example, freedom, equality, individualism, and democracy (Hartle 1989: 98)]; and (3) international laws of war. This consistency requirement is hard enough. But ideally military commanders also strive for comprehensive moral judgments in wartime, judgments which are the absolutely best ones to be had given the harsh demands of the particular circumstance of combat. This goal requires another factor, character, which I cannot address within the limits of this paper.

But as I will try to show, making those judgments, even in their best form, is not impossible. Yet such judgments do require adjustments to the model presented in Figure 1. Those adjustments are necessary for ensuring, at a minimum, consistency within the sometimes competing demands found within the U.S. Professional Ethic--or any other Professional Military Ethic--at work today.

(2) Commanders in crafting and executing ROE across the use of force spectrum are making “hard law” in each case and every case. ROE developed and executed under combat conditions radically underdetermine proper action by commanders and subordinates. Combined with the possibility that mistakes in making and executing such particular “laws,” even if well intentioned, could have momentous operational and strategic consequences for the nation, it becomes all the more important to understand which moral principles are relevant, and why, in order to succeed in their application. “For war is the hardest place: if comprehensive and consistent moral judgments are possible there, they are possible everywhere” (Walzer as quoted in Hartle 1989: 1).

(3) Relevant U.S. Constitutional law and Department Of Justice lessons learned from the use of deadly force in self-defense may be helpful in articulating ROE for self-defense in ‘Operations Other Than War,’ to include the battle against terrorism. I will address this possibility next in Part Three.

(4) A commander’s moral obligation to safeguard the soldiers, sailors, airmen, and marines under his or her care may have been lost in the shuffle of emphasizing the importance of MP1, which is based on the preeminent moral status of the innocent. I will provide a corrective to the Two Levels of War and Justice model in Part Four, which will make it easier to justify consistently this obligation of force protection within the overall PME--by making it explicit. This requirement is especially germane given the current threat against U.S. and other Forces from the terrorist threat.

Finally, (5) the importance of proper training in the execution of ROE should not be underestimated. The clearest, most concise, and most consistent ROE may be formulated by a Herculean commander and precisely communicated to subordinates. But unless forces are able to execute them well and instinctively (the Kosovo example) and not fail (as perhaps illustrated by the USS Cole example), the best ROE as law will fail in execution. The U.S. Army’s concept of R-A-M-P (Department of the Army 2000: 8-15)[9] and aggressive training in its execution may be appropriate for all U.S. services and other militaries to adopt.

It is perhaps here that the analogy between Dworkin’s Herculean judge and a similar Herculean commander breaks down. For Dworkin’s judge, his responsibilities extend only to crafting good law. Commanders, on the other hand, do not just craft better or worse law in terms of regulations, standing procedures, operations orders, commands, and ROE. They are also responsible for training the executors of those laws, their soldiers, and are responsible for their soldiers’ safety and well-being. Such a three-fold command responsibility has important implications in terms of how properly to conceive Jus In Bello, as I shall show. Let us now turn to the role U.S. Constitutional law should play in crafting U.S. military ROE.

3. Constitutional Law Governing Use of Deadly Force in Law Enforcement Operations.

The standard charge is that U.S. military forces operate abroad at greater risk than domestic law enforcement officials. In peacekeeping, peace enforcement, or in carrying the battle to terrorists on their home turf in a quasi-law enforcement role, some claim soldiers are hamstrung by more restrictive ROE than those employed by the FBI. Our soldiers, so the argument continues, thus often find themselves at greater risk abroad in the execution of their responsibilities than they should be. Perhaps the time has come to apply what has been learned in U.S. law enforcement ROE to the crafting of U.S. military ROE overseas. The suggestion is also that other states may similarly benefit from such analysis. But is such a charge within U.S. contexts in fact true? Are U.S. soldiers abroad being put in harm’s way at greater risk than U.S. citizens should tolerate?

There is no doubt that domestic law enforcement, peacekeeping, and peace-enforcement operations share similarities. But one obvious difference is that FBI agents deal with criminals and suspected criminals within the U.S. whereas U.S. soldiers, sailors, airmen and marines interact with foreign citizens–-often while deployed as part of exceptional, politically sensitive peace operations or counter-terrorism operations. In such high stake arenas, soldiers, marines, and special operations forces may be serving collectively to set or enforce the conditions of peace, not to arrest known or suspected criminals. Or they may also be involved in law enforcement operations. Or they may, in the case of special forces missions against terrorists abroad, even be seeking to destroy terrorists on their home turf–-with or without the permission of the foreign nation’s authorities.

Thus ROE in the military context might be, justifiably or not, more restrictive in the case of peacekeeping or peace enforcement operations than those sanctioned by U.S. courts for domestic law enforcement officials. Or they could be justifiably less restrictive (in the case of certain law enforcement or counter-terrorism operations). In the more restrictive military ROE situations, ROE may perhaps improperly entail additional risk to combatants if combatants are called upon to perform law-enforcement or counter-terrorism duties in addition to their normal peacekeeping or peace enforcement duties.

But such an element of additional risk is one important factor among many that political authorities must consider in making the policy decisions to engage in peace operations requiring such restrictive ROE. Therefore, criticisms of more restrictive ROE in such circumstances seems misplaced if directed at the military leadership tasked to develop ROE consonant with the political goals sought. Instead, criticism, if called for, should be directed at the policy decisions directing involvement of U.S. soldiers, marines, and special forces in such peace operations. To allay such criticism, policy decision-makers as part of their deliberative strategy should acknowledge, and approve, any degree of risk required of U.S. soldiers as participants in peace operations beyond that demanded of law-enforcement officials at home. My claim is that DOJ ROE should serve as the baseline for self-defense of U.S. military personnel. This requirement will serve as my first revision of the Two Levels of War and Justice model (Figure 2).

In the event U.S. military forces are required to conduct abroad law enforcement operations–-or counter-terrorism operations--of the sort normally demanded of FBI agents here at home, an appropriate rule of thumb should be this. We should require, as a necessary condition for policy approval of peace/counter-terrorism operations, that military law enforcement ROE abroad be consistent with those DOJ ROE executed at home. No U.S. Forces abroad should ever have their right to self-defense restricted more than the baseline placed on other federal authorities like the FBI within the U.S. But if that right to self-defense is restricted to a greater degree because of the political sensitivity of the peace mission or counter-terrorism operation, then such a restriction on the right of self-defense must be a deliberate political decision, made by proper political authority.

At this point, the objection could be raised that I am being inconsistent in employing Dworkin’s legal theory. I have used his schematic of articulate consistency in the application of relevant moral principle and the paradigm of the Herculean judge to support my first revision to Just War Theory. Yet Dworkin holds true to the view that arguments of principle generally trump arguments of policy. Have I not argued for just the opposite with the first revision to my model of the Two Levels of War and Justice? I have claimed that policymakers may sometimes be justified in trumping a soldier’s right to self-defense in circumstances where politically sensitive situations require more restrictive ROE below the DOJ ROE baseline.

But this possibility of policy trumping over principle is inherent to the Two Levels of War and Justice model as I have portrayed it--and of the understanding of the moral grounds for the office of soldier implied within that model. When policymakers activate combatants in service to the state by putting them in harm’s way in any military engagement at any point within the use-of-force spectrum, policymakers trump MP1 (“It is wrong to intentionally harm innocent human beings”). When, in extreme emergency, policymakers revise or override the law of war, they may also be overriding MP1 by directing the intentional harm of innocents. In war, absolute moral principles do not exist. Within the U.S. PME, such trumping of moral principle is legitimate only if proper Constitutional means are followed. A viable war and justice model should seek to explicate clearly when and how those principles may justifiably be overridden. The most important point to note in this regard is that decisions to override moral principle can only be made (in the case of the U.S.) by Constitutionally authorized civilian policymakers, never by military authorities (See Figure 1, The Two Levels of War and Justice).

What legal theory best justifies the content of what that self-defense baseline should look like? A pragmatic approach of the sort advocated by Thomas Grey (Brint and Weaver 1991), and played out within the U.S. courts concerning 4^th Amendment cases, seems promising. Grey’s legal pragmatism advocates a balance between the contextual appreciation of the “culturally embedded habits and patterns of expectations, behaviors and response” (Brint and Weaver 1991: 12) and the instrumental acknowledgment of the role wise reflection can play in improving the law. The laboratory of U.S. courts could prove fruitful in understanding how best to capture the content of self-defense for military ROE just as it has for DOJ ROE. This pragmatic approach for determining the content of the right to self-defense fits well with any conception of Just War Theory, too, provided certain beliefs are not rejected out of hand in the face of the familiar instrumentalist side of pragmatism.[10]

With that in mind, let us look at what DOJ ROE (Hall 2001)[11] look like here at home:

FBI (DOJ) Deadly Force Policy Principles

I. General Principle: The deadly force policy is not to be construed to require Agents to assume unreasonable risks.

II. Deadly force may be used when it is necessary, that is, when there is probable cause to believe that a person poses an imminent danger of death or serious injury to Agents or others, and there appears to be no safe alternative means to accomplishing the law enforcement purpose.

Deadly force is not permitted for the sole purpose of preventing escape–i.e., Agents must have probable cause to believe the escaping suspect poses an imminent danger to themselves or to others.

When feasible, verbal warnings should precede the use of deadly force.

Warning shots are prohibited.

When deadly force is justified, Agents may continue its application until the threat that prompted the use is over.

When deadly force is justified, attempts to shoot to cause minor injury are unlikely to achieve the intended purpose of bringing an imminent danger to a timely halt.

III. “Imminent danger” may exist when there is probable cause to believe any of the following:

2. Person is armed under circumstances indicating intent to use the weapon against Agents or others;

3. Person is attempting to gain access to weapon, under circumstances indicating intent to use the weapon against Agents or others;

4. Person is armed and attempting to gain tactical advantage of cover;

5. Person has ability, and is demonstrating intent to incapacitate Agent;

6. Person is escaping the scene of a violent confrontation during which he inflicted or attempted infliction of death or serious physical injury.

What the courts have decided in interpreting the Fourth Amendment is that this Amendment only applies when a “seizure” occurs.[12] The Fourth Amendment prohibits “unreasonable . . . seizures.” Deadly force is permitted in two general circumstances: (1) to protect from immediate danger of serious physical injury and (2) to prevent escape:

If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.[13]

This Amendment requires an officer to be “objectively reasonable.” And in Graham v. Connor, the court ruled that officers are “objectively reasonable” if and only if (1) they are judged “ . . . in light of the facts and circumstances confronting them,” (2) they are

“ . . . judged from the perspective of a reasonable officer on the scene,”[14] and (3) not judged “. . . with the 20/20 vision of hindsight.

Further rulings continued to qualify this “objective reasonableness’ standard. “Reasonable” v. “Right”--“. . . the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application . . .”[15] Certain factors are also considered irrelevant: the officer’s subjective motivation[16], the subject’s state of mind[17], and facts unknown to the officer.[18]

The court’s understanding of the perspective of the reasonable officer observing the use of deadly force is suggestive of this. An objectively reasonable officer knows the inherent dangers of her job and the inherent limitations in perceiving and responding to a threat. Specifically, she is aware that she has little time to react, and that action beats reaction. She also understands she has limited means at her disposal to meet the threat, given the physiology of the human body and wound ballistics, and she also realizes the limited control she has over the situation. For example, the role of chance almost always plays a significant role in human encounters involving death (Consider Clausewitz’s similar emphasis on the “friction of war”). In sum, quoting Graham, supra, at 396: “Allowance must be made for the fact that officers are often force to make split-second judgments–-in circumstances that are tense, uncertain, and rapidly evolving . . .”[19] In short, the court gives officials great leeway in discerning the nature of the threat posed to law enforcement agents.

The conclusion, I claim, that must be drawn from the various rulings of the court is that the “reason to believe” standard for justifying deadly force is not a very high standard at all to be met by law enforcement officials. At a minimum, it does not require certitude on the part of the agent concerning the nature and level of the threat to her. According to FBI Supervisory Special Agent Hall, once an FBI Agent shouts, “FBI, Freeze!”, any aggressive opposition to arrest on the part of a suspect qualifies as imminent danger for the FBI Agent involved. She then has the discretion, and is well-trained to determine, whether to use deadly force next or not.

What is the nature of this discretion in self-defense on the part of the FBI Agent, and by extension, U.S. Forces? My claim is that the principle of self-defense in such a general form can never fully determine results because of its underdetermining character. Only the threatened Agent is in a position to judge, at the moment of decision, whether imminent danger exists and whether deadly force is therefore justified in the particular context. But if innocents are close at hand and in danger from the contemplated use of deadly force, then MP1 can determine and must limit what level of force is employed. The FBI agent cannot use any means in such cases to protect herself if by so doing she puts other innocent lives in danger. Only when a reasonable Agent finds herself in imminent danger from a suspect and her actions would not place other innocent lives at risk would she possess discretion in the strong sense described by Dworkin (Dworkin 1979: 31-39). By a ‘strong’ sense of discretion I mean that the Agent would be bound by very minimal standards such as the “reason to believe” standard outlined above.

My suggestion is that this same standard for the use of deadly force ought to be employed by U.S. Forces comparably trained, who may be involved in peace operations involving similar law enforcement responsibilities. If this standard cannot be met, if a more restrictive standard concerning the use of deadly force is demanded, then our nation’s political authorities must make that determination as part of their Jus Ad Bellum (JAB) deliberative strategy in deciding policy for the deployment of U.S. Forces. I also believe the analysis so far justifies an even stronger position: that if the Department Of Justice standard for use of deadly force cannot be incorporated within military ROE governing peace operations abroad, then the decision to deploy U.S. Forces abroad cannot be justly made.

I now summarize my conclusions of this part, pertinent only to considerations involving deployment of U.S. Forces abroad in peace operations or counter-terrorism operations. My standard Two Levels of War and Justice model (Figure 1) still applies at the higher end of the use-of-military-force spectrum.

(1) An additional criterion of “Due Risk” ought to be added to the Ad Bellum deliberative strategy employed by political leaders in determining policy involving deployment of military forces abroad--either in peace operations with intensive law enforcement responsibilities or in peace operations, which because of political sensitivity may require more restrictive ROE. The use of deadly force standards employed by our FBI at home ought to be the same standard employed abroad by our military–-when involved in similar law enforcement operations. Any deviation from that standard must be a factor considered by political authorities, of equal weight to the traditional seven Ad Bellum criteria.[20] In deciding to trump a moral principle as fundamental as the right to self-defense by policy considerations, our civilian authorities must be held accountable to the citizenry for justification. Our political tradition demands similar justification for overriding MP1 in putting citizenry--qua soldiers--in harm’s way. This requirement to justify publicly Due Risk is in principle no different.

(2) Self-Defense is an integral part of the force protection obligation of commanders. And it is even more important, for reasons argued in Part One, in peace operations. Therefore, the inviolable individual right to self-defense moral principle (MP4) must be included and considered in any consistent moral judgment made by military leaders and subordinates within Jus In Bello at this lower end of the use-of-force spectrum as well.[21]

4. Command Responsibility in Peace Operations.

I have suggested that military commanders differ in their creation of law from Dworkin’s hypothetical Herculean judge in that the commander’s obligations relative to the law he crafts are much more extensive. Not only does he find himself obligated to enforce and create morally consistent ROE, he must also train his soldiers to be able to execute that law as well as to protect them in the execution of those duties. James M. Dubik argues for an important shortcoming in Walzer’s Just War Theory, a shortcoming he calls “Command Responsibility” (Dubik 1982: 354-371). He argues that, in emphasizing the ‘due care’ that soldiers must show in order to protect innocent lives within the context of Double Effect, even at great risk to themselves, Walzer loses sight of an equally compelling responsibility, the ‘due risk’ commanders are obligated to protect their soldiers from. This ‘due risk,’ operative within Jus In Bello, differs from the additional political ‘Due Risk’ criterion argued for within Jus Ad Bellum earlier in this paper. That Due Risk criterion applied to decisions made by policymakers for deploying military forces in support of peace or counter-terrorist operations. The ‘due risk’ Dubik argues for is a commander’s military responsibility to safeguard the lives entrusted to him.

Walzer, Dubik argues, seems to claim that soldiers “lose their right to life when they become members of a class of people who are able to be attacked at any time” (Dubik 1982: 360). But it seems dubious, to say the least, that anyone can ever exchange, let alone lose, a supposedly natural right like the right to life.[22] And if soldiers still possess, in some sense, the right to life, as I think they do, then it seems incumbent on commanders responsible for those same lives to minimize any unnecessary risk to them. Dubik thus claims that commanders have a competing obligation to safeguard the rights of the soldiers entrusted into their care by minimizing risk, or what he calls the In Bello ‘due risk.’ One of the more important responsibilities commanders exercise is to care for the citizens entrusted to them by carefully managing the degree to which they put those citizens at risk in the performance of their combatant duties. No combatant lives are to be wasted frivolously or wantonly. But exercising this responsibility would seem to contradict directly the Due Care criterion postulated in Walzer’s important notion of Double Effect (See Figure 1).

Or does Dubik’s ‘due risk’ in fact contradict ‘Due Care’ within Jus In Bello? In fairness to Walzer, he could say that yes, soldiers still have a right to life. MP2, the requirement sometimes to protect innocent lives, including the innocent citizenry lives transformed into combatants and therefore now under a commander’s care, still properly obligates commanders. But the most important point to make is that MP1, never to harm intentionally innocents, is more fundamental than MP2. Because MP1 is derived from our status as human beings, whereas MP2 is derived from responsibilities justified by a social contract between the citizenry and the military in creating the offices of soldier and commander, MP1 is more fundamental. But Dubik is correct to emphasize the responsibility commanders have to manage the risk within the environment they command their soldiers to operate. However, commanders must never mitigate that risk by violating MP1 in order to minimize risk to combatant. To do so would be contradictory in that the office of the soldier itself arises for the purpose of protecting innocents, and never to harm them intentionally.

Thus it is appropriate for the revised Two Levels of War and Justice model applicable to peace operations and counter-terrorism operations to add a final revision. I therefore add MP5, “commanders are always obligated to protect subordinates under their care,” to the

moral principles operative within Jus In Bello.[23] But MP5, like MP2, MP3, and MP4 before it, must remain subordinate to MP1 (See Figure 2). Without strict adherence to MP1, soldiers become no better than terrorists themselves--morally unjustified.

Figure 2: The Two Levels of War and Justice (For Peace and Counter-Terrorism Operations)

(On This and the Following Page)

Both Moral Principle (MP) MP1, “We should never intentionally harm innocents” and MP2, “We should sometimes protect innocents” remain operative.

Level 1: Critical Level (Primarily a Political Responsibility)

Jus Ad Bellum (JAB): MP2 can override MP1.

Deploy? MP2 overrides MP1. Do not deploy? MP1 overrides MP2. Policymakers employ these decision-making criteria to justify deployment in support of peace or counter-terrorism operations:

1. Just Cause

2. Proportionality (P1): Good achieved by political ends of deployment > suffering from deployment.

3. Legitimate Authority

4. Publicly Declared

5. Reasonable Chance of Success

6. Right Intention

7. Last Resort

8. Due Risk

--------------------------------------Moral Independence of JAB and JIB-----------------------------------

Level 2: Intuitive Level (Principally a Military Responsibility)

(Please See Figure on Next Page)

Level 2: Intuitive Level (Principally a Military Responsibility)

Jus In Bello (JIB): MP1 always[24] overrides MP2, MP3, MP4, and MP5.

JIB1. Discrimination[25] (Intentional Harm)

-JIB1 justified by MP1: We should never intentionally harm innocents.

-ROE: Who to harm? Combatant.

Who not? Innocent or Prisoner.

Unintentional Harm?

Principle of Double Effect applies. A Practical Rule. Double Effect is:

1) Bad effects unintended.

2) Proportionality (P2): Good achieved by military objective > bad effects,

e.g., suffering of innocents (to include collateral damage to cultural

artifacts/buildings, etc.).

3) Bad effects cannot be direct means to good effect.

4) Due Care. Military must minimize bad effects even if doing so entails risk to

combatants.

JIB2: Proportionality (P3): Good achieved by military objective > suffering of combatants.

-JIB2 justified by MP3: We should minimize human suffering.

-ROE: How to harm? Weapon limits, minimize friendly casualties and (where possible)

enemy casualties.

JIB3: Self-Defense: Soldiers involved in peace operations abroad should have the same

standards for the use of deadly force in self-defense as those employed by law-enforcement

officials within the state.

-JIB3 justified by MP4: A combatant always retains the right to self-defense.

-ROE: “Objective Reasonableness Standard.” R-A-M-P.

JIB4: due risk: Commanders are always responsible for force protection.

-JIB4 justified by MP5: Commanders are always obligated to protect subordinates under

their care.

-ROE: Force protection. ROE training.

5. Conclusions.

What I have proposed is a pragmatic approach to Just War Theory. I follow Plato in maintaining that only the dead have seen the end of war. But forms of war are always evolving for the living. If Just War Theory fails to evolve with those new forms, theorizing within this important tradition may soon find itself useless in assisting members of the military profession in making the hard decisions. Yet implicit in this pragmatic analysis is the presumption that certain moral principles (MP1, MP2, and MP4) ground any version of a War and Justice Model. These three principles serve as the conditions for the possibility of any critique, and hence evolution, of Just War Theory. Therefore, given war’s future evolutionary turns these principles cannot be rejected in virtue of just any possible instrumental improvement to theoretical understanding. But improve it we must if we are to meet the challenge, emphasized by Michael Walzer, that war is the hardest place to make moral judgments. The good news to this story is that those same difficult demands of war can also assist by motivating us to think clearly and revise intelligently in the face of newer and harder judgments. It is my hope that these adjustments to the Two Levels of War and Justice model presented here will help our U.S. Forces make the right moral judgments demanded of them by our Constitution and our citizenry. By extension, this analysis of the moral principles involved might also assist other militaries in making more consistent--and hence more moral--judgments.

REFERENCES

Department of the Army, 2000. Field Manual 27-100: Legal Support to Operations. Washington, D.C.: Department of the Army Printing Office.

The DOD Crouch-Gehman Commission Report, 9 January, 2000. Washington, D.C.: Department of Defense, accessed 29 November 1991; available from http://www.chinfo.navy.mil/navpalib/news/news_stories/cole.html).

Department of Defense, 1998. Joint Publication 1-02: DOD Dictionary of Military and Associated Terms. Washington, D.C.: Joint Chiefs of Staff.

Christopher, Paul, 1994. The Ethics of War and Peace: An Introduction to Legal and Moral Issues. Englewood Cliffs, NJ: Prentice Hall.

Dubik, James M, 1982. ‘Human Rights, Command Responsibility, and Walzer’s Just War Theory,’ Philosophy and Public Affairs 12: 354-371.

Dworkin, Ronald, 1978. Taking Rights Seriously. Cambridge: Harvard University Press.

Grey, Thomas, 1991. ‘What Good is Legal Pragmatism?’ in Michael Brint and William Weaver, eds., Pragmatism in Law and Society. Boulder, CO: Westview Press (9-27).

Hall, John C., 2001. FBI ROE Brief, XVIII Airborne Corps Joint ROE Conference.

Hare, R.M.,1981. Moral Thinking: Its Levels, Method, and Point. Oxford: Clarendon Press.

Hartle, Anthony, 1989. Moral Issues in Military Decision Making. Lawrence: University of Kansas Press.

Walzer, Michael, 1977. Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books.

XVIII Airborne Corps, 2000. Rules of Engagement Assessment and Leader Talking Points, “Detention of Fleeing Belligerent.”

NOTES