Lt. Col. David Bolgiano, U.S. Air Force
Author, Combat Self-Defense: Saving America's Warriors From Risk-Averse Commanders and Their Lawyers

What are rules of engagement?

Rules of engagement are a device used by a commander to set forth the parameters of when, how, for what duration and magnitude and geographical location, and against what targets our forces can employ force, generally deadly force … in a theater of operations. …

How do rules of engagement used in the military compare to the body of law that backs it up?

The rules of engagement, strictly speaking, as they work in the military, contain a caveat … that nothing in these rules of engagement shall limit the right, inherent right, of self-defense.

And what's left unspoken but is legally significant, is the phrase, when confronted with "an imminent threat of death or serious bodily injury." Because we're confronted with threats that may raise to the level of self-defense all the time. Most of those threats, however, don't require a deadly force response.

So the rules and the body of law that underpins those rules all concern discerning what is a reasonable response to an imminent threat of death or serious bodily injury. And the law that governs that certainly here in the United States is a constitutional Fourth Amendment understanding of what is reasonable. …

Why is there confusion over the right to self-defense? …

The confusion over the inherent right of self-defense doesn't come from the written word. It doesn't come from the law. …

The confusion over the inherent right of self-defense comes from assessing judgment-based shootings after the fact that, in the clear vision of 20/20 hindsight, may not appear to be reasonable when, in fact, by law and by tactics, they were. Let me give a prime example.

In January 2005, a vehicle approached a hastily constructed traffic control point on the route from downtown Baghdad to Baghdad International Airport. The vehicle approached the checkpoint in speeds close to 60 miles per hour, ignored flares and warning signs to slow down and halt, at which point the soldiers on the traffic control point reasonably perceived a threat, an imminent threat of death or serious bodily injury, and engaged the vehicle.

In the clear vision of 20/20 hindsight, we learned that it was an Italian intelligence officer driving the vehicle who was, unfortunately, shot and killed. He was just taking a recently released journalist to freedom. It caused an ongoing international uproar. But that decision at the time the soldier [pulled] the trigger was, nevertheless, reasonable.

And that's where a lot of the confusion comes from. It comes from folks that don't understand the tactical dynamics of an encounter and wish to impose, one, either their Hollywood notion of what's reasonable, or two, try to judge the person by what is learned in the clear vision of 20/20 hindsight. ...

Can you talk about how the rules of engagement in Iraq compare to previous U.S. engagements?

I think that the rules of engagements in Iraq, compared to previous rules of engagements that I've been exposed to -- certainly in Desert Storm and earlier engagements -- are a lot clearer. I think they give affirmation to our troops to make the decisions at hopefully the lowest level possible.

But I think there is also a lingering confusion over that affirmation process. And we see that cause two problems. One, it can cause hesitation of our troops to engage threats that are indeed imminent. And then, the other side of the coin is if they're confused about who they should engage or where to engage, it can cause a shooting out of fear. ...

[What is positive identification?]

… Positive identification is a targeting term that's used against a declared hostile. For instance, we'll take a notional rules of engagement … where our command authority at a high level will designate terrorist group ABC as a designated hostile.

To engage that person, all one needs to do is ascertain positive ID -- in other words, to reasonably believe that that particular person is a member of the ABC terrorist group. We're unconcerned about whether or not that person is presenting an imminent threat of death or serious bodily injury. It matters little under the law or tactics.

For instance, if I'm a combat force of the United States, I can walk into a barracks room filled with ABC members sleeping in their bunks, and I can shoot them where they lie -- without concern whether they presented an imminent threat of death or serious bodily injury to me -- solely because of their status as a designated hostile under the rules of engagement. … That's where PID is relevant.

PID is nearly always irrelevant when it comes to responding to an imminent threat of death or serious bodily injury in a self-defense capacity. I don't care whether or not the person shooting at me is a member of ABC terrorist group. I don't care if, in fact, they're an insurgent. All I care about is, by their actions, are they presenting an imminent threat of death or serious bodily injury to myself or friendly forces? That's all the legal authority I need to engage them. So too oftentimes this PID term is incorrectly sprinkled into what is, in fact, a self-defense scenario.

Now, what I do need to try to do is have aimed effective fire against an actual threat. That's where problems can arise. That is where actions by our adversaries of using human shields, using civilian houses, using mosques as platforms to fire from, can create nearly untenable situations for us as the good forces to respond to.

Because you could have an insurgent firing from behind human-shield walls of children and non-combatants. How do you return fire against that person without causing unnecessary civilian casualties? That's a very, very tough situation, and it's one that our forces face on a near daily basis in theater.

Gary Solis
Adjunct Professor at Georgetown Law School; Marine (Ret.)

The rules of engagement are much more general than most people realize. They are not tactical instructions. They don't -- and can't -- cover all situations. As general in nature as they are, they must leave some discretion to the individual soldier or Marine on the ground. …

Can you explain positive identification? …

PID, positive identification, is as the term implies: Before you can fire on an individual, you must positively identify that individual as representing a threat to you or your fellow Marines or soldiers. And if you cannot do that, then you are not supposed to fire on him or her.

The question is always, what constitutes PID? Some of us may have seen the shooting of a wounded individual in a mosque in Fallujah that happened some time ago. When one observes that, you may initially say, "Well, there's no PID there. There's no threat evident there. That looks like a murder in combat."

There was an investigation. And the question is not what I think or some other viewer thinks. The question is, what was in the mind of the Marine who shot the individual? Did he honestly and reasonably believe that that individual presented a threat to him and/or his fellow Marines? And, if he did, then no offense has been committed.

So it's not only an objective assessment, but then it's also a largely subjective assessment. … That's why one person may say yes; another person may say no. The question is, what did the shooter feel? …

… How does positive identification operate in a kinetic situation [such as clearing a house]?

When you're engaged in a firefight, a concept of positive identification, an awareness of the rules of engagement tend to fade. You're concerned with what's in front of you. You are acutely aware of the possibilities.

And if you see a fleeting target, you're going to fire on it. Now that doesn't mean that you are free to shoot anything and anyone that may appear during a firefight. But in a firefight, you don't have the luxury of considered thought. You don't have time for considered thought.

In a life-or-death action like that, you act and react. Now no one is going to, for example, turn and see a baby and say, "Oh, I think I'll shoot that child." It's conceivable that the child may be killed in the uncontrolled strobe-like melee of a firefight. But positive identification in a firefight -- you do the best you can.

Gary Myers
Attorney for Lance Cpl. Justin Sharratt

The rules of engagement have one fundamental underpinning, and that is that every soldier or Marine has the right to self-defense. That's the first and foremost element of the rules of engagement. And every Marine and soldier can tell you that. They have a little card and they can tell you what the card says.

The problem with the rules of engagement is that if you give those same group of young people a hypothetical circumstance and tell them how they would react to it, you get 20 different answers. …

The rules of engagement are, in combat, generally speaking, in the eye of the beholder, having as the first premise survival. Now, these young people know that a disarmed and helpless person is not to be shot on the one extreme. But, on the other extreme, if it's a sleeping enemy, identified as such, of course you can shoot.

My point is that the rules of engagement are an attempt to simplify an impossibly complex set of possibilities. And so you have to look at each case ad hoc and decide whether or not the conduct was reasonable.

Now, here's the problem. In military law, the only route to go, if you think that a crime has been committed, is to court-martial that individual, take him to trial. And if he has to defend himself and there's no one else around to testify, then he's got to take the witness stand to speak to the question of self-defense.

It is our view … that the doctrine of qualified immunity should apply to our soldiers. Call it "qualified combat immunity." It already exists for every policeman in the United States. The Supreme Court of the United States has said that if the conduct is reasonable there's no liability. And reasonableness is a objective standard.

We believe that that should apply to soldiers, so that a soldier, if charged, can file a motion to dismiss without having to go to trial on the basis that his conduct was reasonable. Now, this is not currently the law. But we believe it should be, because it requires the government to prove that his conduct was unreasonable. And we think that that's where this entire matter should lie before you actually go to trial.

I know this is sort of a technical discussion, but it's of critical importance to have a ground fighting force that believes that when it discharges its weapons it is not engaging in a criminal act. And I fear that the Haditha cases and other cases that have followed have given an impression to young ground troops that they, in fact, are at risk if they fire their weapon. And that does not augur well for an army, for a Marine Corps, that can be effective in the field. …

… Over the course of this war our tactics have changed. Our understanding of the strategy has changed. How have these rules of engagement changed as well?

Well, frequently they're local rules of engagement that address a given set of circumstances. Fallujah II is an example of where the rules of engagement were dramatically relaxed to allow for Marines to fire much more liberally, shall we say, than they would be in other environments. But Fallujah II is considered by the Marine Corps, and by those who were associated with it, to be one of the most significant battles in the history of the Marine Corps. And so the rules of engagement there were relaxed.

Rules of engagement are promulgated on the local level and so there are many rules of engagement that adjust to individual circumstances. So it's impossible to tell you there hasn't been a generic shift in the rules of engagement. The fundamentals are still the same -- right to self-defense, positive ID, so on. But there are, under certain circumstances, alterations in the rules of engagement to take into account the anticipated operational circumstance.

Josh White
Military Affairs Correspondent, The Washington Post

… Can you talk about the tension and confusion [in the ROEs] in fighting a counterinsurgency?

One of the chief tensions of fighting a counterinsurgency under the new rules is that troops are trained to defend themselves and that they have an absolute right to engage a target if they feel that their life is in danger. That is up against the idea that it is of vital importance to protect civilians from being engaged.

Now where this really shows itself is at checkpoints. In the early part of the war, the United States was responsible for a number of checkpoint shootings, where cars would drive up to a U.S. military checkpoint, and maybe not understand exactly what they were supposed to do, and in failing to stop, or speeding up, or acting erratically, U.S. troops viewed that as threatening behavior and, in some cases, killed people who were simply not understanding what the rules were. They killed a number of civilians in that manner.

Commanders were especially attuned to that issue and wanted to make sure that U.S. troops understood that simply because someone is acting erratically doesn't necessarily mean that they're a suicide bomber. It may mean that they're confused. And in weighing the self-defense issue with the desire not to wantonly kill people there's a difficult gray area in the middle that each and every member of the military has to [confront] when they're in combat. And generally speaking, I think, commanders will side with the decisions that their troops make as long as they make them in a rational, thought-out, trained way.

Gen. James Conway
Commandant, U.S. Marine Corps

… How are the rules of engagement different in an insurgency than in conventional conflict?

The rules of engagement are not terribly different. The rules of engagement that we put into place as we crossed the berm going into Iraq in '03 are exactly the same rules of engagement that [are] in place today.

At its essence, what the rules of engagement say are that if you feel threatened by an enemy force or by an incident that's taking place in front of you, you are authorized to engage. And that hasn't changed. Nor should it change, be it a conventional environment or an insurgent environment. …