How Our Overly Restrictive Rules of Engagement Keep Us from Winning Wars

The car was moving at high speed. It had just broken a blockade of American and Iraqi forces and was trying to escape into the gathering dusk. American soldiers, driving larger and slower armored vehicles, mostly the large and unwieldy MRAPs (mine-resistant, ambush-protected vehicles), gave chase. They were intensely interested in the target. Acting on intelligence that high-value al-Qaeda leaders might be present, a cavalry troop — working with Iraqi allies — surrounded an isolated village near the Iranian border. The mission was simple: to search the village and kill or capture identified members of al-Qaeda. It was the kind of mission that the troopers had executed countless times before. It wasn’t uncommon to encounter “squirters” — small groups of insurgents who try to sneak or race through American lines and disappear into the desert. Sometimes they were on motorcycles, sometimes on foot, but often they were in cars, armed to the teeth and ready to fight to the death. On occasion the squirters weren’t insurgents at all — just harmless, terrified civilians trying to escape a deadly war. This evening, however, our troopers believed that the car ahead wasn’t full of civilians. The driver was too skilled, his tactics too knowing for a carload of shepherds. As the car disappeared into the night, the senior officer on the scene radioed for permission to fire. His request went to the TOC, the tactical operations center, which is the beating heart of command and control in the battlefield environment. There the “battle captain,” or the senior officer in the chain of command, would decide — shoot or don’t shoot.

If soldiers opened fire after a lawyer had deemed the attack outside the rules, they would risk discipline — even prosecution.

But first there was a call for the battle captain to make, all the way to brigade headquarters, where a JAG officer — an Army lawyer — was on call 24 hours a day, seven days a week. His job was to analyze the request, apply the governing rules of engagement, and make a recommendation to the chain of command. While the commander made the ultimate decision, he rarely contradicted JAG recommendations. After all, if soldiers opened fire after a lawyer had deemed the attack outside the rules, they would risk discipline — even prosecution — if the engagement went awry. Acting on the best available information — including a description of the suspect vehicle, a description of its tactics, analysis of relevant intelligence, and any available video feeds — the JAG officer had to determine whether there was sufficient evidence of “hostile intent” to authorize the use of deadly force.

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He had to make a life-or-death decision in mere minutes. In this case, the lawyer said no — insufficient evidence. No deadly force. Move to detain rather than shoot to kill. The commander deferred. No shot. Move to detain. So the chase continued, across roads and open desert. The suspect vehicle did its best to shake free, but at last it was cornered by converging American forces. There was no escape. Four men emerged from the car. American soldiers dismounted from their MRAPs, and with one man in the lead, weapons raised, they ordered the Iraqis to surrender. Those who were in the TOC that night initially thought someone had stepped on a land mine. Watching on video feed, they saw the screen go white, then black. For several agonizing minutes, no one knew what had happened. Then the call came. Suicide bomber. One of the suspects had self-detonated, and Americans were hurt. One badly — very badly. Despite desperate efforts to save his life, he died just before he arrived at a functioning aid station. Another casualty of the rules of engagement.

Imagine if the United States had fought World War II with a mandate to avoid any attack when civilians were likely to be present. Imagine Patton’s charge through Western Europe constrained by granting the SS safe haven whenever it sheltered among civilians. If you can imagine this reality, then you can also imagine a world without a D-Day, a world where America’s greatest generals are war criminals, and where the mighty machinery of Hitler’s industrial base produces planes, tanks, and guns unmolested. In other words, you can imagine a world where our Army is a glorified police force and our commanders face prosecution for fighting a real war. That describes our wars in Iraq and Afghanistan. For more than a decade, complaints about the rules of engagement have bubbled up on soldiers’ message boards, in stray comments — often by soldiers’ parents — on conservative websites, and in the occasional article in the mainstream press. Frequently, this comes in the context of lauding the military for its restraint. Yet despite being such a vital — and sometimes decisive — factor in a more than decade-long war, the rules of engagement are still poorly understood, and their impact is largely unknown. As ISIS continues to grow and its reach expands from the Middle East to Europe, the United States, and beyond, it’s time to consider the true cost of America’s self-imposed constraints.

Rules of engagement are separate from — but related to — the actual law of armed conflict. The law of armed conflict (LOAC) is a comprehensive, complex body of law developed largely by the Western powers in an effort to render war more humane. Its principles are relatively simple — designed to limit the use of force to military targets and to treat captives with proper care and respect — but have become almost mind-numbingly complex in application. The Department of Defense’s new Law of War Manual stretches to a staggering 1,176 pages and purports not just to define general principles but also to govern specific applications in a granular level of detail. But no soldier, no commander, and indeed few military lawyers can master these rules in all their complexity. And so they learn generalities. In general, the LOAC is now governed by the principles of necessity, humanity, proportionality, and distinction. The principle of necessity, to quote the Law of War Manual, “justifies certain actions necessary to defeat the enemy as quickly and efficiently as possible.” Humanity “forbids actions unnecessary to achieve that object.” Proportionality requires that even when actions may be justified by military necessity, such actions must not be unreasonable or excessive. Distinction imposes on the parties an obligation to distinguish between military and civilian targets and to facilitate distinctions by clearly marking military personnel and military vehicles.

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In his introductory letter to the Law of War Manual, Department of Defense general counsel Stephen Preston declares the law of war to be “part of our military heritage” and says that “obeying it is the right thing to do.” He further argues that the doctrines are no impediment to “fighting well and prevailing.” In other words, these legal doctrines are said to allow American soldiers to fight under the highest of moral standards and still win wars.

The United States hasn’t fought a conflict governed by the law of war in almost a century.

These are noble principles, but unfortunately their applicability peaked more than a century ago, when warring states in Europe — exhausted by the Wars of Religion — fought battles on open fields between militaries wearing the most distinctive of uniforms. Think of the battle of Waterloo in what is now Belgium or, here in the United States, the battles of Gettysburg and Chancellorsville. The United States hasn’t fought a conflict governed by the law of war in almost a century. Indeed, just as the law of war is part of America’s military heritage, so is the modern concept of “total war” — a nation mobilizes its full resources to destroy not just the military of an opposing country but also its very capacity to wage war. America’s enemies, moreover, have consistently and flagrantly disregarded the laws of war. Arguably, the United States has not fought a nation that substantially complied with the LOAC since it squared off against the Germans in the trenches of Western Europe in World War I. Instead, both the regular armies (Nazis, Japanese, North Koreans, Chinese, and North Vietnamese) and the insurgencies (Viet Cong, Taliban, and al-Qaeda) have brazenly violated the law at every turn.

The modern result is a military farce. American forces play by the rules while our enemies exploit those same rules to limit our freedom of action, create sanctuaries where they can rest and rearm, and then launch international propaganda campaigns when our painstaking targeting proves to be the least bit imprecise. Yet — and here’s the crucial point — through their rules of engagement, American soldiers don’t just comply with the law of war. They go beyond the requirements of the LOAC to impose additional and legally unnecessary restrictions on the use of military force. Rules of engagement represent true war-by-wonk, in which a deadly brew of lawyers, politicians, soldiers, and social scientists endeavors to fine-tune the use of military force to somehow kill the enemy while “winning over” the local population even as the local population is in the direct line of fire.

Defenders of the rules of engagement often speak as if they represent nothing more than military common sense — after all, wouldn’t it be better if American soldiers killed only insurgents? Don’t civilian deaths inflame the population? General Stanley McChrystal famously told his troops in Afghanistan that they should spend 95 percent of their time “building relationships” and “meeting the needs” of the Afghan people. Only 5 percent should be spent fighting the Taliban.

Rather than learning and applying the true laws of war, soldiers are taught an absurd distortion of them.

In establishing these priorities, McChrystal was purporting to apply the counterinsurgency principle of “protecting the population,” but it is difficult to protect a population when the rules of engagement grant the enemy enormous freedom of movement and access to civilians and civilian sites. By imposing restrictive rules of engagement, McChrystal (like commanders before and since) was making it more difficult for his troops both to clear the Taliban from towns and villages and to hold territory against inevitable counterattacks. Counterinsurgency is always long and painful, but when troops are unable to clear and hold territory, they can’t truly enter the important “build” phase, in which soldiers transition from constant combat to supporting local allies and building local militaries in an environment relatively free of threat. Thus, rather than learning and applying the true laws of war, soldiers are taught an absurd distortion of them — rules that have grown more restrictive throughout the War on Terror, culminating most recently in the Obama administration’s reported decisions in the air war against ISIS to leave known military targets intact for fear of inflicting even a single civilian death.

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While the precise rules of engagement in any given theater of operations tend to be classified, their general parameters are well known and give American soldiers the option of using force only in the face of a “hostile act” or “hostile intent,” or when an enemy fighter has been “positively identified.” Once the enemy is engaged, the rules then govern the types of weapons that may be used, how they may be used, where they may be used, and the various levels of command that can authorize the use of each kind of weapon. So unless a soldier is using his personal weapons system to engage an enemy who is actively firing on him, there is all too often confusion and delay on the battlefield. Sometimes troops must consult lawyers even during active firefights. The results are often grim. Americans die.

The intelligence was solid. Multiple, reliable sources had revealed the time and location for the meeting of an al-Qaeda leader with an operational cell specializing in improvised explosive devices (IEDs). The location was a village in Diyala province, north of the town of Balad Ruz. The time was just after noon on Friday. But there was a problem — a big problem: The meeting was in a mosque, and the al-Qaeda leader was the imam. While tribal leaders pleaded for American forces to strike, Army lawyers were writing legal memos, sending requests for permission to raid the mosque (complete with legal arguments) up the chain of command. The clock ticked as the command deliberated. Finally, the word came: Permission denied. The potential secondary effects of a raid — complete with possible visuals of American soldiers storming a mosque — outweighed the benefits of an attack. But there are also effects of not acting. Days later, an American patrol was attacked by a massive, remote-detonated IED. A Humvee reinforced with extra armor was blown into the air. Four Americans died. One soldier miraculously escaped, but with crippling, life-altering injuries. The IED cell had struck again. The effects continued. Within weeks of the IED strike, the cell ambushed another American patrol — this time with elements of the al-Qaeda group firing from, yes, a mosque. One American was seriously injured, and the resulting firefight lasted 36 hours, inflicting massive damage. Much of the village was destroyed as American and al-Qaeda troops traded fire, locked in house-to-house combat. The rules of engagement saved a mosque but destroyed a village — and likely four more American lives.

Talk to combat veterans and the stories like this will come pouring out, often variations on the same theme: We knew where the enemy was, but we couldn’t pursue him. And when we fought him, we couldn’t kill him. Bing West, a retired Marine infantry officer, the author of multiple books on the War on Terror, and a journalist who has embedded over two dozen times with troops on the ground in Iraq and Afghanistan, believes the rules of engagement often rob American soldiers of their military advantage. With body armor, ammunition, and other gear weighing in excess of 90 pounds, infantry can’t “press home attacks,” West says. “Fire and maneuver does not exist, so troops have to apply massive firepower.” Yet the rules block access to the firepower needed to win engagements.

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Few engagements show this reality more starkly than the battle of Ganjgal, featured in the book West co-authored with Medal of Honor recipient Dakota Meyer, Into the Fire. Members of Meyer’s small team of Marine advisers to an Afghan-army unit walked into a Taliban ambush and soon found themselves pinned down, unable to effectively return fire or safely retreat. In prior wars — indeed, earlier in the Afghan War — this was exactly the time when Marines could call for artillery support or an air strike and use the American military’s immense firepower advantage not only to save their own lives but to destroy the attacking enemy force. But not this time. Under the rules of engagement, the directive was clear: “Do not employ ‘air-to-ground or indirect fires against residential compounds, defined as any structure or building known or likely to contain civilians, unless the ground force commander has verified that no civilians are present.’” Marines watched F-15E Eagles circle, impotently. Artillery was silent. In the meantime, Meyer launched a desperate effort — with Army captain Will Swenson — to find and rescue his lost comrades. Meyer rescued Afghan allies and fought — sometimes hand to hand — to reach his team, only to find it was too late. His friends, his brothers, were dead.

As West notes, “you cannot fight a major battle with the current rules of engagement.” Some units were so paralyzed in their ability to mount offensive operations that they were reduced to rolling outside of their base and waiting to be fired upon. Only then was it truly clear that they could respond, though not with the full power at their disposal, and so long as civilians were likely present, they were often prohibited from responding even with the precision-guided weapons that make the American military theoretically the deadliest in the world.

Some units were so paralyzed in their ability to mount offensive operations that they were reduced to rolling outside of their base and waiting to be fired upon.

In Iraq and Syria, American pilots have watched as ISIS fighters moved freely among civilians, and they’ve held fire rather than bomb ISIS oil trucks that are funding the jihadist war, out of concern that some of the truck drivers might not be jihadists. In one notorious incident, pilots dropped leaflets to warn of an imminent attack and made fake bombing runs to try to clear the area of civilians. Indeed, the fake bombing run is common enough that insurgents now understand that “fly-bys” can be a signal not of imminent doom but rather of safety. After all, if they were in real danger, the bomb would have already dropped. By some reports, up to 75 percent of sorties end without dropping bombs, and West reports that some pilots fear court-martial if they don’t adequately question a ground controller’s request for a strike. Here’s the final irony of our concern for the laws of war and civilian casualties: Our rules of engagement not only create an additional incentive for enemy law-breaking, they ultimately lead to mass-scale civilian casualties at the hands of unconstrained jihadists.

Fully aware of American restrictions, enemy fighters not only refuse to wear uniforms, they often do their best to blend in with the civilian population, eschewing distinctive dress, armbands, or any other insignia that brands them as members of a terrorist militia. Rather than congregate in isolated outposts, they cluster in mosques, around hospitals, and even in private homes. While such tactics are frequent in guerrilla warfare, they are neither legal nor moral, and our jihadist opponents have reached appalling lows even by the rough and brutal standards of insurgencies. During my deployment in Iraq, I watched on live feed as a fleeing insurgent picked up a small child and carried him as a human shield to escape pursuing forces. I’ve seen al-Qaeda cells hold meetings in the courtyards of farmhouses while surrounded by young children. And so they live to fight — and kill — again. Civilians in jihadist-held areas are shot, stabbed, crucified, burned alive, beheaded, and thrown from tall buildings. When they take new cities, jihadists fire indiscriminately in civilian areas, often killing anything that moves. To keep their oppressive peace, they sometimes massacre entire villages. As a result, in its own military campaigns, America often saves the few only to watch the many die horrific deaths.

American military success has been tied to looser rules of engagement. From the initial lightning march through Iraq to Baghdad, to the decisive battles of the Iraq troop surge, American forces win when they take the gloves off. Though most “routine” operations during the Surge were covered by the now-standard rules of engagement, resulting in the tragic incidents described above, during key battles, commanders often loosened the rules, granting greater discretion to leaders in the field and more freedom of action to soldiers to identify and engage the enemy. For example, soldiers were empowered to engage the enemy whenever they encountered known enemy tactics, techniques, and procedures (known as “TTPs”), even when no weapons were evident. And the number and nature of identified TTPs was expanded to encompass the latest intelligence.

Seasoned American veterans can and do make good decisions under pressure. They can distinguish friend from foe in a complex battlefield.

Indeed, as the Surge indicates, the choice isn’t between the mass destruction of total war and the purported surgical precision and humanity of wonk war. Seasoned American veterans can and do make good decisions under pressure. They can distinguish friend from foe in a complex battlefield. They wield their weapons with precision and skill. Intentional killing of civilians is exceedingly rare. Of course war is never easy, and choices are always fraught with danger. Loosening the rules of engagement and delegating greater authority to the troops in the field will likely lead to increased civilian casualties, but granting warriors the ability to close with, and destroy, opposing forces has proven to diminish enemy combat power, clear civilian areas of enemy influence, and enable soldiers to hold on to hard-fought gains. While JAG officers’ concern with the terrible consequences of poor decision-making under pressure is well meaning and understandable, the current rules have effectively taken combat decision-making away from experienced warriors and put it in the hands of far less experienced lawyers. Again and again, lawyers prevent warriors from engaging targets the warriors know are hostile but cannot prove to the standards required by the relevant rules.

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Moreover, no true oversight exists. Political leaders increasingly don’t understand the military, much less the weapons and tactics needed to prevail on the battlefield. Every branch of government blanches in the face of left-wing critics who speak as if by reflex of “war crimes” any time civilians die.

To be sure, reforming the rules of engagement will not by itself lead to American victory in the War on Terror, particularly because it confronts an amorphous group of violent religious ideologues rather than a fixed set of powers. But reforming the rules of engagement will make the American military more effective wherever and however that happens. The Left is fond of claiming that the outcome of American military engagements in Iraq and Afghanistan reveals the “profound limitations” of American military power. In reality, however, they reveal only the profound limitations of a military so lawyered up that it can’t drop a bomb or fire an artillery round without a J.D. on the line. Our enemies — who disregard every limit in their quest to kill, destroy, and expand the scope of their striking power — benefit, and are delighted. ISIS is seeking to deploy chemical weapons. America is looking for excuses not to drop bombs. In this circumstance, soldiers and families suffer. Mothers lose their children. Wives lose their husbands. Soldiers lose their brothers. The holes in our hearts are gaping, and the psychic wounds are made rawer by the fact that so many of those losses were unnecessary. I knew men who died because lawyers and politicians failed them. Those who served, and their loved ones, are left to pick up the pieces, visiting graves, comforting families, and feeling a deep and lasting sorrow. Our nation doesn’t trust its warriors, and its warriors are paying the price.

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By David French, a attorney, a staff writer at National Review, and a veteran of the Iraq War.

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