Important ROE Case (UPDATE)

ROE, that’s rules of engagement. For those first thinking I was referring to Roe vs Wade, you’re forgiven, as both do involve life and death issues.

There’s currently in progress an Article 32 hearing at Camp Pendleton of charges against a Marine for violating rules of engagement in killing two and wounding two others in Iraq. The outcome of this fact-finding hearing, which may or not recommend further action, otherwise may be important to the future training, competency, morale, and very lives of our troops whom we place in danger, and thus to the success of their missions.

ROE are the military’s guidance to its members on what actions they may take during hostile activities. At the tactical level, they’re often secret so as not to provide evasive guidance to the enemy. Tactical ROE are usually specific to each branch of service, and to units within depending on their mission, and are constantly being updated.

The literature and testimony on tactical ROE demonstrate that there’s frequent imprecision, as words cannot adequately describe every potential situation and the drafters may themselves be inadequately versed, with resulting confusion even among presumed experts not to mention the frontline troops.

The major news sources that reported on the first of what is scheduled to be two days of the hearing have all done a good job. I’ll link to them below. The witnesses called so far are supposed to be the prosecution’s, so my – and likely your -- reaction of “WTF!” is going on here is striking. The best and most charitable theory I can come up with is that there’s some sort of agenda at work, which may include to accomplish a better practice and definition of ROE. If not, then this appears a miscarriage, for which this Marine Sergeant is suffering above his pay grade.

In brief, this latest dispatch from the Los Angeles Times describes the case at issue:

Marine snipers were never given clear rules about when they could kill a suspected insurgent at long range, a platoon commander testified today at a hearing for a sniper charged with manslaughter and assault in the killing of two Syrians and the wounding of two others.

Lt. Dominic Corabi said that as he and his Marines deployed to Iraq, he tried and failed to get clarification from senior officers about what constitutes "positive identification" and "hostile intent" -- terms in the official rules of engagement that dictate when Marines can use deadly force.

Enlisted Marines, Corabi said, were worried that their combat decisions could be second-guessed and that, like the Marines involved in the Haditha killings of 2005, they could find themselves facing criminal charges.

"Their main message was, 'I don't want to ruin my career doing something I think is right and the Marine Corps doesn't,' " Corabi said.

His testimony came at the preliminary hearing for Sgt. Johnny Winnick, accused of breaking Marine rules by opening fire on a group of men he thought was planting a roadside bomb near Lake Tharthar. No evidence of a bomb was discovered….

Winnick, 24, a sniper team leader, was on his fourth tour in Iraq when the incident occurred June 17, 2007. Later, Marines changed the rules, requiring even a sniper team leader to get authority from an officer before pulling the trigger, except in cases of self-defense.

Regarding, “No evidence of a bomb was discovered,” there was an incomplete investigation, as described by the San Diego Union-Tribune.

Lt. Steven Chamales, who led the quick-reaction force that aided Winnick's team, testified that he searched the big rig's cab and the ground around it and found nothing related to bomb-making.

“My concern is that I did not see anything worth shooting over,” Chamales said. “I saw no ordnance. I saw no ammo. I saw no weapons. I saw no digging materials, no homemade explosives.”

No one searched the trailer, which appeared to be full of 2-liter bottles of soda, he said.

Additional on this, from the North County Times:

Wazenkewitz also testified that Marines had been told the insurgency was moving away from regular explosives to construct roadside bombs and was beginning to use the more portable and less detectable compounds such as ammonium nitrate. The truck they fired on disappeared from the intersection a couple of days after the shooting and was never fully searched, Wazenkewitz said.

There’s much more from the first day of the hearing. See here at the AP:

Cpl. Alexander Wazenkewitz, who was manning radio communications that day, testified that the delivery truck had stopped at the same place where two unidentified men were seen apparently scoping out the area days before.

Winnick fired at a man who hopped out of the cab, took a container from a trailer compartment and began crawling on the ground, Wazenkewitz testified. Then all six Marines on Winnick's team stormed out of a building, some shooting at the truck passengers with shotguns.

Wazenkewitz said he believed the possibility of a threat justified the use of force. "I don't want to die. That's why we did it," he said.

The Investigating Officer, who will make his recommendation based on the hearing, seems to have the correct focus, as quoted by the North County Times:

"What I'm most concerned with is what those guys saw out there," King said at one point during Tuesday's court session.

The Marine’s officer in charge was overruled from somewhere above as to what was correct, the Los Angeles Times reports:

Within hours, officers had determined that Winnick had made a mistake, that the men in the truck were not planting a bomb. Winnick was relieved of duty, and Corabi said he was ordered to give him a negative evaluation but refused.

Scheduled to appear today, for the defense, will be Lt. Col. David Bolgiano, a top authority on ROE. His testimony was important to the dismissal of charges from LCpl Sharratt’s Article 32 in the Haditha cases. I very much recommend your reading Bolgiano’s testimony, for an understanding of ROE. Some brief excerpts:

* The problem is when we attempt to do it with the status of the law as it relates to using reasonable force to immanent threat of death or serious bodily injury, we unnecessarily restrict our clients' options when so confronted. In other words, the status of the law requires reasonable application of force. When we start layering on concept of minimal force or last-resort language, it confuses the issue.

Moreover, tactically, if confronted with an immanent threat of death or serious bodily injury, deadly force should probably not be your last resort. It should be your first resort. We will see why when we look at the tactical dynamics.

* Q. So you are telling me that in your professional judgment, and based upon the case law, that a cop on the street in Baltimore has more legal protections than a Marine in combat in Haditha discharging the foreign policy of his government?

A. That is correct. If one were to follow and apply a standard self-defense defense to that decision, that is absolutely correct. And the NCIS agent in Haditha, if she decided to use deadly force in that situation, would be provided all the protections for her line of duty decisions.

Q. And the important element here that we want to get across and on the record to this IO is that under the Supreme Court standard, the burden is on the government to demonstrate that the Marine's conduct was unreasonable, whereas under the common law of self-defense, it is upon the defendant to demonstrate that he engaged in self-defense.

A. That is absolutely correct. And to me, legally, that burden has to be assessed on a case-by-case basis. But legally, if one is acting under the color of law in the performance of their duties and makes a decision to use deadly force, the legal standard annunciated in Sausia v. Cads applied to Title 10 forces. The legal standard is not that a consensus of people believed that those actions were reasonable, rather it is that no reasonable Marine would have done the same thing. It is a very low threshold. And if the findings are that a Marine acted reasonably under the guidance of Sausia v. Cads, then in my view, that Marine should be given qualified immunity.

Q. So in this case, or any case that would apply to this doctrine, the question of reasonableness and the burden shifting to the government would be the subject of a motions practice as opposed to going through an entire trial and interposing self-defense?

A. Exactly. That is the key point in Sausia v. Cads because that is exactly what happened there. The plaintiffs in that case wanted to go to a hearing because they said there were factual disputes. And the Supreme Court said. No, No, No, No. The first threshold question that must be resolved is whether or not that officer acted reasonably under the circumstances. And if he did, it stops there.

Bolgiano stresses, “We look at the decision that the shooter made at the time he or she decided to engage,” as does the Investigating Officer in this case.

Let’s see if the prosecution has a case to present, but thusfar this hearing itself should never have occurred. And, that it has, does not reflect to the benefit of the Corps.

UPDATE:
The Article 32 hearing has concluded, with Sgt. John Winnick saying, as the Los Angeles Times reports:

"I'm eager to actually get back in the fight and serve my country," Sgt. Johnny Winnick said at the conclusion of military proceeding akin to a preliminary hearing.

This may be a higher sense of priorities and service than exhibited by an officer in earlier testimony:

But Capt. Oliver Dreger, an intelligence officer whose assignment was to oversee Winnick and other snipers, said he believed Winnick acted too quickly and without sufficient information to conclude that the men were showing "hostile intent."

"I wasn't pleased with the judgment exercised by Sgt. Winnick," said Dreger, who order Winnick relieved of duty the day after the incident.

Dreger said that a Marine has to be "pretty damn sure" before firing at a target and has to realize "that decision will be scrutinized by outsiders."

But under tough questioning by Winnick's attorney, Gary Myers, Dreger conceded that there is a subjective element to determining "hostile intent" and "positive identification," phrases contained in the official rules of engagement.

Myers suggested that Dreger, who was questioned as part of the investigation into the 2005 killing of 24 civilians in Haditha, was thinking of his own career by immediately relieving Winnick.

"The first thing you did and your battalion commander did was to get as far away from these Marines as possible," Myers said, an accusation Dreger denied.

If there’s an agenda in putting this Marine through this Article 32 ordeal, this may be it, in the wake of the Haditha public brouhaha, some Marine officers may have so heightened sensitivity to any possible mistake as to, in effect, attack their own troops needlessly.