Guest Post: BG Chuck Pede’s response to Gene Fidell’s essay on operational mishaps and military justice

In his essay, “U.S. Military Justice and “Operational Mishaps”: A Primer”did Gene Fidell get it right as to how the American military deals with battlefield errors?   Not quite according to our guest blogger, U.S. Army Brigadier General Chuck Pede. Here are General Pede’s views:

Mr. Eugene Fidell, in his 24 April post on Just Security, offered a “primer” on how the U.S. military justice system deals with what he refers to as “Operational Mishaps,” a phrase he defines as excluding “intentional misconduct.”  While informative, he raises several issues that compel a response.

I. Conflict of interest – Typically Overstated and Mischaracterized 

Mr. Fidell asserts there is a lack of prosecutions for “operational mishaps” in the U.S. military which he attributes to a “conflict of interest” between the prosecutorial discretion vested in commanders, and their responsibility for “the readiness and efficiency” of their units. While he qualifies the assertion by stating the “conflict of interest” may just “appear” to exist, even that qualification goes too far and in so doing, perpetuates the misunderstanding of the general public about why certain battlefield conduct is typically not prosecuted.

First and by his own acknowledgement, if commanders do not address operational mishaps, such inaction will “erode existing [host nation] support”, a phenomena that would logically incentivize commanders to vigorously prosecute battlefield crimes rather than shield the lawbreakers.

Current warfighting doctrine buttresses this very  point—Joint Publication 3-0 identifies “legitimacy” as a principle of warfare, on par with other principles including objective, offensive, mass, economy of force, maneuver, unity of command, security, surprise, simplicity, restraint and perseverance.  The Army’s 2006 Counterinsurgency (COIN) Manual succinctly articulates the principle’s importance to our strategic level commanders: “Lose Moral Legitimacy, Lose the War.”

Thus, facile statements that there exists a ‘lack of prosecutions’ due to a conflict of interest is inapt and fundamentally misunderstands the matter at hand.

‘Mishaps’– his term – are by their nature not criminal as we typically think of criminal behavior in need of criminal sanction by the public.  Instead, most ‘operational mishaps’ – his term – do not involve criminal intent, but usually at most are the product of mere errors in judgment not amounting to criminal negligence.  The distinction between errors in judgment and criminal negligence has been understood for centuries, and as 18th Century commentator’s description of the distinction still rings true today: Has the [Soldier] observed the plain, known Rules of his Profession. Thus, proving criminal negligence is a difficult hurdle to overcome.  Indeed, the principal mitigating factors to criminalizing battlefield decisions include fear, high optempo, limited facts, and a host of other factors unknown in common assessments of whether to prosecute.

There are well known engagements in our recent wars where US. Soldiers died, in part, because battle staffs were either not performing well at the time of the engagement, or commanders made poor battlefield decisions – either through the wrong assessment of priorities, an inability to see clearly and correctly through the notorious ‘fog of war’ or through simple error.  Simple delay in responding for a call for fire can result in causalities to US forces, host Nation forces, or friendly civilians, that are easily criticized after the fact.  But in almost every such case, actual criminal sanction would be wholly inappropriate for a host of reasons – not least of which is the disastrous effect such recrimination would have on the conduct of future commanders in future engagements.  The most penetrating fact of course, is that actors on the battlefield are not engaged in criminal activity either by intent or act – and that criminalization would paralyze initiative and risk taking – the kind of initiative and risk taking which makes the the US Army the best Army in the world.  The threat of even civil litigation on our European allies is already having negative effects on the battlefield.  Criminal sanctions would magnify such harm 100 fold.

But poor performance – even negligence is not ignored by the Army as Mr. Fidell suggests.  The commander who fails his Soldiers in harm’s way – or performs poorly in combat, or places fire on the wrong target causing death or injury or damage, may suffer in ways seldom reported or understood.  While criminal sanctions have public cache to critics, Soldiers who are disciplined short of criminal sanction face the end of their professional career, the shame of not having done their duty in putting lives at unnecessary risk, embarrassment and exile from the profession of arms.  The force of such consequence, unknown in any other walk of life is profound and enduring.  Unfortunately, Mr. Fidel’s article fails to appreciate this fundamental difference.  Non-criminal sanctions in the military are exceedingly well developed, well-tailored to the transgression or omission, and immensely powerful in impact to the Soldier and those who know of the sanction.  Such sanctions have developed over 241 years of war-fighting – and are ferociously effective.  Any suggestions that such sanctions for ‘mishaps’ – his word – are hand slaps simply and profoundly misunderstand the nature of service in the profession of arms and the nature of the non-criminal punishment.

II. Crime

Conversely, and yes, I mean conversely, when actual crime occurs it is wholly different in both quality and consequence and has been handled by the Army with great seriousness and consequence since, literally 1775.  Recently, the Army conducted over 800 courts-martial in Iraq and Afghanistan between 2002 and 2011 – with crimes ranging from theft of money from Afghans to murders of Iraqis.  Indeed, our military history has taught us that the lofty, altruistic principles underpinning the law can be harnessed to achieve battlefield outcomes, which, at the strategic level of leadership, incentivize the vigorous prosecution of battlefield crime rather than its concealment.

In the Mexican American War for example, Major General (MG) Winfield Scott established a general order under which all offenders “Americans and Mexican, were alike punished—with death for murder or rape, and for other crimes proportionally.” Several decades after that war, Major General (MG) William Birkhimer, himself a civil war veteran and Medal of Honor awardee, described the strategic impact of that policy on the conflict:

“The policy here adopted by the American general worked like a charm. It won over the Mexicans by appealing to their self-interest, intimidated the vicious of the several races, and, being enforced with impartial rigor, gave high moral deportment and discipline to the invading army . . . .[W]e have the evidence of the commander himself that valor and professional science could not alone have accomplished all this with double the number of troops, in double the time, and with double the loss of life, without the adoption and carrying into execution of these and other similar measures at once deterrent of crime in all classes and conciliating the people conquered.”

To Mr. Fidel’s point leaders operating at the tactical level (the lowest level of combat leadership) may indeed, be incentivized to shield their subordinates under certain circumstances, a phenomena senior military leadership has identified as a potential strategic liability that we have vehemently countered.  In particular, as Lieutenant General Richard Mills told the Defense Legal Policy Board (DLPB) in 2013, in combat “the bond of loyalty at the squad level is mythical, and only a strong chain of command known to be open and fair can overcome it.  Otherwise, this loyalty can lead a service member to ignore or mischaracterize a questionable event.”

To ensure such events are not ignored or mischaracterized, Army Regulation 15-6 withholds authority to investigate death and other serious events to the General Officer level.  And more pointedly, in recent years commanders have begun implementing theater specific investigative requirements with even more strenuous investigative procedures to counter enemy propaganda mischaracterizing lawful acts of war as war crimes.  One example of such procedures is ISAF SOP 307 which in Afghanistan imposed extensive reporting procedures and transparency requirements which The Center for Civilians in Conflict praised, and for which the DLPB touted as a model for U.S. Forces.

Further, once an investigation is complete, there is no opportunity for lower level leaders to sweep a matter under the rug.  The number of court-martial prosecutions of US Soldiers who criminally killed civilians in combat over the past fifteen years of combat is too numerous to annotate here.  However, the criticism of the perceived harshness of such actions can be easily searched by the term “Leavenworth 10,” identifying soldiers convicted of unlawful actions in combat “which their supporters say were justified.”  Thus, the Army at once cannot be accused of ‘looking the other way to crimes” while at the same time be accused of prosecuting innocent Soldiers of unlawful killings.  Instead, the Army, an imperfect but accountable institution, follows the evidence where it leads.  Reflecting the importance of this pursuit of truth, General Officer level commanders nearly universally withhold prosecutorial authority from lower level commanders for incidents involving death or serious injury, which ensures that actual criminality will be appropriately punished.

III.  Prosecutorial Discretion of Commanders 

Nonetheless, Mr. Fidell suggests that assigning prosecutorial discretion to lawyers outside the chain of command would “allay concern that commanders have (or appear to have) a conflict of interest”—a proposal that would make operational mishap prosecution even less frequent.   This misplaced solution in search of a problem is as misguided as it is facile.

The unique combination of a commander and a professional Soldier-lawyer who together wrestle with questions of criminal sanction is in my view one of history’s greatest legal achievements.  Commanders make decisions with the experienced counsel of a Soldier-lawyer.  As an operational imperative, commanders have a vested interest in preserving the legitimacy of U.S. operations which serves as an incentive to prosecute borderline cases, and experienced Soldier-lawyers are uniquely equipped based on years of service to provide nuanced counsel addressing both national, host-nation and unit interests.  Second, in operational mishap incidents, senior level field commanders bring decades of operational experience to bear upon the key legal issue in those cases which they are uniquely qualified to analyze—whether the accused “observed the plain, known Rules of his Profession.”  Attorneys, no matter how experienced in criminal prosecution or defense, generally don’t engage in actual combat or plan or execute kinetic operations. Therefore, in the unique context of operational offenses, commanders are critical in defining and recognizing a criminal dereliction.

I do share Mr. Fidell’s concern, however, that a misplaced criminal prosecution for an operational offense may have “a chilling effect on operational personnel who make split-second decisions. . .”  Interestingly, in Hunter v. Bryant (1991), the Supreme Court expressed a similar sentiment as justification for the wide allowance for error in the context of qualified immunity, stating “[the] accommodation for reasonable error exists because ‘officials should not err always on the side of caution’. . . ”  Further, there a number of historical examples illustrating the operational impact such a prosecution can have on the Soldiers in the field.

One particularly powerful example is the 1756 Court-Martial case of British Admiral John Byng.  Admiral Byng was court-martialed and convicted of violating an operational offense, the 12th Article of War.  Specifically, Admiral Byng was convicted of “negligence” in failing to do the utmost to fulfill his duties during a naval engagement with the French.  The 12th Article of War carried a mandatory minimum sentence of death, and believing that punishment was too extreme, the military jury submitted a clemency plea to the Board of Admiralty, lamenting the Article “admits no mitigation, even if the crime should be committed by an error in judgement; . . .”

Admiral Byng’s supporters sprung to action, and in an attempt to sway public opinion, submitted a letter to the editor of the London Chronicle, asserting the jury misconstrued the law as criminalizing errors in judgment.  They argued Admiral Byng’s conviction was therefore unjust because “[an] error of this judgement is not discerned by him who acts in Consequence of it at the Time of Action . . .”

Such efforts proved futile however.  Admiral Byng was executed, and his surviving family members as recently as 2007 requested the British Government to clear his name on the grounds he was convicted for a mere “error of judgment.”  While the perceived injustice of Admiral Byng’s conviction resonates through the ages, so too did the operational effect.  As author Nicholas Rodger explains:

“Byng’s death revived and reinforced a culture of aggressive determination which set British officers apart from their foreign contemporaries and which in time gave them a steadily mounting psychological ascendancy.  More and more in the course of the century, and for long afterwards, British officers encountered opponents who expected to be attacked, and more than half expected to be beaten, so that they went into action with an invisible disadvantage which no amount of personal courage or numerical strength could entirely make up for.”

While the deterrent effect of Admiral Byng’s prosecution may have fueled a “mounting psychological ascendancy” that accrued to the advantage of British forces, criminal deterrence can also undermine a force’s willingness to fight.

The so-called “Nangar Khel” incident illustrates the point.  The incident involved Polish forces in Afghanistan who in August 2007 came under attack from a local village.  Their patrol returned fire with mortar rounds, one which killed several civilians, including a pregnant woman and some children.  A civilian prosecutor in Poland filed murder charges against seven of the soldiers and afterwords the so-called “Nangar Khel Syndrome” set-in, as the Polish soldiers came to believe they could no longer trust their leaders to protect them.  A U.S. soldier, who accompanied Polish units on patrol after the incident observed:

“If there was even a chance of killing a civilian, they wouldn’t shoot  . . . I would try to explain to them, ‘You’re with me—if I shoot, you need to shoot too . . . [t]hey were afraid of going to jail.  They were always thinking about [Nangar Khel].  They would say, ‘You don’t understand—I go to jail if I kill people.’”

A Brigade Combat Team commander in Afghanistan at the time, posited that the Polish team’s actions at Nangar Khel were “proportional,” “acceptable,” and “not out of the norm,” and commented U.S. service members have been involved in similar incidents.

If the “Nangar Khel Syndrome” were ever to beset U.S. forces, the implications would be global in scale. The security challenges the U.S. faces are daunting.  As such, “[the] accommodation for reasonable error” which the Supreme Court referenced in Hunter v. Bryant is necessary to ensure service members are not discouraged from taking the risk necessary to achieve ultimate victory on the battlefield, and to ensure our enemies remain convinced our forces are willing to take that risk.

Reassigning prosecutorial discretion over operational offenses to lawyers, therefore, would increase the likelihood of “Nangar Khel Syndrome” besetting our forces, and would likely  reduce the number of prosecutions of operational offenses overall given the different ‘yardstick’ employed by lawyers in weighing decisions whether to prosecute.  In particular, because commanders are best suited to determine whether an operator “observed the plain, known Rules of his Profession”, they are less likely to misconstrue a “mere error in judgement” for a criminal dereliction in the context of an operational offense.  Moreover, as U.S. senior commanders are trained to think strategically in the pursuit of achieving battlefield objectives, they have a keen understanding of how criminal law shapes behavior on the battlefield, and by implication, how it impacts the behavior of our enemies.  Accordingly, commanders exercise their prosecutorial discretion with keen understanding of how their decision bears upon achieving national security objectives—coupled with a professional Soldier-lawyer’s understanding of the law applied to the use of force on the battlefield.

This professional pairing, with decision making vested in the commander is not a liability or anachronism at all, but is the proverbial ‘sweet spot’ in prosecutorial decision-making.  Arguments that commanders are unqualified or conflicted are simply artful chimeras and facile red herrings.  To suggest that only lawyers understand the law and whether some action demands criminal sanction is profoundly short-sighted, and dare I say it – self-important.

IV. Conclusion 

In closing, in the context of operational offenses, there is an inextricable link between the criminal law applicable on the battlefield and our national security.  As such, it is critical that U.S. commanders continue to hold prosecutorial discretion over operational offenses because they are best qualified to make those prosecutorial judgments.  The role of the Military Lawyer in this decision making process is profound and fundamental.  Commanders, unsurprisingly, are mission focused, and lawyers play an indispensable role in ensuring the commander appropriately considers the Constitutional Rights of our service-members in making a prosecutorial decision.  Conversely, command involvement ensures prosecutorial decisions are not made devoid of operational considerations which could inadvertently impact world-wide U.S. military operations.  Together the Commander / Lawyer relationship best balances the rights of the Soldier with the demands of our national defense.

The opinions expressed herein are solely those of the author, and are not intended in any way to reflect an official position of the U.S. Army, the U.S. Department of Defense, or any branch of the U.S. Government.  


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