When the Persian Gulf War started in August 1990 with naval interdiction operations, nearly a generation had passed since American war-fighters had been asked to engage in large scale combat. The Defense Department described the war as “the most important test of American arms in 25 years.” In this test of arms, Americans were introduced to a new, more civilized, mode of conflict:

The Coalition military campaign will be remembered for its effort, within the bounds of war, to be humane. Coalition airstrikes were designed to be as precise as possible. Coalition pilots took additional risks and planners spared legitimate military targets to minimize civilian casualties.

DoD Interim Report to Congress on the Conduct of the Persian Gulf Conflict, at I-2.

This more restrictive method of fighting has persisted in American military operations for the past 28 years. Yet another generation has grown accustomed to fighting in a heavily-regulated, hyper-supervised manner.

A recent article published in the Army Lawyer entitled Back to Basics: The Law of Armed Conflict and the Corrupting Influence of the Counterterrorism Experience, asserts that this experience has ingrained practices and attitudes in the U.S. military that would cripple it in a conflict with a near peer.

Specifically, the article, penned by the Staff Judge Advocate and Deputy Staff Judge Advocate of Headquarters, United States Army Europe, Colonel Gail Curley and Lieutenant Colonel Paul Golden, Jr., asserts that recent exercises in United States European Command have shown that “nearly two decades of counter-insurgency operations in Iraq and Afghanistan” have left American war-fighters “with assumptions that do not exist in a highly contested environment, such as conflict with a peer or near peer enemy in densely populated Europe.” Back to Basics at 23.

First, Colonel Curley and Lieutenant Colonel Golden assert that our forces have adopted an unrealistic and unwarranted standard for positive identification for targeting purposes.

[C]ommanders, operators, and legal advisers need . . . to become more comfortable with the concept of employing force when they do not possess perfect or near perfect information about a target which would most certainly be the predominant scenario in a [high intensity conflict scenario].

Back to Basics at 24.

Apparently, the Air Component has come to rely upon a particularly unsuitable standard of positive identification. The article asserts that Air Force legal advisers participating in exercises in the European theater brought with them – presumably from their experience fighting counter-insurgency warfare – an unrealistically “low-tolerance for civilian casualties [that] greatly limited a tactical and operational level commander’s ability to strike legitimate military objectives, and, in effect, fight.” Back to Basics at 25. The result was “consistent elevation of engagement authority based on casualty estimates.” Id.

The experience of restrictive positive identification was so ingrained in Air Force operators and lawyers that, in some cases, they refused to engage multiple targets for fear of violating the [Rules of Engagement] or the [Law of Armed Conflict]. This resulted in unnecessary delays in engaging lawful targets and required expensive coordination to overcome.


The article asserts that such a milquetoast approach to warfare “could have catastrophic consequences for the U.S. formations involved[.]” Id.

Instead, Colonel Curley and Lieutenant Colonel Golden insist:

There must be a balance. The starting point in [a high intensity conflict scenario], particularly in urban areas, cannot be anchored in the [counter-insurgency] experience of the last several years, but rather basic [Law of Armed Conflict] and the principle of [proportionality] requiring U.S. forces to balance the military advantage and likely collateral effects and to minimize civilian casualties to the greatest extent possible.


Looking towards a solution to this purported institutionalized timidity, the article first suggests that warfighters need to admit they have a problem. Exercises could provide the venue for that education:

[I]t is important to recognize the critical value of exercises to legal practitioners, lessons learned and the [counter-insurgency] stain impacting many U.S. and DoD policies, including doctrine, since 2001.

Back to Basics at 27.

Once the problem is recognized and acknowledged, it can be attacked. To that end:

[I]t is imperative for policy makers and commanders to delegate more [engagement] authorities to the lowest possible level and be comfortable with taking [,and having subordinates take,] decisive action without perfect knowledge of the enemy’s activities.


Further, the article insists that in the judge advocate community, in particular, “some reflection is in order.” Id.  Specifically, senior leaders need to take seriously their duty to ensure “legal advisers have the tools and training they need to succeed in less regulated environments.” Id.

Instead, the article argues that judge advocates have become accustomed to working in environments defined by “heavy regulation of most activities” which inspires “a certain intuitive comfort level” and where “there is an answer for every problem and plenty of levels of review.” Id.

If not consciously re-structured, those conditions, practiced over the past couple of generations, will result in combatants who come up short “in a twenty-first century [high-intensity conflict] environment against a peer or near peer competitor, where the speed of combat the levels of violence will likely exceed anything since World War II[.] Id.

In that future conflict:

Legal advisors will need to be comfortable in the void.


Presently, they apparently are not.





7 Responses to “Scholarship Saturday: Warfare Revisited”

  1. Shawn says:

    So right, Zeke.  While a Marine E-4 with ANGLICO, I served in Vietnam as a forward observer for the 155mm howitzer company Golf 3/12 from November, 1966, until August, 1968.  The combatants we faced at night were almost all civilians during the day.  I never once heard the term, “Rules of Engagement,” nor any mention of the “Law of Armed Conflict.”  Ours was hardly a “milquetoast approach to warfare,” and yet, in the end, we lost anyhow to an inferior force.  How, then, could we possibly win today against a more capable enemy?  (https://www.youtube.com/watch?v=NPqhm36sjVE)

  2. stewie says:

    Are you actually defending what went on in Vietnam??
    And we didn’t lose militarily. We didn’t have the political will to continue a war that the country no longer wanted, that was killing a lot of Americans, for pretty nebulous (at best) reasons.
    As for this article…I get the argument but I think the concern is at most at the margins. We are more likely in conflicts against peer adversaries going to be fighting in more traditional big army v big army battles more often. I’d also argue that interconnected economies of a global world make such a war much less likely at least in the short-term, but that’s neither here nor there to this argument which is how do we do things when we are in it.
    I think we will be where you’d expect. Some balance between the civilians are fair game attitude of WWII and the caution used today. I don’t expect peer adversaries to melt too often into a populace. I expect tank on tank, plane on plane, ship on ship. There will certainly be urban fighting, and that’s where I think the “margins” come into play for an article like this. There’s no easy way to conduct urban fighting.

  3. Zachary D Spilman says:

    I think the authors of this article are right to bemoan the bureaucratic nature of war in the 21st century, where regulatory oversight is applied in place of reasoned strategy and clear commander’s intent. But pining for the old rules of conventional warfare is a mistake.

    The last sentence of the second paragraph observes that the counter terrorism (CT) scenario is different from the high intensity conflict (HIC) scenario in part because:

    the CT mindset assumes that the area of operations is tightly controlled and that most detainees would not qualify for Enemy Prisoner of War (EPW) status.

    In other words, it’s the difference between Portland, OR, and Belleau Wood. 

    Well, our national strategic outlook has, for well over a decade, assumed that most near-term military operations will be either (1) counter-insurgency, (2) low-density special operations, or (3) humanitarian assistance. More Portland, less France. Sure, there’s the potential for a regional conflict (like with North Korea or Iran), but civilian casualties and disruption of trade would get so bad so fast that a speedy resolution of the primary fight through the use of extraordinary force (fire and fury, you might say) is practically guaranteed. The decision to obliterate a foreign capital in a single strike (perhaps with a single munition), however, is a political question, not a legal question. 

    Our operations against ISIS in Syria perhaps qualify it as a small war, but there’s very little reporting about that (because we’re winning and can’t report that; orange man bad). We do know that the current administration “relaxed the rules of engagement” (source), which is probably code for supplementing the SROE with some offensive ROE, and that surely keeps the judge advocates busy. But the new rules don’t seem to impede success; quite the opposite, actually. 

    Considering that, it’s hard to agree that policies against the deliberate targeting of non-military personnel and assets, and (inter)national preferences against cluster munitions, mines, and renditions, are actual impediments to victory. Particularly since all are waivable. 

    11 years ago LTC Paul Yingling wrote an article in the Armed Forces Journal titled A failure in generalship (link). In it he observed that:

    The most tragic error a general can make is to assume without much reflection that wars of the future will look much like wars of the past. 

    So too with lawyers, whether the battlefield is in Europe, Asia, or a court-martial for allegations of sexual assault.

  4. stewie says:

    There are only so many ways wars can look like. It’s not an infinite variety. It won’t look exactly like WWII to go up against Russia or China in open warfare, but it’s not going to be some weird, foreign adventure either.
    And again, doubt it happens anytime soon as the global economy is simply too interlinked.

  5. Vulture says:

    Folks, take a look at the news today.  Does it look like we have forgotten how to kill each other?

  6. Sir Visdis Crediting says:

    Zack, do you have any thoughts on how the battlefield of sexual assault court-martial litigation may change? More limitations to confrontation? More offenses where consent is not a defense (ex. trainer/trainee situations)? Redefining consent to include a duty to warn of foreseeable consequences (i.e., United States v. Forbes)?

  7. Vulture says:

    What a difference a day makes.
    US troops deploying to our own boarder.  Damn, what is III Corp’s COJ gonna say when a soldier refuses to shoot somebody crossing the Rio Grande fleeing poverty? 
    I’d say that is a highly unlikely situation, but the article is right: What role do JAGs play in the “more lethal” force?