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.