What do special instructions bring to the rules of engagement? Chaos or clarity.
"This incident mark(ed) the third time that U.S. forces had been involved in friendly fire accidents during the conflict in Afghanistan." (3) Another cause for concern was that this friendly fire fatality refreshed memories of another tragedy that happened on 14 April 1994, during Operation PROVIDE COMFORT. "On that date, two United States Air Force F-15 fighter aircraft shot down two United States Army UH-60 Blackhawk helicopters in the skies over northern Iraq. (4) Why were Coalition forces in Afghanistan in the first place? In the wake of the accident, why are Coalition forces still today conducting military operations?
On 11 September 2001, terrorists trained by the al-Qaeda organization hijacked four commercial airliners, crashing them into the two World Trade Center towers in New York City, the Pentagon in Washington, D.C., and a field in Pennsylvania. On 6 October 2001, the United States and several coalition partners launched Operation ENDURING FREEDOM (OEF), a military campaign designed to destroy the al-Qaeda terrorist network's main base of support in Afghanistan and the Taliban regime that had provided both a safe haven and substantial material support to al-Qaeda. (5)
On 17 September 2002, the National Security Strategy of the United States of America was released to the public. The purpose was to reinforce the commitment and priorities of our nation as defined by our nation's leadership.
Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government. Today, the task has changed dramatically.... Terrorists are organized to penetrate open societies and to turn the power of modern technologies against us. To defeat this threat we must make use of every tool in our arsenal-military power ... America will help nations that need our assistance in combating terror. And America will hold to account nations that are compromised by terror, including those who harbor terrorists-because the allies of terror are the enemies of civilization. The United States and countries cooperating with us must not allow the terrorist to develop new home bases. Together, we will seek to deny them sanctuary at every turn. (6)
America, before this articulation of our national objectives, was employing this policy in the international armed conflict appropriately named Operation ENDURING FREEDOM in Afghanistan. This conflict was being prosecuted through a multinational effort led by America and several coalition palmers making it a combined operation. (7) With this combined operation, came the increase of America military operational activities and the potential for misfortune which was the case on 17 April 2002. On 7 June 2002, a Coalition Investigation Board (CIB) consisting of U.S. and Canadian personnel released their findings about the incident. (8)
The Coalition Investigation Board found by clear and convincing evidence that the cause of the friendly fire incident on 17 April 2002 was the failure of [Major Harry Schmidt], the 170th Expeditionary Fighter Squadron Weapons Officer and the incident flight wingman, to exercise appropriate flight discipline. This resulted in a violation of the rules of engagement and the inappropriate use of lethal force. Under the circumstances, Major [Harry Schmidt] acted with reckless disregard for the foreseeable consequences of his actions, thereby endangering friendly forces in the Kandahar area. (9) The Board also found by clear and convincing evidence that an additional cause of the incident was the failure of [Major William Umbach], the 170th Expeditionary Fighter Squadron Commander and the incident flight lead, to exercise appropriate in-flight leadership. This resulted in his wingman's violation of the rules of engagement and inappropriate use of lethal force. Under the circumstances, Major [William Umbach] acted with reckless disregard for the foreseeable consequences of his actions, thereby endangering friendly forces in the Kandahar area. (10)
The CIB cited other substantial contributing factors and other finding of significance. (11) This friendly fire incident, referred to as Tarnak Farms, has proceeded to another forum based on the ripple effect of the CIB findings. The unit commander preferred charges against the two pilots consisting of involuntary manslaughter, assault and dereliction of duty. (12) On 13 January 2003, an Article 32 hearing was convened to determine whether the pilots should be court-martialed for the mistaken bombing. As of the date of this study, the investigating officer has not completed the Article 32 report.
However, the question that Tarnak Farms poses is whether the pilot had the authority in self-defense to act in the way he did? (13) The pilots' claimed they were defending themselves against what they thought was hostile ground fire. (14) This defense embraces the concept that they were adhering to the rules of engagement (ROE). (15) This argument appears to be history repeating itself in 2002. During 1994, "the Blackhawk helicopters shoot down resulted in an accident report asserting that the pilots who fired the two missiles were acting in accordance with the rules of engagement." (16) Conclusively at the CIB stage of Tarnak Farms, the findings did not agree that the flight wingman properly exercised the right to self-defense. (17) The crux of these findings was the failure of the pilot to exercise appropriate flight discipline. A key factor in reaching this conclusion was analyzing the pilot's actions in relations to the special instructions (SPINS). (18) In contrast, to the pilots' claim that they took appropriate actions in self-defense in accordance with the standing rules of engagement (SROE), the CIB concluded noncompliance with OEF ROE by determining the pilots failed to leave the immediate threat area as mandated by the OEF SPINS. (19) If the arguments for compliance or noncompliance are both true, then was the accident the result of a "ROE-SPINS disconnect?" (20)
In actuality, there is no ROE-SPINS disconnect. During military operations involving air assets the JFACC has the authority through SPINS to further restrict ROE as promulgated by the JFC. SPINS are a primary measure by which the JFACC controls air operations through campaign strategy, operational constraints and tactical procedures. SPINS have several sections which provide in detail how ROE will be applied in mission execution. Therefore, they are just as binding on the pilots as ROE issued by operations orders (OPORD) from the combatant commander; and for a pilot to use force appropriately, he must comply with the SPINS and ROE.
Since the "War on Terrorism" has been advocated by President George W. Bush, United States armed forces have been engaged in coalition operations amounting to war. The effectiveness of these military operations will be driven by integrated joint operations, communications and interoperability. (21) Additionally, new challenges will have to be identified and need to be addressed as we fight.
This article will focus on ROE and SPINS in joint/combined/coalition air operations, using the Tarnak Farms incident of Operation ENDURING FREEDOM as a case study. (22) Specifically, it will focus on whether an unfortunate result was generated by directives and guidance promulgated in the ROE and SPINS. Additionally, it will explore and examine if there existed a conflict between the ROE and SPINS impacting self-defense. It will identify and examine the process of the creation of these documents. Since air operation ROE and SPINS are drafted and coordinated at a Joint Air Operations Center (JAOC) this article will also examine the JAOC's impact on these documents as well as the joint air operations process. With the CIB findings and the referral of charges, the Air Force's course of actions asserted and signaled that the pilots violated the OEF ROE. However, the pilots contend that they acted in self-defense in accordance with SROE. If plausible, then the ROE and SPINS may have been in conflict.
To set the background for the analysis, this article will first address ROE for armed conflicts, identify two types of ROE and their interaction. Secondly, it will describe the JAOC and how ROE from the strategic level is transformed into strategy, constraints and procedures for application at the tactical level. Thirdly, it will explain the existence of SPINS in an air operation. Within this framework, it will analyze how ROE and SPINS interconnect to be viewed as important documents for mission planning and execution. Finally, it will explore whether there exists a conflict between ROE and SPINS.
II. RULES OF ENGAGEMENT
In order to identify whether some hostile action allows an affirmative response one has to know the triggering mechanism. ROE provides that guidance. In a situation where the elements for potential armed conflict exist, ROE is a tool to regulate the use of force. U.S. forces receive their directions from the President through their chain of command in the form of ROE. The legal factors which serve as a foundation for ROE, that is, customary and conventional law principles regarding the right of self-defense and the laws of war, are varied and complex. (23)
Although ROE can be complex, a workable framework for understanding it can be attained by dissecting it by purposes. ROE represents the intersection of political, military, and legal purposes. (24) The purposes all work together to influence the drafting of ROE in every military operation. "Thus, many factors influence an operation's [ROE], including national command policy, mission, operational environment, commander's intent, and international law." (25) Practically, ROE are the commander's rules for the use of force, specifying the circumstances and limitations in which forces may engage the enemy. (26) The rules may reflect the will of the government and commanders, but military members must adhere to the rules in order to carry out the mission.
Forces operating in accordance with applicable ROE, conduct warfare in compliance with international laws and fight within restraints and constraints specified by superior commanders. Objectives are justified by military necessity and attained through appropriate and disciplined use of force. ROE always recognizes the inherent right of self-defense. Properly developed ROE are clear and tailored to the situation. In a nutshell, ROE delineate what can be attacked, how it can be attacked, and whose permission yoga need to attack it. (27)
III. TYPES OF RULES OF ENGAGEMENT
Since armed conflicts vary and are driven by particular circumstances so will ROE. One way to categorize ROE is by the scale of the conflict. Thus, when a conflict is initiated then the SROE is in place for U.S. forces to look to as a source of guidance. If a conflict intensifies the ROE adapts to the crisis. This flexible ROE can be labeled Peacetime to Combat Operation ROE. The development of ROE in the previous categories would be applicable to all military services in the overall planning stage of a conflict. However, when the focus shifts to operational capabilities each military service normally has developed campaign ROE to fit their mission. Consequently, each type of ROE distinctively has an impact on the military actions of U.S. forces.
A. The Joint Chiefs of Staff Standing Rules of Engagement
"The Joint Chiefs of Staff Standing Rules of Engagement (SROE) have been termed 'the tether between the NCA and the soldier.'" (28) This statement has merit because the SROE are meant to be real-time guidance from our national leaders to the military member. The U.S. SROE are the basic ROE documents for all U.S. forces during military attacks on the U.S. and during all military operations, contingencies, and terrorist attacks outside the territory of the U.S. (29) On 15 January 2000, the Chairman of the Joint Chiefs of Staff (CJCS) issued an updated version of the SROE. (30) The instructions cover the continuum of conflict from peacetime to military operations other than war (MOOTW) to armed conflicts. Based on these established instructions, every military member is trained to adhere to these rules unless new ROE are promulgated from competent military authority. If the mission changes the SROE "can be easily and quickly amended or clarified to meet mission-specific requirements." (31) However, some SROE fundamental principles remain constant such as the inherent right to self-defense. (32) Therefore, SROE are the foundation for the use of force by a soldier, sailor, marine, or airman.
B. Campaign Rules of Engagement
The starting point for all ROE should be the SROE. As a crisis forms which may require military action, staffs at the strategic level evaluate and coordinate how the ROE fits into the mission. Focusing on aerospace operations,"[t]he development of air campaign ROE is a process that must begin early in the Crisis Action Phase of any potential contingency." (33) "During the Crisis Action Phase, the ROE Cell at the strategic level will coordinate and develop ROE for the mobilization phase and force-on-force phase of the air campaign." (34) Additionally, in this phase the appropriate authorities will review allies' and other components' objectives and strategies to develop applicable ROE. (35) Eventually, this upper echelon of guidance will flow down to the next level of planning. However, with all service military planners,
[t]he challenge is to balance competing interests in the formation of ROE. ROE that are too constrained will prevent the warfighter from getting the job done. ROE that are too broad could allow military operations which may be inconsistent with national objectives or may allow room for fratricide. (36)
Once the objectives of the mission are defined the next step is to transform the guidance into a plan of execution. This is done at the operational level of planning by functional experts. In aerospace operations, the purpose of developing a plan is to identify in detail how air power will support a commander's overall campaign plan. (37) ROE will be evaluated and developed to match the overall strategic objectives with the challenges, restrictions and capabilities associated with the campaign. ROE and plans developed at the operational level will be transmitted to operators at the tactical level who execute the campaign. In order to understand the ROE under which the pilots fight, comprehending who, where and how they are developed is essential. The Joint Air Operation Center for aerospace operations is the focal point at this next stage of mission planning and execution.
IV. JOINT AIR OPERATION CENTER
Planning for joint operations begin with comprehending the joint force mission. The command and control center in joint air operations which transforms strategic guidance to an operational and executable plan is the Joint Air Operations Center (JAOC). (38) The JAOC is the aerospace operations planning and execution focal point for the joint task force (JTF) under the JFC and is where centralized planning, direction, control, and coordination of aerospace operations occur. (39) JAOC divisions and branches are responsible for planning, executing, and assessing aerospace operations and directing changes as the situation dictates in support of the JFC's operation or campaign plan. (40) The JAOC is an integral part of the big picture when planning and executing arty air campaign involving joint or combined forces. Therefore, understanding how it fits into the joint air operations plan and functions is important.
A. Joint Air Operation Center Functions
The JAOC functions as the hub between strategic and tactical aerospace forces. "Although the Air Force provides the core manpower capability for the JAOC, other Service component commands contributing aerospace forces provide personnel in accordance with the magnitude of their force contribution." (41) To coordinate aerospace operations, the JFC will appoint a JFACC. (42) The JFACC's authority is derived from and delegated by the JFC who in turn was appointed by the appropriate geographic combatant commander. (43) The JFACC exercises his operational and tactical command and control through a JAOC which transmits his strategy, operational constraints and tactical procedures by the Air Tasking Order (ATO), Airspace Control Order (ACO) and SPINS. (44) Therefore, the JAOC functions as a fully integrated facility and staff to fulfill all of the JFACC's responsibilities by acting as a receiver, planner, assessor and director of aerospace operations. (45)
B. Joint Air Operation Center Process
The JAOC provides the means and methods for the JFACC to orchestrate the air campaign in a joint environment. The JAOC has the task of command and control of the air assets and components assigned to the theater from a central location. The JFC and JFACC's strategy and guidance are transmitted to the JAOC director. "The JAOC director is charged with effectively conducting joint aerospace operations." (46) This means he transmits JFC and JFACC guidance to the five JAOC divisions and multiple support and specialty teams. (47) Each of these JAOC divisions has different responsibilities that support the formulation of SPINS and the integration of ROE. (48) Additionally, they gain valuable input from the multiple support and specialty team as they go through the process of generating the SPINS and ROE. (49) The divisions publish and disseminate a daily ATO, ACO and any updated SPINS after getting approval from the JFACC. (50) Although the JAOC sends out taskings, it is also planning ahead based on feedback from the tactical operators along with considering the objectives of the JFC and JFACC. (51) As long as the operation is going the JAOC is in action and manned 24 hours. With the updated input, the JAOC functional teams will review and revise the air campaign plans that will be transmitted to the forces through the daily ATO, ACO and SPINS.
V. SPECIAL INSTRUCTIONS
The JFACC expresses his air campaign objectives and strategy to subordinates through SPINS. SPINS are a primary document which provide in detailed ROE for the overall air campaign. They also provide instructions on other operational procedures and tactics. Once complete, SPINS are jointly transmitted with the ATO and ACO to assist operational aircrews in planning for execution of the mission.
A. Special Instructions within the Air Tasking Order
The purpose of SPINS is to provide clear instructions based on authoritative guidance. SPINS reflect the strategy and objectives that were issued from the President and Secretary of Defense and sent through the respective chain of command. For example, "the ROE will be published first in the Operation Orders then subsequently in the SPINS to the ATO." (52) Since SPINS are an integral part of the ATO and disseminated by the JAOC they gain their authority from the JFACC. SPINS provide details to the tactical operators on how to adhere to the current ROE as they plan for mission tasking, coordination and execution. Therefore, SPINS are a control mechanism which the JFACC uses to provide operational and tactical direction at appropriate levels of detail in order to execute the air campaign. (53) When SPINS are issued they have the power of a direct order based on the command authority of the JFACC to accomplish the mission which is derived from the JFC. (54)
B. Special Instructions in connection to Rules of Engagement
In theory, the promulgation of the ROE in Operation Orders should be straight forward, all inclusive and simple guidance. In reality, ROE are additionally scrutinized and broken down in detail for clear and effective application. ROE goes through a process of creation, review and revision. One of the tools to simplify the complexity of ROE in air operations are SPINS. In order to tackle this task, functional experts constantly review and revise ROE to match the current conditions of the air campaign. The SPINS are an amplification of the changing and complex ROE provisions. Additionally, SPINS are not only guidance for ROE, but they provide detailed guidance on other operational aspects like communications and air refueling procedures. (55) Since SPINS are intended to provide clear and detailed guidance on how to comply with ROE, they are constantly reviewed by an ROE Cell to ensure they are properly amplifying the ROE. The ROE Cell ensures this through quality control measures. (56)
Another safeguard to prevent an ROE-SPINS disconnect is the functional teams within the JAOC and training of the tactical operators. In the JAOC, there are two particular focal points to highlight in the operational level which focus on ROE and SPINS, they are the Combat Plan Division (CPD) and the ROE Cell. The Combat Plans Division based on inputs from all JAOC functional teams creates current SPINS which provides specific expanded guidance on all ROE provisions applicable to the operation (57) Moreover, the ROE cell, a subgroup within the CPD, acts a part of a comprehensive system of ROE quality control to ensure ROE meets changing operational parameters. (58) In practicality, the comprehensive system for ROE and SPINS quality control would be exercised at all levels in order to catch any deficiencies and conflicts between the documents. In fact, "validation of ROE and proposed revisions [are] the responsibility of all echelons-from flying units to JTF headquarters-but the JAOC bears the lion's share of responsibility." (59) Once the ROE Cell proposed recommendations are integrated into the CPD's product of the ATO it is forwarded for the JFACC approval. (60) Since the JFACC exercises operational command through the JAOC, the transmitted ATO, ROE, SPINS, and ACO have tactical control authority of a direct order from the commander. (61) Therefore, these groups within the JAOC are heavily involved in the development of applicable and relevant ROE which are amplified in the SPINS in order for air operation planning and execution.
In reference to training as a safeguard against ROE-SPINS disconnect, all military members receive training and are briefed on ROE before entering a conflict. However, aircrews receive additional training and briefings to compliment their participation in air operations. ROE are a part of units training and when they deploy to operational bases, they will participate in initial theater training. This task is handled by the command and control element at the tactical level which is the Wing Operations Center (WOC). (62) Additionally, for mission planning and execution purposes the WOC emphasizes the ROE and SPINS as frequently as possible so "at this tactical level (operators) should be educated in the law of armed conflict and trained in the rules of engagement, [so] it comes down to an aircrew commander's judgment in deciding when, where and how to employ military force." (63) Nevertheless, even with the ROE training the operators are not totally abandoned to put what they know into practice without assistance. Even daring the execution of a mission the operators are connected with the JAOC which attempts to provide real time guidance to ensure compliance with the ATO, ROE and SPINS. (64) Therefore, the JFACC's authority and the JAOC's importance are constantly emphasized to the aircrews so they know to whom and where to look for as a source of ROE guidance and authority.
Eventually, the ROE, which are provided in detail through the SPINS, are approved by the JFACC and transmitted to the tactical level for execution in the operation. Therefore, when an aircrew is conducting the mission based on the ATO, they are required to comply with the SPINS, which amplify the current air operation ROE.
VI. TEMPLATE FOR ROE AND SPINS INTERACTION
As mentioned above, SPINS restate the ROE and provide the JFACC's amplification on specific ROE measures. As such, SPINS elaborate in detail on how to comply with the current air operation ROE measures. A perceived conflict can occur when detailed SPINS are more restrictive than ROE. However, the JFACC has the authority as a commander to make SPINS more restrictive for those in his airspace. Therefore, the SPINS are binding and take precedence over SROE. This is especially significant when the perceived conflict involves the right of self-defense.
The SROE is the template for ROE modifications. National leadership has established through the SROE the principle of the inherent right to self-defense. Additionally, they have articulated that the SROE differentiate between the use of force for self-defense and for mission accomplishment. (65) One of the purposes of ROE is to lay out the parameters of self-defense and what triggers a right to use force in self-defense. The fundamental US policy on self-defense is repeatedly restated throughout the SROE: "These rules do not limit a commander's inherent authority and obligation to use all necessary means available and to take all appropriate actions in self-defense of the commander's unit and other US forces in the vicinity." (66) The commander has the authority to exercise this right of self-defense when faced with a hostile act or a demonstration of hostile intent.
To illustrate these concepts in an air operations scenario, assume the following situation. A conflict has occurred and military force was employed by U.S. national leadership. Air campaign ROE has been developed. The Joint Chiefs of Staff (JCS) published Operation Orders which proscribed the SROE and ROE limitations. This authoritative document has been disseminated to the participating U.S. forces, reinforcing the inherent right to self-defense. As the military operation continued the JFACC, through the detailed SPINS, has promulgated further ROE restrictions, including restrictions on self-defense which maybe in the form of operational constraints or tactical procedures. Assume further that the JFACC has included a provision in the SPINS operation section which states "do not put yourself in harms way and if you get fired on do not go back to engage the enemy." Now, the situation arises that an Army aviator aware of SPINS promulgated from the JAOC is mission tasked on the daily ATO. In contrast to the SPINS on self-defense, his Army Aviation Brigade Commander, also promulgates ROE for his brigade which emphasize the fundamental US policy on self-defense. (67) This clearly appears to be a potential conflict between ROE and SPINS. What does the aviator do?
There is no ROE-SPINS disconnect in this case. First, the aviator is a commander in the sense of the SROE. Second, the JFACC of the airspace is also a commander in the sense of the SROE. Third, the JFACC has the authority which is derived from the JFC to further restrict ROE through the SPINS. Although the aviator is assigned to the Army Commander, when he operates within the airspace of the JFACC which is scheduled on the ATO he takes on the status of a soldier under a senior commander. (68) Based on the JFACC's command authority there is a superior-subordinate relationship between him and the aviator. Finally, in the unclassified portion of the glossary in the SROE the parameters to invoke use of force in individual self-defense are established.
Individual self-defense. The individual's inherent right of self-defense is an element of unit self-defense. It is critical that individuals are aware of and train to the principle that they have the authority to use all available means and to take all appropriate actions to defend themselves and other U.S. personnel in their vicinity. In the implementation of these SROE and other ROE, commanders have the obligation to ensure that the individuals within that commander's unit understand when and how they may use force in self-defense. When individuals assigned to a unit respond to a hostile act or demonstrated hostile intent in the exercise of self-defense their use of force must remain consistent with lawful orders of their superiors, the rules contained in this document, and other applicable rules of engagement promulgated for the mission or AOR. (69)
Therefore, the JFACC's superior orders in the form of the SPINS provide details for the aviator on how ROE will be applied in self-defense as he executes his mission. This includes restrictions on the inherent right of self-defense based on campaign strategy, operational constraints or tactical procedures. In addition, the ROE sections of the SPINS are as binding on the aviator as ROE from an OPORD. (70) So what is the aviator to do if confronted with engaging the enemy outside of his ATO tasking? The aviator should defer to the SPINS which have limited his use of force in self-defense. In order for the aviator to use force appropriately in a given situation triggering self-defense, he must comply with the SPINS. Accordingly, when given the situation to use force in self-defense and the JFACC has further restricted the ROE through the SPINS, the tactical operator has to comply with the limitations. There is no room for broadening the restrictions without approval by the appropriate authority such as the JFACC. (71)
In summary, there is no conflict between ROE and more restrictive SPINS in this case. This is because of the JFACC's authority to further restrict ROE through the SPINS. During military operations involving air assets the JFACC has the authority through SPINS to further restrict ROE as promulgated by the JFC. The SPINS specify operational constraints which are binding on the pilots as ROE. Thus, for the pilot to use force appropriately in self-defense he must comply with the SPINS. This is illustrated by the recent incident at Tarnak Farms where two U.S. pilots killed four Canadians and wounded eight others.
VII. APPLICATION OF TARNAK FARMS TO TEMPLATE FOR ROE AND SPINS
A. Beginning and History
On 6 October 2001, the United States and several coalition partners launched Operation ENDURING FREEDOM (OEF), a military campaign designed to destroy the al-Qaeda terrorist network's main base of support in Afghanistan and the Taliban regime that had provided both a safe haven and substantial material support to al-Qaeda. (72)
Beginning with small numbers of Special Operations Forces, ground forces began widespread operations within Afghanistan. The numbers of ground troops greatly increased with the introduction of Marine ground forces and Army light infantry and airborne troops. Because they were effectively defeated and dispersed by coalition and Afghan opposition forces, remaining al-Qaeda and Taliban forces disbursed in small units throughout Afghanistan, particularly in the mountain and border regions. As a result, traditional battle lines have not formed, with hostile forces spread throughout the country, widely interspersed with coalition and friendly Afghan ground forces. With the exception of a brief period of intense air activity during OPERATION ANACONDA, the tempo of air operations has been substantially lower. (73)
The hostilities continued into the year 2002. Coalition air superiority was gained, by early March 2002, after Operation ANACONDA. The effect was the air campaign scaled back to mostly air support missions for military forces on the ground, when and if needed.
B. Command & Control Structure
After the President and Secretary of Defense authorized OEF the operational responsibilities fell on U.S. Central Command (USCENTCOM). (74)
The chain of command was the following, Commander-in-Chief, U.S. Central Command (CINCCENT), General Tommy R. Franks. He appointed his senior air commander, Lieutenant General T. Michael Moseley, as the Coalition Forces Air Component Commander, known as the CFACC, to plan and direct air operations within CENTCOM's geographic area of responsibility. "As the CFACC, Lieutenant General Moseley executes his responsibilities through the CAOC, which was relocated to a new and technically sophisticated facility in Southwest Asia in August 2001. (75) As part of OEF, fighter, bomber, and gunship aircraft and crews from the United States, the United Kingdom, and France have engaged in operations against al-Qaeda and Taliban forces and installations throughout Afghanistan. U.S. aircraft and crews from all services fly in OEF, operating from ships and bases in Southwest and Central Asia, the Arabian Gulf, and the Indian Ocean. Centrally controlled from the Coalition Air Operations Center (CAOC), these aircraft fly a variety of close air support (direct support for ground forces), interdiction (pre-planned bombing missions), reconnaissance, and support missions. (76)
This command structure meant that the CFACC, as the commander in the sense of the SROE, has tactical control over all OEF flying missions within the tactical area of responsibility. This included tactical control of the F-16 aircraft involved in the Tarnak Farms accident. (77)
C. 17 April 2002: The Bombing
On 17 April 2002, Major [Harry Schmidt] and Major [William Umbach], both members of the 170 Expeditionary Force Squadron (EFS), were scheduled to fly a mission to provide two F-16 aircraft over Afghanistan, readily available for on-call taskings to support coalition ground forces. COFFEE flight was tasked on the daily Air Tasking Order (ATO), to be armed with precision-guided bombs. COFFEE 51, [Major Umbach], was the flight leader for the mission and COFFEE 52, [Major Schmidt], was his wingman. (78) On 17 April 2002, both COFFEE pilots were commanders for ROE purposes. COFFEE 51 was the commander of the two-ship flight and COFFEE 52 was the commander of his individual aircraft ... Therefore, the right to invoke self-defense was an inherent right of each of the pilots. (79)
This is important because as a commander for ROE purposes, each pilot had the right to use force in self-defense. (80)
In analyzing whether self-defense was appropriate, taking into account what relevant information they were exposed to before and during the flight are important in determining the decision process of the pilots. One key question during the mission planning is whether they were rebriefed on the current SPINS and ROE.
At 1500L, [they] both attended a pilot meeting that included a discussion of an unsuccessful bombing mission flown by the squadron on a previous day ... At 1620L, they attended the mass brief for their mission that night ... Major Umbach presented the briefing that was prepared by the 170 EFS Mission Planning Cell ... The mass brief lasted approximately 20 minutes. (81) COFFEE flight took off from [base] tasked to conduct an on-call interdiction mission in the northeastern section of Afghanistan. In this role, COFFEE flight was to transit to the assigned area, loiter for [ ] hours, and then return to its home base. A KC-135 tanker aircraft ... was assigned to support this mission with pre- and post-strike [air-to-air refueling] AAR. The refueling was to take place in an area located approximately nm southwest of the Tamak Farm/[Kandahar Air Field] KAF area. (82) No significant events occurred during the scheduled period of flight, and COFFEE flight was not tasked to employ any weapons ... At approximately 2115Z, COFFEE flight departed heading for the refueling site ... The weather was clear and it was a dark night as the moon had already set ... To prepare for the rendezvous with an air refueling tanker, the COFFEE flight pilots had made their weapons systems safe ... COFFEE flight planned to return to their base after refueling ... COFFEE flight was preparing to rendezvous with the assigned air refueling tanker near Tarnak Farms Range. (83)
The on call interdiction stage of the mission may have come to a close, however, as long as they were under the control of the CAOC, the SROE and OEF ROE still applied. "At the same time, approximately 100 soldiers from Alpha Company, 3 PPCLI (Princess Patricia's Canadian Light Infantry), were training on the Tarnak Farms Range." (84) "Tarnak Farms was a former base for al Qaeda once owned by Osama bin Laden that had been converted early last year  into a firing range for coalition troops ... The squad of Canadian light infantrymen were conducting routine exercises." (85) "They had arrived at the range in the late afternoon for night live-fire training" (86) The firing range and the training should have been available information to the pilots before their mission and if not the CAOC should have had access to that information. The pilots' claim there was a breakdown in communications that prevented them from knowing the Canadian infantry was in the area or training. (87)
COFFEE flight reported that they were witnessing surface-to-air-fire (SAFIRE) off to the fight side of their formation ... COFFEE 51 [Maj Umbach] requested permission to take a mark, which was approved ... At this point, COFFEE 52 [Maj Schmidt] put his night vision goggles back on and then made a fight hand turn away from his flight lead and began a descent ... COFFEE 51 remained above and started to fly a wide right turn around the location of the reported SAFIRE ... COFFEE 52 made a descending left turn, putting the SAFIRE site in the center of his [sights] in an attempt to mark the coordinates ... While doing do COFFEE 52 descended and slowed his air speed ... and reported that he could see the source of the reported SAFIRE. (88).
At this point the pilot's were still in communication with the Airborne Warning and Control System (AWACS) personnel and the CAOC. This is a crucial point because command authority and control authority are critical in taking a course of action and determining who would be the decision maker.
Although only authorized to exercise limited command authority when the CAOC is not available, AWACS crews do have control authority when on station. In accordance with the OEF ROE, the authority to engage targets rests with CAOC. Only in the case of a loss of communication do AWACS personnel have authority to actively approve engagement of a target. However, AWACS personnel are empowered to deny engagement, except in the case of self-defense. In the case of an invocation of self-defense, the involved aircraft commander accepts authority. (89)
Additionally, this procedure would be explained in detail in the SPINS under the communication section. (90)
[After some exchange between COFFEE 52 and AWACS's controllers] ... COFFEE 52 [stated] 'Okay I've got a, uh I've got some men on a road and it looks like a piece of artillery firing at us. I am rolling in in self-defense ... COFFEE 52 then called 'bombs away' ... releas[ing] one 500 pound GBU-12 laser-guided bomb ... After the bomb detonated, COFFEE 52 called 'shack' over the radio frequency, indicating a direct hit on the target ... Upon arrival at their deployed location, the pilots were met planeside. (91)
The two pilots of the friendly fire incident were informed that four Canadian soldiers were killed and eight were injured. (92) In response to his actions, the pilot claimed he used force appropriately because of the inherent right to self-defense as a commander in the OFF ROE.
The SROE was the source of OEF ROE. (93) The OFF ROE reflected the type of conflict which U.S. forces were confronting in Afghanistan. This military campaign was an international armed conflict which invoked the principles of the law of armed conflict (LOAC). Since the operation was designed to destroy the al-Qaeda terrorist network and the Taliban regime the U.S. forces on 6 October 2001 were in an offensive posture. (94) Additionally, U.S. forces were already conducting operations in CENTCOM with missions Operation NORTHERN and SOUTHERN WATCH (ONW and OSW).
Therefore, models for ROE in this theater were accessible, but these missions were no-fly zone missions. (95) In contrast, OFF would be force on force with the added factors of U.S. ground forces. This meant once air superiority was achieved and ground troops' activities increased, hostile acts and intent became a higher priority for determining use of force in air operations ROE. To establish air operation ROE, initially USCENTCOM utilized an operations order to formulate a plan of attack for OEF, which influenced the air campaign strategy of the CFACC. The appointed senior air commander, Lieutenant General T. Michael Moseley, was assigned the task of planning and directing air operations. As the CFACC, he executed his responsibilities through the CAOC. (96) Additionally, "he distributed guidance, objectives and unit taskings primarily through Rules of Engagement (ROE), Air Tasking Orders (ATO), Special Instructions (SPINS), and Airspace Control Order (ACO), all of which are produced by the CAOC staff." (97) With this function in place, the coalition air operations over Afghanistan were controlled from the CAOC. Additionally, the CAOC performed near real-time monitoring of all air missions flown in support of OEF so CFACC command authority was air theater wide. (98)
Specifically focusing on the issue of ROE for self-defense in OEF. The control measures the CFACC established were as follows:
The OEF ROE do not differ significantly from the Standing Rules of Engagement (SROE) on the issue of self-defense. When invoking self-defense, in OEF as in other theaters, the requirements of necessity and proportionality are applicable. The decision to employ force, including lethal force, in response to a hostile act or hostile intent resides with the on-scene commander. (99)
Thus, the OEF ROE substantially followed the same principles that COFFEE flight operators were trained to apply before they arrived in theater. The control measures that were in place addressed operational constraints and tactical procedures such as the following:
ROE for Anti-Aircraft Artillery (AAA): In the OEF AOR prior to 17 April 2002, AAA was known to exist throughout the theater and SAFIRE reports, including AAA, were routinely made by aircrews operating over Afghanistan. The OEF ROE state that: "Aircraft always have the fight of self-defense against AAA." The OEF ROE also state that: "... aircraft should NOT deliberately descend into the AAA range to engage and destroy AAA units which fire well below their altitude". (100)
The key to this OEF ROE was that the limitations were set by measurable parameters which were provided in detail in OEF SPINS. Thus, in order to understand the limitations, OFE SPINS should provide some insight and clarity about the measurable parameters. This would be imperative because specific mission planning information such as minimum altitude levels and potential AAA locations that the pilots were knowledgeable of or had a duty to be knowledgeable of would be found in the OEF SPINS.
"OEF SPINS state[d] that it is critical for coalition air forces to do everything they can to minimize the potential for self-defense situations." (101) The OEF SPINS which provided in detail how ROE would be applied in mission execution which were applicable on 17 April 2002 to Tarnak Farms were the following:
Special Instructions (SPINS)--Section 1 Commanders Guidance: This section details CFACC's guidance to all aircrew participating in OEF. Such guidance addresses operational objectives, commander's intent and mission tasks and priorities ... Special Instructions (SPINS)--Section 3 Communication Article 8.6.2: This article explains the Surface-to-air Fire (SAFIRE) reporting requirements ... Special Instructions (SPINS)--Section 4 Airspace Article 4.3: Defines and provides the details on where information on[undisclosed] will be published ... Special Instructions (SPINS)--Section 5 ROE Article 5.2.2: This article describes the concept of self defen[s]e and how it will be applied in theatre ... Special Instructions (SPINS)--Section 5 ROE Article 9: This article provides the details on how ROE will be applied for defen[s]e against SAM's and AAA threats ... Special Instructions (SPINS) --Section 5 ROE Article 10: This article provides the details on how ROE will be applied in the case of Air to Ground Attacks. It includes details on the fight to Self Defen[s]e ... Special Instructions (SPINS)--Section 6 Operations Article 2.6: This article provides details on the minimum operating altitudes in Afghanistan for fixed wing aircraft. (102)
These SPINS are significant because not only did they reflect the modifications to the SROE, but also they were the current binding limitations on the operational aircrews. (103) The crucial limitation set by the CFACC and promulgated in the SPINS was
[A]ircraft were directed to fly no lower than [undisclosed] feet [above ground level] AGL for normal flying operations and no lower [undisclosed] feet for situations in which they planned to employ ordnance. COFFEE 52 set his altitude warning for[undisclosed]. As he approached the perceived SAFIRE location, he descended below [undisclosed] feet [mean sea level] MSL and the altitude warning sounded. (104)
Additionally, "OEF ROE directed that aircraft should not descend into the lethal range of a AAA system firing well below them in order to attack in self-defense." (105) The facts state "[B]oth COFFEE 51 and 52 stated they believed the ground fire was burning out around 10,000 feet AGL, well below their initial transit altitude." (106) Therefore, given the OEF SPINS and the actions of the pilots the conclusion is they violated the SPINS. The issue is whether the flight wingman had the authority in self-defense to use force in the way he did against the back drop of whether OFE SPINS were in conflict with the fundamental US policy on self-defense. (107)
When you apply the facts of Tarnak Farms to the principle that the CFACC had the authority through SPINS to further restrict ROE, then you must conclude that the use of force by the pilot was inappropriate. The main point to support this claim is based on the CFACC's command authority and the SROE. The basic SROE was in place which firmly established the inherent right to self-defense. (108) COFFEE 52 clearly was an on scene commander in the definition of the SROE. The CFACC operating through the CAOC was a senior commander under the definition of the SROE. The CFACC promulgated and disseminated his restrictions through the SPINS which amplified the ROE and were binding on all aircraft flying in the CFACC's airspace. On 17 April 2002, both pilots had been flying in theater for over 30 day and the facts support that they were knowledgeable or had a duty to be knowledgeable of the daily SPINS. (109) Under the SROE the pilot had the inherent authority to take all appropriate actions in self-defense. Nevertheless, the pilot's authority to use force in individual self-defense under the SROE was limited by the lawful orders of his superior, the rules contained in the SROE, and other applicable ROE promulgated for the mission. (110) This would include the SPINS. The SPINS were a lawful order by the CFACC which proscribed in detail how to handle AAA. When the pilot perceived the AAA threat and descended toward the site, placing himself in harms way along with transitioning below the restricted altitude, he violated the SPINS. By violating the SPINS to mark the SAFIRE he lost his ability to justify his use of force in self-defense under the OEF ROE. (111) This would be similar to a LOAC violation where the combatant uses a lawful weapon, but in an unlawful manner and claims it is not a LOAC violation. In this case, the CFACC had the authority to further restrict OEF ROE, consequently, the pilot's use of force was not proper.
When the pilot's actions were reviewed by other F-16 pilots they found his actions were inappropriate. (112)
Numerous F-16 pilots interviewed by the Board stated that if they had found themselves in similar circumstances to those confronted by COFFEE flight on the evening of 17 April 2002, their immediate course of action would have been to accelerate to greater airspeed, climb in altitude, and leave the immediate area to evade and avoid the threat. COFFEE flight took none of these actions. Neither COFFEE 51 nor COFFEE 52, both of whom stated they believed they were being targeted at some point by the ground fire, aggressively maneuvered their aircraft in the face of what they presumably believed was a surface-to-air threat. Throughout the entire engagement, COFFEE 51 maintained a slow rate, level right-hand turn approximately five miles from the source of the ground fire, almost completely circling the Tarnak Farms range. COFFEE 52 turned back toward the SAFIRE and descended below recommended altitude to take a mark. Later, he turned back toward the SAFIRE again and slowed to well below tactical airspeed. He never appeared to maneuver defensively. (113)
It is not inconceivable to accept that some ROE principles and SPINS have qualified language that may present options for the decision makers. (114) Nonetheless, the burden is on the commander to assess what is the better course of action. (115) COFFEE 52 could make an argument that OEF SPINS authorized him to mark the location of the SAFIRE. (116) This would have allowed him to lawfully engage in the maneuver he was performing in accordance with the SPINS. However, the problem with this argument is that "there were alternative methods of taking a mark in the F16C so COFFEE 52's descent towards the site and transition below the restricted altitude floor was not necessary to obtain the SAFIRE coordinates." (117) Additionally, the CFACC's limitation for coalition air forces to do everything they can to minimize the potential for self-defense which was more restrictive in nature should have taken precedence over marking the SAFIRE. (118) Despite this, the pilot deliberately descended below the restricted altitude and placed himself in harms way. Given the nature of the perceived threat of the AAA and the minimum operating altitudes in Afghanistan for fixed wing aircraft the pilot violated the ROE and SPINS. (119) The SROE principle for self-defense by the pilot was applicable, but the CFACC's superior lawful orders through the OEF SPINS were the controlling mandate. (120) In sum, this supports the statement that for the pilot to use force appropriately, he must comply with the SPINS and ROE. Therefore, in the Tarnak Farms case the claim by the pilots that they took appropriate action in self-defense is not supportable because they violated OEF SPINS promulgated by the CFACC and the present actions of the United States Air Force reinforce this principle. (121)
In summary, the fundamental premise should be that SPINS are drafted in concert with ROE. The distinction is that SPINS are amplification deemed necessary for complex ROE provisions. Based on the factors of amount of guidance, review, revision and functional expert coordination that drives the existence of ROE and SPINS, these are solid coexisting documents. Just as air power brings air superiority to a fight, SPINS bring clarity to ROE provisions. During military operations involving air assets the JFACC has the authority through SPINS to further restrict ROE as promulgated by the JFC. SPINS are a primary measure by which the JFACC controls air operations through campaign strategy, operational constraints and tactical procedures. SPINS are just as binding on the operational aircrews as ROE issued by an operations order (OPORD), and for a pilot to use force appropriately, he must comply with the SPINS and ROE.
"Air operations in the modern battlespace are extraordinarily complex by any measure, and require constant coordination between line operational aircrew and their chain of command at all levels." (122) However, as complex as air operations can be, the tools and guidance for regulating U.S. forces in when, where, how, why and against whom they may use force are substantially established. In military operations involving air assets when a JFACC under a JFC is controlling air assets, the command and control measures to comply with ROE through SPINS is solid. The JFACC has the authority to further limit ROE as promulgated by the JFC. Additionally, he implements that authority through the SPINS and it is binding on those air assets operating in his airspace. The operational aircrews are knowledgeable or have a duty to be knowledgeable of the campaign strategy, operational constraints and tactical procedures. These guidance and directives can be found in the main documents used by aircrew in the operational theater for purposes of mission tasking, planning, coordination and execution such as ATO, ACO and SPINS. (123) These documents, and in particular the SPINS, amplify ROE and are constantly reviewed and revised by the JAOC before they are disseminated to the tactical operations level. (124) When disseminate by the JFACC they are binding as ROE and have the authority as orders from the JFC. Tarnak Farms confirms this proposition.
Based on the open sources available at the time, the CIB pinpointed a factor which could be targeted for improvement by judge advocates (JAG). The CIB found by clear and convincing evidence that the cause of the friendly fire incident at Tarnak Farms was the pilots' failure to exercise appropriate flight discipline. (125) Since the pilots' claim they acted appropriately to use force in self-defense, then this is an area where JAG intervention can have an impact. The pilot made a poor decision at Tarnak Farms on 17 April 2002 by violating the ROE and SPINS resulting in him losing his ability to justify his bombing in self-defense. This undermined his defense of self-defense to the CIB and the United States Air Force. (126)
Major Schmidt's descent and slowdown put his plane 'in harm's way,' [Brigadier General Stephen T. Sargeant, Co-President of the CIB] said, violating both the rules of engagement and the pilot's special instructions, known as SPINS. 'In my opinion this is a reckless disregard for the spins'. (127)
However, this should prompt functional experts involved with the formulation and training of ROE to review the process to ensure the operators have the knowledge and information to exercise appropriate ROE measures. (128) This training should also include clear instruction on the authority of the JFACC to restrict the right of self-defense through the SPINS.
(1) The format for explaining the Rules of Engagement came from Major Dawn R. Eflein, A Case Study of Rules of Engagement in Joint Operations." The Air Force Shootdown of Army Helicopters in Operation Provide Comfort, 44 A.F.L. REV. 33 (1998).
(2) U.S. DEP'T OF AIR FORCE, FRIENDLY FIRE INVESTIGATION BOARD REPORT: TARNAK FARMS
FRIENDLY FIRE INCIDENTNEAR KANDAHAR, AFGHANISTAN, 17 APRIL 2002, at 2 (7 June 2002) [hereinafter FRIENDLY FIRE BOARD REPORT], available at http://www.centcom.mil/News/Reports/Tarnak_Farms_Report.htm.
(3) CABLE NEWS NETWORK, U.S. Friendly Fire Pilot Reported Being Fired Upon (Apr. 18, 2002), available at http:// www.cnn.com/2002AVORLD/asiapc f/central/0418/Afghanistan.Canada.
(4) Bruce B. Auster, The Perils of Peacekeeping, U.S. NEWS & WORLD REP., Apr. 25, 1994, at 28; John R. Harris & John Lancaster, Jets over Iraq Mistakenly Down American Helicopters, Killing 26, WASH. POST, Apr. 15, 1994, at A1; Michael R. Gordon, 26 Killed as U.S. Warplanes Down Two U.S. Helicopters over Kurdish Area of Iraq, N.Y. TIMES, Apr. 15, 1994, at A1.
(5) FRIENDLY FIRE BOARD REPORT, supra note 2, at 3.
(6) GEORGE W. BUSH, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (2002).
(7) FRIENDLY FIRE BOARD REPORT, supra note 2, at 3; see also "Any future crisis in which force is used likely will be fought by coalition troops rather than on a unilateral basis." Eflein, supra note 1, at 34 n. 9 (quoting Lieutenant Commander Guy Phillips, Rules of Engagement. A Primer, ARMY LAW., July 1993, at 4 (citing Waldo Freeman, The Challenges of Combined Operations, MILITARY REr., Nov. 1992, at 2)).
(8) FRIENDLY FIRE BOARD REPORT, supra note 2, at 47.
(9) Id. at 45-46; see also David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http:// www.nytimes.com/2003/01/22/national/22pilo.html; Vernon Loeb, 2 U.S. Pilots Charged in Bombing of Canadians, WASH. POST, Sept. 14, 2002, at A01; David Pugliese and Glen McGregor, Fighter Pilots Likely to Face Court Martial." Friendly-Fire Incident could Bring 10 Years in Prison, CALGARY HERALD, Sept. 14, 2002, at A5; Brad Knickerbocker, "Friendly Fire" Deaths Vex the U.S. Military, CHRISTIAN SCI. MONITOR, Jan. 7, 2003, at 2.
SUBSTANTIAL CONTRIBUTING FACTORS The Board found substantial evidence of four contributing factors." First, the commander of the 332nd Air Expeditionary Group (332 AEG/CC), openly expressed frustration with what he perceived as severe failings with regard to the Operation ENDURING FREEDOM Airspace Control Order, command and control processes, and flow of intelligence information to the units, but failed adequately to communicate these concerns to his superiors. His failure in his responsibility as a commander to notify his superiors of such serious concerns, coupled with his indiscrete sharing of these concerns with subordinates, bred a climate of mistrust and led to an operational environment within his unit inconsistent with the Commander's Intent for Operation ENDURING FREEDOM. Second, the 332nd AEG/CC failed to establish clear standards or provide adequate mission planning support to line pilots for use in preflight mission planning, leading to the lack of an appropriate level of situational awareness by the incident flight. Third, the 170th Expeditionary Fighter Squadron suffered from a lack of clearly defined squadron leadership roles and responsibilities, contributing to a lack of uniform training and standards for squadron personnel, including the incident flight pilots, before and during combat operations. Fourth, the 170th Expeditionary Fighter Squadron failed to establish an adequate squadron mission planning process, resulting in inadequate mission preparation and the lack of an appropriate level of situational awareness by the incident flight. OTHER FINDINGS OF SIGNIFICANCE Finding 1: Mission planning and preparation was not consistent across several units. Finding 2: Airspace Control Order breakout, display and use are inconsistent in Operation ENDURING FREEDOM operations. Finding 3: The Coalition Air Operations Center has no capability of recording internal or external communications to aid in debriefing. Finding 4: Ground forces are not required to report live-fire training or activity within the given Air Tasking Order day. Finding 5: Ground forces are not currently represented at the Air Expeditionary Group level. Finding 6: The Airspace Control Order description of the Tarnak Farms did not encompass all types of weapons that were being fired. Finding 7: The JTF-SWA Air Defense Artillery Liaison Officer was not properly trained in Battlefield Coordination Detachment operations. Finding 8: U.S. Air Force AWACS have no capability to record external and internal communications or the Situational Information Display (SID) to aid in mission debriefs. Finding 9: Surface-to-Air Fire (SAFIRE) analysis was insufficient at the squadron level. Finding 10: The 332nd AEG was not managing and monitoring Go pill usage lAW USAF directives. Finding 11 : Post-incident actions were not consistent with established USAF procedures.
BOARD REPORT, supra note 2, at 45-46.
(12) David M. Halbfinger, UnusualFactors Converge in Case Against War Pilots, N.Y. TIMES, Jan. 25, 2003, available at http:// www.nytimes.com/2003/01/25/national/25pilo.html ; Vernon Loeb, 2 U.S. Pilots Charged in Bombing of Canadians, WASH. POST, Sept. 14, 2002, at A01; David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http://www.nytimes.com/2003/01/22/national/22pilo.html; David Pugliese and Glen McGregor, Fighter Pilots Likely to Face Court Martial: Friendly-Fire Incident could Bring 10 Years in Prison, CALGARY HERALD, Sept. 14, 2002, at A5.
(14) M; see also Lisa Kernek, Criminal Trial Considered Against Two Illinois Air National Guard Pilots, SPRINGFIELD STATE JOURNAL-REGISTER, Sept. 13, 2002, reprinted in COPLEY NEWS SERVICE, Sept. 14, 2002, LEXIS, News Group File.
(15) JOINT CHIEFS OF STAFF, JOINT PUB. 1-02: DEP'T OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 459 (12 April 2001) [hereinafter JOINT PUB. 1-02]; JP 1-02 states "rule of engagement are directives issued by competent military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered." Id. at 459.
(16) U.S. DEP'T OF AIR FORCE, 2 AIRCRAFT ACCIDENT INVESTIGATION BOARD REPORT: U.S. ARMY UH-60 BLACKHAWK HELICOPTERS, REP'T NOS. 87-26000 & 88-26020, at 48 (27 May 1994) [hereinafter AIRCRAFT ACCIDENT BOARD REPORT] (quoting the Statement of Opinion of Major General James Andrus, Board President) ("The flight lead, acting within the specified ROE, fired a single missile and shot down the trail Blackhawk helicopter. At flight lead's direction, the F-15 wingman also fired a single missile and shot down the lead Blackhawk helicopter."). Following the accident, the Secretary of Defense ordered an investigation into the causes of the accident. The product of that investigation was a 22-volume report. The investigation was conducted in accordance with Air Force Regulation 110-14, Aircraft Accident Investigation (replaced by Air Force Instruction 51-503, Aircraft, Missile, Nuclear and Space Accident Investigations (1 July 1995)). This means that testimony was taken under oath and was available for use against service personnel. No safety investigation was done. See David A. Fulghum & Jeffrey M. Lenorovitz, Iraq Shootdown May Trigger Legal Action, AVIATION WEEK & SPACE TECH., May 2, 1994, at 18. The Secretary of Defense also ordered an investigation into the ROE; See Richard Lacayo, Deadly Mistaken Identity, TIME, Apr. 25, 1994, at 50, 51 ("[Secretary of Defense] Perry ordered one investigation into the event and another into the rules of engagement that govern the two no-fly zones in Iraq, as well as the one over Bosnia.").
(17) FRIENDLY FIRE BOARD REPORT, supra note 2, at 45-46.
(18) JOINT PUB. 1-02, supra note 15, at 327; see also "Special Instructions sets forth operational constraints or procedures" [hereinafter SPINS]. Lieutenant Colonel (Lt Col) Robert A. Coe & Lt Col Michael N. Schmitt, Fighter Ops for Shoe Clerks, 42 A.F.L. REV. 49, 75 (1997) [hereinafter Coe & Schmitt]; see also "SPINS, are periodically issued by the [Joint Air Operations Center] JAOC ... and usually have several sections that contain ROE." U.S. DEP'T OF AIR FORCE, INTERNATIONAL & OPERATIONAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL'S DEPARTMENT, AIR FORCE OPERATIONS AND THE LAW 273 (2002) [HEREINAFTER AF OPS LAW HANDBOOK].
(19) CHAIRMAN OF THE JOINT CHIEFS OF STAFF INSTRUCTION 3121.01A, STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (15 Jan. 2000) [hereinafter US STANDING RULES OF ENGAGEMENT OR SROE]; FRIENDLY FIRE BOARD REPORT, supra note 2, at 36.
(20) ROE-SPINS disconnect refers to circumstances in which the Rules of Engagement and Special Instructions, either as promulgated or executed, fail to adequately deconflict ROE principles with operational constraints.
(21) JOINT PUB. 1-02, supra note 15, at 412; JOINT CHIEFS OF STAFF, JOINT PUB. 3-0, DOCTRINE FOR JOINT OPERATIONS II-4 [hereinafter JOINT PUB. 3-0].
To discuss in more detail, Joint operations" are military actions conducted by joint forces or Service forces in relationships (e.g., support, coordinating authority), which, of themselves, do not create joint forces. The requirement to plan and conduct joint operations demands expanded intellectual horizons and broadened professional knowledge. Leaders who aspire to joint command must not only have mastered the essentials of their own Service capabilities, but also must understand the fundamentals of combat power represented by the other Services. Beyond that, they must have a clear sense of how these capabilities are integrated for the conduct of joint and multinational operations. This individual professional growth, reinforced by military education and varied Service and joint assignments, leads to a refined capability to command joint forces in peace and war.
JOINT CHIEFS OF STAFF, JOINT DOCTRINE ENCYCLOPEDIA 412 (16 Jul. 1997) [hereinafter JOINT PUB. ENCYCLOPEDIA], available at https://www.dtic.mil/doctrine/joint_doctrine_encyclopedia.htm. (However, in combined operations (with coalition partners) the terms and concepts transform to reflect the operation. For example Joint Air Operations Center (JAOC) it is usually referred to as a Combined Air Operations Center (CAOC) and the JFACC designated as the CFACC (combined vice joint)). Id. at 100, 277.
(23) For discussion on ROE see also CENTER FOR LAW & MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY, RULES OF ENGAGEMENT (ROE) HANDBOOK FOR JUDGE ADVOCATES (2003) [hereinafter ROE HANDBOOK].
(24) INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S SCHOOL U.S. ARMY, JA-422, OPERATIONAL LAW HANDBOOK 68 (2003) [hereinafter OPS LAW HANDBOOK].
Purposes of ROE: As a practical matter, ROE perform three functions: (1)Provide guidance from the President and Secretary of Defense to deployed units on the use of force; (2) Act as a control mechanism for the transition from peacetime to combat operations (war); and (3) Provide a mechanism to facilitate planning. ROE provide a framework that encompasses national policy goals, mission requirements, and the rule of law. Political Purposes: ROE ensure that national policy and objectives are reflected in the action of commanders in the field, particularly under circumstances in which communication with higher authority is not possible. For example, in reflecting national political and diplomatic purposes, the ROE may restrict the engagement of certain targets, or the use of particular weapons systems, out of a desire not to antagonize the enemy, tilt world opinion in a particular direction, or as a positive limit on the escalation of hostilities. Falling within the array of political concerns are such issues as the influence of international public opinion, particularly how it is affected by media coverage of a specific operation, the effect of host country law, and the status of forces agreements with the United States (i.e., SOFAs). Military Purposes: ROE provide parameters within which the commander must operate in order to accomplish his assigned mission: (1) ROE provide a ceiling on operations and ensure that U.S. actions do not trigger undesired escalation, i.e., forcing a potential opponent into a "self-defense" response. (2) ROE may regulate a commander's capability to influence a military action by granting or withholding the authority to use particular weapons systems by vesting or restricting authority to use certain types of weapons or tactics. (3) ROE may also reemphasize the scope of a mission. Units deployed overseas for training exercises may be limited to use of force only in self-defense, reinforcing the training rather than combat nature of the mission. Legal Purposes: ROE provide restraints on a commander's action consistent with both domestic and international law and may, under certain circumstances, impose greater restrictions on action than those required by the law. ... Commanders must therefore be intimately familiar with the legal bases for their mission. The commander may issue ROE to reinforce principles of the law of war, such as prohibitions on the destruction of religious or cultural property, and minimization of injury to civilians and civilian property.
(25) U.S. DEP'T OF ARMY, FIELD MANUAL 100-5, OPERATIONS VI (June 1993)
(26) SROE supra note 19, at GL-26; see also JOINT PUB. 1-02, supra note 15, at 459.
(27) U.S. DEP'T OF AIR FORCE, C2 WARRIOR SCHOOL, RULES OF ENGAGEMENT 5 (n.d.) (lecture advance sheet) [hereinafter ROE ADV SHT], available at https://afc2tig.hurlburt.af.mil/c2ws/courses.htm.(last updated Jan. 9, 2003).
(28) U.S. DEP'T OF AIR FORCE, 12TH AIR FORCE, JUDGE ADVOCATE OFFICE, Supplement to 612 COS/DOOCOS Operations Duty Officer Guide for an Air Operations Center S1-30 [hereinafter 12 AF/JAO SUPPLEMENT]; NCA was the term of art to refer to the President of the United States and the Secretary of Defense. A change was instituted to discontinue the use of that term and to refer to the parties in their full title.
(29) SROE, supra note 19, at 1.
[SROE is divided into fourteen enclosures. Each enclosure gives guidance on when and how force may be used] Enclosure A (Standing Rules of Engagement): An unclassified [version] details the general purpose, intent, and scope of the SROE, emphasizing a commander's right and obligation to use force in self-defense. Critical principles, such as unit, individual, national, and collective self-defense; hostile act and intent; and the determination to declare forces hostile are addressed as foundational elements of all ROE; Enclosures B-I: These classified enclosures provide general guidance on specific types of operations: Maritime, Air, Land, and Space Operations; Information Operations; Noncombatant Evacuation Operations, Counterdrug Support Operations; and Domestic Support Operations;. Enclosure J (Supplemental Measures): Supplemental measures found in this enclosure enable a commander to obtain or grant those additional authorities necessary to accomplish an assigned mission. Tables of supplemental measures are divided into those actions requiring President of Secretary of Defense approval, those that require either President or Secretary of Defense approval or Combatant Commander approval, and those that are delegated to subordinate commanders (though the delegation may be withheld by higher authority). The new SROE now recognizes a fundamental difference between the supplemental measures. Those measures that are reserved to the President or Secretary of Defense or CINC are generally restrictive, that is, either the President or Secretary of Defense or CINC must specifically permit the particular operation, tactic, or weapon before a field commander may utilize them. Contrast this with the remainder of the supplemental measures, those delegated to subordinate commanders. These measures are all permissive in nature, allowing a commander to use any weapon or tactic available and to employ reasonable force to accomplish his mission, without having to get permission first. Inclusion within the subordinate commanders supplemental list does not suggest that a commander needs to seek authority to use any of the listed items. SUPPLEMENTAL ROE RELATE TO MISSION ACCOMPLISHMENT, NOT TO SELF-DEFENSE, AND NEVER LIMIT A COMMANDER'S INHERENT RIGHT AND OBLIGATION OF SELF-DEFENSE;. Supplemental measure request and authorization formats are contained in Appendix F to Enclosure J. Consult the formats before requesting or authorizing supplemental measures;. Enclosure K (Combatant Commanders' Theater-Specific ROE): Enclosure K contains specific rules of engagement submitted by Combatant Commanders for use within their Area of Responsibility (AOR). Those special ROE address specific strategic and political sensitivities of the Combatant Commander's AOR and must be approved by CJCS. They are included in the SROE as a means to assist commanders and units participating in operations outside their assigned AORs. To date, two CINCs have received approval of and promulgated theater-specific ROE, CENTCOM and PACOM. Their theater-specific ROE can be found at: CENTCOM--http://www.centcom.smil.mil/ccj3/ops2.htm; PACOM--http://www.hq.pacom.smil.mil/j06/j06/jo6.htm. If you anticipate an exercise or deployment into any geographic CINCs AOR, check with the CINC SJA for ROE guidance; Enclosure L (Rules of Engagement Process): This new, unclassified enclosure (reprinted in Appendix A to this chapter) provides guidelines for incorporating ROE development into military planning processes. It introduces the ROE Planning Cell, which may be utilized during the development process. It also names the JA as the "principal assistant" to the J-3 or J-5 in developing and integrating ROE into operational planning.[Enclosure GL is the Glossary]
OPS LAW HANDBOOK, supra note 24, at 69-70; SROE, supra note 19, at 3-4, enclo. A-GL.
(30) A new SROE is currently under revision with an expected published date of 15 April 2003, Major Eric Jensen, Professor, INT'L & OPERATIONAL LAW DEP'T, THE JUDGE ADVOCATE GENERAL'S SCHOOL, U.S. ARMY.
(31) JOINT CHIEFS OF STAFF, JOINT PUB. 5-00.2, JOINT TASK FORCE PLANNING GUIDANCE AND PROCEDURES, IV-7 [hereinafter JOINT PUB. 5-00.2]; see also "The SROE should be considered a template for developing ROE in all operations involving U.S. forces." AF OPS LAW HANDBOOK, supra note 18, at 275.
(32) SROE, supra note 19, at 2. The definitions for self-defense are found in Enclosure A-3-A-4 and GL-17.
(33) 12 AF/JAO SUPPLEMENT supra note 28, at S1-11.
(34) 12 AF/JAO SUPPLEMENT supra note 28, at S1-30.
(35) JOINT PUB. ENCYCLOPEDIA supra note 22, at 626
(36) 12 AF/JAO Supplement, supra note 28, at S1-11.
(37) JOINT CHIEFS OF STAFF, JOINT PUB. 3-56.1, COMMAND AND CONTROL FOR JOINT AIR OPERATIONS III-2 [hereinafter JOINT PUB. 3-56.1].
(38) U.S. DEP'T OF AIR FORCE INSTRUCTION 13-1AOC, 3 OPERATIONAL PROCEDURES AEROSPACE OPERATIONS CENTER (1 July 2002) [hereinafter AFI 13-1AOCV3]
(39) JOINT PUB. 3-56.1 supra note 39, at C-1; see also AIR FORCE DOCTRINE DOCUMENT 2, ORGANIZATION AND EMPLOYMENT OF AEROSPACE POWER, (17 Feb, 2000) [hereinafter AFDD 2]
(40) Id. at app. C; AFI 13-1AOCV3, supra note 38, para. 2.2.
(41) AFI 13-1AOCV3, supra note 38, para. 2.2; see also AFDD 2, supra note 39, at 75 which stales the primary functions of the JAOC are to:
1. Develop aerospace operations strategy and planning documents that integrate air, space, and information operations to meet JFACC objectives and guidance.
2. Task and execute day-to-day aerospace operations; provide rapid reaction, positive control, and coordinate and deconflict weapons employment as well as integrate the total aerospace effort.
3. Receive, assemble, analyze, filter, and disseminate all source intelligence and weather information to support aerospace operations planning, execution, and assessment.
4. Issue airspace control procedures and coordinate airspace control activities for the air space control authority (ACA) when the JFACC is designated the ACA.
5. Provide overall direction of air defense, including theater missile defense (TMD), for the area air defense commander (AADC) when the JFACC is designated the AADC.
6. Plan, task, and execute the theater intelligence, surveillance, and reconnaissance (ISR) mission.
7. Conduct operational level assessment to determine mission and overall aerospace operations effectiveness as required by the JFC to support the theater combat assessment effort.
8. Produce and disseminate an air tasking order (ATO) and changes.
9. Provide for the integration and support of all air mobility missions.
(42) JOINT PUB 3-56.1, supra note 39, at vi;
Joint Force Commander-a general term applied to a combatant commander, subunified commander, or joint task force commander authorized to exercise combatant command (command authority) or operational control over a joint force. Also called JFC. [hereinafter JFC]; Joint Force Air Component Commander- The commander within a unified command, subordinate unified command, or joint task force responsible to the establishing commander for making recommendations on the proper employment of assigned, attached, and/or made available for tasking air forces; planning and coordinating air operation; or accomplishing such operational missions as may be assigned. The joint force air component commander is given the authority necessary to accomplish missions and tasks assigned by the establishing commander. Also called JFACC. [hereinafter JFACC]; Joint force land component commander- The commander within a unified command, subordinate unified command, or joint task force responsible to the establishing commander for making recommendations on the proper employment of assigned, attached, and/or made available for tasking land forces; planning and coordinating land operations; or accomplishing such operational missions as may be assigned. The joint force land component commander is given the authority necessary to accomplish missions and tasks assigned by the establishing commander. Also called JFLCC. Joint force maritime component commander--The commander within a unified command, subordinate unified command, or joint task force responsible to the establishing commander for making recommendations on the proper employment of assigned, attached, and/or made available for tasking maritime forces and assets; planning and coordinating maritime operations; or accomplishing such operational missions as may be assigned. The joint force maritime component commander is given the authority necessary to accomplish missions and tasks assigned by the establishing commander. Also called JFMCC. Joint force special operations component commander--The commander within a unified command, subordinate unified command, or joint task force responsible to the establishing commander for making recommendations on the proper employment of assigned, attached, and/or made available for tasking special operations forces and assets; planning and coordinating special operations; or accomplishing such operational missions as may be assigned. The joint force special operations component commander is given the authority necessary to accomplish missions and tasks assigned by the establishing commander. Also called JFSOCC.
JOINT PUB. 1-02, supra note 15, at 277-278.
(43) JOINT PUB. 3-56.1, supra note 39, at II-2. "The authority and command relationships of the JFACC are established by the JFC. These typically include exercising operational control (OPCON) over assigned and attached forces and tactical control (TACON) over other military capabilities/forces made available for tasking"; Id. see also JOINT PUB. ENCYCLOPEDIA, supra rote 37, at 383; JOINT PUB. 5-00.2, supra note 31, at III-5; JOINT PUB. I-02, supra note 15, at 277.
(44) AFI 13-1AOCV3, supra note 38, para. 1.2.6; JOINT PUB. 5-00.2, supra note 31, at III-5; JOINT PUB. 3-56.1, supra note 39, at II-6.
(45) JOINT PUB. 3-56.1, supra note 39, at C-1; JOINT PUB. 1-02, supra note 15, at 275.
(46) AFI 13-1AOCV3, supra note 38, para. 3.5.1.
(47) AFI 13-1AOCV3, supra note 38, para. 126.96.36.199.
(48) AFI 13-1AOCV3, supra note 38, para. 3.5 (The baseline [J]AOC organization includes an [J]AOC director, five divisions (Strategy; Combat Plans; Combat Operations; Intelligence, Surveillance, and Reconnaissance; and Air Mobility));
"The Strategy Divisions concentrates on the long-range planning of aerospace operations to achieve theater objectives by developing, refining, disseminating, and assessing the programs of the JFACC's aerospace strategy and Joint Air Operations Plan (JAOP)." AFI 13-1AOCV3, supra note 38, para. 4.1;
"The Combat Plans Division (CPD) applies operational art to develop detailed execution plans for aerospace operations." AFI 13-1AOCV3, supra note 38, at 5.1;
"The Combat Operations Division (COD) is responsible for monitoring and executing the current ATO (i.e., "today's war")." AFI 13-1AOCV3, supra note 38, para. 6.1;
"The Intelligence, Surveillance and Reconnaissance Division (ISR) will plan, coordinate, task and execute the intelligence, surveillance and reconnaissance mission (operation and support) in conjunction with the CPD and COD." AFI 13-1AOCV3, supra note 38, at 7.1;
"The Air Mobility Division (AMD) will plan, coordinate, task, and executed the air mobility mission. AFI 13-1AOCV3, supra note 38, at 8.1.
(49) AFI 13-1AOCV3, supra note 38, at 9.1; see also (chapter 9 lists the multiple support/specialty teams which consist of Component Liaison (e.g. BCD, SOLE, NARLE, MARLO, etc), Information Warfare, Judge Advocate Weather Support, Logistics, and System Management Function. The specialty/support functions provide the AOC with diverse capabilities to help orchestrate theater aerospace power.).
(50) AFI 13-1AOCV3, supra note 38, para. 188.8.131.52.
(51) JOINT PUB. 3-56.1, supra note 39, at III-1, IV-4.
(52) 12 AF/JAO SUPPLEMENT, supra note 28, at S1-11.
(53) JOINT DOCTRINE ENCYCLOPEDIA, supra note 22, at 643.
(54) JOINT PUB. 3-56.1, supra note 39, at II-2, IV-10.
(55) AFI 13-1AOCV3, supra note 38, at 184.108.40.206, 220.127.116.11; JOINT PUB. 3-56.1 supra note 39, at IV 9; JOINT PUB. 1-02, supra note 15, at 643.
(56) 12 AF/JAO Supplement, supra note 28, at S1-11, S1-16; AFI 13-1AOCV3, supra note 38, at 9.4.; SROE, supra note 19, at encl. L.
(57) AFI 13-1AOCV3, supra note 38, at 5.1.
(58) 12 AF/JAO Supplement, supra note 28, at S1-11, S1-16; AFI 13-1AOCV3, supra note 40, at 9.4. see also.
At the Joint Air Operation Center JAOC) level, an ROE Planning Cell may be formed. The purpose of the Cell is to review the ROE and develop the necessary changes and additions for the air operation plan. The Cell includes representatives from Plans, Combat Operations, Judge Advocate, subject matter experts (i.e. air defense, information operations, space, intelligence, etc.), and coalition partners. ROE development should be integrated into mission planning, so that it is not merely an afterthought to the completed plan. While it is true that ROE should never drive the mission, it is equally true that there are certain identifiable political, military and legal influences on any specific mission that may limit the probable use of force in mission accomplishment. This will vary depending on the assigned mission, higher headquarters' planning guidance, and what geopolitical region of the world is affected. ROE development is a continuous process that plays a critical role in every step of crisis action planning (CAP) and deliberate planning. Early identification of potential or existing limitations on the use of force and either working around them or building a justification for amending them can be critical to mission success and force protection.
ROE ADV SHT, supra note 27, at 5-6.
(59) AF OPS LAW HANDBOOK, supra note 18, at 274.
(60) AFI 13-1AOCV3, supra note 38, at 18.104.22.168; JOINT PUB. 3-56.1 0, supra note 37, at III-1; JOINT PUB. 1-02, supra note 15, at III-1.
(61) JOINT PUB. 3-56.10, supra note 37, at II-2.
(62) AFI 13-1AOCV3, supra note 38, at 2.10;
The Wing Operation Center is a wing commander's C2 element. It can include a command post, command section, battle staff, and other planning and support personnel. The WOC functions as the operations center for units assigned or attached to the wing for operations. As required, the WOC is capable of connecting with the Aerospace Operation Center, Control and Reporting Center, and Air Support Operations Center through voice and data communications. The WOC is responsible for translating tasks and missions.
(63) Lt Col John Humphries, Operational Law and Rules of Engagements in OPERATION DESERT SHIELD and DESERT STORM (2000) (copy on file with author).
(64) AFI 13-1AOCV3, supra note 38, at 6.1.1.
(65) SROE, supra note 19, at 2.
(66) Id. at A-2.
(67) SROE, supra note 19, at A-2; The US fundamental policy on self-defense is "These rules do not limit a commander's inherent authority and obligation to use all necessary means available and to take all appropriate actions in self-defense of the commander's unit and other U.S. forces in the vicinity." Id
Right of Self-Defense. A commander has the authority and obligation to use all necessary means available and to take all appropriate actions to defend that commander's unit and other US forces in the vicinity from a hostile act or demonstration of hostile intent. Neither these rules, nor the supplemental measures activated to augment these rules, limit this inherent right and obligation. At all times, the requirements of necessity and proportionality, as amplified in these SROE, will form the basis for the judgment of the on-scene commander (OSC) or individual as to what constitutes an appropriate response to a particular hostile act or demonstration of hostile intent.
Id. at A-3.
(68) JOINT PUB. 3-56.1, supra note 37, at vi, vii, II-2.
(69) SROE, supra note 19, at GL-17.
(70) Id. at L-3; JOINT PUB. 3-56.1, supra note 37, at vi, vii.
(71) JOINT PUB. 3-56.1 0, supra note, 37 at IV-10.
(72) FRIENDLY FIRE BOARD REPORT, supra note 2, at 3.
U.S. Central Command (USCENTCOM, MacDill AFB, FL). Southwest Asia, some eastern African countries, and part of the Indian Ocean. U.S.
* U.S. Northern Command (USNORCOM, TBD). Forces in the U.S. and portions of the Atlantic Ocean. Geographic responsibility for Canada and Mexico.
* u.s. European Command (USEUCOM, Stuttgart, Germany). NATO, some Middle East, most African countries, and, effective 1 October 2000, the waters off the west and west coast of Africa and the waters off Europe.
* U.S. Pacific Command (USPACOM, Camp Smith, Hawaii). Pacific Ocean, Pacific Rim countries and some along the Indian Ocean.
* U.S. Southern Command (USSOUTHCOM, Miami, FL). Central and Latin America and the Caribbean.
AF OPS LAW HANDBOOK, supra note 18, at 177-178; U.S. DEP'T OF DEFENSE, UNIFIED COMMAND PLAN (n.d.), available at https://www.dod.mil/specials/unified command/ (last updated Mar. 26, 2003).
(75) FRIENDLY FIRE BOARD REPORT, supra note 2, at 3.
(76) Id.; (The CAOC is the same as a JAOC but in a coalition operation.)
(77) Id. at 6.
(78) FRIENDLY FIRE BOARD REPORT, supra note 2, at 8; David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003 available at http://www.nytimes.com/2003/01/22/national/22pilo.html.
(79) FRIENDLY FIRE BOARD REPORT, supra note 2, at 18.
(80) SROE, supra note 19, at 2, A-2, GL-23, GL-26.
(81) FRIENDLY FIRE BOARD REPORT, supra note 2, at 8.
(82) MAURICE BARIE ET AL., BOARD OF INQUIRY--TARNAK FARMS 2002 FINAL REPORT pt. III (2002) (AIR EVENTS) [hereinafter BOI FINAL REPORT], available at http://www.vcds.forces.gc.ca/boi/intro_e.asp (last updated Sept. 16, 2002). Coe & Schmitt, supra, note 18, at 54.
Interdiction missions are those whose purpose is to disrupt and destroy enemy ground forces, and/or their support, before they can be brought to bear against friendly forces. This allows friendly forces to halt an enemy offensive and seize the initiative, thereby rendering the enemy reactive, rather than proactive. Interdiction sorties usually target second and third echelon forces. In many cases, however, they take the form of attacking enemy lines of communication (LOCs) in order to separate its tooth (fighting power) from its tail (logistic support). 8 Interdiction targets may also include personnel and supplies that have not reached the front and assets used to transport them (trains, trucks, etc.). Likewise, attacks against command and control facilities (except those with national responsibilities) are interdiction missions because they disrupt the enemy's ability to maneuver and direct forces to, from, and around the theater of operations. Interdiction missions are performed by the F-16, F-15E, A-10, and (occasionally) F-117.
(83) FRIENDLY FIRE BOARD REPORT, supra note 2, at 8.
(84) Id. at 9.
(85) David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003 available at http://www.nytimes.com/2003/01/22/national/22pilo.html.
(86) FRIENDLY FIRE BOARD REPORT, supra note 2, at 9.
(87) Doug Simpson, Commander: Pilots Warned of Allied Troops, TOP STORIES--AP, Jan. 17, 2003 (copy on file with author).
(88) FRIENDLY FIRE BOARD REPORT, supra note 2, at 9.
(89) Id. at 21.
(90) AFI 13-1AOCV3, supra note 40, at 5.7, 22.214.171.124.
(91) FRIENDLY FIRE BOARD REPORT, supra note 2, at 10.
(92) Id.; BOI FINAL REPORT, supra note 82, pt.II (CHRONOLOGY OF EVENTS); Brad Knickerbocker, "Friendly Fire" Deaths Vex the U.S. Military, CHRISTIAN SCI. MONITOR, Jan. 7, 2003, at 2; Lisa Kernek, Criminal Trial Considered Against Two Illinois Air National Guard Pilots, SPRINGFIELD STATE JOURNAL-REGISTER, Sept. 13, 2002, reprinted in COPLEY NEWS SERVICE, Sept. 14, 2002, LEXIS, News Group File; David M. Halbfinger, General Says Pilots Bloke Rules, N.Y. TIMES, Jan. 22, 2003 available at http://www.nytimes.com/2003/01/22/national/22pilo.html; Vernon Loeb, 2 U.S. Pilots Charged in Bombing of Canadians, WASH. POST, Sept. 14, 2002 at A01; David Pugliese & Glen McGregor, Fighter Pilots' Likely to Face Court Martial. Friendly-Fire Incident could Bring 10 Years in Prison, CALGARY HERALD, Sept. 14, 2002, at A5.
(93) FRIENDLY FIRE BOARD REPORT, supra note 2, at 17.
(94) Id. at 3.
(95) Timothy P. McIlmail, No-Fly Zones." The Imposition of Enforcement of Air Exclusion Regimes over Bosnia and Iraq, 17 LOY. L.A. INT'L & COMP. L.J. 35, 48 (1994).
(96) FRIENDLY FIRE BOARD REPORT, supra note 2, at 3-4.
(97) Id.; JOINT PUB 3-56.1, supra note 37, at II-2.
(98) FRIENDLY FIRE BOARD REPORT, supra note 2, at 4.
(99) Id.; SROE, supra note 19, at GL-23 "The definition of on scene commander is a commander of forces within an area of military operations that also contains a hostile or potentially hostile force." Id.
(100) FRIENDLY FIRE BOARD REPORT, supra note 2, at 17.
(101) Id. at 23; BOI FINAL REPORT, supra note 82, Annex J (RELEVANT AIR ORDERS AND INSTRUCTIONS) "It is critical, however, that coalition forces plan and execute such that they minimize the chance of a self-defence situation." Id.
(102) BOI FINAL REPORT, supra note 82, pt. IV (AIR-GROUND COORDINATION)
(103) Id. pt. II (AIR EVENTS); "The SPINS, updated regularly, were also available to all aircrew to guide them in the conduct of their mission. SPINS are theatre-specific and were written specifically for OEF. Updated daily via the ATO and Weekly SPINS Updates, they contain essential information indispensable for the conduct of the mission." Id.
(104) FRIENDLY FIRE BOARD REPORT, supra note 2, at 41.
(105) Id. at 20.
(106) Id. at 19.
(107) SROE, supra note 19, at A-2.
(108) FRIENDLY FIRE BOARD REPORT, supra note 2, at 18. "The OEF ROE do not differ significantly from the Standing Rules of Engagement (SROE) on the issue of self-defense." Id.
(109) FRIENDLY FIRE BOARD REPORT, supra note 2, at 41; BOI FINAL REPORT, supra note 83, pt. III (air events).
(110) SROE, supra note 19, at GL-17.
(111) FRIENDLY FIRE BOARD REPORT, supra note 2, at 35-36.
(112) Id. The tactics used by the pilot in dealing with the AAA threat was not viewed as the best course of action to exercise in the situation. In support of the CFACC's limitations, the actions by the pilot before he used force in self-defense were contrary to his training in tactics and techniques.
AFTTP 3-1.5, Tactical Employment F-16 C/D states,[T]he pilot always retains the right of self-defense and the defense of other friendly assets unable to protect themselves. This right, however, should not be used as a planned work-around for solving poor tactics and decision trees. The F-16 pilot must make a conscious decision that the immediate threat outweighs the risk of fratricide. In situations where there is not an immediate threat, i.e., outside of abort range or nobody is spiked, or when SA on friendly positions is unknown, maintain a conservative, defensive approach to the situation until certain of compliance with the ROE.
(113) FRIENDLY FIRE BOARD REPORT, supra note 2, at 17, 19.
Coffee 52 not only remains within the immediate vicinity of the perceived threat, but also increases the risk by descending lower to the threat while allowing his airspeed to occasionally decrease below optimal maneuvering speed. It is quite surprising and contrary to both SPINS and accepted defensive reactions that Coffee 52 would willingly allow himself to be exposed to a higher threat envelope through such actions. While the altitude minimums published may have permitted him to get this low to accomplish a 'mark', better airmanship would have dictated remaining at altitude or performing the designation at a greater distance from the perceived threat.
BOI FINAL REPORT, supra note 82, pt. IV (BLAME).
(115) SROE, supra note 19, at A-3.
(116) BOI FINAL REPORT, supra note 82, pt. III (AIR EVENTS); BOI FINAL REPORT, supra note 82, pt. IV (BLAME); BOI FINAL REPORT, supra note 82, pt. IV (AIR- GROUND COORDINATION).
(117) FRIENDLY FIRE BOARD REPORT, supra note 2, at 35; "The F-16 has a system that allows the pilot to preset an altitude warning level so that he will be alerted when his aircraft descends below an established altitude floor." Id. at 41.
(118) BOI FINAL REPORT, supra note 82, Annex J (RELEVANT AIR ORDERS AND INSTRUCTIONS) It is critical, however, that coalition forces plan and execute such that they minimize the chance of a self-defence situation; see also FRIENDLY FIRE BOARD REPORT, supra note 2, at 20 "OEF SPINS directed aircraft not to descend into the lethal range of an AAA system firing well below them in order to attack in self-defense." ld.
(119) FRIENDLY FIRE BOARD REPORT, supra note 2, at 35; BOI FINAL REPORT, supra note 82, pt. III (AIR EVENTS); BOI FINAL REPORT, supra note 82, pt. IV (AIR- GROUND COORDINATION).
(120) SROE, supra note 2, at GL-17.
(121) David M. Halbfinger, UnusualFactors Converge in Case Against War Pilots, N.Y. TIMES, Jan. 25, 2003, available at http:// www.nytimes.com/2003/01/25/national/25pilo.html ; Vernon Loeb, 2 U.S. Pilots Charged in Bombing of Canadians, WASH. POST, Sept. 14, 2002, at A01; David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http://www.nytimes.com/2003/01/22/national/22pilo.html; David Pugliese and Glen McGregor, Fighter Pilots Likely to Face Court Martial: Friendly-Fire Incident Could Bring 10 Years in Prison, CALGARY HERALD, Sept. 14, 2002, at A5.
(121) David M. Halbfinger, UnusualFactors Converge in Case Against War Pilots, N.Y. TIMES, Jan. 25, 2003, available at http:// www.nytimes.com/2003/01/25/national/25pilo.html; Vernon Loeb, 2 U.S. Pilots Charged in Bombing of Canadians, WASH. POST, Sept. 14, 2002, at A01; David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http://www.nytimes.com/2003/01/22/national/22pilo.html; David Pugliese & Glen McGregor, Fighter Pilots Likely to Face Court Martial: Friendly-Fire Incident Could Bring 10 Years in Prison, CALGARY HERALD, Sept. 14, 2002, at A5.
(122) BOI FINAL REPORT, supra note 82, pt. IV (AIR-GROUND COORDINATION).
(123) BOI FINAL REPORT, supra note 83, pt. IV (AIR-EVENT).
(124) JOINT PUB. 3.56-1, supra note 39, para 5.1.3.
(125) FRIENDLY FIRE BOARD REPORT, supra note 2, at 45.
(126) Dave Hirschman, Ex-Military Pilot Call Charges Risky Precedent, Atlanta Journal-Constitution, Jan. 21, 2003, (copy on file with author). "The [Article 32 Hearing] proceeding marks the first time U.S. pilots have faced criminal prosecution for a friendly fire accident." Id. "The defense for the pilots contents that Major Schmidt and Major Umback were victims of bad information, communication, fatigue and the fog of war" David M. Halbfinger, General Says Pilots" Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http://www.nytimes.com/2003/01/22/national/22pilo.html; Elaine M. Grossman, 'Friend Fire' Case Begs" Question." When Does 'Fog of War' Creep In?, INSIDE THE PENTAGON, Jan. 30, 2003, (copy on file with author)
(127) David M. Halbfinger, General Says Pilots Broke Rules, N.Y. TIMES, Jan. 22, 2003, available at http://www.nytimes.com/2003/01/22/national/22pilo.html.
(128) SROE, supra note 19, at A-4; Dave Hirschman, Ex-Military Pilot Call Charges Risky Precedent, Atlanta Journal-Constitution, Jan. 21, 2003, (copy on file with author).
"Military pilots are sharply critical of the prosecution ... saying the legal effort could cost American lives in future battles ... Some legal experts say [Major] Schmidt and [Major] Umbach should face prosecution, however, Loren Thompson, a military analyst at the Lexington Institute, said charging them could rein in overly aggressive pilots and soldiers who might jeopardize U.S. objectives. 'We're fighting a new kind of war in which it's doubly important to be careful about the political consequences of what we do', he said. 'We can't have our people acting indiscriminately. They have to be especially careful, and they have to know there are consequences."
MAJOR PAUL E. JETER, Judge Advocate, United States Air Force. Presently assigned as Student, 51st Judge Advocate Officer Graduate Course, The Judge Advocate General's School, United States Army, Charlottesville, Northeastern University School of Law. J.D. 1992, Northeastern University; B.S., 1988. Previous assignments include Deputy Staff Judge Advocate, 36th ABW, Andersen Air Force Base, Guam, 2000-2002; Assistant Staff Judge Advocate, 60th AMW, Travis Air Force Base, California, 1997-2000; 35th FW, Assistant Staff Judge Advocate, Misawa AB, Japan, 1994-1997. Member of the bars of Pennsylvania, Colorado, District of Columbia, New Jersey, and the Supreme Court of the United States. This article was submitted in partial completion of the Master of Laws requirements of the 51st Judge Advocate Officer Graduate Course. The article was published in its orginal thesis format to assist in ease of reading.