Lieutenant Colonel D. G. Bolgiano, U.S. Air Force, was called as a witness by the defense, was sworn, and testified as follows:

DIRECT EXAMINATION

Questions by Major Erickson:

Q. Sir, please state your full name and spell your last for the record.

A. Lieutenant Colonel David G. Bolgiano, B-O-L-G-I-A-N-O.

Q. And you are currently a Lieutenant Colonel, sir?

A. That is correct.

Q. What branch?

A. United States Air Force.

Q. How long have you been in the United States Air Force?

A. Since 1999.

Q. Are you currently on active duty, sir?

A. I am currently on active duty at the Joint IED Defeat Organization, Counter-IED Operation and Integration Center.

CC[Mr. Myers]: Your Honor, with the consent of the government, this testimony will take on features that are not typical of direct examination. If at any time you feel it is too narrative, I will be more than happy to ask more additional questions.

IO: All right. Thank you.

Questions by Mr. Myers:

Q. Colonel, I would like to get in the record a bit about your background. We have previously introduced your curriculum vitae. So I do not need a lengthy discourse from you. But can you briefly tell us what your educational background is.

A. Sir, I received a bachelors from Loyola College in Maryland, and a jurist doctorate from the University of Baltimore School of Law.

Q. Where have you been employed?

A. Been employed in the Baltimore Police Department, been employed by the United States Army, been employed by a private law firm in Maryland, and since 2000, I've been employed full-time by the Drug Enforcement Administration; but since 2001, most of my time was spent on active duty.

Q. What are you doing on active duty?

A. Since 2001, September 12, I was called by the Air Force to active duty to go to Continental Region NORAD to help draft the rules of engagement and rules for use of force for Operation Noble Eagle, which was the defense of our airspace from flying objects, aircraft, and discernment of the threat involved there. That then was followed up by an active duty tour -- actually two successful tours with Special Operations Command Central in Iraq and Afghanistan.

Q. And what has your expertise involved into at this juncture?

A. At this juncture, it would be in drafting and training young Soldiers, Sailors, and Marines; drafting rules of engagement, rules for use of force; but more importantly, I believe, training young Soldiers, Sailors, Airmen, and Marines on threat identification and application of the rules for use of force in combat settings.

Q. Are you published in this regard?

A. Yes, sir. I have been published in the University of Baltimore School of Law Review, Army Lawyer, Naval Institute Proceedings Magazine, and I have also published a book called Combat Self-Defense that was just released this March.

Q. Have you ever taught use of force, rules of engagement, and the tactical dynamics of a deadly force encounter in any forum?

A. Yes, sir, I have. I taught it. If I may give a brief history of that.

Q. Please.

A. In 1994, I had the pleasure of meeting an FBI Agent named John Hall. I was representing an Army CID Agent that was charged with attempted murder from a line of duty shooting in Germany. As part of that, I returned to Quantico, Virginia, where I met Special Agent John Hall who was, in many peoples' view, the preeminent expert on use of force, law, and training.

I also met former retired Colonel Hays Parks, who with John Hall, developed a training protocol where they recognized certain deficiencies in the way the military was training its forces on threat identification. Primarily out of Haiti and Bosnia, they recognized that we were sending young Soldiers, Sailors, Airmen, and Marines into use of force studies that are more analogous to law enforcement settings, rather than force-on-force combat.

So they developed a rudimentary training seminar, which in 2000, Colonel Parks did a battle hand-off to me. Since then, I have trained it over 24 times to the Joint Forces.

Q. Have you lectured on that subject, use of force?

A. Yes, sir.

Q. And where, typically?

A. I have lectured at Naval Special Warfare Command in Coronado; the Naval Service Warfare Officer's School in Newport, Rhode Island; and the Naval Expeditionary Combat Command in Little Creek, Virginia; and divers Army installations. The Army is my primary end user of this type of training, quite simply, because they have the largest number of combat forces on the ground, right now.

Q. I noticed that you were a policeman. Have you ever had to use deadly force in your role as a police officer?

A. Yes, sir, I have.

Q. Have you ever been recognized by any court as an expert in the field of rules of engagement, rules for the use of force, and the tactical dynamics of deadly force encounters?

A. Yes, sir. I have been recognized by Fulton County, Georgia in January of this year as such an expert.

CC[Mr. Myers]: Unless the Investigating Officer requires further probing into this area, I will move on to the substantive questioning.

IO: I don't require it.

CC[Mr. Myers]: Very well. At this juncture, I am going have the Colonel provide the information to you in narrative form.

WIT[Col Bolgiano]: Sir, the problem that we're seeing across the Nation spectrum is most of our forces are not being adequately trained on threat identification and appropriate response to a hostile act or demonstrate hostile intent. That is leading into two problems:

The first is heightened risk for friendly forces. In other words, there is a chance if our folks aren't recognizing the threat, they are going to get shot in the face or an IED going off before being able to respond.

The flip side to that coin is what I would like to call a greater likelihood of an inappropriate use of force.

We see this especially when Army Forces and non-combat arms. Army forces and convoys may be rolling through an area -- this occurred a number of times in Fallujah --

where the Marines had a stronghold, and an Army convoy would come through and get hit by an IED. And instead of having discriminating target and threat assessments, they would open up with their .50 caliber and shoot all around them in a 360 degree pattern. Neither of these options are good for strategic interests in theater.

So the goal of the seminar, itself, is to provide legally supportive or tactically sound guidance on the use of force.

Now, briefly, I don't presume to lecture on the law; butI think it is important to understand the over arching guidance that comes down from on high. And the overarching guidance emanates from understanding rules of engagement accompanying the Chairman of the Joint Chief of Staff Instruction 3121.01B. The relevant portions here is it sets forth in its unclassified version a number of things.

First of all, the unit commanders at all levels will ensure that the individuals within their respective units are trained on when and how to use force in self-defense. That is an important mandate. That is not an option. It comes down right from on high. The problem is that against a declared hostile, there is confusion as we talk about these rights and responsibilities under ROE.

To understand rules of engagement, sometimes these terms get mixed up. And the first one that gets mixed up that I see all the time is the concept of PID.

"PID" is a term under the rules of engagement matrices as they flow down from the Chairman's rules through the classified and unclassified ROE that has everything to do with identifying a declared hostile. And without getting into any classified aspects of the current ROE, suffice it to say that in previous conflicts, our National Command Authority has designated certain forces as declared hostile which we can kill on sight. That is the legal authority.

When you think about it, that is an awesome, awesome responsibility and authority to give to a young Marine. But we do it. In other words, if a young Marine or higher level command can positively identify – and that's a little misleading in itself, because PID really means reasonable certainty. If a command can gain PID on a target, they can engage them where they sleep, where they are doing whatever. You don't have to wake them up to make it a fair fight. So that's where PID has relevance. You want to make sure you are targeting the right folks.

Potentially may be an issue in that type setting, especially when you are using larger weapon systems. And the law of armed conflict portionality comes into play, as does the CDE methodology -- Collateral Damage Estimate methodology -- all has relevance against declared hostiles.

Now, the other side of the coin is: What about in response to a hostile act, or demonstrated hostile intent? What is left out of that Chairman's instruction is what I put in parens there, and that's hostile intent or hostile act that will be capable of producing death or serious bodily injury. That is important because you could go down to Guantanamo today, and there would plenty of hostile acts and demonstrated hostile intents. But they lack the ability to inflict death or serious bodily injury to us. So we can't exercise deadly force in that situation.

But in theater, most of our responses now, because our enemies are not wearing Al-Qaeda T-shirts, it is very difficult to get PID on a declared hostile. Absent national level assets that may triangulate them electronically or otherwise, we are forced to respond to demonstrated hostile intent or hostile acts.

PID is irrelevant in these situations, because quite frankly, the subjective intent of the bad actor is irrelevant, whether or not they are a member of Al-Qaeda or insurgent, or any of these things that from the time you decide to pull the trigger is entirely irrelevant to the decision, tactically and legally, to engage them at that time.

CDE methodology is also irrelevant in these types of settings. If you look at certain ROE in place, the target here is at a higher headquarters and respond to a call for troops in contact without employing the CDE methodology. They know there is an imminent threat there, troops are in contact who may have to apply force, an overwhelming force, to cause disruption. That is why that concept the irrelevant.

Now, here is the $64,000.00 question for all of us, and that is: How do we get our arms around what constitutes a hostile act or demonstrate hostile intent or immanent threat? Unfortunately, most commanders -- I say unfortunately a lot of judge advocates, try to get their arms around this concept by the written rule. They want a bright line rule, and we even see it in our training. We use terms like "shoot don't shoot" scenarios, implying somehow that there is a right or wrong answer for every scenario. And that creates a number of problems. It creates confusion and hesitation at the user level. I will just give some quick examples that I have seen in my training or studies.

In January 2004, I had the opportunity to interview five young Army E-3's and E-4's that were providing entry control point duties. I went up to each one of these young Soldiers and asked them, When do you believe you can use deadly force? Your Honor, I got five different answers. The most overarching sentiment among all of them is, I don't know when I can, but I do know I will be in trouble if I do decide to engage somebody. That is not unlike we see in law enforcement settings here in the States.

There was a misguided message to Marines at Fallujah in April 2004. At that very time, special mission unit snipers were engaging bad guys who were self-designating as hostiles because they were scurrying from building to building with AK-47's and RPG's. And the special mission unit snippers were engaging them. And somebody told the Marines -- and I am still drilling to find out where this guidance came from, because I have spoken to the Commander and it didn't come from him. But somebody told the Marines, don't fire at these people unless they point or fire their weapon systems at you. As we will see a little further on, I will demonstrate why that is misguided and entirely legally and tactically unnecessary for someone to point or fire a weapon system at you before you would be authorized to engage.

In my current position, we provide actual intelligence to members of the Armed Forces on IED networks. We have many, many instances where you have Soldiers, Sailors, Airmen, Marines -- primarily Soldiers and Marines because they are the ones in theater -- will spot an insurgent placing a 152 millimeter, 155 millimeter improvised explosive device, have them in their sights, and they won't squeeze the trigger because that same lack of affirmation. They were never trained on what constitutes a demonstrated hostile intent. It is pervasive in theater, especially in a counter-IED fight.

Now, the other side of that coin, again, as I said before, is the obvious TTP. We drill down a little further and see why it's happening. There is a misunderstanding in theater of the counter-insurgency concept of minimum force. As a strategic concept, minimum force has plenty of relevance and applicability in our fight. We don't want to go around dropping 2000-pound JDAM's to win the hearts and minds of the Iraqis. That is clear. And that is where this concept of minimum force has relevance and applicability.

The problem is that people tend to trickle that notion into guidance that we're giving to Soldiers, Sailors, Airmen, and Marines on the amount of force to use when confronted with an immanent threat of death or serious bodily injury.

I saw in the training material that was provided to this Battalion before they went over, and it begs the question that Hays Parks, in this Proceedings article, How do you use minimum deadly force? It is an impossible concept, nor is it legally required. You use the amount of force that is reasonable to make the threat go away. That is one of the problems out there.

The second one is this: MAL [ph] versus CQB/CQC training. Taking a step back, when law enforcement officers, SWAT teams, special mission unit types do building entries and hostage rescues to take down felony suspect, they are doing very precision, close-quarters battle type drills. They train for months, if not years on end, on how to accomplish that surgically.

Most Marines and most ground forces, including Army in theater, are not provided that precision CQC judgment based training, and instead, will use their ground forces MAL-type training in room clearing, aggressively assaulting an objective. If they receive small-arms fire, you respond with overwhelming fire power through that objective. I liken it to using a blunt force instrument to effect precision surgery. Don't be surprised at the end of the day, if you use that blunt force, that there will be trauma to the patient. That is part of the problem, not only in the instant case, but across theater as we see it.

There is a misunderstanding of the rules governing the use of deadly force. They go hand and glove with the tactical dynamics of the deadly force encounter.

Unclear command guidance, as it trickles down -- none of this is malevolent. We see in going out and conducting interviews with commanders, NCOs. We know at the strategic level, the relative permissive nature of our rules of engagement and deferring to the judgment of the individual Marine.

What's happening sometimes, is as we come down through the layers of command and some of the legal guidance that accompanies that, is we see people taking a step to the rear and a step to the left. In every other area of the law, that makes sense. For instance, if I am providing legal advice to a commander on the Armed Export Control Act, it is a felony prescription against transfer of munition-list items to foreign countries. I want to make darn sure that my commander stays out of jail, so I will tell him, Hey, boss; here is what the law allows. Let's take a step back from that so we're not even close to the border in that particular area of the law. And it works everywhere; contract law, fiscal law. We do that as good preventative lawyering.

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

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

Now, the model in our seminar that follows the law concerning threat identification uses the law enforcement threat IED triangle. I want to make it, again, real clear that we're not talking about a situation where we have a declared hostile and all we have to be concerned with is IED's. But we are concerned in every other instance where a young Marine may have to use deadly force. Reasonable use of deadly force against an immanent threat, or death or serious bodily injury. Three elements, legally, are needed on that, and that is: The bad guy or purported bad guy out there has to have hostile intent, ability, and opportunity to inflict death or grievous bodily injury.

Now, when we look at intent, a lot of folks get wrapped around the axle thinking that were talking subjective intent of the bad guy. Woody Allen once joked in one of his skits. He said he was thrown out of a philosophy exam for peering into the soul of the girl next to him.

We don't need to do that. Marines don't need to do that. Quite frankly, I was a little amused in many of the discussions of earlier testimony yesterday and this morning about what the subjective intent of those individuals in building number four was. Quite frankly, as a legal matter, it is entirely irrelevant. Because what is important is the objective intent as perceived by the shooter, and as perceived by the Marine.

Now, the bad news is that we, as human beings, are not born with a great innate ability to discern hostile intent. A baby -- if you go up and grimace, a baby will burst into tears. That's why all but the sociopathic of us make "goo-goo" noises. Other than that, however, anything about hostile intent, the human body gets, it learns. It learns -- through experiences and watching playground fights, it learns watching bar fights, as we get a little older and life's experiences demonstrate, somebody's doing something bad to us.

In law enforcement training at various academies, at Quantico, FBI Academy where I taught, we see law enforcement label these measures of hostile intent as pre-assaultive behaviors. Pre-assaultive behaviors can be something as simple as the face on the individual.

For instance, if the law enforcement officer is conducting a field interview of a subject in a high crime area, and that subject's face all the sudden gets an angry look on it and they ball their fists, the law enforcement officer doesn't have to wait to take the first punch. In fact, if I am conducting such an interview and somebody balls their fist on me, they are getting an ASP baton across the knee and going down. The law recognizes and allows that.

What are some of the major pre-assaultive behaviors that law enforcement has learned that are also readily transmutable to Marines in the field?

The first one is verbal non-compliance. It is probably the number one pre-assaultive behavior. That is where you have an armed uniformed police officer or Marine pointing a weapon system at somebody telling them to halt, freeze, whatever you are telling them, and they keep walking at you. They disregard your clear commands. That, plus one other pre-assaultive indicator towards you, up above a 90 percent chance that something bad is going to happen.

The law only requires a reasonable belief, somewhere below 50 percent, for you to engage that individual. So it is very, very important that individuals are trained on recognizing these pre-assaultive behaviors.

Now, another pre-assaultive behavior may be the presence of a weapon. I say "maybe" because the presence of weapon in Fallujah or Haditha "may" be a pre-assaultive behavior. But in parts of Afghanistan, or east Texas for that matter, the mere presence of a weapon is not a pre-assaultive behavior. So this is a constantly changing, flexing triangle that is situationally dependent.

Going into a particular mission set, in my view, we're not giving enough training necessarily to our young forces on this concept of threat identification and discerning hostile intent. But what are some other measures there that military folks have in a combat zone of discerning hostile intent? Those are: What is the intelligence for the region? If the intelligence and enemy TTP's are one thing? They can all be mixed into the measure of discerning hostile intent. A recent attack on a convoy and the TTP's of that enemy following that up with small-arms fire --

IO: Colonel, how are you defining TTP?

WIT[Col Bolgiano]: Tactics, techniques, and procedures.

IO: Just want to make sure we're using the same term.

WIT[Col Bolgiano]: The enemy tactics, techniques, and procedures that are known may roll into this discernment of possible attack.

So that is only one-third of the triangle. We're still not there yet because, again, as I said, a detainee down in Gitmo may have all the hostile intent in the world, objectively, but lacks the ability and opportunity to carry out their mission. So we can't kill them.

So what's missing? The second piece is the ability.

Too often, people's understanding of ability comes from Hollywood rather than the tactical realities of a firefight.

IO: Before you get into that, you mention objective, and I want to get this before we get too far. You said it's not the subjective intent and used the word "subjective" with regard to the actor who was engaged. But the way you end up using objective, it sounds like you are saying it's the subjective intent of the person who is going to fire the weapon.

WIT[Col Bolgiano]: Let me clear that up.

IO: I guess the way to look at it is what is the objective intent of a reasonable person that that position would perceive that individual.

WIT[Col Bolgiano]: It is what a reasonable person would perceive the objective intent of the bad actor to be.

IO: So it isn't a subjective standard on neither the actor or on the person --

WIT[Col Bolgiano]: That is correct. A good way of really demonstrating that is a lot of barracks lawyers will tell young Marines this: They will tell him here at Camp Pendleton -- I hear this all the time -- Dude, if you shoot somebody in your house, just tell the police you are in fear of your life and you will be okay. Well, that's preposterous because a coward can be in fear of their life, when the reasonable shouldn't be; or a fool would not be in fear of their life when they should be. So it is the objective reasonable standard that we're going for, and that's lost a lot of times.

IO: Just to follow up, what is a reasonable person? When you say under the rules of engagement and rules of use of force -- when you say "reasonable person," there are different levels of people in society and experiences. Is that objective standard of those that have experienced combat, those that have been trained in experienced combat, or those that have never been in combat but happen to be subjected to your lecture?

WIT[Col Bolgiano]: It is a reasonable standard based upon people that are in the same or similar circumstances as they go forward. That leads back to an issue on the training piece, which I will come to later in the discussion. We then go to the ability piece. Hollywood, too often, drives most Americans' notions of what is an ability to fire or to inflict death or grievous bodily injury. That is why police officers are trained -- and I will use the 30-foot rule as an example.

A well-trained police officer understands that an individual with an edged weapon that is 30 feet away, even though the police officer has an M-9 or a pistol pointed at that person, that person, at that very moment, presents an immanent threat of death or serious bodily injury.

Too often -- and I will use the Hollywood movie of Indiana Jones. The first Indiana Jones movie when Indy comes running out of a bazaar and comes across this guy wielding a Mameluke. Indy, kind of, smirks at the camera, draws his pistol, and shoots the bad guy.

Everybody laughs. Well, that just further teaches a lot of stuff, because a well-trained law enforcement officer knows certain facts.

First of all, the law enforcement officer knows that that individual can close that distance in about a second and a half. That law enforcement officer knows that cops miss under high-stress shooting situations 80 percent of the time. So that bad guy can get to me in a second and a half and stands an 80 percent chance of not even getting shot, cuts my corroded artery, puts a knife in my vest. It is a win for the bad guys.

Let's assume that I, as the police officer, am a good shot and I hit him center mass a few times. Hollywood, again, teaches us some bad lessons, and that is this concept of knock-down power. We have done studies at the FBI Academy. We have done Army studies with Dr. Martin Fackler [ph]; and demonstratively, there is no small arms in our inventory. When I am talking small-arms, I am talking 5.56 or nine millimeter rounds that have knock-down power.

So back to my scenario with the 30-foot knife assailant. He starts charging. I start engaging. Assume I get him four or five times center mass, bullets don't work magic. Unless you hit a subject with a high velocity round to the brain or sever the upper cervical spine -- what you have to rely on is bleed-out. That means 25 to 40 percent blood loss that will cause enough oxygen depravation to the brain to shut the body down. It can take seconds, if not minutes, for that to happen. If I hit him four or five times center mass, he still gets at me and cuts my corroded artery and puts a knife in my chest. A tie is not a victory.

Now, we have that on video, as most of the world seems to be on videotape now, and law enforcement, even two or three of them will engage a knife wielding subject 30 feet away. And most of America that is schooled in Hollywood will be up in arms saying, Why did the police officer shoot that man? He only had a knife. Why didn't they swarm him? It begs the question: Who wants to be the first swarmee?

Those questions are based on their ignorance of the tactical dynamics of encounter and how those work, and they are driven by Hollywood. Soldiers, Sailors, Airmen, and Marines are not immune from this. We have a Seal team member from a special issue unit in the opening rounds of Operation Enduring Freedom in the mountains of Afghanistan that engaged a Taliban Al-Qaeda member six, seven, eight times center mass with a 5.56 weapon system. The Taliban member kept running behind boulders throwing grenades and praying and spraying with an AK. And the Seal team member, in the middle of the fire fight, stopped and looked at his weapon saying, how come it's not working?

So these notions are often driven by Hollywood. In our training scenarios, we have to bring young Marines back to the reality of understanding how their weapon systems work. That is why I am not a fan of using the words "minimum force, proportional force." Proportionality has absolutely nothing to do with the amount of force you use in response to immediate threat of death or serious bodily injury. That is a much larger LOAC term for doing collateral damage estimate methodology.

There is no weapon systems in our inventory, small-arms wise, that proportionality becomes an issue. Yet, we constantly see that in training modalities, and it just further confuses young Marines on that.

Now, what about opportunity? We're down to the last leg there. In that scenario I set up with the knife fighter30 feet away, if we pop up a 12-foot chain link fence between us, the opportunity vanishes. So when a commander comes to me and says, Bo -- excuse me. That's my nickname. He says, I don't want you to give me a bunch of legal gobble, just give me the part that tells me when my guys can and cannot shoot. I have to chuckle and take the time to explain to that commander why we can't do that.

The amount of force that is used or situations when you can use deadly force is not subject to the written rule.

We will see very shortly that the Supreme Court of the United States recognizes that concept. I want to play for Your Honor one quick video vignette that we use in law enforcement training and I have used subsequently in the past seven years training military members on threat identification.

I apologize beforehand because there is some profanity in the video, but it is not on the part of the instructor.

This is a dash-mounted video camera from a 22-year-old Lawrence County Sheriff's Officer named Dick Keller that pulled over a vehicle for speeding. The probable cause was 60 miles per hour in a 30-mile-per-hour zone, or something of that nature.

The reason I am walking through it beforehand is the perspective of the camera is different from that of the Officer. Quickly, what happens is the officer has some interplay with the subject. What I ask students to do is to look at some potential pre-assault behaviors demonstrated by the subject, and also, the Officer will see this subject after some verbal judo, lets him get back to his car, and lets the individual begin to unravel a .30 caliber carbine semi-automatic rifle. And the Officer will tell this individual seven or eight times, drop the gun. And we will see what happens in the aftermath of this.

Of consequence, the bad guy will be shot once, and it is kind of hard to see. It looks like he is brushing flies off his coat. He is shot center mass with a .40 caliber hand gun to no effect, and that demonstrates some concepts of wound ballistics that must be followed.

The video was played for the IO.

WIT[Col Bolgiano]: The Officer just struck him with an ASP baton. He gave him what I call a "sissy strike." He let the individual get back to the truck. The Officer is hit in the pelvic region. They are both doing combat reloads. The bad guy is doing everything right tactically, shooting on the move, reloading on the move. The Officer is basically in the standing position.

If I could, Your Honor, talk real quickly of why these enforcement settings are relevant to the Department of Defense operations. Real quick, if I could, just run through two more little vignettes. One that is personal, and one that involved the Federal Bureau of Investigation. I think you will see why they are relevant.

In December of 1985, I responded to an armed hold-up call at a McDonald's restaurant in Baltimore. It is 1 o'clock in the morning. There is a hold-up call in an area that was a high-crime area. I responded to the call and approached the side of the restaurant tactically. I met this young man who was sitting in the manager's Corvette Stingray. And I knew the manager let these young kids do clean up and hang around in his vehicle. In fact, the kid waved to me and I waved back and went on my mission.

About a second later, this young kid who waved at me a second ago was now bailing out of the car with moneybags in his left arm pointing a revolver at me from 12 to 15 feet away. I was surprised at that event, even though I was responding to an armed hold-up call in a high-crime area at 1 o'clock in the morning, that in fact, the restaurant was being held up.

This is an important psychological aspect in the application of deadly force because it is, kind of, the first hurdle -- the first trip point. Human beings are conditioned to believe that bad things happen to other people. Other people get in wrecks on the highway, other people's convoy gets hit by the IED. It doesn't happen to me. Well, the kid turned and ran. I started chasing him. While I am chasing him, he is turning and pointing his weapon over his shoulder. Then he would keep running. I actually raised my weapon system up and thought to myself, I am going get in trouble if I shoot this guy in the back, when in fact, that's silly. The guy continued to present a threat. The law would have allowed me to do it. Tactically, I should of, but I didn't because I didn't understand the law and the tactics. And there -- that hesitation there of having to act when necessary.

The young man went down a blind alley. I took a knee behind a brick wall. He came running back out a few minutes later. I ordered him to stop, even though the law didn't require a verbal warning. He didn't, so I shot him center mass. The. Good guys win, but I didn't win because I knew the law. I didn't win because I was tactically switched on. To the contrary, I wasn't. I won because I was lucky and bad guys are sometimes stupid. He put .32 automatic rounds in a .32 revolver. As he is squeezing the trigger, it will be squishing the rounds down into the chamber. Each primer had three or four primer dents on it.

Let's fast forward about six months. The FBI had a very similar experience with much more deadly results. They are looking for two very bad individuals named Platt and Maddox. This has been the subject of a TV mini-series and recreations. I want to hit on the points as they relate to the tactical dynamics of the encounter.

The FBI was looking for two individuals named Platt and Maddox. These people have already murdered two people in cold blood and left a third to die beside a reservoir. The FBI was at wits end. So they just set up a rolling stakeout in the Miami area. FBI Agents, Jerry Dove and Ed Morales -- Ed Morales being the only FBI long gun on the scene, a 12 gauge shotgun, as luck would have it, roll up behind the bad guys' vehicle.

They were made. In other words, the bad guys detected they were being followed by law enforcement. In a very bad tactical move Jerry Dove rolls up next to the bad guy car. Ed Morales starts raising his 12 gauge shotgun when he notices the passenger loading a 5.56 semi-automatic rifle. And he is about ready to shoot him when he stops and says, I better not do this because how am I going to explain it to my FBI superiors that I shot someone in the back while driving down a road in Miami?

A car crash ensues, and a gunfight erupts. In the first ten seconds of that gunfight, Special Agent Jerry Dove put a Winchester nine millimeter silver tip round through Michael Platt's right upper arm severing his artery. The round went into his upper thoracic cavity collapsing his right lung and stopped about three centimeters short of his ascending aorta. At that very moment, Michael Platt suffered a fatal wound. That means more likely than not, had he been given expert medical trauma care on the scene, he still would have died. Yet, before he bled out over the next four minutes, he proceeded to kill two FBI Agents, including Jerry Dove, and grievously wound five others, including Ed Morales.

Now, Ed Morales, in his after-action report, talks about running behind the FBI vehicle for position and cover and ending up staring at the sky. And he thought, You stupid idiot, you hit the pump bumper. Are you that clumsy? So he tried to get up. When he tried to get up, he couldn't. And he reaches down and pulls his arm up. And his arm is now bending in two places where human arms don't normally bend. He had been shot through and through with a 5.56 round shattering his radius. He didn't even know he was shot. He was also shot in the head. Never felt any of those rounds.

He then is sitting there doing a self-assessment buddy care, and bad guy, Maddox, comes up from a distance at five feet away and behind him and empties his .357 revolver at Special Agent Ed Morales. Ed was never hit because of some of the dynamics can affect bad guys, as well, their ability to aim under high-stress encounters.

Ed reported seeing chips of asphalt flying in slow motion in the air, wondering where that was coming from. Where it was coming from is the rounds impacting around him. He finished the fire fight when he started blacking out, and Ed Morales, never being taught to be do one-handed reloads, one-hand reloads with a 12 gauge, empties that.

And when his walls and worlds starts collapsing in on him, he knows he is to the point of blackout, he says, If these sons of bitches kill me, I am going to kill them first. And he stands up and charges and empties his revolver killing Platt and Maddox with five out of six head shots. He said it was sheer rage and will that let him win that fire fight. Nothing in his training at the FBI Academy did that.

We finally get to the relevance to DoD. If we look at ROE, traditional modern standing rules of engagement, had their genesis in the late 1970's at the Chairman Joint Chief of Staff level. Unfortunately, at the time most of these were drafted, the Chairman was a Naval Officer. I don't mean that disrespectfully. I just mean it in the sense that the ROE was gauged towards carrier battle groups and large weapon systems, vice rules for use of force for the individual at the tip of the spear.

That is important for a number of reasons because the ROE for a carrier battle group -- a carrier battle group commander is somebody generally 50 years of age or older, been to all the senior service schools, has 25 years experience behind him, and hopefully has a great deal of judgment, wisdom, and life experiences to base threat assessments on; vice the recipient of our rules for use of force at the tip of the spear is generally an 18, 19, 20-year-old Marine with not a lot of life's experiences to make judgment under such situations.

The ROE for the carrier battle group is also predicated on the fact that the carrier battle group commander, due to our intelligence systems in place, the national intelligence estimates for CIC is aircraft above 300 nautical miles over the horizon, has a great deal of time generally, minutes, if not hours, to do threat assessments, even for attacking vampires or bogeys, which are airborne threats to his carrier battle group.

He has time to implement what are called special instructions or SPINS. I won't talk about the classified nature of them for a specific mission; but suffice to say they are essentially checklists for when you can employ certain weapon systems.

So that carrier battle group has the luxury of saying to a bogey out there, if they turn this many degrees towards our carrier battle group, increases speed to above 400 naughts, decreases altitude below this, that signals hostile intent, if not a hostile overt act, and we can splash him; vice the Marine at the tip of the spear, has mach one eyeball to do threat assessments and has about a second or less to make those decisions under the high stress they would encounter.

So how must we train them, these young Marines, to make those decisions? The training modalities are a lot more relevant to the law enforcement setting. And we have to teach them to understand the dynamics and the robust nature of the law as it applies to the situation.

Real quickly, I want to touch upon one Supreme Court case that I believe is relevant to assessing reasonableness. As by way of background, Grant v. Connor, it's a 1989 case -- and I believe the defense has the full cites in their submissions to you -- is the touched on case that Supreme Court uses to assess reasonableness of the use of force by law enforcement officers, but also by the way, due to a 2001 case called Sausia v. Cads [ph]. The Supreme Court applied this analysis to a Title 10 member in the performance in the line of duty in a use-of-force situation.

So we have to look at the constitutional law as a left and right boundary marker for assessing reasonableness. And there is a whole host of case law out there that does that for any myriad of situations.

If I could, Your Honor, just ask you to look at this particular quote out of Grant v. Conner, because this is really the one that gets down to what we have to make assessments under using deadly force other than on a designated hostile.

IO: Let's take a recess.

The Article 32 investigation recessed at 1509, 12 June 2007.

The Article 32 investigation was called to order at 1522, 12 June 2007.

IO: This hearing will come to order. I have read the slide you asked me to read, Colonel.

I will let you pick it up from there.

WIT[Col Bolgiano]: Thank you, Your Honor. An interesting thing about this, this is the same Supreme Court. It is never shy about otherwise telling law enforcement officers the limits of their authorities. If we just look at Miranda as an example, some of it fits very neatly on an ROE card. But the Supreme Court and many subordinate courts recognize that law cannot drive fact, fact should drive law. That is why each of these assessments is done in this manner.

Long before the Supreme Court applied the 4th Amendment analysis under Grant v. Connor and Tennessee v. Garner, it applied the common law principle here. This is just one example of the myriad of cases applying the common law concept of this principle. And it kind of begs the question, in my view, why we wouldn't demand any type of task reflex in the presence of something like an AK-47?

Now the law --

IO: I am not sure anyone is demanding the task reflection in the presence of an AK-47. Where did you get that line from?

WIT[Col Bolgiano]: What I am getting at from guidance, it's sometimes mistakenly given to people to assess hostile intent. They say if people point or shoot their weapon system at you, it's too late.

IO: So you are saying, from things you found in the field, some people are given this bad advice?

WIT[Col Bolgiano]: That's correct.

IO: I had never heard that as being part of rules of engagement or law of war.

WIT[Col Bolgiano]: Often time, it is given as bad gauge on how to assess threats and pointing or shooting their weapon system is too late in my view.

IO: I understand. I just want to make sure it wasn't – you thought doctrine is what we were teaching Marines.

WIT[Col Bolgiano]: No, sir, not at all. Going into the dynamics of encounter, which most of the Supreme Court and subordinate lower federal courts case law is based upon is these dynamics. I have broken it down into three points which I think are very important for a trainer and certainly young Marines to understand. That is action versus reaction, wound ballistics. Bad guys have already preprogrammed their OODA Loop.

Colonel John Boyd, Air Force fighter pilot, developed this theory that for every human action, there is an observation, orientation, decision point before the action. He called that the OODA.

Bad guys have already preprogrammed their OODA Loop. They have already determined, observed, oriented themselves, decided, and they are just waiting to hit the IED or shoot the weapon system. Good guys have a number of decisions to go through.

First of all, if we're not training our young forces on threat recognition, they fumble before kickoff. They are going to get shot in the face, and game over. But even if they recognize the threat, they are still not there yet because they have to choose a level of responses proportional to the threat. I am not using proportional in the sense of a LOAC term. But I am using it in the sense of coming into a situation and seeing a threat out there, you recognize it, but it may require a less than lethal response.

We're still not there yet because even if a brain recognizes the threat, chooses a level of response, the brain housing group has to tell the body to implement it. And we did studies in law enforcement where we took seasoned cops, put them on a 15 yard line in a range, told them the threat is a steel target. Two, your appropriate level of response is deadly force. So we took away the two levels of response decision points that they have and told them at the starting sound, you will engage this steel target. The average response time is over a second and a half. And these were cops that were already familiar with the scenario, they knew the threat was coming, and they had to respond to it.

Action always beats reaction. Now, we have to understand also that the decision making is negatively impacted by certain incidents that are mostly sudden and unexpected. I like to tell students that if I am going to a gun fight and I know there's going to be guns there, I am bringing something more than an M-9 or an M-4 or SAW. I am going to call Mr. Abrams for an A-10 or something like that.

So these situations that are being faced by the Marines, either small-arms fire, after an IED attack, or small-arms fire attack on them, are always sudden and unexpected. So that negatively impacts the Marine's decision-making time. The shooters and targets aren't sitting still like most of the targets we practice on, limited target opportunities, obstructive vantage points. This is perhaps the most key point: This is all occurring under the life and death stress of sudden close personnel violence.

That leads to the second dynamic of the Taki [ph] Psyche effect. That is how our bodies react due to vaso constriction and the adrenaline dump.

Most people are familiar with the concept of the adrenaline dump, the increased heart rate. They are not familiar with the impact on our brain housing group and also physiologically what happens due to vasoconstriction.

Our bodies, when hit by this fear-for-your-life syndrome, will compress the capillaries in our extremities without us even knowing it and force blood to our central cortex. It does that to protect our vital organs and oxygenate our brain. It has some disastrous impacts though on our abilities to perform under combat. First, we lose our fine motor skills; secondly, our cognitive processing deteriorates.

Colonel Dave Grossman, who is the author of a book called On Combat. He also wrote a best seller called On Killing concerning the dynamics of killing, both in combat and here in the United States and school shootings. He looked at this process. He describes it as this: Under a Taki Psyche effect, our midbrain tries to take over from our forebrain. Our midbrain is the portion of our brain that controls our heart rate, our breathing, our blinking of our eyes, all the things we don't think about. And when this adrenaline dump and mentally educed fear reaction dumps in on that, the midbrain, or the puffy brain, crashes through the screen and tries to take over for our forebrain, which is our cognitive thought hold portion of our brain.

This is exactly what happened in that first video I played. If that officer -- who was killed by the way in that engagement -- if miraculously could appear in this courtroom and watch the video of himself being shot, he would be saying, which I suspect most of us in the room were, Why isn't he shooting that guy? The reason why is his cognitive process, he went into a skipping record syndrome.

We have 30 years of case studies on law enforcement officers killed or assaulted in the line of duty. And a very large minority of them die yelling, Drop the gun, or calling for help on the radio which is four minutes to address a threat that is less than a second away.

This is exactly what's happening. Auditory exclusion comes in.

In all the times I fired my weapon in anger, I never heard a discharge. Winston Churchill noticed this and wrote about it and participated in the Battle of Omdurman. 30 years later, in writing one of his many memoirs, said that despite the crash of artillery, the rattle of musketry, the thunder of horse hoof beats, and all the sounds attended to a battlefield, it was like watching a silent movie. Time-space distortion comes in. It can disastrously impact the young Marine's ability to assess threats in a realistic, normal, linear approach that we take in the clear vision of 20-20 hindsight and putting together what happened at a crime scene, loss of peripheral vision, tunnel vision.

You see special mission units and SWAT guys always training doing scan. They are doing the Charlie Chaplin walk coming into a building to scan. They are scanning for situational awareness. But they know that that shakes them out of the tunnel vision impact of the Taki Psyche effect.

The last one I don't need to talk about, but it happens. This is the really good news. This is realistic training that can attenuate these effects. Colonel Grossman, this is right out of his book on combat. It tends to engage and set out on a sliding scale -- now, I want to caveat this scale as this is not a definitive benchmark. These hormonal induced heart rates increases vary from person to person. They vary based on level of experience. And the good news is through constant repetitive training or exposure to these types of incidents, we can reduce the negative effects of the hormonal induced heart rate increase, including the cognitive disassociation that occurs up in that condition block level. So there is some good news on the training side of this. But it is very important to understand how all of this can impact the individual's decision making ability cognitively under a high stress threat environment.

Lastly is ballistics. I touched upon this earlier when taught my triangle piece. The bullets work in a number of different ways. Psychologically, we're programmed on expectations. We were all raised playing cowboys and Indians or army. And we expect when you get shot, you go down. But psychologically -- and people who have been in combat settings -- that Seal I mentioned earlier -- and certainly Marines who have been involved in extensive fire fights have learned the bad guys don't go down or stay down all the time you shoot them.

That's why it is very important for them to understand to apply the amount of force to stop the threat. And that's why the number of rounds fired is rarely indicia for the reasonableness of the force used.

We have to understand the bullets and how they work physically. And ultimately what we want to do is disrupt the brain function. It is no intent to kill.

It is to stop the threat from doing what they are doing. So the intent is the disruption of the brain through a head shot, upper cervical spine shot, or shots that will cause blood loss to 25 to 40 percent or higher.

IO: You lost me there when you said, "there is no intent to kill." If you hit someone in their artery or their head, what do you expect is going to happen?

WIT[Col Bolgiano]: The expectation is they may, in fact, die. But the reality is that when engaging individuals, most people are trying to stop the threat, perceived threat, perceived hostile act, or demonstrated hostile intent.

Either through training or through experience, savvy operators will understand that the application of force to the center mass or upper cervical spine or brain is the quickest way to shut down that threat.

IO: I guess I am trying to reconcile with my own training and my own belief that -- while it doesn't always happen, we believe in one shot, one kill. We don't talk about wounding or stopping the enemy from coming. We talk about killing them.

WIT[Col Bolgiano]: I think that is a huge misnomer. I understand the intent of it. And that is accurate fire. Marines are the best riflemen in our services.

IO: I am not saying every shot is going to kill. How do you reconcile what you are saying with a doctrine that I believe the Marine Corps has is you don't aim your weapon unless you are trying to kill someone? You squeeze off the trigger because you are going to kill them, not because you want to deter them from coming towards you or stop their movement. You want to kill them.

WIT[Col Bolgiano]: I think you reconcile -- I think that -- I don't mean to disrespect -- I think that is a bit of semantics in the sense that when you say, one shot, one kill, when in fact what you are saying is aim precise fire to engage a threat and stopping that threat. Whether they live or die is quite frankly immaterial to the assessment of whether you stop the threat or not. That is all I am suggesting. I agree with you, however, on the principle that when you discharge your weapon down range at a human target, be prepared for the consequences that it in fact may cause death.

IO: I guess my question was -- I am reconciling against -- I don't know if this is accurate -- sometimes you think police officers will shoot in the leg because they just want to stop someone as opposed to, we don't teach doctrine to shoot in the leg.

WIT[Col Bolgiano]: And neither does the FBI or any federal law enforcement, because understanding how bullets work --the only predictable thing about how a round will act inside a human body it is totally unpredictable. That is why under high stress shooting situations, we train to shoot center mass because that is a bigger target. It is a nice thought to think that a law enforcement officer can shoot the gun out of somebody's hand or their knee to disable them. But it is practically impossible, so much so to the point that the FBI is prohibited from warning shots or shooting to wound.

When you engage a subject with a firearm, it is to stop the threat. And generally, that will end up in a severely incapacitating or fatal situation. That also touches upon some misconceptions, I think, about the effect or concept of using minimal force. If somebody presents imminent threat or death or serious bodily injury, every combat individual I've spoken with involved in the same, advocates overwhelming fire power to stop that threat. And that is perfectly lawful under any ROE, CDE analysis. I won't, due to the time constraints, go into the perceptions of 5.56 rounds --

IO: You have no time constraints.

WIT[Col Bolgiano]: One of the things that came out of that Afghanistan experience with the CO and some other special forces members in Afghanistan was the perceived problems with the 5.56 round. That is due to two things.

First of all, the round itself was developed in the late '50s and early 1960s during the introductions of a standard weapon system. And it was designed to be part of a 20 inch plus barrel at a high velocity to engage Warsaw crews at 400 meters or out.

What has happened in the meantime is the weapon systems barrel is cut down, sometimes below 14 inches, even down to 10 inches in some special mission units, and it's lost that high velocity. What effect does that have?

There is a lot of misconceptions about the 5.56 round. One of them is that it tumbles. A 5.56 round doesn't tumble. It comes out at a high RPM, like the football spiral. When it enters the body, it was designed to yaw, which means back end over front end after about 10 to 12 inches of penetration, hopefully to create a larger wound channel, creating more blood loss.

When you shoot it into thin folks, the effect was you weren't getting that depth or penetration. That is what was happening with the Seal member. He was getting lots of shots. It was creating needle wounds where you weren't getting any yawing. And oh, by the way, because he cut the barrel down, he lost velocity on his round. He wasn't getting fragmentation. It was designed also to fragment at high velocities. So you will essentially end up with needle holes. And unless you strike a hard organ or the heart, you are not going to have immediate incapacitation.

So, again, the concept of when we're telling people to use minimum force or shoot and assess or proportional force, it really makes no tactical sense when engaging with small-arms fire. Again, it is something that is learned by the hard lessons in life. But it is important when we're trying to provide accurate rules for use of force guidance.

One interesting piece came out when I was providing this command legal adviser for Combined Forces Special Operations Component Command in OIF-I, we received a call from one of our special forces officers that had engaged an unarmed Iraqi. What had happened is the message traffic we got down to our headquarters said, How come your special forces soldiers are shooting unarmed Iraqis in acts of road rage? That was essentially how it was reported and how Iraqis in the vicinity reported it.

I went up and conducted an informal command-directed inquiry, a JAGMAN type investigation, on it for my boss. And what we discerned was that it was a special forces officer was leading a two-vehicle convoy and noticed three Iraqis -- this is right in the green zone in Iraq before it became known as the green zone May 9, 2003 -- and noticed that three Iraqi civilian vehicles did a quick U-turn and started doing box-in maneuvers, attempting to get in front of the convoy. This particular special forces major recognized this. They were showing their weapons, pointing their weapons, blowing horns, and being ignored. The lead Iraqi vehicle got in front of the convoy and slowed down very quickly, at which point the special forces major raised his weapon system and shot the driver in the head killing him.

That situation, as perceived by the witnesses and witness statements, was widely different from what the individual shooter, the special forces officer, brought to the scene from what he knew from combat experience from what he knew of observing potential vehicular ambushes on a convoy. The perceptions and discernment of hostile intent was all that mattered in our 15-6 or CDI review of the incident.

I bring that up because I think it is important to realize that if we do that constantly, in law enforcement as well, that the reports of the press sometimes, when talking to family members of subjects who were shot by police, their observations are often wildly disparate from either the facts of what happened or the perceptions of the individual shooter. I think that is extremely relevant in this case.

CC[Mr. Myers]: Colonel, I am now going to start asking you specific questions.

Questions by Mr. Myers continued:

Q. I would like to first discuss with you -- you noted that there are indications of collateral damage assessment, which I think is euphemistically -- has been used as a term to describe the death of potential noncombatants. Is that a fair way of saying things?

A. Yes, sir.

Q. Do you believe there is a disparity that exists between the standards imposed upon ground combat troops versus the standards imposed upon those who engage in air warfare?

A. Yes, there is. If I may explain. If we're going to apply the rules of engagement in place at the time that a Marine makes a decision to use force against either a declared hostile or somebody demonstrating hostile intent, we then have to look at the overarching guidance given concerning ROE and CDE methodology. Without getting into classified portions --

Q. Please don't.

A. I won't. I relish my clearance. At certain points during a conflict, targeting cells at higher headquarters will receive information that there is a designated hostile at grid coordinate X. And those targeting cells can then make the decision to target that designated hostile or hostile act or combatant with a certain weapon system. If that weapon system, be it a 2000-pound JDAM, indirect fire, whatever the weapon system is, that targeting cell performs a collateral damage estimate methodology where they will look at what we call a bug splat analysis where we determine the effective blast radius of the weapon system, the circular area of probability of what it can hit. And those targeteers will determine -- especially if it is in an urban area -- what are the chances or numbers of potential civilian casualties that may result from targeting that individual. And the ROE and CDE methodology in place will allow certain levels of command to make that call and launch that weapon system on that particular target knowing that there is a potential at least for X number of civilian casualties.

Q. Let me just stop you there. Are you saying to us that it is the policy of the United States of America to take into account the noncombatant, and perhaps innocent civilians, will be killed in a kinetic strike and that that is an acceptable use of our forces in a foreign country?

A. No, sir. I wouldn't characterize it that way. If I may explain a little further. I think it is an attempt b your leadership to attenuate the damage to civilians and take some responsibility for when they fire a high impact kinetic strike into a civilian area, they want to make darn sure they limit to the degree possible potential civilian casualties from that engagement. So I think --

Q. But sometimes civilian die?

A. Sometimes civilians die.

Q. That means that?

A. Yes, sir.

Q. And it means that, therefore, does it not?

A. Yes.

Q. That as a matter of policy, we are willing to take the lives of civilians under certain tactical circumstances as a matter of theory?

A. As a matter of theory? I feel very uncomfortable talking about a matter of policy because that is echelons above my reality.

Q. Very well. In a circumstance where we have a young Marine facing small-arms fire coming from a house like house one or house two, if these Marines had reported that there was small-arms fire coming from those houses and called in air support and a 500-pound bomb had been dropped on house one or house two and women and children had been killed, after a detached assessment was made, in your professional judgment, and based upon your demonstrated expertise, what result?

A. Solatia payments.

Q. But no murder charges?

A. No. And that's the very interesting thing. Even under the ROE construct, if you have troops in contact and a close air support mission is flown in support of those troops in contact, one does not even need to do a CDE methodology.

Q. So I am going to refer you, if I may, Your Honor, refer you to Joint Publication 2-01.1, Joint Tactics, Techniques, and Procedures for Intelligence Support to Targeting, Appendix G, 9 Jan 2003, and found on web sitewww.fas.org/irp/doddir/dod/jp2_01_01.pdf.

IO: Do you have that document, or are you asking me to go look it up?

CC[Mr. Myers]: I will provide it to you.

IO: Why don't you provide it to me. I don't think I wrote down what you just said.

CC[Mr. Myers]: Somehow I doubted it. I just wanted to get it on the record.

IO: I would like you to provide it to me and make it another one of your exhibits.

CC[Mr. Myers]: Very well. I will be happy to do that.

Questions by Mr. Myers continued:

Q. So is there a double standard as a matter of the discharge of its foreign policy responsibilities between those who fly and those who pound the ground, vis-a-vis, collateral damage?

A. Sir, it is going to require a little bit more than ayes-or-no answer, if I may.

Q. Please.

A. If one believes or says that those young Marines were operating under the same ROE construct as the targeteers and the people flying the aircraft, then by all means, there is a double standard. The question though that I think legally is just as important, if we're not applying those same standards to the young Marines, then what standard are we --

Q. Let me jump to the next question. You don't have to go beyond that with me. The IO has been very very solicitous of us, and we appreciate it. We're going to burden him a little more. The law, as is currently constructed, is the law evolved from civilian circumstances and applied to the military in this sense, is it not?

A. That is correct.

Q. In the sense that to defend against charges of murder and the use of deadly force, one of the defenses that that can be interposed is self-defense. Isn't that correct?

A. And I do not believe that the standard self-defense as an affirmative defense concept would apply to a line-of-duty shooting determination.

Q. Now, if we're in a court-martial and we're bound by the Uniform Code of Military Justice and the Manual for Courts-Martial, do I not, as counsel, have to suggest, if the facts present themselves, that self-defense is a defense in this matter?

A. It is certainly one of them, sir.

Q. But isn't every combat soldier or Marine, while engaged in combat, in fear of death or grievous bodily harm?

A. I can't answer that, sir. If I may, the concern legally is that we're treating use of force decisions in the line of duty the same way we would be a mutual fray type self-defense. And they are completely different. That is where all the case law concerning line-of-duty shooting determinations that emanate from the Supreme Court to our federal officers and Title 10 forces give a much more robust protection indifference to decisions to use deadly force in such self-defense situations.

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

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

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

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

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

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

Q. Does the Uniform Code of Military Justice or any case associated with any of the inferior courts, or with the Court of Appeals for the Armed Forces, applied this doctrine to the military?

A. To my knowledge, no. However, I would say this: This construct and concept and descriptions from our Supreme Court on defining reasonable use of force is a relatively modern concept. Certainly, it's come about since Grant v. Connor. And Sausia v. Cads is a 2001 case. So I never heard of it being applied. But in my view, that does not mean it should not be applied.

Q. Well, there is always a place to start, maybe here. I would like to ask you some specifics based upon your professional judgment with respect to the conduct of our client, Lance Corporal Sharratt. You have had an opportunity to read our entire file on the exhibits that we submitted to the IO, have you not?

A. Yes, sir.

Q. Just a very very few things. You have talked about the subjective intent of the Iraqis in that room, and you said their subjective intent was of no importance.

A. No importance to the decision or assessing the reasonableness of Lance Corporal Sharratt's decision to use deadly force. It may, of course, be relevant to assessing motive to lie or other factors. But to the specific question as to the reasonableness, absolutely not relevant, sir.

Q. You use the term "pre-assaultive behaviors." Based upon what you've read, were there any pre-assaultive behaviors that you observed in this case?

A. Yes, sir.

Q. What were they?

A. First and foremost --

IO: You didn't observe anything. You weren't there. Right?

WIT[Col Bolgiano]: I observed in the case file.

IO: Just what you read? I want to make sure.

WIT[Col Bolgiano]: Yes, sir.

Questions by Mr. Myers:

Q. My mistake.

A. Based upon my reading of the case file, I think the first and foremost pre-assaultive behavior was the initial IED blast event, for a number of reasons, and the tactics, techniques, and procedures that have developed over the past few years, one of the foremost is follow-on small-arms fire, ground assault on convoys that are hit, because they know our offensive tactics, technique, and procedures; and they will often follow that on with sustained small-arms fire.

Q. So in other words, it is fair to say that the pre-assault problems which would have alerted this young man to the fact that he was in combat, first the IED, secondly the small-arms fire?

A. Yes, sir.

Q. And what about the fact that he was briefed with the squad on the fact that Haditha was an inherently hostile place and that there had been multiple IEDs discovered and going off over time?

A. Location is a large part of assessing pre-assault behaviors. As I indicated before, presence of weapon is also relevant -- a lot more relevant in Iraq, especially in the kill zone or the hot zones of Iraq, more so than it would be in Afghanistan or other portions of Iraq.

Q. Tell me this: With respect to the manner in which Lance Corporal Sharratt described his taking out the first Iraqi and then going through the objective, did you see that as an appropriate tactic under these circumstances?

A. Let me answer that in two ways, sir. Tactics, whether or not they were the most efficacious or appropriate under the circumstances has no bearing on my opinion. If I may give a quick example from the Drug Enforcement Administration.

We had two agents that were approaching a subject in a vehicle. They were going to do take down, an arrest of a felony drug subject. One agent approached from the right-hand side of the vehicle with his pistol yelling to the subject, Get out of the car, Get out of the car. Another agent approached from the front of the vehicle with a submachine gun yelling, Show me your hands, Show me your hands. This placed the poor devil in the car in a Hobson's choice. He listened to the individual agent on the right, reached down to unbuckle his seat belt.

The agent in the front of the vehicle lit him up with the submachine gun, killing him. This being America, it ended up in a lawsuit against the agency. And the summary judgment, the court looked at this and said this time and time again, Poor tactics never impact on the reasonableness of the decision to shoot. So the agent's decision to shoot was based upon his perceptions at the time he made that decision.

So let's switch back to your question. Could this squad, if it had different leadership, had done things tactically differently -- after they hit houses one and two, could they have secured the area, done a more restrictive search type operation? Yes. And may have had different results for those four individuals in house number four.

But getting to the essence of your question, that is at the time they went into that house and confronted with armed military age males near contemporaneously in time to an IED or small-arms fire attack, the decisions of the young Marine entering that house to engage those four military age males was entirely reasonable.

CC[Mr. Myers]: Very well. I have now completed with my direct testimony. I would simply ask you respectfully that if you find it in your conscience to do so, that you make special findings with regard to the status of the law in this area and perhaps recommend that an adoption of the Sausia doctrine be applied to courts-martial. I know it's a long road, but it has to begin somewhere. And we would ask that you begin it. Thank you.

IO: In regard to your request -- again, I know it is difficult for counsel mixing in because I am a residing judge. But I don't make special findings, but I can make recommendations for something that needs to be preserved for court. I will invite the -- because I did not see it, although it could be hidden in these documents, those two Supreme Court cases that were discussed, Grant and Sausia, to provide me a copy to save me the effort of having to go search Lexis myself. I would ask you to do that before we finish this hearing. I will make comments on my recommendations as to your application. But certainly, any recommendation I have has no bearing on law.

CC[Mr. Myers]: I understand that.

IO: Major Erickson.

TC[Maj Erickson]: Yes, sir.

CROSS-EXAMINATION

Questions by Major Erickson:

Q. Lieutenant Colonel Bolgiano, that was a very riveting period of testimony. There is no doubt that you are an expert in your field. Sir, are you here speaking on Air Force policy?

A. Absolutely not.

Q. Are you authorized to speak on Air Force policy?

A. No. I wouldn't presume to. I am not a member of the aero staff. I am here as a defense expert in the case of United States versus Sharratt.

Q. So you are not speaking on any Department of Defense agency on their behalf or authorized to speak on their behalf?

A. I am authorized under orders to be here as a defense expert. But I am in no way would I presume to be speaking as a matter of policy for the Department of Defense or the department of the Air Force. That is absolutely correct.

Q. Thank you, sir. You mentioned it in your direct. I just wanted to make sure the record was clear on the fact.

A. I hope I was clear on my direct on that particular issue.

Q. Yes, sir. Are you familiar with the fact that the cornerstone of our ROE is the inherent right to self-defense for our Marines out there in combat?

A. Absolutely.

Q. Now, when defense counsel was up here, you went through an exchange on a double standard -- before we get to that exchange, I do want to ask you one thing. Was this brief prepared specifically for your testimony here today?

A. It is a modification of one that is part of our ROE, RUF tactical training seminar. It is a much longer three-hour brief. But parts of it were prepared.

Q. So it is fair to say it is tailored for testimony?

A. That is correct.

Q. I noticed in here you have the one Chairman Joint Chief of Staff Instruction reference and two Supreme Court case references, but there is no DoD instruction or Air Force instruction or SECNAV instruction or Marine Corps order referenced in this?

A. No. Most of those -- I will say that most ROE, classified or unclassified flow from the standing rules of engagement. So I thought it would be redundant to go through that.

Q. That is fair, sir. I am just making sure. Now, you and counsel had an exchange back and forth on this double standard between the targeteer and our ground pounders, our infantry. One of the -- I don't want to call it a vignette, but one double standards is this collateral damage estimate or collateral damage theory that you presented in your testimony. Do you remember that, sir?

A. Yes, I do.

Q. What I would ask is, your ultimate opinion on that -- I don't want to mislead you -- but your ultimate opinion on that is there does seem to be a double standard between the targeters and the infantry?

A. If I may.

Q. Sure, absolutely.

A. There is a double standard if we treat the young Marine rifle squad as a weapon system.

Q. Sure.

A. They have orders to go in affect X mission. And in affecting X mission against a hostile actor, there are civilian casualties. Again, it comes back to my point is, is it would wanting to use a blunt force instrument for precision surgery, don't be surprised when that blunt force instrument caused trauma to the body. Just as similarly under that, if you drop a 500-pound bomb and you have civilian casualties, you are not going to court-martial the targeteer or the pilot or that command structure a thousand miles away. It seems unconscionable in my view to do that and prosecute a Marine through the same results. Bad results don't mean bad decisions is all I'm saying.

Q. Yes, sir. I understand that. I ask you if that targeteer a thousand miles away ordered the removal of women and children from the area; and the men, separated them, and took the men back into that building and dropped that 500-pound bomb knowing the men were in there, would that change your opinion?

A. Absolutely.

Q. Now, sir, you know that Lance Corporal Sharratt is actually charged with UCMJ violations, common law murder. Is that correct?

A. That's Correct.

Q. He is not charged with a LOAC violation or an ROE violation.

A. Yes, sir.

Q. Again, I don't want to put words in your mouth. The ROEs simplest form of it, which is inherent right to self-defense?

A. Yes.

Q. And I think every Marine I hope understands or at least has a rudimentary understanding of that inherent right to self-defense and also the right to defend Marines in his squad. That is -- you are familiar with that ROE?

A. Absolutely, collective self-defense.

Q. When you say that it self-defense for someone to enter a house in Iraq under those conditions that was laid out for you in direct, and you have an Iraqi military male pointing an AK-47 at you, that fits into that self-defense, does it not?

A. Clearly.

Q. We went into this pre-assaultive behaviors. You said you read through the defense file. Did you read everything in the defense file or just the submissions that they did for the IO here today?

A. I would have to go back and pull my case file, but I read most of the statements of -- I read the statements of all the Marines. I believe I read most of the translated statements of the alleged victims in this case, as well as some of the re-instructions, and certainly the defense submissions in this case.

Q. Sir, we had a very riveting video here that you played for us with the young police officer. And we didn't see the whole thing. But you have a high degree of knowledge of that particular video. How long was that particular video?

A. That particular video, the clip that was played, was approximately four minutes.

Q. How long did it take for that incident to transpire? Do you have a time frame?

A. The entire thing, until the officer bled out and died was over 11 minutes. I didn't play that for purposes of time.

Q. Absolutely, sir. One of the very first things you said of a pre-assaultive behavior was the contemporaneous or close proximity of the IED explosion.

A. That is correct.

Q. Were you able to form a time line of all the incidents that happened that morning?

A. A rough time line from the blast until the subsequent events of the houses.

Q. So you are aware that house four took place over two hours after?

A. Yes.

Q. And I am also pretty sure you are aware that there is a lot of competing testimony with regards to whether or not there was small arms fire throughout the day in that area.

A. Yes.

CC[Mr. Myers]: We have nothing based on those questions, Your Honor.

TC[Maj Erickson]: I wasn't done yet, sir.

CC[Mr. Myers]: Sorry.

TC[Maj Erickson]: That's okay.

Questions by Major Erickson continued:

Q. Sir, if you were to believe the version of Lance Corporal Sharratt, did he apply the existing ROEs properly in that house?

A. Yes, he did.

Q. If you were to believe the Iraqis' version of what happened that day in house three and four, did he properly apply the rules of engagement?

A. Believe factually verbatim that's what happened?

Q. Sure.

A. I would not believe he followed the rules of engagement.

TC[Maj Erickson]: Thank you, sir.

IO: Major Erickson, do me a favor of providing the Colonel a copy of Investigative Exhibit 44. I have a couple of questions. It is the statement of Lance Corporal Sharratt given on 19 March. What I would like you to do is turn to the second page, really the beginning of the statement, the fifth paragraph.

EXAMINATION BY THE INVESTIGATING OFFICER

Questions by the investigating officer:

Q. Based on your presentation and your testimony, that paragraph about identifying hostile persons is incomplete, is that correct, where it says that he was trained to identify hostile persons if they were showing hostile intent, had a weapon, or if you feel they pose a threat to you and other Marines?

A. That is a layman's description of what I tried to describe under the threat triangle.

Q. The second part is, how about if an area is declared that we are taking hostile fire from, and basically anyone in that area could be deemed as enemy and shot, would that be a misunderstanding of the rules of engagement, use of force, as you describe them?

A. I think it could be misapplied.

Q. I am just asking because when one looks at it, it seems like -- at least from this statement, it is an understanding that if you are under fire, then everyone can be killed who happens to be in the area. It seems a little outside of what you were testifying. I just want to make sure that is not synonymous with what you were saying.

A. That is a great deal of the problem is getting fidelity. That's why I am not a big fan of word-type training when you go through the training modalities. I don't mean that disrespectfully on the intent. The intent was absolutely spot on in what was trying to be trained.

But the only real way to train clearly so it is applied rationally under high stress situations is to do high stress situational training exercises of the type special missions units do routinely.

Q. So even in a hostile fire area, under these circumstances, you are not entitled to necessarily kill everyone who's there?

A. No. It is going to be based on what you observed at thetime you entered the threshold or entered into the engagement zone.

Q. And then if you jump to paragraph 7, you describe positive identification as being used in an area whereyou have identified enemy; for instance, an enemy that's wearing the uniform, and essentially you could kill them if the