by Nathaniel R. Helms

“What happened is less important than what you do in response to the incident.” — LtCol Christopher I. Woodbridge, Commanding Officer, 1st Battalion, 7th Marines from August 2003 through June 2005, commenting on his Operation Iraqi Freedom experiencein "Law of War, Rules of Engagement, and Escalation of Force Guide”.

The remarkable success of the Al Qaeda engineered debacle at Haditha in December 2005 to diminish the effectiveness of its fiercest nemesis is illustrated in two documents reserved for “Official Use Only” and obtained by Defend Our Marines from flummoxed Marines.

The documents detail the “new" thinking of the Marine Corps high command in response to unrelenting allegations of war crimes in the international court of public opinion. Their very creation demonstrates that the impact of Al Qaeda’s propaganda coups at Haditha and elsewhere was so great it drove the nation’s premier fighting force to change both how it thinks and how it wages war.

The papers, titled “The High Profile Court-Martial: Lessons Learned from Ribbon Creek to Vietnam” and “Law of War, Rules of Engagement, and Escalation of Force Guide,” prepared in May and September 2007 respectively, are aimed at countering previous Marine combat policies that relied on maneuver and firepower to overcome Al Qaeda-led resistance in Iraq. The “new” thinking is exemplified by the recently adopted maxim, “First, Do No Harm. You are part of the world’s most feared and trusted force. Engage your brain before you engage your weapon. For the sake of our country and our corps, carry out your mission and keep your honor clean.”

The papers, written in May and September, 2007 respectively, shows just how much damage the Marine Corps sustained when two Iraqi counter-intelligence operatives successfully duped the receptive Western press into believing that a squad of Marines had perpetrated and then covered up a massacre. Instead of rebutting the charges, the Marine Corps brass has apparently elected to bow to both public and Pentagon pressure to restrain its forces by imposing more restrictive rules of engagement and harsher penalties on Marines who fail to heed them. Meanwhile, the increasing propensity to use attack jets and helicopters to reduce enemy resistance provides a perplexing counterpoint.

“The High Profile Court-Martial…” report is a 13-page lesson from the Marine Corps Center for Lessons Learned (MCCLL) on what senior officers need to know to prepare for high-profile court-martials. It is filled with anecdotal accounts, specific examples, and useful tips on what senior Marine Corps officers should know and do when entangled in war crimes allegations that have potentially damaging public and command implications.

Lessons learned: Ribbon Creek

According to the prologue, written by Colonel M. E. Dunard, USMCR, the Director of  the Marine Corps Center for Lessons Learned, “The MCCLL library of lessons and observations are not sole source or authoritative, but are intended as a means of informing the decision making process and effecting needed changes in our institution.”

As an example of what shouldn’t happen, the authors pointed to the so-called “Ribbon Creek” incident, a reference to the celebrated 1956 prosecution of a drunken Marine Corps Drill Instructor named Staff Sergeant Matthew McKeon who drowned six of his recruits while marching them at night through a rain-swollen stream on Parris Island. He retained the pro bono counsel of a clever New York attorney named Emile Zola Berman to mount his defense.

“The senior Marine generals feared the outcome of the court-martial would be to place the Corps itself on trial. These Marine worries worked to Berman’s advantage in his dealings with General [Commandant Randolph McCall] Pate. Ultimately, they helped Berman separate Pate from his advisers and brought the Commandant into the defense counsel’s camp, where he agreed to testify for the accused at the court-martial.”

The wily defense attorney also managed to entice retired Marine Corps legend Lt. Gen Lewis B. “Chesty” Puller to testify on his client’s behalf. As a result of Berman’s unanticipated tactics, when Gen. Pate entered the courtroom, he “walked over to SSgt McKeon and shook his hand, then said ‘I am here to help you in every legal way, …Good luck to you boy.’”

After testifying the next day “Chesty” Puller was quoted as saying “I think from the testimony of General Pate yesterday he regrets that the Marine Corps ever ordered this man to be tried.”

Ultimately SSgt McKeon was convicted of negligent manslaughter and drinking on duty and was sentenced to nine months, of which he actually served 12 days. Even so, it wasn’t a complete disaster for the Marine Corps.

“In the aftermath of the Ribbon Creek deaths, the Marine Corps successfully avoided a Congressional investigation that would have threatened the character of recruit training and obtained the opportunity to implement reforms on its own terms,” according to the report.

Lessons learned: The court martial of Lt Calley

Ironically, the authors use the example of the court-martial of “My Lai Massacre” defendant 1st Lt. William Calley as another example of what happens when people in the military are accused of murdering civilians during combat operations. Calley’s example explores the government’s case for prosecution and the strategy employed by his defense team, also taking into account the public’s unexpected sympathetic reaction to his prosecution.

“While the jury rejected the various defense themes by convicting Calley, the scapegoat theme [engendered by the uninformed public] would find widespread acceptance in the massive public outcry that followed Calley’s conviction.”

One result was that Calley received a life sentence, of which he served 1,230 days, or 56 days for each Vietnamese civilian he was convicted of killing, the report concludes.

"First, Do No Harm"

From the “Law of War, Rules of Engagement, and Escalation of Force Guide":

"First, Do No Harm" – Counterinsurgency, MCWP 3-33.5

"The idea is to end each day with fewer enemies than when it started." –General David Petraeus, USA

Marines keep their honor clean. Doing the right thing must guide our conduct in all operations, at every level, and in every application of tactics, ROE, LOAC, and EOF procedures." –Lt Gen James Mattis, USMC

"Hip pocket" classes in the Law of War

To make sure that both commanders and Marines understand why they can expect to be charged with crimes for violating the ROE and the Law of Armed Conflict, the Multi-National Force-Iraq has prepared an illustrated 42-page “Law of War, Rules of Engagement, and Escalation of Force Guide.” Its purpose is to provide “…’hip pocket’ classes to instruct Marines in complying with the Law of War, rules of engagement and escalation of force, procedures, and acting in a manner consistent with ‘keep our honor clean’ and the Commandant of the Marine Corps direction to integrate ethical conduct into every aspect of operations.”

The text includes a discussion of the Law of War – also known as the Law of Land Warfare, the Rules of Engagement, including the definition ofPositive Identification (PID), a hostile act (HA), proportional response, imminent use of force, escalation of force, the treatment of detainees, protection of designated person and property, pursuit if self defense, and how to turn in Marines who violate the rules for prosecution. 

Also included in the instructions is a step by step explanation of  “the graduated steps for response to potential threats, expressed in terms of distance as the possible threat approaches friendly forces.” It certainly sounds simple enough at first glance!

•In the first step of evaluation, quickly evaluate and assess the perceived threat at a range of 300 meters.

•Next, between 300 meters and 200 meters gain attention of suspected vehicle or person by using visual signals, including flags and flares.

•In the third step, audible signals ought to be executed at 200 to 100 meters distant.

•Non-lethal and lethal measures of direct action should be applied between 100 and 0 meters from the target.

The lengthy prohibitions, rules of engagement and escalation of force seems to put a lot of pressure on the Marines who will have to make life and death decisions in the blink of an eye, often when they are stressed out, exhausted, dehydrated, hungry and scared. For instance, an average person running at full speed can cover 300 meters in 45 to 55 seconds depending on age, fitness, and encumbrances. An average shooter can put a three-round group in center mass at 300 meters without any trouble. In a vehicle traveling 60 miles-per hour (100 KPH), a driver can cover 300 meters distance in a few seconds. A Vehicle-Borne IED (VBIED) laden with explosives can easily kill an unprotected Marine at that distance. It makes for some tough choices, particularly when making the wrong one lands the Marine in jail.

To help Marines make the right choices in such perilous situations the instruction booklet offers 33 scenarios to help them make their decision to shoot or not to shoot as simple as possible. Below are a few of the training scenarios:

Scenario #1: Sniper Operations

Question: You are a sniper in the AO in a hidden position. You see a boat traveling from east to west 400m from your position. It stops near your position and Iraqis unload some bags. What do you do?

Answer: You have not seen any hostile intent or actions from the Iraqis. You should not engage. Continue to observe. Investigate activity.

Continued: You observe the same men in the boat but now they are armed with AK-47’s. Should you engage?

Answer: THINK! Possession of weapons by itself is not hostile intent. They could be for self defense. You should not engage but you can detain and question them.

Scenario #7: The Hospital

Question: You are conducting security and observation operations in North Ramadi. As you near the Ramadi General Hospital, you receive an unknown amount of small arms firing from the east, near one of the hospital buildings. What do you do?

Answer: Seek cover. Before returning fire, PID of the target needs to be established and proportionality/collateral damage should be assessed. If you can PID the source of the small arms fire, and if you can effectively counter the threat without excessive loss of life (civilians in the hospital) or damage to property (hospital and medical equipment), you may return fire.

Scenario #11: The Mosque

Question: You are part of a patrol in Ramadi. As your patrol rounds a street corner, you begin to take sporadic fire from a group of three individuals a block or two away. Your squad returns fire and pursues the enemy. After moving up the street, you see them dash into a nearby mosque. What can you do?

Answer: You may only fire into the mosque if the enemy continues to threaten you or your unit from their position inside the mosque. Keep in mind the need to use “proportional force” and the possibility of harming innocents who may already be in the mosque. Cordon/secure the area and notify higher headquarters. DO NOT ENTER THE MOSQUE. For troops-in-contact (as is the case here) an O-6 Commander [Colonel] (or higher) must approve entry into a mosque.

Scenario #12: Stationary Vehicle

Question: Your unit is conducting a mounted escort convoy southwest of Camp Al Asad traveling east on MSR Mobile, when you come upon a stationary blacked-out van in the eastbound lane facing westbound. As you approach, you observe possible movement inside the vehicle. What do you do?

Answer: A vehicle stopped in the middle of the road facing the wrong direction is definitely suspicious, but, by itself, does not equal HA [hostile action] or HI [hostile intent]. There are several possible reasons why this vehicle is stopped here (i.e. it is broken down, had an accident, abandoned, PVBIED, sniper, etc.). You should not engage the vehicle. Perhaps you can initiate escalation of force procedures to see how the vehicle reacts. If you suspect a VBIED, you should stop, cordon the area and call Explosive Ordnance Disposal.

Scenario # 22: The Taxi Driver

uestion: You are part of a vehicle mounted and dismounted security patrol involving an M1114 and ten persons in Rutbah. The patrol is crossing route Michigan (north to south), when a blue Chevy Caprice approaches moving east to west at a high rate of speed (estimated 60 mph).

The M1114 (Humvee) is on Michigan and the dismounts are split on the north and south sides of Michigan. The M1114 gunner begins EOF (Escalation of Force) by waving his hands at the vehicle while the driver maneuvers the M1114 to the south side of Michigan. The vehicle continues to approach. What do you do?

Answer: The fact that the Chevy Caprice is approaching does not, by itself, constitute the hostile act/hostile intent needed to authorize the use of deadly force. Continue with EOF measures. Perhaps hand waving is not visible enough to get the driver’s attention. When time and circumstances permit, wave flags or chem lights. If flags or chem lights have no effect, then progress to pyro, laser devices, pen flares, or flash bangs. If still no effect then progress to warning shots, disabling shots and finally kill shots if necessary.

Prepare for controversy

“Prepare for controversy after guilty verdicts in war crime prosecutions,” the authors of "The High Profile Court-Martial" warn. “Many of the same political factors that influenced public opinion about the war in Vietnam after the Calley verdict in 1971 can be expected to be encountered should there be guilty verdicts in war crime cases arising from the wars in Afghanistan and Iraq.”

With rules like these it is hard to imagine why!


Nathaniel R. HelmsDefend Our Marines

15 February 2008

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).