(See D. Bolgiano and J. Taylor, pp. 18-28, December 2017; D. Scott, pp. 8-9, January 2018; D. Dolan, J. Storm, M. Strickland, Bolgiano and Taylor, pp. 11, 84-85, February 2018; 10 February 2018 U.S. Naval Institute Blog)
This must be a joke, was my first reaction. The authors’ lack of historical perspective is astonishing. Arguing for unleashing the killing power of the U.S. military in its long war against terrorism, they think that wholesale killing of combatants and presumably civilians will bring the terrorists to their knees. The war we are engaged in now is not World War II. To employ the methods of conventional warfare in an unconventional war only serves to prolong that war with the attendant loss of blood and treasure. I submit this is exactly what has happened in the U.S. war on terrorism.
Nowhere do the authors mention Vietnam. We dropped more shells and bombs in that war than we did in World War II. We killed millions, both combatants and civilians. Admiral Michael Mullen is quoted in this article as saying in 2008, “We cannot kill our way to victory.” Had the civilian and military leaders heard that back in 1966-67, perhaps we would not have that long black wall in Washington, D.C., with the names of those who died trying to kill our way to victory.
One more thing. The article shows a photo of the “highway of death” with a caption explaining that “coalition forces used a heavy hand against retreating Iraqi forces moving north from Kuwait back into Iraq.” As anyone who was there can attest, and as the photo shows, this was not an army in retreat (note the absence of military vehicles in the picture) but a ragtag band of military looters headed for home. To call Operation Desert Storm a “bloody killing field” is far-fetched.
—David D. Bradley, Captain, U.S. Marine Corps, Vietnam; CWO USA Operation Desert Storm
The article arguing “Yes” to that proposition in the December 2017 issue, by two former paratroopers who were also legal counsel (Command Judge Advocates) for units engaged in operations in Iraq and Afghanistan, raises fundamental questions about the mission of the military services and the law that applies to command leadership. For the past several years, the U.S. Court of Appeals for the Federal Circuit, on which I serve, has hosted an annual program on the relationship of law to the military for senior officers from the Joint Advanced Warfare School of the Joint Forces Staff College.
The circuit judges and senior staff of our court who lead the program (each of whom is former military) discuss and respond to questions about (1) the structure and organization of the U.S. Constitution as it relates to command responsibilities; (2) the role of civil law in the military context; (3) the law of war, looked at broadly.
We have focused on the scope of U.S. constitutional law and doctrine and the role of federal courts—in particular, what legal parameters (and sometimes restraints) future operational commanders should be aware of or to which they should be sensitive. We have not, however, had occasion to address the counter-proposition raised in the Proceedings article—the extent to which current social objectives and civil-rights issues detract from or are at odds with what the authors see as the basic military purpose of killing enough of an enemy to force its capitulation, and how that mission bears on constitutional and other legal restraints and parameters.
Described as starkly as Lieutenant Colonels Bolgiano and Taylor do in their article—an “overabundance of ill-trained lawyers [and] leaders . . . giving too much credence to people and organizations . . . with distorted views of how wars ought to be fought rather than how they truly are”—the article suggests a significant tension between the applicable rule of law, at least as some of us have understood it, and what they see as the ultimate military killing goal. Looked at in this light, this is a tension that perhaps needs to be a part of discussions of law and military command leadership.
It may well prove to be the case, given the complexity of environments in which military operations are now conducted, that this tension can be managed through thoughtful understanding of these different environments, and tailoring of legal rules applied accordingly. At the least, it raises the question of the consequences if Admiral Mullen was right or wrong when, as quoted, he said “We can’t kill our way to victory.”
Proceedings has once again shown its worth by publishing such a provocative and challenging article.
—S. Jay Plager, Circuit Judge, U.S. Court of Appeals, Federal Circuit, Washington, D.C. (former Navy CDR/SWO)
