Imagine a U.S. commando officer leading a covert mission deep inside enemy-held territory in Afghanistan in which more than a dozen unarmed women, children, and old men were killed. Imagine that afterward he explains what happened this way: "Standard operating procedure was to dispose of the people we made contact with. … It does not work to merely bind and gag people, because they're going to get away." And the officer adds, "It was generally believed that you did what you had to do to protect your men. We were basically writing the rules as we went." Actually, this mission didn't happen in Afghanistan, but—as reported by the New York Times Magazine earlier this year—it did happen, in Vietnam, and the officer was former Navy SEAL Bob Kerrey. One burning question completely ignored by the controversy over the Kerrey mission is: Are U.S. commandos, such as those operating in Afghanistan this very minute, still writing the rules as they go?
As it turns out, the answer is a secret. Not only are the actual "rules of engagement"—the instructions that tell soldiers when they can fire, at whom, etc.—classified, but no one from either the operational or legal side of the Pentagon would talk with me on the record in general terms about them. Now, secrecy about the fine points here makes sense. If it were publicized that our commando rules said (to pick an entirely hypothetical example) no shooting within five feet of a child, then every Taliban soldier would keep a toddler in tow. But the Kerrey episode reminds us that the rights of innocents can be imperiled when these matters are simply left to the commandos themselves.
The question of what rules apply to the U.S. operation in Afghanistan is especially thorny because it doesn't neatly fit into any of the usual rule-generating categories. It has been characterized by President Bush as a war, but Congress hasn't declared war. It is being conducted against a de facto government but also against a tenant criminal organization. It is being prosecuted by regular uniformed troops but also by covert "special operations" soldiers (i.e., commandos) and CIA operatives. These variances confuse the issue immensely. According to the Geneva Convention, for instance, regular uniformed troops cannot be put on trial for carrying out lawful military duties against military targets. But spies and saboteurs, who operate posing as civilians, can—for the exact same actions—if captured, be tried and, if found guilty, executed. So which category fits those U.S. soldiers we've seen wearing flowing robes while riding horseback?
The general point of military rules of engagement should be to allow an army to pursue its objectives to the maximal extent possible compatible with international law and treaty. Thus, such rules should endorse the use of lethal force not only against attacking enemy military units but also against non-surrendering combat-capable enemy military units. And they should ban attacking enemy units that are attempting to surrender or that have already been rendered incapable of fighting. They should encourage capture over killing whenever feasible. They should ban attacks on noncombatants.
But these simple strictures don't cover every contingency, especially not the wide variety uniquely faced by commandos. And commandos—who are carrying the brunt of the American ground effort in Afghanistan—tend to operate at the margins of rules anyway. Many of the operations they undertake are not official acts of war, so they aren't clearly covered by the international laws of warfare. For instance, on some previous counterterror missions, Delta Force soldiers have armed themselves with hollow-point bullets and exploding ammunition, although these are expressly forbidden during war by international law. Can we rest assured that they won't be using those rounds in Afghanistan? Similarly, even though the laws of land warfare protect only those soldiers who display their own recognizable emblem, the commandos who tried to free the U.S. hostages from Iran in 1980 flew helicopters with Iranian-style paint schemes and they brought along stick-on Iranian fuselage markings (although it's not clear that these were ever used). Playing fast and loose with the rules this way can lead to out-and-out violations of international law.
Because our commando forces are in the forefront of the effort to find Osama Bin Laden and Mullah Mohammad Omar, it's relevant to wonder what U.S. rules of engagement tell them to do once these and other al-Qaida and Taliban fighters are cornered. Although international law protects enemy fighters who authentically try to surrender, Secretary of Defense Donald Rumsfeld's initial comments on this topic suggested that the order is to kill rather than capture. He seems to have since allowed that the top people might be taken alive, which raises the question: What risks would U.S. operatives take to capture them alive? The consensus among the former commando types I talked to recently is: not many. As one of them told me, "When people come walking up to you with their hands up, you're thinking, is this a ruse? Am I taking him prisoner while a bunch of other guys are coming around the back side to surround me?" And he added that the rules of engagement CIA agents in Afghanistan are working under are probably even "less stringent" than those covering our commandos.
Then there's the troublesome matter of dealing with civilians, especially those who appear to detect the commandos' presence. (This was where Kerrey's mission came a cropper.) The fundamental law of land warfare is that you cannot intentionally or indiscriminately kill civilians. The main difficulty is that merely detecting a commando operation doesn't turn a civilian into a combatant. He or she might do nothing upon making the discovery. But even if he runs, is he running in order to report what he sees to local military forces or merely out of fear? Another difficulty very relevant to Afghanistan is that civilians might not dress all that differently from soldiers, making it especially hard to confirm if passers-by were indeed combatants who could then be lawfully killed.
And operating among civilians puts a special premium on the international-law principle of proportionality of military response. Military decision-makers must, explains Professor Robert K. Goldman of American University law school, make a good faith calculation that the military advantages foreseeably achieved by their actions will outweigh the death and damage forseeably inflicted on civilians. So, even though a terrorist takes refuge in a school building full of kids, you can't call in an airstrike on the school—although putting a combat team into the building that intends to shoot only the terrorist would probably be legal.
These are the sorts of wrinkles U.S. commandos must be ready for. Are they? Retired three-star Gen. James Vought, who was in overall command of the Iranian hostage rescue attempt, says that while he was planning for that mission, an officer came to his office saying he'd been sent to help write up rules of engagement. "I said turn around and march right out of here," Vought told me. "I don't want any, don't need any, and won't follow any if you or anybody else writes them. I understand the Geneva Convention and know what it portends and my subordinates do and they'll follow it. I don't intend to write one word down." Vought's view is that it's not written guidelines but only the judgment honed by training and combat experience that can enable commandos to do the right thing.
The Iran mission may have provided some evidence that Vought's approach can work. At the site deep inside Iran where the raiders planned to spend their first night (before ultimately aborting the mission), two civilian fuel trucks and a bus with more than 40 civilians on board happened by. The U.S. forces didn't kill the interlopers, but instead—as international law allows—captured and temporarily detained them.
But training and prior combat experience don't always cover the problem at hand. This was the case with Kerrey, who was on his first kidnap-assassination mission and whose understanding of the requirements of international law seemed fuzzy at best. Also, eschewing written rules could tend to encourage a wink-wink, nod-nod atmosphere where the mandates of law get eclipsed by mission needs. As Kerrey told the New York Times, he and his men "were given a hell of a lot more latitude than we should have been."
Of course, no set of written rules can cover every commando contingency. There is, however, fruitful middle ground. Retired Army Gen. David Grange, who has extensive counterterrorism and special operations experience, including as a commanding officer, told me that when he was tasked with rules of engagement that he or his subordinates didn't understand, he'd ask higher authority for clarification, which he routinely got, sometimes in writing but usually orally. There are many areas, says Grange, that require that sort of elucidation, such as what actions by others who are neither obviously combatants nor obviously civilians count as threats to U.S. forces.
One way the press might get around the secrecy of the Afghanistan rules of engagement would be to start asking Donald Rumsfeld and other top Pentagon officials if U.S. forces are prepared to handle the sorts of scenarios I've described here. Maybe Rumsfeld would resist by saying he doesn't entertain hypothetical questions. Let's just hope our commandos do.