Interpreting recent changes to the standing rules for the use of force

Army Lawyer, Nov, 2007 by Daniel J. Sennott

I. Introduction

On 29 August 2005, Hurricane Katrina swept through the Gulf Coast Region, causing unprecedented devastation and widespread flooding. (1) In response, thousands of National Guard Soldiers deployed to the area to provide assistance. In addition, the President ordered U.S. Army active-duty units to immediately deploy to the region to provide additional medical, transportation, and communication support. (2) This short-notice deployment came, for many Soldiers, on the heels of a one-year tour in Iraq or Afghanistan. (3) The potential for Soldiers to confuse combat rules of engagement with domestic rules for the use of force was a major concern. (4) As a result, Soldiers received a comprehensive rules for the use of force (RUF) brief that emphasized the differences between combat operations and the type of mission they were about to undertake. (5)

The Department of Defense (DOD) released the current Standing Rules for the Use of Force (SRUF), dated 13 June 2005, in early July 2005. (6) These rules are drastically different from prior versions. Both the format and the language have changed, but probably the most important modification is the addition of new terms and definitions. While some of the modifications serve to simplify the SRUF, other modifications may not be as favorably received. The SRUF, which are designed for use in the United States, and therefore based on domestic law, now include language that is identical to the Standing Rules of Engagement (SROE), (7) which are rooted in international law. As a result, the potential for confusion in application of these two distinct sets of rules may be significant.

This article will argue that the recent injection of international law concepts into SRUF may blur the line between SRUF and SROE, thereby resulting in unnecessary confusion to both Soldiers and the Judge Advocates that advise them. Many veterans of Operation Iraqi Freedom and Operation Enduring Freedom are intimately familiar with ROE, but have little or no experience with SRUF. (8) Therefore, the resulting confusion could lead to two significant issues. First, combat ROE are typically much more aggressive than domestic RUF, so the potential for excessive use of force incidents in domestic operations may be significant. Secondly, the confusion may expose Soldiers to greater danger, as they will be uncertain of the limits of their authority. (9) Because domestic operations are usually short-notice deployments, lack of training in SRUF may compound this confusion.

To support this thesis, this article will explore the history of rules for the use of force and how they differ from rules of engagement. This article will then highlight some of the positive and negative changes, comparing the new SRUF to previous versions of RUF and SROE. It will then provide specific examples of how the SRUF are applied in domestic operations, and how past challenges with the application of RUF can provide valuable lessons about the dangers of ambiguous RUF. Finally, the article will propose some possible solutions to ensure that Soldiers properly apply SRUF in domestic operations without inhibiting their right to self-defense.

II. History of the Standing Rules for the Use of Force

The DOD defines rules for the use of force as "[d]irectives issued to guide United States forces on the use of force during various operations." (10) This rather general definition is further augmented by the definition contained in the current SRUF: Standing Rules for the Use of Force "establish fundamental policies and procedures governing the actions to be taken by U.S. commanders and their forces during all DOD civil support and routine Military Department functions occurring within U.S. territory or U.S. territorial seas." (11)

Perhaps the best way to define SRUF is in the negative: SRUF are not SROE. The SROE "establish fundamental policies and procedures governing the actions to be taken by U.S. commanders and their forces during all military operations and contingencies ... occurring outside U.S. territory ... and outside U.S. territorial seas." (12) Although SRUF and SROE share some common principles, SRUF are based on domestic law, while SROE is largely based on international law. (13) Therefore, any definitions and concepts contained in RUF must be rooted in the U.S. Constitution and domestic laws. (14)

The use of force, and the reasonableness of such force, is governed by the Fourth Amendment. Among other protections, the Fourth Amendment prohibits "unreasonable ... seizures .... (15) The Supreme Court, in Graham v. Connor, held that "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard...." (16) This reasonableness standard has been articulated as requiring consideration of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (17) Although many of the underlying cases in this area of law deal with civilian law enforcement, (18) the fundamental analysis of the use of force can aptly be applied to federal forces in domestic military operations as well.