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

Army Lawyer, Nov, 2007 by Daniel J. Sennott

The authorization of force against those impeding a military mission is new to domestic operations. (99) This language is not found in any other versions of RUF, nor is it contained in any other federal law enforcement agency RUF. GARDEN PLOT RUF makes provision for the use of force against those impeding a mission, but also makes clear that "[i]f a mission cannot be accomplished without the use of deadly force, but deadly force is not permitted under the guidelines authorizing its use, accomplishment of the mission must be delayed until sufficient non-deadly force can be brought to bear." (100) By including the "impeding mission" language without a qualifier, the difficult questions become: What about those situations in which civilians use force to impede the mission, but the force is not directed against the Soldiers? Could Soldiers, for example, use up to deadly force to remove unarmed demonstrators blocking the only bridge out of a city? Although the answer should be no, the SRUF would not assist in arriving at this conclusion.

In Iraq or Afghanistan, if foreign nationals are impeding a crucial military mission through the use of less-than-deadly force, U.S. forces must consider the totality of the circumstances, including the level of force used and the importance of the mission. In such cases, the use of deadly force may be justified even when responding to less than deadly force, if the mission being thwarted is crucial to the success of the battle. However, the same may not hold true for Soldiers who are responding to civilians who are disrupting a convoy. If U.S. Soldiers encounter civilian interference in a domestic setting, they must, of course, use lesser means of force to eliminate the threat. However, if these lesser means fail, they would not be justified in using deadly force unless such use satisfied the Fourth Amendment. As such, the Supreme Court has determined that there are generally two situations in which force is authorized:

   1) To protect themselves or others from immediate threats of serious
   physical injury; and/or, 2) To prevent escape of a person who may
   justifiably be characterized as 'dangerous' to the officers or to the
   community if allowed to remain at large. (101)

Neither of these general categories contemplates a situation in which deadly force is reasonable, unless there is a danger of death or serious bodily harm to the actual law enforcement officer or to the community. In the scenario presented above, if the demonstrators turn violent against the Soldiers, then the Soldiers will be justified in responding to such violence in self-defense. However, if the civilians are merely impeding the mission and not directing unlawful force against the Soldiers, then domestic law would not support using up to deadly force to remove them. The current SRUF language fails to make that clear.

IV. Application of the SRUF to Domestic Operations

Before determining the proper application of SRUF to domestic crises, one must first explore the capacities in which U.S. forces may be employed in domestic operations. The use of federal military forces for law enforcement purposes is normally limited by the Posse Comitatus Act (PCA), which states: