ROE v. RUF

ROE v. RUF
by The Center for Law and Military Operations (CLAMO) and Headquarters Marine Corps,
Judge Advocate Division, International and Operational Law Branch (HQMC JA (JAO))

It is imperative that Marine forces understand, and are trained to understand,
the difference between rules of engagement and rules for the use of force.

On 20 May 1997, Cpl Clemente Bañuelos, U.S. Marine Corps, shot and killed 19-year-old Esequiel Hernandez, Jr., a U.S. citizen. Cpl Bañuelos was leading a fire team of Marines manning a listening post/observation post (LP/OP) southeast of Redford, TX as part of Joint Task Force 6 (JTF–6), a military mission in support of the U.S. Border Patrol’s efforts to guard the U.S.-Mexico border against illegal narcotics trafficking. Mr. Hernandez was walking goats on the U.S. side of the border and carrying a rifle. As the Marines were observing Hernandez, he fired one or two shots in their direction from approximately 190 meters away and then proceeded in a manner that appeared to Bañuelos as a tactical relocation. Bañuelos maneuvered his team accordingly, concerned that Hernandez was moving to another position to fire again. In the midst of these maneuvers, Bañuelos saw Hernandez raise his rifle and point it at LCpl James Blood, a member of the fire team that had moved about 30 meters to the right of Bañuelos and about 130 meters from Hernandez. Bañuelos fired one shot from his M16A2 rifle, striking Hernandez who died on the scene.

Two Texas county grand juries and one federal grand jury refused to indict Bañuelos. An extensive military investigation concluded that the case lacked prosecutorial merit. The JTF–6 shooting incident remains a powerful reminder that when Marines employ force, their actions and decisions and the rules that they follow may be subject to outside scrutiny from many levels. The increased use of military forces at home and abroad in response to the terrorist attacks of 11 September 2001 makes this reminder all the more pronounced.

One significant result of the JTF–6 investigation and the current ENDURING FREEDOM and IRAQI FREEDOM operations has been a heightened recognition of the differences between “rules of engagement” (ROE) for combat or overseas military “operations” and what has become known as “RUF,” or “rules for the use of force,” for domestic support to civil authority missions and “nonoperational” force protection. While ROE and RUF both set guidelines on use of force for self-defense and mission accomplishment, they differ in their underlying concerns. As discussed in a prior article (“Rules of Engagement: What Are They and Where Do They Come From,” MCG, Apr02, p. 59), ROE are guidelines for the use of force reflecting a blending of political, legal, and military concerns. RUF serve the same purpose, but the political, legal, and military concerns typically are very different.

One could argue that these varying concerns merely create a distinction without a difference. Whether RUF or ROE, we still are referring to what type of force Marines can use, under which circumstances, and when. The differences in underlying concerns, however, can create a set of entirely different rules that should translate to entirely different mindsets for the Marines employing them.

ROE military concerns generally involve the tactical and operational implications of performing missions in situations in which host-nation law enforcement and civil authorities are nonexistent, nonfunctional, or resistant to a U.S. military presence. In contrast, RUF military concerns generally presuppose a permissive military environment with a functional civil government capable of enforcing the law and maintaining order. Because RUF generally assume a nonhostile host with a generally friendly population, RUF primarily focus on using force in self-defense as a matter of force protection based on mere presence—rather than an assigned operational mission—or using force in the exercise of a very limited law enforcement or security mission. ROE policy concerns tend to focus on relations with foreign actors and furthering international political objectives. RUF policy concerns tend to focus on domestic or host-nation political objectives and domestic or host-nation public opinion.

Perhaps the most important distinction lies in the differing legal regimes. ROE are generally shaped by international legal obligations, such as the United Nations Charter, international treaties, and customary international law. RUF are generally shaped by domestic or host-nation legal obligations. In the United States, as demonstrated by the layers of legal scrutiny arising after the JTF–6 incident, federal and state criminal and civil laws should be considered in formulating domestic RUF.

In an influential memorandum drafted in response to a military investigator’s request for an expert legal opinion on the JTF–6 shooting incident, Col W.H. Parks, a retired Marine Corps judge advocate and respected ROE and law of war scholar, succinctly captured the essence and importance of these critical distinctions between ROE and RUF:

In the case of military assistance to domestic law enforcement, the term ‘rules of engagement’ is inappropriate. The outcome of the 20 May incident, while legally correct, may have occurred in part because (a) the Marines were sent on a combat-training mission, (b) received all briefings in combat terms, and (c) trained on rules of engagement rather than domestic law use-of-force standards. This may have established a mindset in [the Marine team] that caused Corporal Banuelos to choose certain courses of action over others that might not have resulted in the death of Mr. Hernandez.

Recommend that ‘rules of engagement’ not be used with regard to military support for domestic law enforcement, or other military aid to civil authorities.1

The combat mindset that Parks refers to permeates the doctrinal definition of ROE:

. . . directives issued by competent military authority which delineate the circumstances and limitations under which United States forces will initiate and/or continue combat engagement with other forces encountered.2

The baseline ROE document for the U.S. military, Chairman, Joint Chiefs of Staff Instruction (CJCSI) 3121.01A, Standing Rules of Engagement (SROE) for U.S. Forces, reflects the ROE/RUF distinction. The SROE specifically apply to all military operations and terrorist attacks occurring outside the United States and to any military attack against the United States.3 In other words, the SROE recognize that a set of rules other than ROE will apply in nonoperational overseas settings and to all domestic operations short of repelling a foreign military attack.4 As a recent example, the SROE does not apply to the various post-11 September 2001 domestic military support to civil authority missions, because by its very terms, the SROE does not apply to a domestic terrorist attack.

The issue then becomes determining what rules apply when the SROE—or some other applicable ROE framework, such as coalition ROE for a multinational operation—do not. No comparable standing RUF document, or SRUF, exists.5 Rather, there exists a hodgepodge of RUF guidelines tailored to a nonexhaustive assortment of specific missions. For example, military law enforcement and security RUF are contained in Department of Defense (DoD) Directive 5210.56, Use of Deadly Force and the Carrying of Firearms by DoD Personnel Engaged in Law Enforcement and Security Duties, 1 November 2001. Civil disturbance RUF are detailed in an annex to Garden Plot, the DoD standing civil disturbance plan.6 Counterdrug RUF are contained in CJCSI 3121.02, Rules on the Use of Force by DoD Personnel Providing Support to Law Enforcement Agencies Conducting Counterdrug Operations in the United States, 31 May 2000.7 Units performing missions not governed by a standing RUF document must develop mission-specific rules through coordination with higher authority as state National Guard units did for soldiers providing airport security in the aftermath of the 11 September 2001 attacks.

Nonetheless, common to all of these RUF is an attempt to integrate the relevant political, legal, and military concerns into a set of rules appropriate to the mission at hand. As noted earlier, domestic and host-nation legal obligations play a more pivotal role in shaping RUF than ROE. In particular, the Posse Comitatus Act (PCA) and the 4th Amendment to the U.S. Constitution are two legal concerns that predominate domestic RUF and can serve as useful tools to explore the differences between RUF and ROE and between mission-specific RUF.

The PCA prohibits the U.S. military from providing direct support to domestic civilian law enforcement.8 Therefore, as a general rule, the PCA restricts Marines from acting in a civilian law enforcement capacity, allowing neither execution of civilian law nor direct participation in civilian searches, seizures, or arrests. The PCA does not bar all military support to civilian law enforcement. Statutory exceptions allow military assistance to law enforcement in certain limited scenarios. One such scenario is a civil disturbance mission most recently played out during the 1992 Los Angeles riots. Under the Insurrection Act,9 Congress authorized the President to use the federal military to restore order during times of civil disturbance, to include fulfilling a law enforcement function, without running afoul of the PCA. The civil disturbance Garden Plot RUF reflect this more permissive legal background. For example, Garden Plot allows the military to restore order by apprehending civilians who have committed crimes.10 Moreover, while not firmly settled, it is generally agreed that the PCA does not apply outside the United States. The military, therefore, can, unhindered by the PCA, develop overseas operational ROE that permit a significant military role in host-nation civilian law enforcement if the mission so requires.11

The second, and arguably most predominant, domestic RUF legal concern, the 4th Amendment to the U.S. Constitution, prohibits government agents from executing “unreasonable searches and seizures” and applies fully to the U.S. military during the conduct of domestic missions and in the exercise of domestic force protection. Perhaps not readily apparent from the plain meaning of the term, a “seizure” includes the use of deadly force by government agents. For example, Cpl Bañuelos’ shooting of Mr. Hernandez was a seizure for 4th Amendment purposes. Domestic use of force standards thus derive from the 4th Amendment and the body of federal case law that interprets it. To be lawful a seizure must be “reasonable.” Reasonableness is essentially a balancing test weighing the importance of governmental interests against the extent of the intrusion on a suspect’s rights. The test is highly factually dependent and is viewed from the perspective of an objectively reasonable government agent on the scene—for the purposes of the JTF—6 scenario, the Marines manning the LP/OP. While the U.S. Supreme Court has acknowledged that “[t]he test of reasonableness under the 4th Amendment is not capable of precise definition or mechanical application,”12 the Court has stated that deadly force is authorized when a government agent “has probable cause to believe that [an individual] poses a threat of serious physical harm, either to the [police] officer or to others.”13

RUF cannot authorize use of force in excess of constitutional reasonableness. They can, however, be more restrictive than that allowed under the law. Consider the example of domestic counterdrug RUF. CJCSI 3121.02 limits the use of deadly force to the “immediate vicinity” of the Marine,14 a restriction not imposed by federal case law. This restriction demonstrates how policy concerns can, in certain missions, impact RUF that would otherwise pass legal muster.

By contrast, ROE measures will reflect the fact that the primary legal considerations for ROE are international rather than domestic. For example, the SROE reflects this international legal framework in granting certain high-level commanders the authority to “declare forces hostile,”15 whereby U.S. forces could engage a member of a hostile force, whether or not the individual posed an imminent threat of death or serious physical injury. Iraqi soldiers felt the brunt of this powerful ROE measure, granted in accordance with international law and United Nations Security Council resolutions, during the Persian Gulf War.

This SROE “hostile forces” example paints the RUF/ROE distinction in its most vivid contrast. The political, military, and legal concerns of ROE can be far removed from RUF concerns, potentially resulting in entirely different sets of rules causing entirely different mindsets. (See sidebar for ROE/RUF examples.) The lesson for the commander is to understand which concerns impact a given mission and to draft and train the RUF/ROE accordingly. In the military investigation into the JTF—6 shooting incident, MajGen John T. Coyne, USMCR(Ret) discerned this very lesson through the factual lens of that case:

Reference to the rules of engagement as the authority for the use of force within the United States is problematic. The individual Marine is prepared from prior combat training to understand ‘engagement’ as presuming a hostile force. Accordingly, the admonition within the rules of engagement to de-escalate—where possible—becomes counterintuitive.

Moreover, the use of battlefield operating system terms such as ‘intelligence preparation of the battlefield,’ ‘battlefield geometry,’ and ‘hostile forces’ communicates to young Marines a situational awareness far removed from the reality of manning an observation post on private property, adjacent to a small community, on United States soil.16

Notes
1. Memorandum, Col W.H. Parks, USMCR(Ret), to MajGen J.T. Coyne, USMCR(Ret), subj: Request for Expert Opinion Concerning Compliance With Rules of Engagement, 15 November 1997.

2. Joint Chiefs of Staff, Joint Publication 1–02, Department of Defense Dictionary of Military and Associated Terms, 12 April 2001 (emphasis added).

3. CJCSI 3121.01A, encl. A, para. (1)(a) (15 January 2000). At the time of the JTF—6 incident, the SROE also applied to domestic military operations and contingencies.

4. Because the SROE does not define “military operations,” there is not a clear distinction between overseas military operations, for which the SROE would apply, and overseas nonoperational force protection or security missions, for which RUF would apply.

5. The Joint Chiefs of Staff are drafting a SRUF instruction, but as of the writing of this article, such a document has not been officially released.

6. U.S. Department of Army, Department of Defense Civil Disturbance Plan (Garden Plot), ann. C, app. 1 (15 February 1991) (RUF modified by 1996 message). A dated document, Garden Plot still uses the term ROE for what now is commonly understood as RUF.

7. This instruction came out after, and partly as a result of, the JTF—6 incident.

8. 18 U.S.C. § 1385 (2002). Congress enacted the PCA in 1878 as a result of concerns over the military presence in the Reconstruction South. On its face the current PCA only applies to the Army and Air Force. In 1981, however, Congress directed the Secretary of Defense to promulgate regulations to essentially apply the PCA to the Navy and Marine Corps. See 10 U.S.C. § 375 (2002). The resulting regulation is DoD Directive 5525.5, DoD Cooperation With Civilian Law Enforcement Officials, 15 January 1986. Of note, the PCA does not apply to the members of the National Guard unless they have been federalized.

9. 10 U.S.C. §§ 331–34 (2002).

10. Garden Plot, supra note 5, at ann. C, app. 1, para. (1)(C).

11. Overseas nonoperational RUF, such as RUF for gate guards at an overseas military installation, must take into account relevant host-nation laws and status of forces agreements. Further, as a matter of policy, the Secretary of Defense has restricted military support to civilian law enforcement overseas. See DoD Directive 5525.5, supra note 7, at para. 8.1. But when the primary purpose of the mission is to serve a military or foreign affairs purpose, as would be the case for operational ROE, the policy restrictions are inapplicable. See id. at encl. 4, para. E4.1.2.1.

12. Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).

13. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

14. CJCSI 3121.02, encl. A, para. (2)(a)(6), 31 May 2001.

15. SROE, supra note 3, at encl. A, para. 6.

16. Memorandum, MajGen Coyne to Commanding General, I Marine Expeditionary Force, subj: Investigation to Inquire Into the Circumstances Surrounding the Joint Task Force 6 (JTF 6) Shooting Incident That Occurred on 20 May 1997 Near the Border Between the United States and Mexico, opinions (4)(a)-(b), 7 April 1998.

>CLAMO is a resource organization that provides legal support for both Marine and Army operational lawyers. Created at the direction of the Secretary of the Army in 1988, it is located at The Judge Advocate General’s School, U.S. Army, in Charlottesville, VA. HQMC JA (JAO) exercises HQMC staff cognizance over international and operational law matters. This article has also been staffed with the International and Operational Law Division of the Office of The Judge Advocate General, U.S. Army.

ROE examples
Combat.
Overseas humanitarian and disaster assistance.
Peace operations.
Noncombatant evacuation operations.
Maritime interdiction operations.

RUF examples
Domestic support to civil authority missions.
Counterdrug.
Chemical, biological, radiological, nuclear,
and high-yield explosives.
Civil disturbance (Garden Plot).
Airport security.
Administrative transits, continental United States
(CONUS) and outside CONUS (OCONUS).
CONUS and OCONUS installation gate guards.
Overseas training exercises (some disagreement).
Overseas port calls (some disagreement).

Ellie