Effects of Lorance murder verdict on combat decisions to be seen
By CATHERINE PRITCHARD | The Fayetteville Observer, N.C. | Published: August 11, 2013
FAYETTEVILLE, N.C. — Will the murder conviction of a soldier who ordered his men to shoot unarmed Afghans last year improve the safety and success of U.S. military operations in Afghanistan?
Or make them more difficult?
Some believe it may prompt soldiers to hesitate overlong in defending themselves in war-zone situations, worried about the effect on their careers and freedom if they're judged to have shot wrongly.
Others say the rules that govern when soldiers can shoot are fair — though one former military lawyer says they're interpreted too rigidly.
Army 1st Lt. Clint Lorance was convicted of murder and sentenced to 20 years in prison Aug. 1 for ordering soldiers under his command to shoot three Afghan men on a motorcycle in a Taliban-controlled area of Afghanistan.
No weapons or equipment typically carried by insurgents were found on the bodies of the two men who were killed. The third man ran away.
The 28-year-old 82nd Airborne Division officer also was convicted of threatening to kill local villagers, ordering a soldier to shoot toward villagers to harass them, asking a soldier to file a false report saying that villagers shot at the outpost, and obstruction of justice for efforts to cover up the circumstances of the two deaths.
Two members of his platoon testified that they had seen no reason for firing at the men but had done so because Lorance ordered it.
Lorance had commanded the platoon for just five days, taking over for a soldier who'd been injured by a roadside bomb. Three other members of the platoon also had been injured in prior weeks.
A number of soldiers and veterans said the military's decision to prosecute Lorance likely will cause more soldiers to hesitate, perhaps fatally, to defend themselves in threatening war-zone situations.
In the parking lot of a Fayetteville home-improvement store last week, a 27-year-old soldier said service members already weigh risks to their careers versus their lives in combat situations in split-second decisions about whether to take a shot.
"I've seen guys not pull the trigger when they should have because they feared the repercussions to their career," said the soldier, who declined to give his name.
The soldier, who said he had been a forward observer during two deployments to Afghanistan, said some of those soldiers who hesitated were then shot themselves.
"Everybody's scared of repercussions, even if you know you're right," he said.
He said the Lorance case will only increase that fear.
David Bolgiano, a retired Air Force lieutenant colonel who served as a command judge advocate in Iraq and Afghanistan in the early 2000s, said too many military commanders and legal officers have held their soldiers to an "untenable" standard in these conflicts.
Bolgiano is the author of a 2007 book called "Combat Self-Defense: Saving America's Warriors from Risk-Averse Commanders and their Lawyers" and co-author of a 2011 book called "Fighting Today's Wars: How America's Leaders Have Failed Our Warriors." He now works as a use-of-force consultant and writes about ethical, legal and tactical dynamics of deadly force encounters.
Bolgiano said that the rules of war that govern the actions of U.S. soldiers are fine, but they've been interpreted too rigidly in many cases by commanders worried about their own careers and by over-zealous military legal officers.
"They're demanding that decisions in combat be right, not reasonable," Bolgiano said. "It's a very critical point. They are just refusing to acknowledge this problem."
Bolgiano said the U.S. military also has failed to train soldiers adequately on discerning what represents a threat.
But the overwhelming problem, he said, is that they've been placed in a situation where they're not being legally allowed to defend themselves in combat situations that require split-second decisions.
Mike, a 44-year-old veteran of the Marines and the Army, agreed that soldiers can't be required to make the correct choice every time.
" 'Should I shoot?' " Mike said. "You're thinking that all the time. But everything's not perfect in war. You don't know everything about what's in front of you. You're in the middle of a war zone, and tensions are high, and you don't know who to shoot or what's what. You just do your best."
Mike said he couldn't believe Lorance was charged with — and convicted of — murder.
"They don't trust us, and they should," he said. "We're not killing people just to be killing people. We know the more we treat them bad the more they treat us bad."
But to others, the facts of the Lorance case differed from those of many other soldiers involved in civilian shootings they said were accidental. A 31-year-old soldier, who declined to be named, pointed to Lorance's actions and statements in the days before his platoon confronted the three Afghan men on the motorcycle. The soldier also noted that members of Lorance's platoon had testified against him in the court-martial on Fort Bragg. Members of Lorance's family said the soldiers held grudges against Lorance.
Charles J. Dunlap Jr., a retired Air Force major general and current law professor who directs the Center on Law, Ethics and National Security at the Duke University School of Law, said in an email that "real soldiers don't usually object to prosecutions for serious ROE violations because they know how much such violations can damage the mission."
Particularly in counter-insurgency operations, he said, "killing the wrong people actually jeopardizes our troops because it creates dangerous hostility among the very people you are trying to help and gives the enemy lots of recruiting fodder."
Dunlap said the decision to send this sort of case to court-martial isn't made by civilians in the Pentagon or military lawyers. Instead, it's made by military commanders "who well know the adverse effect of an overzealous prosecution on the morale of the unit.
"These decisions aren't made lightly," he said, "which is one reason why prosecutions are relatively rare."
A 21-year Army veteran said he didn't know the specifics of the Lorance case, but he believes in rules and procedures.
"There are procedures in every area," he said. "There's a right way and a wrong way, even in combat. I can't just shoot you."
The 27-year-old soldier in the parking lot of the home-improvement store had a similar opinion, but noted the frustrations of the situation in Afghanistan where, he said, the insurgents all seem to know the rules that bind the U.S. soldiers and thus seek to exploit them at every turn.
"I've been in multiple situations where my platoon was engaged with the enemy and they throw their guns in the bushes and run, and then we see those same men later in the village and they have no gun and we can't do anything," he said. "If a guy doesn't have a gun, you can't kill him. That's how it is. It doesn't mean it's not frustrating."
John Pike, director of the Global Security research organization, said soldiers also can't be certain that an Afghan with a gun is an insurgent.
"No Afghan goes into his field to tend his crops without a weapon," Pike said. "They are all heavily armed. It is exactly the society that the NRA proposes that we should live in, where every man is on his own and you have to defend yourself at all times because everybody is out to get you. The notion that someone is out in a field with a gun — that's Afghanistan."
Still, he said, U.S. troops are sometimes pushed into difficult decisions in combat.
"Unavoidably, there is going to be daylight between the way things ought to be and the way things are," he said. "I generally think we do a pretty good job of it."
Heather Barr, a senior researcher in Afghanistan for Human Rights Watch, said the rules governing when U.S. and other international forces could engage suspected combatants have been adjusted many times over the years.
She said it's "a careful balance" between giving soldiers leeway to protect themselves and preventing killings of civilians.
"If you're a soldier and your main concern is to get home alive and not end up in a military prison, I'd think you'd see there was a need to balance that," she said. "Neither extreme is right. You don't want to not be able to protect yourself, but you also don't go out and shoot whatever you think."
With U.S. and international forces gradually withdrawing from Afghanistan, Barr said the discussion about finding ways to limit civilian casualties there is over.
"To be honest, the resolution of all these issues is the international forces going home," she said. "I think a bigger question for the military is what lessons have they learned from Afghanistan about civilian casualty mitigation, and will those lessons be incorporated elsewhere?"