Denying self-defense to GIs in Iraq

As part of President Bush's troop surge now under way in Iraq, he insisted that Iraqi leaders "lift needless restrictions on Iraqi and coalition forces." That's an important step, but a deeply ironic one, because it overlooks other unreasonable restrictions imposed on US soldiers – by the US government.

In 2005, the Pentagon amended its Standing Rules of Engagement (ROE). The new rules make it harder for US troops to boldly counter hostile acts, and they specifically allow commanders to limit the right of soldiers to defend themselves!

The United States seeks to bring peace to Iraq by winning the "hearts and minds" of the civilian population. Unnecessary collateral damage and innocent civilian deaths undermine this effort. Presumably, the new ROE, which allow unit commanders to "limit individual self-defense by members of their unit" after notifying the secretary of Defense, were adopted with a noble purpose in mind: to lessen civilian casualties. However, limiting the right of self-defense is too drastic and it puts soldiers at risk.

Commanders take these restrictions seriously. Newsweek magazine recently quoted Marine Capt. Rob Secher, who complained that "anytime an American fires a weapon there has to be an investigation into why there was an escalation of force."

The current, restrictive approach is a jurisprudential about-face. I'm a Judge Advocate General's (JAG) Officer in the Army Reserves and before I deployed in 2003, professors at the Army JAG School taught me – and I subsequently taught soldiers – that troops never lose the right of self-defense. It is a right so valued that, according to a 2001 article in the "Army Lawyer," US Army Commanders preparing for operations in Kosovo "refused to rest until they received interpretations of NATO ROE consistent with self-defense ..."

Indeed, the inherent right of self-defense provided the basis for the US response to 9/11. In an October 2001 letter to the UN Security Council, John Negroponte (then the US ambassador to the UN) reported "that the United States of America, together with other States, has initiated actions in the exercise of its inherent right of individual and collective self-defense following the armed attacks ... on September 11, 2001."

How can the inherent right of self-defense exist in order to enter a war, but not to fight it to win? Despite the obvious inconsistency, some senior JAG Officers, who are considered operational law experts, have turned away from the long-standing view that soldiers have a right to defend themselves and instead have embraced the restrictions. One expert told me that soldiers who act in self-defense could even face prosecution. He defends the new rules, claiming that troops "use self-defense too much in order to escape liability." It is one thing to say that a soldier should not fire wantonly or without cause, but it is quite another to say that soldiers may not defend themselves when facing an imminent threat of death or serious injury.

Another JAG officer told me of "statistics" and "studies" showing that soldiers in Iraq have itchy trigger fingers. Yet when I asked for the studies to support these statistics, none were provided. Several JAG officers expressed concern that CNN (yes, they mention that network by name) would report too much carnage if the restrictions did not exist.

Holding fire may appease CNN, but it can only delight and encourage America's terrorist enemies and protract the war in Iraq.

One recent television news report revealed that in 2005, US forces had key Al Qaeda commander Abu Musab al-Zarqawi in their sights but hesitated to fire on him as he sped through two checkpoints. Despite the fact that his speeding car aimed at a checkpoint clearly posed a deadly threat (particularly since terrorists often employ car bombs), soldiers reportedly waited to fire in order to positively identify him.

Under traditional rules, a vehicle speeding through a checkpoint is ordinarily considered a deadly force, and soldiers could have fired. In this case, they literally made eye contact with Mr. Zarqawi as he sped by them. His amazing escape led to stories of his invincibility and encouraged the terrorist enemies. He continued to sow violence and hurt US troops until he was killed by US airstrikes in June 2006.

Americans are supposedly united in "supporting the troops." But how can a country support their troops with restrictions that hamper their ability to fight? The surge is already under way. What's needed is a surge of common sense to persuade the Pentagon to restore traditional rules of engagement. Doing so will give our soldiers the dignity they deserve, the legal right to defend themselves – and the freedom to fight this war to win.

• Kyndra Rotunda, a professor at George Mason University Law School, is writing a book that examines legal issues in the war on terror.