Colonel Steele, the Bush Administration, and Chicken Little

by Kevin Jon Heller

In his latest post, John Bellinger claims that “[c]ritics will now accept virtually any speculation and rumor and circulate them as fact,” even though “[a]llegations about U.S. military or intelligence activities have become so hyperbolic as to be absurd.” He may well be right on the first count, but he has completely failed to prove the second.

With regard to intelligence activities, for example, Mr. Bellinger has simply repeated the Bush Administration’s mantra that “[w]e do not transfer people to countries where we believe it is more likely than not that they will be tortured” – a claim that everyone outside the Administration knows to be patently false. Worse still, he has rationalized his refusal to offer evidence in defense of that mantra with the excuse that “as much as we would like to deny the numerous inaccurate charges made against our government, because many of the accusations relate to alleged intelligence activities, we have found that we cannot comment upon them except in a general way.”

And what about military activities? Is it hyperbolic and absurd to be outraged by the fact that, as the New York Times reports today, the U.S. Army considers a reprimand to be sufficient punishment for a decorated Colonel whose failure to understand that the laws of war require soldiers to distinguish between combatants and non-combatants – a distinction, ironically enough, that Mr.Bellinger has spent much time discussing – contributed to the cold-blooded murder of four unarmed Iraqi men?

Army investigators say that Col. Michael D. Steele, a decorated combat veteran and brigade commander in Iraq, issued improper orders to his soldiers that contributed to the deaths of four unarmed Iraqi men during a raid in May, according to military documents.

[snip]

The four Iraqi men were killed on a channel island northwest of Baghdad on May 9 by members of the division’s Third Brigade Combat Team, which Colonel Steele commanded. Four soldiers were later charged with murder by military prosecutors, who said they captured the men, then turned them loose and killed them as part of a staged escape attempt. Over the past two weeks, two of the soldiers have pleaded guilty to lesser charges.

The military’s administrative investigation into Colonel Steele centered on how he communicated the rules of engagement, the instructions that all soldiers must follow to determine whether they may legally use lethal force against an enemy, to his soldiers before the raid.

The colonel improperly led his soldiers to believe that distinguishing combatants from noncombatants — a main tenet of the military’s standing rules of engagement — was not necessary during the May 9 mission, according to a classified report in June by Brig. Gen. Thomas Maffey, a deputy commander tapped by General Chiarelli to investigate Colonel Steele. “A person cannot be targeted on status simply by being present on an objective deemed hostile by an on-scene commander,” General Maffey wrote in his June 16 report.

[snip]

Several soldiers have said in sworn statements that Colonel Steele told them to kill all military-age males.

One would think that such an egregious mistake with such tragic consequences would lead to more than a reprimand. So why did the Army believe a reprimand was appropriate here?

Although the colonel’s “miscommunication” of the rules contributed to the deaths of four unarmed Iraqis, General Maffey wrote, formal charges were not warranted “in light of his honest belief of the correctness of the mission R.O.E.”

That’s an appalling statement – and a legally indefensible one. Even if we assume that Colonel Steele honestly did not know that his soldiers had to distinguish between combatants and non-combatants – itself a questionable assumption, to be sure – he should have known that they could not simply “kill all military-age males,” and thus also should have known that his orders would likely lead his soldiers to commit one of the gravest of all possible war crimes, the willful killing of non-combatants. His “honest belief,” therefore, is irrelevant to his criminal liability for his soldiers’ actions. Here is Section 501 of the U.S. Army Field Manual 27-10, on command responsibility:

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

Section 501 makes clear that the mens rea of command responsibility is negligence, not recklessness. So it does not matter whether Colonel Steel failed to subjectively contemplate the possibility that his “miscommunication” of the rules of engagement would lead his soldiers to kill innocent civilians. The fact that he was negligent regarding that possibility – because he was grossly negligent regarding the laws of war – is sufficient to establish his command responsibility.

To be sure, Colonel Steele’s honest belief might have been relevant as a mitigating factor at sentencing. But we will never know, because “[n]o charges have been filed against Colonel Steele in the Army’s continuing investigation.”

And, of course, Colonel Steele’s soldiers will not be so lucky. If any of them stand trial for murdering the Iraqi men (two have already pleaded guilty to lesser charges), they will not have a colorable defense of superior orders even if, as a result of Colonel Steele’s order, they honestly believed that they did not have to distinguish between combatants and non-combatants. Here is Rule 509(a) of the U.S. Army Field Manual:

The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character as a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.

Paragraph (b) of Rule 509 acknowledges that because “certain rules of warfare may be controversial,” soldiers cannot justly be expected “to weigh scrupulously the legal merits of the order received.” The rule against killing non-combatants, however, is anything but controversial. The soldiers who murdered the four Iraqi men clearly could reasonably have been expected to know that they were executing an unlawful order. Colonel Steele’s “miscommunication,” therefore, does not — and should not — insulate them from criminal responsibility for their actions.

Colonel Steele’s reprimand is yet another example of the culture of impunity that exists in the military regarding its prosecution of the war on terror, particularly concerning its high-ranking officers. Are critics in general too willing to believe the worst of the Bush Administration, as Mr. Bellinger claims? Probably. But as Chicken Little discovered, if you lie often enough before you finally tell the truth, you should not be surprised to find that everyone else has stopped listening to you. So now that the sky is falling on the Bush Administration, it has only itself to blame.

http://opiniojuris.org/2007/01/22/colonel-steele-the-bush-administration-and-chicken-little/

3 Responses

  1. To bring this home, a U.S. Brigadier General was court-martialed in 1902 (Smith) for his order to soldiers to kill all insurgents explained as “killing anyone over 10 years of age”. Refluat Stercus (Making Shit Roll Uphill).

    Best,

    Ben

  2. Unfortunately GEN Smith’s sentence upon conviction was merely an admonishment.

    Standing ROE are clear that targeting of non-combatants is absolutely prohibited. Prof. Heller’s extrapolation from COL Steele’s example that a “culture of impunity” pervades the military is unsupported. Thousands of JAG’s across the globe are dedicated to the rule of law (inculding the laws of war) and advise commanders to conform their orders therewith.

    (Without defending COL Steele, I note that it is unclear what exactly he communicated that lead to the murder of oncombatants. There is a conflict between the sworn statements of the soldier saying they were told to shoot all military age males and Colonel Steele who “said he did not use ‘specific language’ to order his soldiers to kill all military-age males, and that ‘we don’t shoot people with their hands up.'”)

  3. Healerpoet’s comment is well-taken, but the “kill them all” statement is not, strictly speaking, necessary to my argument. Even if the soldiers are wrong and Colonel Steele did not make the statement, the investigation still specifically concluded that he led his soldiers to believe that they did not have to distinguish between combatants and noncombatants. That “miscommunication,” in my opinion, is itself sufficient to establish Colonel Steele’s command liability for their subsequent — and predictable — actions.

    Note also the specific language of Colonel Steele’s statement. He did not claim that he in no way conveyed to his soldiers the idea that they should kill all military-age males. Instead, he insisted that he did not use “specific language” to convey that idea. In my book, that’s not much of a denial. Nor does Colonel Steele’s claim that he told his soldiers not to shoot people with their hands up make me feel any better — the statement implies that it is okay to shoot any military-age male whose hands were not up, regardless of whether they qualified for non-combatant status. That implication is itself an egregious violation of the laws of war.

    Finally, my comment about the culture of impunity should in no way be viewed as questioning the integrity of JAG officers, for whom I have the utmost respect. The problem lies with the high-ranking officers and civilian officials who establish military policy — the General Maffeys and Donald Rumsfelds — not with those who are duty-bound to enforce it.

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