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THE ARMY LAWYER Headquarters, Department of the Army THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-346 September/October 2001 Articles Deadly Force Is Authorized, but Also Trained Lieutenant Colonel Mark S. Martins Legal and Practical Aspects of Debriefings: Adding Value to the Procurement Process Steven W. Feldman TJAGSA Practice Note Faculty, The Judge Advocate General’s School, U.S. Army Contract and Fiscal Law Note (Procurement Disabilities Initiative Takes Effect) CLE News Current Materials of Interest Editor’s Note The Judge Advocate General’s School, U.S. Army, published the seventh edition of Military Citation in August 2001, and it may be downloaded at http://www.jagcnet.army.mil/TJAGSA (Publications/Military Citation, Seventh Edition). Editor, Captain Todd S. Milliard Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly ed. 2000) and Military Citation (TJAGSA, 7th ed. 2001). Manuscripts will be by The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, returned upon specific request. No compensation can be paid for articles. for the official use of Army lawyers in the performance of their legal responsibilities. Individual paid subscriptions to The Army Lawyer are avail- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the able for $29 each ($36.25 foreign) per year, periodical postage paid at Charlot- Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- tesville, Virginia, and additional mailing offices (see subscription form on the ment Periodicals. The Army Lawyer and Military Citation are also available on inside back cover). POSTMASTER: Send any address changes to The Judge the World Wide Web at http://www.jagcnet.army.mil (TJAGSA/Publications). Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL- P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors Address changes for official channels distribution: Provide changes to the in the articles do not necessarily reflect the view of The Judge Advocate General Editor, The Army Lawyer, TJAGSA, 600 Massie Road, ATTN: JAGS-ADL-P, or the Department of the Army. Masculine or feminine pronouns appearing in Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978, ext. 396 or this pamphlet refer to both genders unless the context indicates another use. electronic mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian authors on Issues may be cited as ARMY LAW. [date], at [page number]. topics of interest to military lawyers. Articles should be submitted via elec- tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL-P, Charlottesville, Virginia 22903- 1781. Articles should follow The Bluebook, A Uniform System of Citation (17th Articles Deadly Force Is Authorized, but Also Trained .................................................................................................................................. 1 Lieutenant Colonel Mark S. Martins Legal and Practical Aspects of Debriefings: Adding Value to the Procurement Process ................................................................ 17 Steven W. Feldman TJAGSA Practice Note Faculty, The Judge Advocate General’s School, U.S. Army Contract and Fiscal Law Note (Procurement Disabilities Initiative Takes Effect) ........................................................................... 27 CLE News....................................................................................................................................................................................... 32 Current Materials of Interest .................................................................................................................................................... 41 Individual Paid Subscriptions to The Army Lawyer ........................................................................................ Inside Back Cover SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346 i Deadly Force Is Authorized, but Also Trained Lieutenant Colonel Mark S. Martins1 Staff Judge Advocate 1st Armored Division Wiesbaden Army Airfield, Germany Introduction Parks’ extended argument is sweeping in scope and damning in tone. He condemns the current Joint Chiefs of Staff Standing In the January issue of Naval Institute Proceedings, Colonel Rules of Engagement (SROE)6—a document that has evolved Hays Parks, U.S. Marine Corps Reserve (Retired), warns that from maritime origins and contains tolerably clear guidance for restrictive and unsuitable rules of engagement (ROE)2 today commanding officers on the open seas. Parks maintains the handicap and endanger U.S. forces, especially ground troops on SROE is a poor vehicle for commanders to inform individuals peace-support missions. Identifying the problem as one of in port or on the ground when they may use deadly force to pro- ignorance on the part of individual Marines, sailors, and sol- tect themselves and others. The lack of commanders’ “tools” diers, including service judge advocates, over when deadly in the SROE on the matter of individual self defense, he claims, force is authorized, Parks sounds an alarm that America’s combined with a propensity for micromanagement on the part young men and women in uniform “need to know when they of senior administration officials naïve to the bad things that may resort to deadly force to protect their lives.”3 can happen when force is used, has resulted in peace-support ROE that place servicemen and women at undue risk.7 Parks’ Argument Parks further argues that military lawyers writing ROE for field commands compound the problem. They misapply inter- Parks second-guesses assorted real-life decisions in which national law, he says, cut and paste ROE from bogus sources, ground troops have refrained from opening fire, suggesting fail to read U.S. court decisions relating to use of deadly force these decisions were caused by foolish ROE. In one of these by domestic law enforcement agents, and ignore basic truths examples, he derides the official commendation of a young about wound ballistics and close-quarters marksmanship under U.S. Army sergeant whose platoon held its fire even as he and stress. Parks holds military commanders ultimately responsi- his soldiers were being struck by Bosnian Serbs bearing rocks ble, however, because they delegate ROE drafting and training and clubs. This situation, Parks urges, placed the soldiers in a to lawyers, because they hide behind ROE to avoid making situation where they were “legally entitled to use deadly tough decisions, because they rarely have the spine to stand up force.”4 In another example, he cites unspecified “Kosovo to civilian leaders when restrictive rules are being imposed, or beatings” to illustrate risks faced by peace-support forces. because they fail to provide soldiers, sailors, and Marines suf- Parks maintains that these and other instances of restraint are ficient firearms training to be effective in a gunfight or other “representative rather than isolated incidents,” and he cautions violent confrontation.8 that “operating under bad ROEs invites mission failure, usually with fatal consequences to men and women who deserve bet- At various points during this argument, Parks suggests cur- ter.”5 ative measures. The most important of these appears to be the military’s adoption—with input from Navy Special Warfare 1. I thank the following people for their assistance in preparing this article: Captain Larry Gwaltney, Lieutenant Colonel Mike Ellerbe, Major Paul Wilson, Staff Sergeant Rod Celestaine, Lieutenant Colonel Bill Hudson, Colonel Dan Wright, Lieutenant Colonel Kevin Govern, Lieutenant Colonel Jeff Lau, Captain Mike Rob- erts, Captain Koby Langley, Major Kevin Hendricks, Colonel Dan Bolger, Colonel John Scroggins, Lieutenant Colonel Renn Gade, Lieutenant Colonel Ted Westhus- ing, Brigadier General Dave Petraeus, Major General John Ryneska, and Major General John Altenburg. I alone am responsible for any errors. 2. Rules of engagement are defined as “Directives issued by competent military authority which specify the circumstances and limitations under which forces will initiate and/or continue combat engagement with other forces encountered.” JOINT CHIEFS OF STAFF, JOINT PUB. 1-02, DOD DICTIONARY OF MILITARY AND ASSO- CIATED TERMS (19 Mar. 1998). 3. W. Hays Parks, Deadly Force Is Authorized, U.S. NAVAL INST. PROC., Jan. 2001, at 32-37, available at http://www.usni.org/Proceedings/Articles01/ PROparks1.html. 4. Id. at 33. 5. Id. 6. CHAIRMAN OF THE JOINT CHIEFS OF STAFF, INSTR. 3121.01A, STANDING RULES OF ENGAGEMENT FOR U.S. FORCES (15 Jan. 2000) [hereinafter SROE]. 7. Parks, supra note 3, at 33-34. SEPTEMBER/OCTOBER 2001 THE ARMY LAWYER • DA PAM 27-50-346 1 and Army and Marine Corps infantry representatives—of a uni- that soldiers and units are well-trained and equipped for the sit- form deadly force policy and training system similar to that uations they face. used by the Federal Bureau of Investigation (FBI). Colonel Parks contends that every young American on point for the nation should know how to defend himself when attacked.9 Ready and Willing to Fire, if Necessary Parks’ aims are undoubtedly noble, and his track record is On the morning of 7 March 2001, U.S. Army soldiers moved that of someone who has wrestled with the predicaments faced by foot into the village
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