Naval War College Review Volume 64 Article 8 Number 1 Winter

2011 Friendly Fire and the Limits of the Justice System. Michael J. Davidson

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Recommended Citation Davidson, Michael J. (2011) "Friendly Fire and the Limits of the Military Justice System.," Naval War College Review: Vol. 64 : No. 1 , Article 8. Available at: https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8

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FRIENDLY FIRE AND THE LIM ITS OF THE MILI TARY JUS TICE SYS TEM

Lieutenant Colo nel Michael J. Davidson, SJD, U.S. Army (Retired)

n 22 April 2004, Cor po ral Patrick Tillman was killed in action in Af ghani - Ostan as a re sult of friendly fire. The con trover sial death of the Army Ranger, who had given up a lu crative career in profes sional football to join the Army, gener ated widespread media inter est, mili tary and congres sio nal inves ti ga tions, books, and most re cently a docu men tary. Ear lier in the day, Corpo ral Tillman’s Ranger platoon had split into two groups, with Tillman and his pla toon leader in the first group. Due to danger ous ter rain, the second group, led by the platoon sergeant, aban doned its planned route and instead followed the first group’s route in ve hicles down a can yon road late in the day toward the vil lage of Manah, where Tillman and the remain der of the platoon waited. The sec ond group came un der attack and imme di ately be - gan suppres sive fire. Tillman, accom pa nied by an Afghan Mili tary Forces (AMF) sol dier car ry ing an AK-47 and the remain der of the platoon, took up sup port ing

Be fore his re tire ment from ac tive duty, Lieuten ant Col- posi tions in the village and along an ele vated area onel Davidson served as a field artil lery offi cer and overlook ing the road. As it moved for ward under fire, Judge Ad vo cate; he is cur rently an at tor ney with the fed - the first vehi cle in the second group saw muzzle eral gov ernment. He is a gradu ate of the U.S. Mil i tary Academy (BS), the Col lege of Wil liam & Mary (JD), flashes coming from the ele vated area and directed the Army’s Judge Ad vo cate Gen eral’s School (LLM), fire against it, killing Cor poral Tillman and the and George Wash ing ton Uni ver sity (LLM and SJD). He Afghan sol dier with him. Contin u ing to fire as they is the au thor of nu merous ar ti cles and of two books: A Call to Action: Re-arming the Govern ment in the moved for ward, the Rangers in the first ve hicle also War against Defense Procure ment Fraud (2008) and wounded their own pla toon leader and his radio op er- A Guide to Mili tary Crimi nal Law (1999). a tor.1 Re portedly, be fore he was shot Tillman had

Na val War Col lege Re view, Win ter 2011, Vol. 64, No. 1 thrown a smoke grenade, and he and other Rang ers

Published by U.S. Naval War College Digital Commons, 2011 1 Naval War College Review, Vol. 64 [2011], No. 1, Art. 8 DAVIDSON 123

had shouted and waved in an unsuc cess ful attempt to stop the second group’s at - tack; instead the movement only attracted addi tional fire.2 The Army handled the after math of the friendly-fire inci dent poorly. Initial in ves ti ga tions of the shoot ings were in ad e quate, Tillman’s uni form and equip - ment were not preserved, initial reports of Tillman’s death and his recom men - dation for the Silver Star con tained fac tual in ac cu ra cies, and the Tillman fam ily was not informed about the true cir cumstances sur round ing Cor po ral Tillman’s death for thirty-five days.3 However, more germane to this ar ti cle, in March 2006 the Army Crim inal In - ves ti ga tion Di vi sion (CID) be gan an ex ten sive crim i nal in ves ti ga tion into the friendly-fire shoot ings, conclud ing that those Rangers in the sec ond group “did not commit the offenses of Neg ligent Ho micide or Aggra vated Assault.” 4 The CID report found that the Rangers had been under enemy fire and had reason ably be- lieved that they were defend ing themselves and fir ing at the enemy. 5 Ad di tion ally, as contrib ut ing factors to the ac ciden tal shoot ing the CID noted poor visi bil ity, commu ni cations problems between the two groups, and the pres ence of the AMF sol dier.6 Ulti mately, “seven Rangers were either repri manded or received nonjudicial punish ment as a re sult of the inci dent,” includ ing some soldiers re - ceiving nonjudicial punish ment for “dere lic tion of duty,” but none of the soldiers who were involved in the Tillman shoot ing were deemed crimi nally culpa ble. 7 In the wake of a friendly-fire in cident, par tic u larly when it draws the atten - tion of the me dia, there is a call for account abil ity. Someone needs to be held re - sponsi ble. Someone needs to go to jail. In deed, in some cases the facts seem so egre gious that the need to subject to courts-martial the indi vid ual or indi vid u als re spon si ble is com pel ling. However, the mil i tary has rarely used its jus tice system as a re sponse to friendly-fire in cidents, and when it has, prose cutions have rarely been success - ful. Further, the use of the mil i tary jus tice system raises signif i cant collat eral is - sues, among them concerns about sec ond-guessing the ac tions of members of the armed forces in com bat, en cour ag ing hes i tancy and tim id ity, over re act ing to com plex sys temic prob lems by pun ish ing in di vid ual man i fes ta tions of those problems, and fairness in de ter min ing who should be held account able. As one commen ta tor who has studied the history of friendly fire notes, “In the confu - sion of battle, ac ci dents occur. They are tragic, but who can take respon si bility for chaos?”8 This ar ti cle will de fine friendly fire and distin guish it from other forms of battle field killings. It will re view the history of friendly fire, its causes, and its per vasive ness. Fur ther, although there exist few re ported cases, the ar ti cle will dis cuss the often ill-fated at tempts to address the problem through the Amer i - can mil i tary jus tice sys tem. Fi nally, al though con ced ing the many dif fi cul ties https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8 2 124 NAVALDavidson: WAR COLLEGE Friendly REVIEW Fire and the Limits of the Military Justice System.

in volved with achiev ing a suc cess ful court-mar tial pros e cu tion, the ar ti cle pos- its that there re mains an impor tant, albeit dif fi cult, role for the mil i tary jus tice system in re sponse to such inci dents.

FRIENDLY FIRE DE FINED Friendly fire in volves the ac ciden tal killing in a combat setting of one sol dier by another of the same or an al lied force. The Depart ment of De fense de fines the term as “a cir cumstance in which mem bers of a U.S. or friendly mil i tary force are mistak enly or ac ciden tally killed or injured in action by U.S. or friendly forces actively engaged with an enemy or who are direct ing fire at a hostile force or what is thought to be a hostile force.”9 Friendly fire differs consid erably from the de liber ate killing of another, some times called “fragging,” which is sim ply pre- medi tated mur der and readily ad dressable un der ar ti cle 118 of the Uni form Code of Mili tary Justice, when ca pa ble of proof. As one Marine Corps lawyer and scholar has noted, fragging is “Friendly Fire with Malice.” 10 The first docu mented case of an Ameri can fragging dates to a de liber ate kill- ing in 1781 of an offi cer by Con ti nental Army soldiers. 11 During the Viet nam conflict the num ber of fragging in ci dents be came a no tice able problem as the disci pline of Amer ican forces de clined. The Marine Corps esti mated be tween a hun dred and 150 such inci dents dur ing the course of the war, and unof fi cial Army es ti mates were as high as 527 be tween 1969 and 1971.12 One aca demic found most Viet nam-era fraggings to be at tempts to intim i date offi cers and noncom mis sioned offi cers, partic u larly those who refused to counte nance ef- forts to avoid combat. 13 The con cept of friendly fire is sim i lar in many re spects to the ac ciden tal kill- ing of ci vilians, but such ac ciden tal killings ap pear to be treated differ ently and are often re ferred to as “ci vilian casu al ties” or by more ster ile terms like “collat - eral dam age.” Re ported cases of courts-martial involv ing the acci dental deaths of civil ians are rare. The most famous court-martial involv ing an acci dental at - tack on civil ians oc curred dur ing World War II, and its fame was gener ated less by the nature of the al leged miscon duct than by the identity of the presi dent of the court—a movie star, Colo nel Jimmy Stewart. In that case, in March 1945 seven B-24 Liber a tors on a bombing run to Aschaffenburg, Ger many, became lost, al leg edly due to bad weather and im - prop erly work ing nav i ga tional equip ment, and un in ten tion ally bombed Zu rich, Swit zer land.14 Zu rich was deep in Swiss ter ri tory, near a large body of water, and the bombings gener ated a strong re action from the Swiss govern ment. Ulti - mately the lead plane’s pilot and navi ga tor were tried but acquit ted of the charge that they had “wrong fully and neg ligently” bombed friendly ter ri tory.15

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NORMAL RATHER THAN EX CEP TIONAL Friendly fire, also called “amicide,” “fratri cide,” or “blue on blue,” has been a constant problem in warfare since the begin ning of recorded time. In his com- prehen sive study of the subject, Geoffrey Regan traces such inci dents from the Greek hoplites to modern times. Regan opines that these types of acci den tal kill- ings were so com mon from antiq uity through at least medi eval times that “they were scarcely worthy of comment unless they related to a leader of note struck down by mischance.” 16 Friendly fire has oc curred in battles in which only one force was on the battle - field. For exam ple, dur ing a night march in 1788 the rear of an Austrian column near Karansebes, Transylvania, thought the shots and shouts from drunken sol- diers at the head of the column in di cated a Turk ish at tack; the soldiers pan icked and started fir ing, caus ing an all-Austrian battle that re sulted in thousands of ca su al ties.17 The Ameri can mili tary has suffered from equally em barrass ing in- cidents. During the 1943 Ameri can and Cana dian inva sion of the Aleutian is- land of Kiska, twenty-eight Ameri cans were killed and another fifty wounded on the first day de spite the pre vious de par ture of all Japa nese forces.18 Not only are histor ical exam ples of friendly fire so prev alent as to be charac - ter ized as nor mal rather than ex cep tional, but the causes of these in ci dents are so numer ous as to preclude easy expla na tion. In some cases, friendly fire was the re sult of in ex pe ri ence and in ad e quate train ing. For ex am ple, in 1643, dur ing the Eng lish Civil War, poorly trained and in ex pe ri enced par lia men tary in fan try or- ganized in three lines attacked a heavily for ti fied building held by roy alist troops. Instead of the for ward line firing first and then re tiring to the rear to re - load while the next line in turn fired, all three fired simul ta neously, effec tively elim i nat ing the front rank.19 A plethora of other causes have been suggested as well: stress, inad e quate co - or di na tion, faulty in for ma tion, re duced vis i bil ity, in ad e quate train ing, cha otic con di tions, in ex pe ri ence, psy cho log i cal war fare, low mo rale, panic and care less- ness, mis iden ti fi ca tion, and the ne ces sity for split-sec ond de ci sions.20 The one constant in these inci dents has been hu man er ror. At some point in the chain of events leading to friendly-fire death, someone misiden ti fied friend for foe, failed to provide crit ical infor mation in an accu rate or timely way, failed to de termine ac cu rately a lo ca tion, mis in ter preted an or der, or the like. Fur ther, the number of casu al ties as soci ated with friendly fire has often been stunning. One French general esti mated that approx i mately seventy-five thou - sand French ca sual ties in were caused by French ar til lery fire.21 An esti mated 5 per cent of Viet nam casu al ties were attrib uted to friendly fire.22 Dur- ing the first Persian , Op era tion DESERT STORM, 23–24 percent of U.S. fa tali ties and 77 percent of Amer i can ve hi cle losses were at tributed to friendly https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8 4 126 NAVALDavidson: WAR COLLEGE Friendly REVIEW Fire and the Limits of the Military Justice System.

fire.23 One mili tary scholar opines that 10–15 percent of U.S. casu al ties dur ing the twenti eth century were caused by friendly fire, which equates to be tween 177,000 and 250,000 casu al ties. 24 As discussed in this ar ti cle, the lion’s share of U.S. friendly-fire in cidents ap - pear to in volve the Air Force (and its pre de cessor Army Air Corps) and Army and Marine Corps ground forces. However, the Navy has not been im mune to this problem, be ing both the victim and per pe tra tor of such inci dents. A 1995 Na val War College Re view ar ti cle re ports fifty-three World War II in ci dents in which “U.S. vessels were damaged or sunk by Al lied weapons,” result ing in over six hundred casu al ties, in addi tion to the “many instances of naval air craft losses due to friendly fire.”25 The ar ti cle fur ther identi fies U.S. naval vessels that were the vic tims of friendly fire dur ing the Ko rean War, Viet nam, and DESERT 26 STORM. Nor has friendly fire discrim inated in terms of rank. In the wake of the Nor - mandy landings in World War II, Allied bombers ac ciden tally at tacked the U.S. 30th In fan try Di vi sion, caus ing 814 ca su al ties, in clud ing Lieu ten ant Gen eral Lesley McNair, who was killed.27 In ter esting from the le gal standpoint (in terms of self-de fense and justi fica - tion de fenses) are the un usual, but not completely un heard-of, in stances of friendly-fire re cip i ents de fend ing them selves though know ing their at tack ers to be friendly forces. Dur ing the in vasion of Kiska, where there was no enemy re sis- tance, “one Amer ican soldier, convinced he was at tacking a Japa nese unit, had to be delib er ately shot down by his comrades as he insisted on charg ing and fling - ing grenades as he ran, even though they shouted at him to stop in English.” 28 Fur ther, dur ing the Sicily cam paign, Amer ican ground forces were fre quently at - tacked by Ameri can air forces. Indeed, General Omar Bradley was strafed (un- success fully) three times in a single day.29 During one such inci dent, a U.S. column shot down the Ameri can plane and captured its pilot. 30 Dur ing World War II, Amer ican patrol tor pedo (PT) boats and air craft in the South Pacific fre quently inflicted casu al ties on each other. In one in cident in July 1943, four Army B-25s at tacked two Navy PT boats, sink ing one. In turn, the re- maining PT boat shot down one of the Army air craft, killing three of the crew.31 In one par tic u larly bi zarre in cident dur ing World War II, an Ameri can tank-de stroyer platoon opened fire on a tank col umn; it ceased fir ing when it re - alized the were Amer i cans, but the tanks con tin ued to re turn fire even af - ter they had come close enough to identify the tank-de stroyer unit posi tively as Amer i can. The tanks passed through the first Amer i can unit and pro ceeded to attack an adjoin ing Amer ican unit. As soon as they took up posi tion on a nearby hill, the tanks in turn were attacked by Ameri can . 32

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FRIENDLY FIRE THROUGH THE PRISM OF MILI TARY LAW When exam in ing the effi cacy of the mili tary justice system in the friendly-fire context, one should start by look ing through the prism of the appli cable crim i - nal stan dard. Since 1951 mem bers of the armed forces have been subject to the Uni form Code of Mili tary Justice (UCMJ). Prior to the UCMJ, the Army fol- lowed the Arti cles of War, and the Navy was subject to the Arti cles for the Gov - ernment of the Navy, which made simi lar puni tive ar ti cles avail able to prose cute friendly-fire deaths. The follow ing are common friendly-fire-re lated offenses. The UCMJ contains a hier ar chy of ho micide offenses, rang ing from premed i - tated (arti cle 118) to negli gent homi cide (arti cle 134). Premed i tated murder imposes the heaviest burden on the govern ment but also autho rizes the great est level of punish ment—death. To achieve a con vic tion for premed i tated mur der, the trial counsel (prose cutor) must prove that the accused (de fendant) acted with a “premed i tated de sign to kill”—that is, a specific intent to kill, with con sid eration of the act in tended.33 By com par i son, a con vic tion for neg li gent ho micide re quires only proof that the ac cused’s action or failure to act consti - tuted sim ple neg ligence (lack of due care); no specific intent to kill need be proven.34 The max i mum pun ish ment for a neg li gent ho mi cide con vic tion com- prises a dis honor able dis charge, forfei ture of all pay and al low ances, and three years’ confine ment. However, re gard less of the offense charged, the UCMJ re - quires that all offenses be proven be yond reason able doubt, the high est level of proof known to the law.35 Two offenses likely to be charged under the UCMJ in a friendly-fire in cident are in vol un tary manslaugh ter, un der ar ti cle 119, and the lesser included offense of negli gent homi cide. Invol un tary manslaugh ter is on the low end of the hier- archy of homi cide offenses and re quires proof of culpa ble negli gence, which is de fined in part as “a neg ligent act or omission ac compa nied by a culpa ble disre - gard for the fore seeable conse quences to others of that act or omission.” 36 It is further defined as “a negli gent act or failure to act accom pa nied by a gross, reck - less, wanton, or delib er ate disre gard for the foresee able results to others.” 37 The basis of such a charge “may be a negli gent act or omis sion that, when viewed in the light of hu man expe ri ence, might foreseeably re sult in the death of another, even though the death would not nec essar ily be a nat u ral and proba ble conse - quence of the act or omis sion.”38 As ex am ples of cul pa ble neg li gence, the Man - ual for Courts-Mar tial offers “negli gently conduct ing tar get prac tice so that the bullets go in the direc tion of an inhab ited house within range; point ing a pistol in jest at another and pulling the trig ger, be liev ing, but without taking reason - able pre cautions to ascer tain, that it would not be danger ous; and care lessly leav - ing poisons or dan gerous drugs where they may endan ger life.”39

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Neg li gent ho mi cide is sim i lar to in vol un tary man slaugh ter but re quires a lower de gree of care less ness or neg ligence. The ac cused’s action or failure to act that re sulted in the death need rise only to the level of “simple” neg ligence: “the absence of due care, that is, an act or omission of a per son who is under a duty to use due care which exhib its a lack of that de gree of care of the safety of others which a rea sonably care ful per son would have ex ercised un der the same or sim i - lar cir cum stances.”40 Another likely charge is der e lic tion of duty, which is punish able un der UCMJ ar ti cle 92(3). This puni tive ar ti cle re quires proof that the ac cused had cer tain duties that he or she knew of, or rea sonably should have known of, and that the accused was either willfully (i.e., inten tion ally) or through ne glect or culpa ble in ef fi ciency der e lict in per form ing those du ties.41 In di vid u als per form du ties “neg ligently” when, it being their duty to use due care, they act in a way “which ex hibits a lack of de gree of that de gree of care which a reason ably pru dent per - son would have ex er cised under the same or simi lar cir cumstances.” Culpa ble inef fi ciency is defined as “inef fi ciency for which there is no reason able or just ex - cuse.”42 Mere inep ti tude as a reason for failure to per form a duty serves as a de - fense against this charge.43 The “duty may be imposed by treaty, statute, reg u lation, law ful or der, stan - dard op erat ing pro ce dure, or cus tom of the ser vice.”44 The pu ni tive ar ti cle is broad enough to encom pass a duty im posed by rules of en gage ment. Although the courts have de termined that they will not require a higher standard to estab - lish the “crim i nal ity of tac ti cal-non per for mance de ci sions by mil i tary line of fi- cers,” they will “not substi tute hindsight for fore sight” when de termin ing whether the ac cused acted neg ligently. 45 In compar i son to other offenses under the UCMJ, the bur den on the prose cution is not par tic u larly oner ous, a fact re - flected in the maxi mum sentence. Der e lic tion of duty through ne glect or culpa - ble inef fi ciency subjects the accused to a maxi mum sentence of only three months’ confine ment and for feiture of two-thirds pay per month for three months.46 Convic tions un der arti cle 92(3) have encom passed a wide range of miscon - duct. To illus trate, ser vice mem bers have been con victed of der e lic tion of duty for fail ing to post road guides in pairs and maintain a roster of posted guides, re - sult ing in the death of a guide by expo sure dur ing a desert ex er cise; willfully per- mitting a sub ordi nate to sign falsely an offi cial re port; failing to use other avail able ranges while navi gating a ship through a narrow pas sage at night af ter re ceiv ing con flict ing in for ma tion con cern ing the ship’s po si tion; and fail- ing to maintain “an alert and re sponsi ble watch.”47

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AP PLI CA TION OF THE MIL I TARY JUS TICE SYS TEM TO FRIENDLY-FIRE IN CI DENTS Throughout Amer i can mil i tary his tory, re ported in stances of use of the mil i tary justice system in re sponse to friendly-fire in cidents have been exceed ingly rare. However, several his tor i cal cases do exist and warrant re view. The Amer i can Civil War and the Death of Stone wall Jack son One of the best known friendly-fire in cidents in Amer i can mili tary his tory in - volved the shoot ing of Confed erate general Thomas J. “Stone wall” Jackson. On 2 May 1863, dur ing the battle of Chancellorsville, Virginia, Jackson was mor tally wounded by his own men. While Jackson was con duct ing a mounted nighttime re con naissance of his for ward lines, sol diers of the 7th North Carolina Reg iment fired on him and his staff, be liev ing them to be Un ion sol diers.48 Jackson and his party rode on through the pitch-black forest toward the 18th North Carolina Reg i ment, whose sol diers also started shoot ing at them, also be liev ing them to be attack ing Union sol diers. One of Jackson’s aides yelled, “Cease firing! You are fir ing into your own men!”49 Ma jor John D. Barry of the 18th North Carolina re - sponded, “It’s a lie! Pour it to them, boys!” The reg iment fired into the group, hit ting Jackson in the left shoul der, the left fore arm, and right palm.50 In addi - tion to Jackson, four members of his staff were killed and three wounded.51 Jack - son ini tially survived his wounds, but his left arm was am putated the fol lowing day, and he died of wound-re lated pneumo nia on 10 May.52 Al though the Con fed er acy had a func tion ing mil i tary jus tice sys tem, there is no re cord of any courts-mar tial in volv ing the Jackson shoot ing.53 Indeed, Major Barry was promoted to colo nel af ter the battle. A veteran of several bat tles, Barry commanded the 18th North Carolina at the bat tle of Get tysburg and even tu ally rose to the rank of briga dier general. 54 World War II: The Sic ily In va sion Another sig nifi cant friendly-fire in cident in which no courts-mar tial re sulted, although such action was seri ously consid ered, oc curred dur ing the World War II in vasion of Sicily. On the third day of the in vasion, in July 1943, three battal - ions and an en gineer company of the 82nd Air borne Di vision, some 1,092 men, were or dered to make a night parachute jump into Sicily. 55 De spite ex ten sive co - ordi na tion with Army and Navy units in the area, the paratroop ers flew into a wall of an ti aircraft fire near the Amer i can beach head. The air borne force suf - fered se vere dam age to or total loss of sixty of 145 aircraft; ap prox i mately sixty airmen were casu al ties, and 229 paratroop ers were killed, wounded, or miss - ing.56 General Dwight D. Eisen hower, command ing the Eu ro pean The ater of Op era tions, was livid, or der ing Sev enth Army commander George Patton, who feared being re lieved him self, to con duct an im me di ate in ves ti ga tion into what https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8 8 130 NAVALDavidson: WAR COLLEGE Friendly REVIEW Fire and the Limits of the Military Justice System.

Ei sen hower as sumed to have been “in ex cus able care less ness and neg li gence on the part of someone,” to fix re sponsi bil ity, and to take disci plin ary action. 57 Eventu ally three re ports were sub mitted to Eisen hower. The senior airborne adviser, Bri gadier Freder ick “Boy” Browning of the British army, blamed inad e - quately trained avia tors. An Ameri can general, Joe Swing, blamed the disas ter on a com bi na tion of five er rors: in ad e quate co or di na tion of air routes with nonairborne forces; inabil ity of the insuf fi ciently trained airmen to follow the complex air routes; the Navy’s rigid pol icy of fir ing on all air craft; sched uling the air borne op er ation in the af ter math of sus tained Axis ae rial at tacks on the fleet, includ ing twenty-three sepa rate attacks the day of the jump; and fail ure to warn Army an ti air craft units ad e quately of the pend ing op er a tion.58 In his re port to Eisen hower, the 82nd’s command ing general, , fore stalled fu - ture dis ci plin ary ac tion by Ei sen hower by con clud ing that “the re spon si bil ity for loss of life and mate rial re sult ing from this op era tion is so di vided, so diffi cult to fix with im par tial justice, and so question able of ulti mate value to the ser vice be - cause of the acri mo nious de bates which would fol low efforts to hold re spon sible persons or services to account, that disci plin ary action is of doubtful wisdom.” 59 The Korean War: A Rare Court-Mar tial Con vic tion The Ko rean War saw one of the few suc cessful friendly-fire prose cutions. In United States v. Perruccio, an Army private was con victed of neg ligent ho micide af ter shoot ing an other Amer i can sol dier whom the ac cused al leged he had mis - taken for an en emy infil tra tor.60 The two soldiers had been in a five-man half-track crew approx i mately one mile from the enemy lines, with friendly in- fantry be tween them and the enemy. 61 At night, one sol dier, re lieved ev ery two hours, would stand guard while the remain ing four slept in a nearby bunker. The guard ha bit u ally entered the bunker to check the fire in the stove, the bunker’s only source of light. Al though the bunker had re ceived no small-arms fire, the unit was un der a two-week-long alert against infil tra tors and guer rilla attacks. 62 Approx i mately fifty minutes after taking over, the guard entered the bunker to check the stove. Private Perruccio, whom he had just relieved, grabbed his car - bine and fired several rounds at the guard, killing him. Neither man said a word.63 Perruccio later argued that the killing was jus ti fied because he had rea- sonably believed the vic tim to be an enemy infil tra tor, but his defense failed; he was deemed neg ligent in not attempt ing to de termine the identity of the victim be fore fir ing.64 He was sentenced to re ceive a bad-conduct discharge, for feit all pay and allow ances, and be con fined for a year, but ulti mately his sentence was re mit ted.65 By way of compar i son, a second court-mar tial convic tion in that war for invol - un tary man slaugh ter was re versed on appeal. In United States v. Tigert, Cor po ral

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Tigert had gone to sleep in a sleeping bag on a cot when the vic tim—“drunk, stag- ger ing and bois terous”—sat on him, pushed him par tially off the cot, twisted his arm, and demanded whis key.66 Be cause his unit was in close proxim ity to the front lines, Tigert, who was char ac ter ized as an “ex cel lent” sol dier, had a loaded pistol within reach and now re acted instinc tively, “without any partic u lar thought running through his mind un less it was ‘maybe in fil trators or some - thing.’”67 He woke quickly out of a sound sleep, swing ing his pistol, which dis- charged, killing the drunken soldier. 68 Placing partic u lar empha sis on the combat set ting, the Army Board of Re view pos ited that the ev i dence was in suf fi cient to sus tain an in vol un tary man slaugh- ter con vic tion or even the lesser included offense of neg ligent ho micide. 69 The board found it “highly proba ble that any person be ing so aroused in simi lar sur- round ings would first think of ‘in fil trators’ and act on the spur of the moment as did the accused.” 70 Sig nifi cantly for purposes of this ar ti cle, the board fur ther em phasized the con text in which the ac cused was to be judged: “It must be conceded that soldiers injected into such a sit u ation where hardship and dan- ger to life and limb are ever pres ent can be expected to act in fur ther ance of self-pres er va tion some what dif fer ently than their com rades en gaged in gar ri - son duty. We have no reason to believe that this accused is any differ ent than other sol diers in their reac tion to the stress of armed combat.” 71 Viet nam: An Un suc cess ful Court-Mar tial Dur ing the Viet nam War, friendly-fire in cidents were in vesti gated, but (at least within the Army) find ings of action able neg ligence were punished un der ar ti cle 15 of the UCMJ (i.e., as nonjudicial punish ment). 72 However, at least one friendly-fire in ci dent gen er ated a court-mar tial, ul ti mately re sult ing in an ac - quit tal. On 17 Au gust 1970 a Marine mortar squad support ing its parent com- pany fired at a tree line that had pre viously pro duced sniper fire.73 The rounds at first struck the tree line but then be gan to land at the base of a hill oc cu pied by the parent company and then to “walk” back into its posi tion, killing three Ma- rines and a Viet namese pris oner and wounding an addi tional thirty Marines. 74 An initial in vesti ga tion indi cated that the later rounds had been fired at a high angle, vir tually straight up into the air.75 Fur ther, the in ves ti ga tion opined that the Marine mor tar squad “had fired more rounds than nec essary in or der to avoid hav ing to carry them back to [the landing zone] and had simply been care - less in the con trol of its fire.”76 The Marine Corps charged the squad leader and his assis tant with neg ligent ho micide, and it also charged the squad leader “with neg ligence in in struct ing and su per vis ing his mor tar squad.”77 A third Marine gun ner was also charged, but the charges were dropped after he ac cepted immu nity in ex change for his testi mony.78

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The Marine Corps de fense at tor neys in vesti gated and pre pared for the trial exten sively. They gath ered wit nesses to put on a “good sol dier” de fense and also col lected suf fi cient ev i dence for an al ter na tive ex pla na tion—that the ca su al ties had ac tu ally been in flicted by en emy mor tars us ing re cov ered Amer i can rounds and tak ing advan tage of the Ma rine squad’s fire to mask their at tack.79 Af ter a ten-day trial, the panel of offi cers de liber ated for five minutes and ac quitted the assis tant squad leader; a sec ond five-day trial of the squad leader also re sulted in ac quit tal.80

Op er a tion DESERT STORM As noted ear lier, ap prox i mately a quar ter of all U.S. fa tal i ties dur ing Op er a tion DESERT STORM were caused by friendly fire. One of the most publi cized friendly- fire in cidents involved the 27 Febru ary 1991 death of Cor poral Douglas Fielder, assigned to the 54th Engi neer Battal ion, 1st Ar mor Divi sion (1st AD), which was part of the U.S. Army VII Corps. On the after noon of 26 Febru ary, the M548 ammu ni tion car rier crewed by Cor poral Fielder and a second soldier be came dis abled. The en gi neer company commander ordered his ex ecu tive offi cer and the crew of two other vehi cles to remain with the M548 un til it could be recov ered the fol low ing day. The three vehi cles were marked with an in verted V, an antifratricide rec og nition sym bol. A sec ond antifratricide nighttime de vice, a black out light mounted on a pole on the M548, was in op er a ble.81 At ap prox i mately 2:30 AM, a troop from the 3rd Armored Cavalry Regi ment (3rd ACR), hav ing passed through its ob jec tive, an Iraqi air field, crossed a nearby VII Corps/XVIII Air borne Corps boundary line into an area controlled by the 1st AD. The 3rd ACR served as a screening force to protect the XVIII Air - borne Corps’s right flank. By now, however, co ordi na tion along the corps bound ary had “dis in te grated.”82 Fur ther, approx i mately two hours before the in- cident, the 3rd ACR’s rules of engage ment were changed, the new rules includ - ing an or der not to cross the boundary line and not to “fire un less fired upon.”83 As ele ments of the 3rd ACR moved for ward, one of its troop commanders in an Abrams tank de tected two of the engi neers in his ther mal sights and mistak - enly believed them to be enemy soldiers; he fur ther mis tak enly identi fied the en- gi neer ve hicles as buildings. The troop commander re ceived permis sion to fire warning shots, which, he and his gunner believed, pro duced re turn fire. He en- gaged the target area until his squad ron commander radi oed a cease-fire. One of the engi neers was wounded in the leg.84 The engi neers had not seen any warning shots and later denied re turning fire.85 Within minutes of the inci dent, the squadron commander ar rived with five ve - hi cles and dismounted two soldiers from a Bradley Fight ing Ve hi cle to ap proach

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the suspected enemy soldiers but failed to obtain the troop commander’s sit ua - tional as sess ment. The squadron commander and his gun ner observed at least one of the engi neer ve hicles on fire and figures running from them. Concerned that the flee ing figures were escap ing enemy, the squadron commander granted his gunner’s re quest to fire into the ground imme di ately in front of them. By this time, other 3rd ACR soldiers had identi fied the engi neer ve hicles as American. At this point the engi neer ex ecu tive offi cer fired a green star clus ter, which was a day - time antifratricide sig nal. (A white star clus ter was the nighttime antifratricide rec og nition sig nal.) The squadron commander’s gunner then fired, killing Cor po - ral Fielder. The engi neer ex ecu tive offi cer ap proached the 3rd ACR ve hicles with a flash light and his hands raised. Once he was identi fied as an Ameri can, a cease-fire order was relayed to the remain ing 3rd ACR vehi cles. 86 The frat ri cide was im medi ately re ported to the 3rd ACR commander and then to the di vision and corps lev els. Subse quent in vesti gations by a judge ad vo - cate cap tain from the 3rd ACR and later by an XVIII Air borne Corps inves ti gat - ing offi cer de termined that the soldiers in volved in the shoot ing had “acted re spon si bly.”87 However, a third review, by Forces Command (FORSCOM), dis - agreed; the “FORSCOM staff judge ad vo cate con cluded that four of the offi cers in volved in the frat ri cide were neg ligent and der e lict in perform ing their du - ties.” 88 The FORSCOM staff judge advo cate recom mended that the 3rd ACR, squadron, and troop command ers re ceive let ters of rep ri mand and that the en - gi neer ex ec u tive of fi cer re ceive a let ter of ad mon ish ment for not hav ing taken suffi cient de fensive measures before hand or doing more to protect his men dur - ing the inci dent. 89 Fi nally, un sat is fied with the Army’s ef forts, Fielder’s par ents, who had initially been informed that the Iraqis had killed their son, contacted Sena tors Jim Sasser (D-Tenn.) and Fred Thompson (R-Tenn.), who in turn initi - ated a more compre hensive re view by the General Account ing Office. 90 No courts-martial resulted from the friendly-fire inci dent. Ulti mately, the FORSCOM com mander or dered that the troop command ers’ repri mand be withdrawn, that the engi neer offi cer’s letter of admo ni tion remain in place, and that the squad ron and 3rd ACR commander’s letters of rep ri mand not be placed in their offi cial person nel re cords. However, the troop commander re ceived an adverse Offi cer Evalu a tion Report. 91 Also, the Army re voked seven awards for valor given to soldiers as signed to or at tached to the 3rd ACR for ac tions re lated to the in cident, be cause the award docu menta tion indi cated that the soldiers had re ceived hostile fire from the enemy. 92

Op er a tion PROVIDE COMFORT One of the most puzzling and seemingly avoidable friendly-fire in cidents oc - curred dur ing the Ameri can enforce ment of a “no-fly zone” in northern Iraq as

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part of Op er a tion PROVIDE COMFORT. On 14 April 1994, two Air Force F-15s, pi - loted by ex peri enced and well trained pilots, shot down two Army Black Hawk UH-60 he li cop ters, car ry ing six teen United Na tions co ali tion per son nel, in the no-fly zone. The he li cop ters, which were us ing op er a tional Iden ti fi ca tion, Friend or Foe (IFF) systems, had been fly ing in broad day light, in ex cel lent visi - bil ity, in an area de void of sig nifi cant Iraqi action for over a year; an Air Force Air borne Warning and Control System (AWACS) con troller who had con tact with all four air craft failed to inter vene.93 Twenty-six people died as a result. The Air Force pilots entered the no-fly zone expect ing to be the only friendly air craft in the area, not hav ing been informed of the presence of the Army heli - copters either by the AWACS or in their preflight brief ing.94 De tect ing the he li- copters and failing to obtain a friendly IFF signal, the first pilot made a visual-iden ti fica tion pass and mistook the Army Black Hawks as Iraqi Hind gunships. His wing man, asked to confirm the Hinds, also made a pass and re - ported “Tally two,” meaning that he only could confirm the exis tence of two he - li copters. But the lead pi lot in ter preted the report as a confir ma tion of his identi fica tion of the aircraft as Iraqi Hinds.95 Although the he li copters posed no seri ous threat to the F-15s and could not have es caped the much faster jets, the pi lots did not make fur ther vi sual-iden ti fi ca tion passes.96 The Black Hawks bore dark forest-green camou flage patterns and had six Amer i can flags painted on vari ous parts of their airframes, while the Soviet- made Iraqi Hind used a light tan and brown cam ouflage. 97 Nev er the less, ac cu - rate vi sual iden ti fi ca tion of the Amer i can he li cop ters was dif fi cult. The lead pi- lot con ducted his visual con fir mation “at a speed of about 450 knots (522 mph), on a glide path approx i mately 500 feet above and 1,000 feet to the left of the heli - cop ters.”98 When the wing man passed by the heli cop ters “at fif teen hundred to two thousand feet to their right, he saw two heli cop ters and pulled up quickly calling, ‘Tally two.’”99 The two Black Hawks contacted the AWACS at least three times before the shoot-down but had no knowl edge of, or radio con tact with, the F-15s.100 Fur ther, un like the F-15s, the Army he li copters did not have HAVE QUICK II fre quency- hop ping radios and commu ni cated with the AWACS on a dif ferent ra dio fre - quency than the fight ers used.101 In any case, al though both the F-15s and Black Hawks were un der the control of the same AWACS air craft (an E-3 Sentry, adapted from the Boe ing 707 de sign), they commu ni cated with differ ent control - lers, who were physi cally sep arated. 102 Fur ther, the Black Hawks were using a dif- ferent IFF Mode I code than the Air Force used in the no-fly airspace over northern Iraq, re ferred to as the tacti cal area of re sponsi bil ity (TAOR); the Black Hawks had ob served that prac tice for over a year but had never been in formed of

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the need to switch to a differ ent IFF code.103 The AWACS’s duties included con - trolling co alition air craft fly ing in the TAOR, and pro viding “air borne threat warning and air control for all Oper a tion Provide Comfort aircraft.” 104 Minutes before the F-15s entered the TAOR, the Black Hawks entered a moun tain ous val ley, caus ing radar and IFF contacts to fade.105 The AWACS, which unlike the fight ers moni tored the Black Hawks’ IFF code, still received in- ter mit tent IFF signals from them, and IFF returns were vis i ble on its ra dar scopes.106 The AWACS, which was fly ing with a crew of nineteen, had had ear lier radio contact with the only four aircraft in the TAOR—the two F-15s and the two Army UH-60s.107 Although the AWACS’s crew members were all indi vid ually well trained and expe ri enced, this was its first flight as a crew in the TAOR, and two instruc tors had been added.108 Unfor tu nately, at the time of the shoot-down one instruc tor was in the galley on break, and the second was taking a nap.109 Also, two other members of the crew were reading books, one was asleep, and another was moni tor ing radios with his eyes closed.110 Fur ther, the AWACS crew was la bor ing un der some con fu sion as to its he li cop ter-track ing re spon si bil i ties.111 Ul ti mately, af ter an ex haus tive in ves ti ga tion, an Air Force in ves ti ga tion board found that the inci dent “was ‘caused by a chain of events,’” which was ulti mately sum marized by the secre tary of de fense as compris ing four fac tors: • The F-15 pilots misiden tified the Black Hawks. • The AWACS crew failed to in ter vene.

• Ea gle flight [the Army Black Hawks] and their op er ations were not inte grated into the Task Force.

• The Iden ti fi ca tion Friend or Foe (IFF) sys tems failed.112 The Air Force preferred (i.e., for mally initi ated) der elic tion-of-duty charges against five mem bers of the AWACS crew, preferred neg ligent-ho micide and der elic tion-of-duty charges against the sec ond (wing man) pilot, and granted immu nity to the lead pilot in exchange for his testi mony.113 However, the ar ti cle 32 hear ing, the mili tary’s functional equiva lent of a grand-jury pro ceeding, re - ferred only one in di vid ual to a court-mar tial (i.e., or dered the charges prose - cuted). The AWACS senior direc tor, an Air Force captain, was tried for dere lic tion of duty, for “alleg edly failing to ad e quately super vise the AWACS crew and not no - ti fy ing the fight ers of the Army heli cop ters’ presence.” 114 The cap tain was acquit - ted. In re sponse, the Chief of Staff of the Air Force grounded the two pilots and three AWACS crew members and issued career-end ing letters of disap proval to those five, as well as two su pervi sory gen eral offi cers.115

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The en tire court-mar tial pro cess proved con tro ver sial and ul ti mately un - satisfy ing to the fami lies of the vic tims and to many in the Air Force. Sev eral of the vic tims’ fami lies and some within the uniformed Air Force lead ership were up set that no one was held pub licly account able through the mil i tary jus tice sys- tem, while some in the AWACS commu nity complained that singling out the se - nior direc tor was an unfair and mo rale-de grading effort to blame the AWACS crew and re flected an insti tu tional bias in fa vor of pilots. 116 In deed, re spond ing to crit icism that the ac cused had been unfairly singled out for prose cution, Sec- re tary of the Air Force Sheila Widnall took the un usual, and ulti mately un suc - cessful, step of asking Secre tary of De fense Wil liam Perry to halt the pro ceed- ings, although she also pos sessed such author ity.117 Af ghan i stan and the Ac ci den tal Bomb ing of Ca na dian Troops On 12 April 2002, an F-16 fly ing over Af ghani stan dropped a five-hun dred-pound la ser-guided bomb on Ca na dian forces par tic i pat ing in a nighttime live-fire ex er cise in a train ing area used reg u larly by co alition forces for such pur poses.118 The bomb wounded eight Cana dian soldiers and killed four, the first Cana dian soldiers to die in combat since the Ko rean War.119 The two F-16s had been fly ing at ap proxi mately fifteen thousand feet, at the end of a ten-hour pa trol, when they saw ground fire and thought they were be ing shot at by ground forces and “a piece of ar til lery.”120 The wing man contacted an Air Force AWACS and requested per mission to engage the tar gets with 20-mm fire, but the AWACS replied, “Hold fire. I need de tails on safire [sur face-to-air fire].”121 The lead pilot too noted that they needed to “make sure it’s not friend - lies.”122 After the pilots’ eva sive maneu vers to avoid the per ceived attack, the wingman announced that he was “rolling in in self-de fense,” to which the AWACS re plied, “Boss man copies.” 123 Both pi lots then used la sers to pin point the target, and the wingman released the bomb.124 Af ter ward, the wing man asked, “Can you confirm they were shoot ing us?” to which the AWACS replied, “You’re cleared. Self-defense.” 125 A U.S.-Ca na dian in ves ti ga tion and a sep a rate Ca na dian in ves ti ga tion found the two pi lots to be at fault, although the Cana dian re port noted that the pi lots had not been in formed of the training ex er cise.126 When the Air Force preferred charges against the two pi lots for manslaugh ter, ag gra vated assault, and der e lic - tion of duty, the ar ti cle 32 offi cer recom mended against a court-mar tial, de spite opining that suffi cient ev idence existed, in fa vor of nonjudicial punish ment. 127 The commander intended to drop all charges against the lead pilot, issue him a let ter of rep ri mand, and remove him from the pro motion list but permit him to re tire; he ac cepted the ar ti cle 32 offi cer’s rec ommen da tion that the pilot who had actu ally dropped the bomb face nonjudicial punish ment

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un der ar ti cle 15.128 De fense at torneys had sug gested that the pilots’ error might have been at tribut able to amphet amines, known as “go pills,” which the Air Force is sued to pilots for long missions. 129 The wing man initially re jected the ar ti cle 15 offer and elected to go to court-mar tial but changed his mind after be ing assured that he would be allowed to serve until he was eli gi ble for re tirement. 130 Ulti mately, the Eighth Air Force commander rejected a self-defense argu ment, issued the pilot a harshly worded rep ri mand, and fined him $5,672.131 The appli ca tion of the mili tary justice system to this friendly-fire in cident again proved con tro versial. The two pilots, members of the Il li nois National Guard, en joyed lo cal sup port dur ing the mil i tary pro ceed ings, in clud ing a fund-raiser by the gover nor of Il linois to pay for their legal fees.132 Air Force offi - cers voiced opinions both support ive and crit ical of the two pi lots;133 one Air Force colo nel was rep ri manded for alleg ing that the Air Force in vesti ga tive board was simply “look ing for some one to blame.”134 Many Ca na di ans har bored bit ter feelings about the in cident. 135

THERE BUT FOR THE GRACE OF GOD . . . Some friendly-fire in cidents, while tragic, are also under stand able and should not rise to the level of court-martial of fenses. In deed, they may warrant no pun - ishment of any kind. Combat ants must often make split-sec ond de cisions con - cerning when and whom to shoot. Their judg ment may be clouded by re duced visi bil ity, fatigue, or fear. These are the oft-de scribed “fog of war” scenar ios. One obvi ous exam ple is the shoot ing of Stonewall Jack son by his own troops: Jackson and his party came from the direc tion of the enemy lines, at night, in a pause af- ter an extended period of combat, while the Confed erates were still in contact with Union forces. Other inci dents are in finitely more diffi cult to under stand. The 1994 shoot -down of the Army Black Hawk he li copters stands out as one such ex am ple. Equally puz zling, given the rel a tive his tor i cal fre quency of such ac ci den tal killings, is the al most complete dearth of friendly-fire courts-mar tial. Further, when the rare friendly-fire in cident is re ferred to trial, the re sult ap pears to be al - most in vari ably ac quit tal. Not hav ing made the refer ral de ci sions, heard the ev i - dence, or voted to ac quit, one can only guess at the causes of this anomaly. Perhaps one is the fre quency of these in cidents, lead ing the mili tary commu - nity to accept them as the un fortu nate norm in combat—“There but for the grace of God go I.” Perhaps it is the diffi culty of fixing le gal account abil ity in a chaotic en vi ronment, or iso lating the ac tionable mistake in a se ries of er rors, or of at tempt ing to fo cus re spon si bil ity on an oth er wise good—per haps stel - lar—soldier who has made a hor ri ble, but not mali cious, mis take. One https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8 16 138 NAVALDavidson: WAR COLLEGE Friendly REVIEW Fire and the Limits of the Military Justice System.

power ful argu ment often raised against such courts-mar tial is the poten tially adverse ef fect on the morale and fight ing abili ties of those in combat, that it might make them hes i tant. Fur ther, one commen ta tor sug gests there may exist an in sti tu tional cul tural im ped i ment—“the mil i tary’s long un spo ken ‘non-le gal’ re sponse to frat ri cide.”136 The ap par ent lack of suc cess of the mili tary’s crimi nal justice system does not appear to be a function of how the law is writ ten but rather of how it is applied. For some the fail ure of the mili tary justice system to hold crim inally ac countable those re sponsi ble for friendly-fire deaths is a trav esty of jus tice, the prod uct of a system that places too much author ity in the hands of command ers and of an in - stitu tional culture of self-protec tion and unaccountability. However, it is more likely that the se lective use of the mil i tary’s jus tice system, and its even less fre- quent suc cesses, simply re flects the re peated judg ment of a mil i tary soci ety, with its unique culture, val ues, and mo res, bal ancing concepts of jus tice and disci - pline as it applies a crim i nal system to conduct un der the stress of combat. Ser - vice members who make de ci sions to pur sue courts-martial or deter mine inno cence and guilt are in the same commu nity as those who must make the split-sec ond, life-and-death de ci sions in cha otic com bat sit u a tions. When a service member is referred for court-mar tial and subse quently con victed of a frat ri cide-related offense, those deci sions will have been made by members of a mil i tary com mu nity par tic u larly sen si tive to the col lat eral ef fects of such pro - ceedings and to the cir cumstances within which the challenged de cisions are made. In any case, even when those re sponsi ble for friendly-fire deaths are not held crim inally re sponsi ble, they remain subject to other forms of punish ment, a less severe but often career-end ing re gime of nonjudicial punish ment, repri - mands, and ad verse eval u a tions. Re gard less, some things appear cer tain. First, there will continue to be friendly-fire in cidents. If history is an ac curate gauge, they are in ev i table. Sec - ond, re gard less of the cause or cir cumstances, friendly-fire charges will remain contro ver sial and dif fi cult to prove beyond a rea sonable doubt in courts-martial. While the prose cution at tempts to second-guess the de ci sions of combat ants, others will sec ond-guess the de ci sion to pursue court-mar tial, and still others will ques tion the mil i tary’s fail ure to hold some one crim i nally re spon si ble for friendly-fire deaths. Given the fre quency of multiservice and multi national inci - dents, greater transpar ency in the mili tary justice deci sion-mak ing process may be re quired. De spite sig nifi cant hand i caps, there remains an impor tant role for the mili - tary justice system. There will be occa sions when the facts are so egre gious, the cul pabil ity so pronounced, or the dere liction of duty so mani fest that the mil i - tary commu nity will hold its own crim inally ac countable.

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NOTES

The opin ions expressed in this arti cle are 22. Ibid., p. 124. those of the author and do not repre sent the 23. Scott A. Snook, Friendly Fire: The Acci den tal posi tion of any federal agency. Shootdown of U.S. Black Hawks over North ern 1. U.S. De fense Dept., Re view of Matters Re lated Iraq (Prince ton, N.J.: Prince ton Univ. Press, to the Death of Cor po ral Pat rick Tillman, U.S. 2000), p. 11; Regan, Blue on Blue, p. 4. Army, Re port IPO2007E001 (Wash ing ton, 24. Ken neth K. Steinweg, “Deal ing Re al is ti cally D.C.: In spec tor Gen eral, 26 March 2007), pp. with Frat ri cide,” Pa ram e ters 25 (Spring 4–5. 1995), p. 26. 2. Steve Coll, “ of Bullets Drowned Out 25. Elea nor D. Gauker and Christo pher G. Cries of Com rades,” Wash ing ton Post, 5 De - Blood, “Friendly Fire Inci dents during World cem ber 2004, pp. A1, A15. War II Na val Op er a tions,” Na val War Col lege 3. U.S. De fense Dept., Re view of Matters Re lated Re view 48, no. 1 (Win ter 1995), pp. 115, to the Death of Cor po ral Pat rick Tillman, U.S. 116–17. Army, pp. 1–4, 22, 34. 26. Ibid., pp. 116, 119. 4. Ibid., app. A, pp. 1–2. 27. Rick Atkinson, “Frat ri cide Prob lem De fies 5. Ibid., p. 2. De cades of Efforts,” Wash ing ton Post, 15 6. Ibid. April 1994, p. A19. 7. Ibid., p. 1 note 2, p. 34; app. A, p. 2. 28. Regan, Blue on Blue, p. 113. 8. Geoffrey Regan, Blue on Blue: A History of 29. Ibid., pp. 156–57. Friendly Fire (New York: Avon Books, 1995), 30. Ibid., p. 158. p. 131. 31. Robert J. Don ovan, PT 109: John F. Kennedy 9. U.S. De fense Dept., Ac ci dent In ves ti ga tion, in World War II (New York: MJF Books, Re port ing and Re cord Keep ing, De part ment of 1961), pp. 62–63. De fense In struc tion 6055.07 (Wash ing ton, 32. Ibid., pp. 105–109. D.C.: 3 Octo ber 2000, with change 1, 24 April 2008), para. E2.1.16. 33. Man ual for Courts-Mar tial, United States (Wash ing ton, D.C.: 2008) [here af ter MCM], 10. Lt. Col. Gary D. Solis, USMC, Ma rines and pt. IV, para. 43(b)(1)(c)(2), pp. IV-62 to Mil itary Law in Viet nam: Trial by Fire (Wash- IV-63. ing ton, D.C.: Head quar ters, U.S. Ma rine Corps, 1989), p. 110. 34. Ibid., pt. IV, para. 85(b)(4), p. IV-128. 11. Ibid. 35. Ibid., pt. II RCM 920(e)(5), p. II-116. For “rea son able doubt,” pt. IV, para. 85(e), p. 12. Ibid., pp. 110–11. IV-129. 13. Guenter Lewy, Amer ica in Viet nam (New 36. Ibid., pt. IV, paras. 44(b)(2)(d), York: Ox ford Univ. Press, 1978), p. 155. 44(c)(2)(a)(i), p. IV-65. 14. Starr Smith, Jimmy Stew art: Bomber Pi lot (St. 37. U.S. Army Dept., Mil i tary Judges’ Benchbook, Paul, Minn.: Ze nith, 2005), p. 174. De partment of the Army Pamphlet 27-0 15. Ibid., pp. 174–77; Regan, Blue on Blue, p. 178. (Wash ing ton, D.C.: 1 Jan u ary 2010), para. 16. Regan, Blue on Blue, p. 22. 3-44-2, pp. 438–39. 17. Ibid., pp. 44–46. 38. MCM, pt. IV, para. 44(c)(2)(a)(1), p. IV-65. 18. Ibid., pp. 112–13. 39. Ibid. 19. Ibid., pp. 32–33. 40. Ibid., pt. IV, para. 85, pp. IV-128 to IV-29. 20. Ibid., pp. 7, 15, 36, 56, 63, 113–15, 117, 120, 41. Ibid., pt. IV, para. 16b(3), p. IV-23. 126, 137, 139. 42. Ibid., pt. IV, para. 16c(3)(c), p. IV-24. 21. Ibid., p. 66. 43. Ibid., pt. IV, para. 16c(3)(d), p. IV-24; United States v. Powell, 32 MJ 117, 120 (CMA 1991). https://digital-commons.usnwc.edu/nwc-review/vol64/iss1/8 18 140 NAVALDavidson: WAR COLLEGE Friendly REVIEW Fire and the Limits of the Military Justice System.

44. MCM, pt. IV, para. 16c(3)(a), p. IV-24. 69. Ibid. at 416–17. 45. United States v. Law son, 36 MJ 415, 422–23 70. Ibid. at 417. (CMA 1993) (higher standard); United States 71. Ibid. v. Fer gu son, 12 CMR 570, 576 (ABR 1953). 72. Frederic L. Borch, Judge Advo cates in Com bat: 46. MCM, pt. IV, para. 92(b)(3)(c) (c)(3)(c) Army Lawyers in Mili tary Oper a tions from (e)(3)(A), pp. IV-23 to IV-25. Viet nam to Haiti (Wash ing ton, D.C.: U.S. 47. United States v. Law son, 36 MJ 415 (CMA Gov ern ment Print ing Of fice, 2001), pp. 1993) (guide); United States v. Powell, 32 MJ 36–37. 117 (CMA 1991) (re port); United States v. 73. Solis, Ma rines and Mil itary Law in Vietnam, Sievert, 29 CMR 657 (NBR 1960) (nav i ga tor); p. 208. United States v. Stuart, 17 CMR 486 (NBR 1954) (watch). 74. Ibid., p. 209. 48. James I. Rob ert son, Jr., Stonewall Jackson: The 75. Ibid. Man, the Soldier, the Legend (New York: Mac- 76. Ibid. millan, 1997), pp. 727–28. 77. Ibid. 49. Ibid., p. 728. 78. Ibid. 50. Ibid., pp. 728–29. 79. Ibid., pp. 209–10. 51. Ibid., p. 729. 80. Ibid., p. 211. 52. Ibid., p. 737. 81. U.S. Gen eral Ac count ing Of fice [here af ter 53. See gener ally Jack A. Bunch, Mil i tary Jus tice GAO], Op er a tion Desert Storm: Investi- in the Con fed er ate States Ar mies (Shippens- gation of a U.S. Army Frat ri cide In ci dent, burg, Pa.: White Mane Books, 2000), p. 114. GAO/OSI-95-10 (Wash ing ton, D.C.: April The book is a study of 20,231 courts-mar tial; 1995) [here af ter GAO/OSI-95-10], pp. the au thor notes that many trial records were 14–17. lost or never for warded to the War Depart - 82. Ibid., pp. 2, 18, 38. ment in Richmond. 83. Ibid., p. 36. 54. Wikipedia, s.v. “John D. Barry.” 84. Ibid., pp. 34, 40–41. 55. Clay Blair, Ridgway’s Para troop ers: The Amer - ican Airborne in World War II (Garden City, 85. GAO, Op er a tion Desert Storm: In ves ti ga tion N.Y.: Dial, 1985), p. 100. of a U.S. Army Frat ri cide In ci dent: State ment of Rich ard C. Stiener, Di rec tor, Of fice of 56. Ibid., pp. 101–102. Special Inves ti ga tions, before the Perma nent 57. Ibid., p. 102. Subcom mit tee on Inves ti ga tions, Commit tee 58. Ibid., pp. 100–101, 103. on Govern men tal Affairs, United States Senate, GAO/T-OSI-95-11 [here af ter 59. Ibid., p. 100. GAO/T-OSI-95-11] (Washing ton, D.C.: 29 60. United States v. Perruccio, 15 CMR 28, 4 June 1995), p. 2. USCMA 28 (COMA 1954). 86. Ibid.; GAO/OSI-95-10, pp. 5, 34 note 18, 35, 61. Ibid., 15 CMR at 29, 4 USCMA at 9. 41–42. 62. Ibid. 87. Borch, Judge Advo cates in Com bat, pp. 63. Ibid. 183–84; GAO/OSI-95-10, pp. 46–47. 64. Ibid. at 30. 88. Borch, Judge Advo cates in Com bat, p. 184. 65. Ibid. at 29. 89. GAO/OSI-95-10, pp. 48–49. 66. United States v. Tigert, 10 CMR 415 (ABR 90. Borch, Judge Advo cates in Com bat, p. 184; 1953); for the quote, 10 CMR at 416. Sean Naylor, “Friendly Fire Probe Opens New Wounds,” Army Times, 8 May 1995, p. 67. Ibid. 14. 68. Ibid.

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91. GAO/OSI-95-10, p. 49; Naylor, “Friendly Fire 120. Rowan Scarborough, “Con trol ler ‘Cleared’ Probe Opens New Wounds,” pp. 12, 13–14. U.S. Pi lots af ter Friendly Fire,” Wash ing ton 92. GAO/T-OSI-95-11, p. 4; Naylor, “Friendly Times, 18 July 2002; “No Court-Mar tial Rec - Fire Probe Opens New Wounds,” p. 14. om mended for Two Pi lots,” Wash ing ton Times, 21 March 2003, p. A3. 93. Snook, Friendly Fire, pp. 7–8. 121. Scarborough, “Con trol ler ‘Cleared’ U.S. Pi - 94. Ibid., pp. 84, 99. lots af ter Friendly Fire,” p. A12. 95. Ibid., pp. 89–91. 122. Ibid. 96. Ibid., p. 8. 123. Ibid. 97. Ibid., pp. 23, 76. 124. Ibid. 98. Ibid., p. 6. 125. Ibid. 99. Ibid., p. 63. 126. Thomas E. Ricks, “2 Probes Fault Pi lots in 100. Ibid., pp. 86, 166. Al lies’ Deaths,” Wash ing ton Post, 29 June 2002, p. A13. 101. Ibid., pp. 51, 118. 127. “No Court-Martial Recom mended for Two 102. Ibid., pp. 118, 125. Pi lots.” 103. Ibid., pp. 142, 156, 158, 184. 128. “U.S. Pilot in Friendly-Fire Case Rejects Deal 104. Ibid., p. 4. with Lesser Charges,” Wash ing ton Times, 26 105. Ibid., p. 101. June 2003, p. A9; Ro wan Scarborough, “Pi lot Can’t Get General to Recuse,” Wash ing ton 106. Ibid., p. 102. Times, 25 June 2003, p. A5. 107. Ibid., p. 8. 129. Vernon Loeb, “Charges Are Dropped in 108. Ibid., pp. 52, 115. ‘Friendly Fire’ Case,” Wash ing ton Post, 20 109. Ibid., p. 116. June 2003, p. A14. 110. Ibid. 130. Rowan Scarborough, “Air Force Aban dons Pi lot’s Court-Mar tial,” Wash ing ton Times, 25 111. Ibid., pp. 102, 125, 129. June 2004, p. A6. 112. Ibid., pp. 65, 68. 131. Rowan Scarborough, “U.S. Fighter Pi lot Rep - 113. Tom Breen, “Crew Charged in Iraqi ri manded for Ca na dian Deaths,” Wash ing ton Shoot-Down,” Army Times, 12 Septem ber Times, 3 July 2004, p. A7. 1994, p. 20; Frank Bajal, “‘Friendly Fire’ May 132. Robert E. Pi erre, “Fam i lies De fend Pi lots in Land Flier in Prison,” Wash ing ton Times, 8 Bomb ing of Ca na di ans,” Wash ing ton Post, 2 Novem ber 1994, p. 11. Jan u ary 2003, p. A3. 114. Vago Muradian, “Key Players in the Iraqi 133. See, e.g., Ro wan Scarborough, “Friendly Fire Shootdown,” Army Times, 3 July 1995, p. 14. Pi lot Blames Poor Chain of Com mand,” 115. Steve Komarow, “Air Force Pun ishes 7 in Wash ing ton Times, 6 July 2004, p. A3 (of fi cers Friendly-Fire Case,” USA Today, 16 Au gust posit action was reason able); “Gen eral Calls 2 1995, p. 6A. Pilots ‘Reckless’ in Bombing,” Wash ing ton 116. Steven Watkins, “Beyond the Verdict,” Air Times, 22 Jan u ary 2003, p. A6. Force Times, 3 July 1995, p. 12. 134. “‘Friendly’ Pun ish ment,” Wash ing ton Times, 117. Steven Watkins, “Perry Refuses to Inter vene 17 Jan u ary 2003, p. A5. in Trial,” Air Force Times, 9 Jan u ary 1995, p. 135. Doug Struck, “U.S. Planes Mistak enly Hit 3. Ca na di ans in Af ghan i stan,” Wash ing ton Post, 118. “Amer i can Pi lot Drops Bomb on Ca na di ans, 5 Sep tem ber 2006, p. A14. Kill ing Four,” Wash ing ton Post, 19 April 136. Larry Walker, “Blaming Pilot Just More 2002, p. A9. Scape goat Jus tice,” Ar i zona Re pub lic News, 21 119. Ibid. Sep tem ber 1994, p. B5.

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