Friendly Fire and the Limits of the Military Justice System. Michael J
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Naval War College Review Volume 64 Article 8 Number 1 Winter 2011 Friendly Fire and the Limits of the Military Justice System. Michael J. Davidson Follow this and additional works at: https://digital-commons.usnwc.edu/nwc-review 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 This Article is brought to you for free and open access by the Journals at U.S. Naval War College Digital Commons. It has been accepted for inclusion in Naval War College Review by an authorized editor of U.S. Naval War College Digital Commons. For more information, please contact [email protected]. Davidson: Friendly Fire and the Limits of the Military Justice System. FRIENDLY FIRE AND THE LIM ITS OF THE MIL I TARY JUS TICE SYS TEM Lieutenant Colo nel Michael J. Davidson, SJD, U.S. Army (Re tired) 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 tro versial death of the Army Ranger, who had given up a lu crative career in pro fes sional football to join the Army, gen er ated wide spread me dia in ter est, mil i tary and con gres sio nal in ves ti ga tions, books, and most re cently a docu men tary. Ear lier in the day, Cor poral 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 to ward 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 sup pressive fire. Tillman, ac compa 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, Lieu ten ant Col- posi tions in the vil lage 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 ve hicle in the sec ond group saw muzzle eral gov ernment. He is a gradu ate of the U.S. Mil i tary Acad emy (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 po ral Tillman and the and George Wash ing ton Uni ver sity (LLM and SJD). He Afghan sol dier with him. Con tinu ing to fire as they is the au thor of nu merous ar ti cles and of two books: A Call to Ac tion: 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 port edly, 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 cessful at tempt to stop the sec ond group’s at - tack; instead the movement only attracted ad ditional fire.2 The Army han dled the after math of the friendly-fire inci dent poorly. Ini tial in ves ti ga tions of the shoot ings were in ad e quate, Tillman’s uni form and equip - ment were not pre served, initial reports of Tillman’s death and his rec ommen - 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 i nal 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, con cluding 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 re port found that the Rangers had been under enemy fire and had reason ably be- lieved that they were de fending 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 be tween the two groups, and the pres ence of the AMF sol dier.6 Ul ti mately, “seven Rangers were ei ther rep ri manded or re ceived nonjudicial punish ment as a re sult of the inci dent,” in cluding some soldiers re - ceiv ing nonjudicial punish ment for “der e lic tion of duty,” but none of the soldiers who were in volved in the Tillman shoot ing were deemed crimi nally cul pa 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 ac countabil ity. Someone needs to be held re - spon si 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-mar tial 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 suc cess- ful. Fur ther, the use of the mil i tary jus tice system raises sig nif i cant collat eral is - sues, among them con cerns about sec ond-guessing the ac tions of mem bers 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 fair ness 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 con fu - 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 bat tlefield kill ings. 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 in cidents. FRIENDLY FIRE DE FINED Friendly fire in volves the ac ciden tal killing in a combat set ting 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 hos tile force or what is thought to be a hostile force.”9 Friendly fire differs con sid 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 of fi cer by Con ti nental Army soldiers.