While much of the legal world’s attention has been focused on Elena Kagan’s nomination hearings, another hearing has come and gone — a hearing that will ultimately impact legal rules that have immediate life and death consequences. By many accounts, General McChrystal’s Rules of Engagement (ROE) were exceedingly restrictive, cost soldiers their lives, and allowed insurgents to engage and escape American forces with alarming frequency.
I served in Iraq during the surge (2007-2008 in Diyala Province) and lived and fought under General Petraeus’s ROE. Speaking from experience, they were generally broad enough to give soldiers’ the flexibility to engage threats as they arose. Iraq at the height of the surge was the site of daily, intense combat, and our troops had the freedom they needed to not just engage the enemy with their own weapons but also to call in artillery, rockets, and air strikes as needed.
You cannot “protect the population” if the enemy is allowed to escape again and again. You cannot “win hearts and minds” if the population sees that you can’t or won’t fully engage the enemy. In Diyala, when the enemy was brave enough to directly engage our cavalry troopers (rather than merely bury mines in the dark of night), they died. And one reason they died is we were given the freedom to defend ourselves and defend innocent Iraqis. To be sure, the ROE didn’t always work — and sometimes they failed with tragic and heartbreaking results — but most of those failures were the result of a misapplication (misunderstanding) of a good rule rather than the proper application of a bad standard.
At his confirmation hearing, General Petraeus said that one of his “top priorities” was to “assess” the ROE and that he was “keenly aware” of soldiers’ concerns. This is welcome news, and if the news is welcome to me — as I sit safe at home — I know it’s welcome to the soldiers in the field, where the legal standards contained in the ROE are of life and death importance.