JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) of South Texas College of Law, says that past actions of a former Army Colonel recently elected to Congress highlight the need for military leaders to look beyond the narrow tactical benefits of harsh measures, to their larger impact on a conflict…

While watching Meet the Press late last month, I became interested in learning a bit more about one guest, Allen West, U.S. Representative-elect for Florida’s 22nd congressional district. West, a retired U.S. Army Lieutenant Colonel was introduced as a veteran of both Gulf wars. A quick internet check confirmed my recollection: this was indeed the Lieutenant Colonel West at the center of a detainee abuse issue that I have always considered much more instructive for the average soldier than the much more highly visible abuse issues related to the “War on Terror.” In an effort to obtain information related to a suspected ambush of members of his unit in Iraq, West threatened an Iraqi detainee with his 9mm service pistol, and fired a round off to make his point. According to one summary of the incident:

While serving in Taji, Iraq, on August 20, 2003, as commander of the 2d Battalion, 20th Field Artillery Regiment, Lieutenant Colonel West was in charge of an interrogation of a civilian Iraqi police officer who was suspected of having pertinent information regarding attacks on American soldiers in the area. Interrogators had learned that the detainee had information about a planned ambush. When the interrogators were unable to extract the needed important information for some time, LTC West was asked to come try to obtain the important information. As the detainee continued to hold back the information, LTC West fired his pistol past the detainee’s head into a clearing barrel, frightening (but not physically harming) the detainee and getting him to finally give the information. According to Lt. Col. West’s sworn statement, the detainee informed West that:

“[The attack] was to occur Friday morning in Saba al Boor vicinity of the police station by positioned snipers supposedly being brought in from Fallujah. [The detainee] was to ID my vehicle and myself for these rooftop firers. We took this information and the following day established flask CPs and used AH-64s overhead. There was no attack and no further attacks have emanated from the town since the apprehension of [the detainee] and his named associates.”

At least one man was apprehended as a result of the information obtained through the detainee’s interrogation. His home was searched, but no plans for attacks on Americans or weapons were found. Colonel West testified that he did not know whether “any corroboration” of a plot was ever found, adding: “At the time I had to base my decision on the intelligence I received. It’s possible that I was wrong about [the detainee,] Mr. Hamoodi.”

West, who at the time was just short of having 22 years of service, was charged with violating articles 128 (assault) and 134 (general article) of the Uniform Code of Military Justice. West was processed through an Article 32 hearing in November 2003, where he admitted wrongdoing, was fined $5,000 . He then submitted his retirement paperwork and was allowed to retire with full benefits in the summer of 2004.

At a hearing, West was asked by his defense attorney if he would do it again. “If it’s about the lives of my men and their safety, I’d go through hell with a gasoline can,” he said. Apparently not knowing West’s gun was aimed into a barrel, “Hamoodi cracked and gave information about the planned ambush on West’s convoy, thwarting the attack.” West said there were no further ambushes on U.S. forces in Taji until he was relieved of his leadership post on October 4.” After West’s retirement was brought to public attention the next fall, he received over two thousand letters and e-mails from the American public offering him moral support. In addition, a letter in West’s support and signed by ninety-five members of Congress was drafted to the Secretary of the Army. [citations omitted]

Well, I guess the moral support translated nicely on Election Day! I don’t think that is much of a surprise – I doubt many voters believe that threatening a “bad guy” to save the good guys is really all that problematic. Indeed, West’s campaign produced a video that paints him as a hero deserving of great admiration for his commitment to his subordinates. I don’t think anyone can question that latter point. West’s motivation certainly seems to have been to protect his force. And this is why I think West’s story is so instructive.

This incident brings into sharp focus the reality of imposing absolute constraints on the treatment of captured or detained opponents during armed hostilities, and how those constraints are often perceived as conflicting with the duty of combat leaders to do whatever they can to protect their own. Let me be clear – there is nothing about this incident that makes me question the validity of these constraints. To the contrary, I believe what I taught for years as a JAG – that compliance with these constraints in the most difficult situations is a true mark of distinction for a military unit, and especially the commanders who lead those units. What so interesting about West’s conduct, and important about this incident, is how it, and the sympathy he received (which obviously included that of many voters), raises the question of why a commander in his situation should be expected to embrace these constraints?

For me, the answer cannot be the risk of disciplinary sanction for non-compliance. That risk will rarely trump the instinct of commanders like West to use coercion to obtain information they believe is needed to protect their troops. I have always believed that informing soldiers that battlefield misconduct could result in criminal sanction has minimal deterrent effect. Faced with situations of extremis, it is simply human nature to prioritize the immediate need over a potential future consequence. A commander of West’s level of experience and education undoubtedly knew his conduct could result in disciplinary action (indeed, West seemed to have been fully cognizant that he was assuming risk of disciplinary and possibly criminal sanction for his conduct); knowledge that obviously did not deter him from firing his pistol over the detainees head. Instead, the answer to why these constraints must be respected lies in the military logic that informed the development of these rules. If soldiers can come to understand that logic, then compliance suddenly can be reconciled with duty, the duty of all soldiers to sacrifice at the micro level in order to contribute to macro level success.

It is impossible to convince commanders like West that compliance with these constraints will always produce tactical level benefit for them or their units. Incidents like West’s serve as a reminder that it is almost inevitable soldiers and their commanders at all levels routinely confront opportunities to obtain tactical advantage by transgressing these constraints. It is therefore essential to convince these individuals that absolute prohibitions imposed on them by the law of armed conflict reflect the reasoned judgment of military commanders through the ages that tactical constraint ultimately contributes to strategic level success.

When I used to teach these rules to soldiers and commanders, it always amazed me that emphasis of this linkage was not the norm. Emphasizing the macro gain from micro sacrifice is a concept that naturally resonates with members of the armed forces. Indeed, accepting risk in order to contribute to mission accomplishment is the very essence of military duty. Few commanders in West’s position would balk at an order that jeopardized members of their unit in order to set the conditions for an operational or strategic success. Imagine a commander sitting in a mission brief being told “your unit must capture that bridge in order to ensure the offensive progresses on schedule, but it will be a tough fight and you should expect heavy casualties.” Now try and imagine that same commander balking at the mission and responding, “there is no way I am going to risk my soldiers to capture that bridge!” An inconceivable hypothetical, and for good reason. Every member of the military knows that duty involves accepting risk for the greater good.

Veterans of Operation Iraqi Freedom, like veterans of past wars, were reminded why the rules of war must be understood within this context. Incidents of detainee abuse frustrated their efforts to achieve operational and strategic success by undermining their credibility with the local population and subjecting their conduct to often unjustified scrutiny. Many also believe these incidents contributed to the recruiting efforts of the enemy, thereby aggravating an already volatile threat environment. Veterans of earlier wars learned this same lesson in other contexts. When General Eisenhower announced to his forces that Germans had murdered approximately 100 US prisoners of war in a field in Malmady during the Battle of the Bulge, resolve in the face of the German onslaught stiffened, contributing to the greatest German defeat in the European Theater; knowledge of Japanese abuse of British captives contributed to the fierce British and Indian resistance to the Japanese offensive against India at Imphal. British determination to “fight to the last man” was so widespread that at the battle of Kohima the several British General Officers manned the fox holes alongside their Privates in a battle so close that each side was lobbing hand grenades across a tennis court. The British prevailed and the Japanese offensive reached its high water mark.

The law of armed conflict has become a ubiquitous component of contemporary international legal discourse, and a critical aspect of national security decision-making. However, Lieutenant Colonel West’s conduct is a reminder that at its core, the law remains a critical check on the brutality of war, reflecting a carefully tailored balance between the power to inflict harm and the constraints imposed upon that power. These constraints find their origins, however, not only in humanity but also in military logic. Indeed, in many instances humanity is a gratuitous beneficiary of that logic. Understanding how compliance with these constraints contributes to mission accomplishment – even when the cost may be high at the tactical level – is essential for ensuring soldiers understand why the LOAC often asks to do what seems utterly inconsistent with self-preservation. Achieving this understanding is certainly a challenge, but a challenge that disciplined professional warriors are uniquely capable of accepting.

I suspect the Congressman Elect understands this, and would not counsel future military leaders to follow his example. But I wonder what message his subordinates took away from the event, and his subsequent political success? He may feel that he did what was necessary, but that is a dangerous path to go down, and one the law of armed conflict foreclosed long ago. Necessity is an important concept on the battlefield, but cannot and does not justify violation of absolute protections – like the protection of detainees from cruel, inhuman, or degrading treatment. This is the real lesson to learn from Lieutenant Colonel West, a lesson that is manifest in the hundreds if not thousands of command counterparts to him that chose the path of compliance, accomplished their missions, and contributed to the strategic objectives of the nation.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.

Suggested citation: Geoffrey Corn, Is All Fair in War? Congressman-Elect West and the Limits of Military Necessity, JURIST – Forum, Dec. 14, 2010, http://jurist.org/forum/2010/12/is-all-fair-in-war-congressman-elect-west-and-the-limits-of-military-necessity.php.