Afghanistan: A Surge in ROE Education is the First Step

The ugly issue of the misconduct of some U.S. troops in a war zone must be addressed before sending more soldiers and Marines into Afghanistan.

Both presidential candidates have focused on an increase of troops in Afghanistan as a way to help stabilize the country and eradicate the Taliban. Before we get there, however, Senators Obama and McCain should concentrate on ensuring the honor of our soldiers and eradicating divisive behaviors and toxic leaders.

While we've learned how to effectively fight the insurgents in Iraq, we have not figured out how to prevent or respond to the excessive use of violence by some of our own soldiers and Marines.

As a former prosecutor in the Army, I tried the first U.S. soldiers in Iraq, handled some of the first cases of detainee abuse, and investigated the drowning, and subsequent cover-up, of an innocent Iraqi teenager. The time lapses between the crimes and the trials were frustrating, as were the lack of support and urgency of the U.S. Army to seek out the truth and take steps to minimize the likelihood of such tragic and counter-productive incidents in the future.

As both candidates look to deploy more troops on the ground in Afghanistan, they must do more to ensure their safe and honorable return. And by honor, I mean discipline, training, and solid leadership when it comes to handling alleged crimes against Iraqis and Afghanis.

My duties as a prosecutor for an infantry brigade included teaching the Rules of Engagement (ROE) and Code of Conduct to soldiers headed to Iraq. The unit commanders scheduled the majority of these briefings to take place late at night, immediately before soldiers deployed, when the soldiers were anxious, sleep deprived, and resented listening to another lecture.

Though periodic safety, suicide prevention, and sexual harassment refresher briefings are all mandated by the military, ROE refresher briefings are not military-mandated. Mastering ROE and the Code of Conduct requires continuous training, just like the training that takes place in advance, and during, any other military operation. The military should require periodic ROE briefings in the field and include discussion of recent crimes committed by U.S. or Coalition forces to provide our soldiers and Marines with lessons learned--concrete examples of what not to do.

During my briefings, I spoke of the importance of returning with honor, but I also recognized the predictable results of the U.S. military asking its young men and women to administer overwhelming, lethal force in a foreign land, against an irregular and frequently unseen enemy, among an alien people speaking a different language and adhering to different values and customs, and who may be, willingly or unwillingly, supporting the insurgents. Prolonged--and multiple--deployments complicate matters, desensitizing soldiers to what is right and wrong as they become further removed from ordinary life and more entrenched in the conflict.

In the aftermath of a war crime, it is not uncommon for the soldiers involved to testify that they knew they were "doing the wrong thing," but felt compelled by others to go along. They often fear retribution by a superior or their peers, or they were simply too overcome with rage, sorrow, and the need for revenge that they didn't stop to think, they just acted.

Although individual soldiers bear the weight of their own decisions to violate the ROE and Code of Conduct, the number of high-profile incidents that have occurred in Iraq represent not just the ill-advised decisions of a few bad seeds or a few overly aggressive commanders who have succumbed to the fog of war; they reflect a widespread failure of military leadership and training. If the military truly wishes to help our troops live up to its values and return with honor, our senior leaders must design and implement training and disciplinary systems that increase the likelihood of success.

Senior leadership must be proactive. It is not enough to reactively prosecute offenders and punish illegal conduct. It also is criminally negligent to ignore those leaders that allow divisive behavior to continue. Though they might not condone such behaviors, by not investigating alleged war crimes, they allow such incidents to continue.

When a war crime has been committed, the information and evidence are usually discoverable early, almost immediately after the incident. Senior NCOs and officers need to be forcefully reminded that it is their responsibility to ensure that war-crime allegations are investigated properly, thoroughly, and expeditiously. An officer's failure to vigorously investigate his or her soldiers' alleged conduct, or to appoint an independent investigator when the officer has a conflict of interest, should be considered ground for judicial action against that officer, including a formal criminal charge of obstruction of justice.

Like good marksmanship and competent tactical planning, compliance with the ROE and Code of Conduct are critical to operational integrity, and even to our soldiers' survival. A war crime not only might land a soldier in prison for many years, but one tragic incident can turn a large number of the local civilians against the United States' mission and jeopardize the lives of countless other soldiers in the region.

It is critically important to our missions in Iraq and Afghanistan that our military adopt and enforce a zero-tolerance policy for war crimes. If Senators Obama and McCain wish to avoid the damage and embarrassment that war crimes will inflict on our mission in Afghanistan, like those that hindered our mission in Iraq, they need our senior military leaders to take action now, before another surge.

Vivian Gembara is a lawyer, former Army JAG officer, and author of the just-released book Drowning in the Desert, A JAG's Search for Justice in Iraq.