Saturday, November 30, 2013

Democrat Senators Ron Wyden of Oregon, Mark Udall of Colorado and Martin Heinrich of New Mexico, , are United States senators. have penned a letter demanding that the government stop the NSA domestic dragnet now.

WASHINGTON — THE framers of the Constitution declared that government officials had no power to seize the records of individual Americans without evidence of wrongdoing, and they embedded this principle in the Fourth Amendment. The bulk collection of Americans’ telephone records — so-called metadata — by the National Security Agency is, in our view, a clear case of a general warrant that violates the spirit of the framers’ intentions. This intrusive program was authorized under a secret legal process by the Foreign Intelligence Surveillance Court, so for years American citizens did not have the knowledge needed to challenge the infringement of their privacy rights.

Our first priority is to keep Americans safe from the threat of terrorism. If government agencies identify a suspected terrorist, they should absolutely go to the relevant phone companies to get that person’s phone records. But this can be done without collecting the records of millions of law-abiding Americans. We recall Benjamin Franklin’s famous admonition that those who would give up essential liberty in the pursuit of temporary safety will lose both and deserve neither.
The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization.
Despite this, the surveillance reform bill recently ratified by the Senate Intelligence Committee would explicitly permit the government to engage in dragnet collection as long as there were rules about when officials could look at these phone records. It would also give intelligence agencies wide latitude to conduct warrantless searches for Americans’ phone calls and emails.
This is not the true reform that poll after poll has shown the American people want. It is preserving business as usual. When the Bill of Rights was adopted, it established that Americans’ papers and effects should be seized only when there was specific evidence of suspicious activity. It did not permit government agencies to issue general warrants as long as records seized were reviewed with the permission of senior officials.
Congress has a crucial opportunity to reassert constitutionally guaranteed liberties by reforming the N.S.A.’s overbroad collection of Americans’ personal data. But the Intelligence Committee bill squanders this chance. It would enable some of the most constitutionally questionable surveillance activities now exposed to the public eye. The Senate should be reining in these programs, not giving them a stamp of approval.
As members of the Intelligence Committee, we strongly disagree with this approach. We had already proposed our own, bipartisan surveillance reform legislation, the Intelligence Oversight and Surveillance Reform Act, which we have sponsored with a number of other senators. Our bill would prohibit the government from conducting warrantless “backdoor searches” of Americans’ communications — including emails, text messages and Internet use — under Section 702 of the Foreign Intelligence Surveillance Act. It would also create a “constitutional advocate” to present an opposing view when the F.I.S.C. is considering major questions of law or constitutional interpretation.
Rather than adopt our legislation, the Intelligence Committee chose to codify excessively broad domestic surveillance authorities. So we offered amendments: One would end the bulk collection of Americans’ records, but still allow intelligence agencies to obtain information they legitimately needed for national security purposes by getting the approval of a judge, which could even be done after the fact in emergency situations. Another of our amendments sought to prevent the N.S.A. from collecting Americans’ cellphone location information in bulk — a capability that potentially turns the cellphone of every man, woman and child in America into a tracking device.
Each of these proposals represents real and meaningful reform, which we believe would have fulfilled the purpose of protecting our security and liberty. Each was rejected by the committee, in some cases by a single vote.
But we will continue to engage with our colleagues and seek to advance the reforms that the American people want and deserve. As part of this effort, we will push to hold a comprehensive reform debate on the Senate floor.
There is no question that our nation’s intelligence professionals are dedicated, patriotic men and women who make real sacrifices to help keep our country safe and free. We believe that they should be able to do their jobs secure in the knowledge that their agencies have the confidence of the American people.
But this trust has been undermined by the N.S.A.’s domestic surveillance programs, as well as by senior officials’ misleading statements about surveillance. Only by ending the dragnet collection of ordinary Americans’ private information can this trust be rebuilt.
Congress needs to preserve the agencies’ ability to collect information that is actually necessary to guard against threats to our security. But it also needs to preserve the right of citizens to be free from unwarranted interference in their lives, which the framers understood was vital to American liberties.

Obama Channel Lyndon Baines Johnson lesson of Vietnam not leaned: Rules on rules of engagement How Restrictive Rules of Engagement Lost the Vietnam War. and And obama limit the actions of U.S. troops and drones in Afghanistan Say dwellings now virtual safe havens for terrorists.

The new U.S.-Afghanistan security agreement adds restrictions on already bureaucratic rules of engagement for American troops by making Afghan dwellings virtual safe havens for the enemy, combat veterans say.

The rules of engagement place the burden on U.S. air and ground troops to confirm with certainty that a Taliban fighter is armed before they can fire — even if they are 100 percent sure the target is the enemy. In some cases, aerial gunships have been denied permission to fire even though they reported that targets on the move were armed.

The proposed Bilateral Security Agreement announced Wednesday by Afghan President Hamid Karzai and Secretary of State John F. Kerry all but prohibits U.S. troops from entering dwellings during combat. President Obama made the vow directly to Mr. Karzai.

“U.S. forces shall not enter Afghan homes for the purposes of military operations, except under extraordinary circumstances involving urgent risk to life and limb of U.S. nationals,” Mr. Obama pledged in a letter to the Afghan leader.

Ryan Zinke, who commanded an assault team within SEAL Team 6, said of the security deal: “The first people who are going to look at it and review it are the enemy we’re trying to fight. It’s going to be a document that can be used effectively against us. This is where we either fight or go home. What’s happening is we’re losing our ability to fight overseas.”
Mr. Karzai wants to defer the document’s signing to his successor in April’s presidential election, but Afghan legislators are pressing him to sign the deal now.

Even before the security agreement’s rules of engagement were drafted, troops complained about meeting the requirements of an increasingly burdensome checklist before they can fire. The rules grew stricter in 2010 after a series of mistaken U.S. bombings killed civilians and special operations troops raided villages and homes at night.

The rules of engagement today also place restrictions on dwelling assaults, but Mr. Obama’s language of “extraordinary circumstances involving urgent risk of life and limb” sets the bar much higher.

Said retired Army Col. Ken Allard, now a military analyst: “Call me crazy, but what on earth is the point of remaining there under these [rules of engagement], much less subjecting American soldiers to another set of restrictions that make sense only in proportion to your distance from the combat zone?”

The security agreement lays out the legal status of U.S. troops who remain in Afghanistan after the end of 2014, when all international combat forces are set to leave the country. As many as 18,000 international troops — including 8,000 from the U.S. — will remain for 10 years to train and assist Afghan security forces and hunt terrorists.

Terrorist-hunting missions will require U.S. personnel to engage in combat by accompanying Afghans on counterterrorism raids and supplying close-air support. That is why the rules for when U.S. troops can and cannot fire on the enemy or enter a dwelling remain important.

A rare look at today’s classified rules of engagement is contained in the huge investigative file on the Afghan Taliban’s downing of a CH-47 Chinook helicopter last year that killed 30 U.S. troops, including 17 members of SEAL Team 6. The report notes service members’ frustration at seeing people they knew were Taliban fighters during the August 2012 operation in Afghanistan’s Tangi Valley, but they were denied permission to shoot.

An AH-64 Apache gunship pilot said he saw the spot from where Taliban operatives fired the rocket-propelled grenade that felled the chopper.

“Due to [rules of engagement] and tactical directives, I couldn’t fire at the building where I thought the [shooter] was, so I aimed directly to the west of the building,” the pilot testified, according to transcripts obtained by The Washington Times.
During the battle that preceded the shootdown, the crew of an AC-130 gunship spotted two armed Taliban fighters who were moving into new positions.

“There were several opportunities where we could have engaged with 40 mm ensuring zero [collateral damage estimate] on any buildings,” the navigator testified. “The opportunity was definitely there for us to engage those two guys or even provide containment fires to try to slow their movement.”
Investigator: “Did you ask to engage them?

Navigator: “Yes, sir.”

Investigator: “And it was denied, right?

Navigator: “Yes, sir.”

AC-130 commander: “I think he spoke with the Ground Force Commander and he said, ‘No. No-go. Just maintain eyes-on.’”

Mr. Zinke, the former SEAL, said he talks to guys coming back home who are frustrated because the rules of engagement “are too restrictive.”

“I’ve always been a champion of, if we are going to fight, fight to win,” said Mr. Zinke, a candidate in the Republican primary for a House seat in Montana. “And you’ve got to give our troops that are in harm’s way every tool and every advantage that is possible.

“And when you start restricting [rules of engagement] — when you limit our ability to fight at night, where you restrict the ground commanders’ ability to react quickly without having to go up the chain of command and also when you’re forced to bring along the Afghan forces who are notorious for the lack of security — then I think it puts troops in greater risk.”
Mr. Kerry said last week that the security deal demonstrates to Mr. Karzai that Washington is listening to his concerns about civilian deaths.

“It’s very important for President Karzai to know that the issues that he’s raised with us for many years have been properly addressed, and it’s very important for us to know that issues we have raised with him for a number of years are properly addressed,” the secretary of state said.

Lisa Curtis, a foreign-policy analyst at the Heritage Foundation, said there are some pluses. Mr. Karzai is agreeing to some night raids, and Mr. Obama’s language “does leave room for the U.S. to conduct counterterrorism missions against high-value targets,” she said.

Left unsettled is Mr. Karzai’s call for a delay in signing the agreement until the spring.
“That would almost certainly be a deal-killer from the U.S. perspective, as the U.S. needs to begin planning for any residual force presence no later than January 2014,” Ms. Curtis said.

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Lt Col John G. Humphries, USAF

SHORTLY before the coalition force put the finishing touches on the victory over Iraq, Gen Norman Schwarzkopf gave a briefing that explained the strategy and objectives of the Persian Gulf war. His remark praising President George Bush for allowing the military to "fight this war exactly as it should have been fought" provided a perspective on how this war differed from the one in Vietnam.1

Adm U. S. Grant Sharp, US Navy, Retired, who was commander in chief of Pacific Command during much of the Vietnam War, was asked if he had desired the kind of command autonomy that General Schwarzkopf enjoyed. He replied, "If I had had the same sort of freedom that General Schwarzkopf [had], the Vietnam War would have been over in about 1966. We would have defeated North Vietnam, saved hundreds of American lives, and won the war."2 Adm Thomas H. Moorer, chairman of the Joint Chiefs of Staff (JCS) from 1970 to 1974, concurs with the view that the United States could have won that war within a year of unleashing unconstrained American air power.

What happened in the Persian Gulf war was that ordinary wisdom prevailed. President Bush, as commander in chief, and the other national command authorities (NCA) provided general guidance on the prosecution of the war and then delegated the planning and execution of wartime operations to military professionals.
These professionals had received years of inculcation in the law of armed conflict. Not only had the US long ago undertaken treaty obligations to instruct its military personnel about their rights and obligations under this law,3 but it had also suffered from the outcry of international contempt that arose from the massacre at My Lai and from other real and alleged misadventures in Vietnam. The American military establishment decided there could be no more room for military operations that might lead to allegations of indiscriminate or illegal activities.4 Requiring that military personnel be educated in the law of armed conflict was considered a crucial part of this effort.

Due to the perception that its forces had not generally followed the laws of war, the US lost domestic and international public support. Its forces returned home branded improperly as war criminals. Further, North Vietnam illicitly refused to grant US aircrews prisoner-of-war status.

During the same period, judge advocates of the military services and of the unified and specified commands increased their involvement in advising commanders, planners, intelligence staffs, and aircrews about the law of armed conflict and other issues related to war fighting. This nascent discipline in the military community became known as "operations" or "operational" law.5

Against this backdrop, the US-led coalition prepared to reverse Iraq's invasion of Kuwait. Judge advocates deployed with the headquarters staffs of US Central Command (CENTCOM) and US Air Forces, Central Command (CENTAF) and with wing and group commands to bases in the Persian Gulf. They clearly understood and assumed their roles as advisors in operations law. Likewise, Air Force commanders, apparently were aware that the judge advocates on their staffs could help them accomplish their missions within the law.6 Operations law, which includes such diverse areas as the law of armed conflict, operations and contingency planning, rules of engagement, and target selection and validation, was active during the Desert Shield and Desert Storm operations.

Before we launch into a further consideration of operations law, it is important to understand the foundations upon which it rests within the Department of Defense (DOD). American national policy holds that our forces will comply with the law of armed conflict,7 which is comprised primarily of two categories of law. One consists of the Hague conventions8 of 1907 and the Geneva conventions9 of 1949; the other is based on the customary practices of nations in conducting war.10 The law of armed conflict sets the rules for how nations are to conduct wartime operations.

Guiding coalition air operations throughout Desert Shield and Desert Storm was a body of standards known as rules of engagement. These rules "delineate the circumstances . . . under which United States forces [can] initiate and/or continue combat engagement" with hostile forces, both in peacetime and in wartime.11 They also represent the primary means by which the NCA can guide deployed forces in peacetime crises and in wartime fighting.12 A legacy of the Vietnam War was that rules of engagement had come to be viewed chiefly as constraints on the employment of military force. The more historically correct view--and the one that is in ascendancy--maintains that in peacetime these rules dictate the circumstances under which hostile forces may be engaged and, at a minimum, authorize a commander to employ force as a matter of preemptive self-defense in response to the imminent threat of force. In wartime, they should not unduly impede the effective use of force.

Rules of engagement are not the same as the law of armed conflict. These rules are directives that the US imposes on its own military forces to govern the employment of firepower. The law of armed conflict, however, is binding on all nations and their armed forces.13

This law is, nevertheless, an important influence in drafting rules of engagement applicable to air warfare.14 Embodied in Air Force doctrine and strategy are the law of conflict's cardinal principles: military necessity (the right to use any degree or means of force--not forbidden by other considerations--to achieve a military objective)15 and unnecessary suffering (the prohibition of intentional attacks on noncombatants and civilian objects and bans on the use of certain weapons against combatants if they cause excessive suffering not justified by military necessity).16 Just as importantly, these precepts are the most significant bases for formulating rules of engagement for air operations.

Notwithstanding its importance, the law of armed conflict is not the sole influence at work during the drafting of the rules of engagement. In their final form, these rules also normally reflect collateral limitations, which include political considerations, national policy objectives, and operational concerns. As a result, rules of engagement can restrict and have restricted US air combat operations far beyond what is required by the law of armed conflict.17 For example, US air forces employed during Operation Rolling Thunder in the Vietnam War were severely constrained by rules of engagement imposed by American political leaders who feared that conducting the campaign to the full extent allowed by law would somehow provoke Chinese or Soviet intervention.18 In the Persian Gulf, political and policy constraints that might have been imposed on coalition forces through the rules took a backseat to the clear military objectives of the operations, the most important of which was reversing Iraq's invasion of Kuwait.

In the Persian Gulf, the US relied upon the two primary categories of rules--one for peacetime, the other for hostilities. During Operation Desert Shield, CENTCOM promulgated the peacetime rules of engagement based upon the JCS model, with General Schwarzkopf's CENTCOM staff proposing supplemental measures for JCS approval. These rules provided typical peacetime guidance insofar as they were primarily defensive and were designed to preclude the inadvertent start of war; yet, they also preserved the right of self-defense. Thus, the rules limited military actions in Desert Shield solely to defensive responses to hostile acts or demonstrations of hostile intent (i.e., the threat of the imminent use of force).

These peacetime rules were wisely drawn. They vested commanders at any level with broad latitude in meeting their obligations, allowing them to take any necessary and appropriate action to defend their units' aircraft and personnel.19 Thus, the rules recognized the military commanders' authority--and their duty--to exercise the inherent right of self-defense. Exercising this right has traditionally been a responsibility of commanders, based on the notion inherent in the law of armed conflict that a military unit is not required to "take the first hit" before using force.20

As in Vietnam, rules of engagement have often been the means by which the NCA and other upper military echelons of command have retained the power to decide when to employ certain forces and weapons systems against enemy military objectives. In this way, the rules have assisted in limiting hostilities only to those believed necessary to achieve national policy objectives. The Persian Gulf rules were different from those in Vietnam because they were about as broad as they could be. With the extensive mandate accorded coalition forces under the aegis of the United Nations, the wartime rules of engagement in Operation Desert Storm extended, in the main, to the bounds of the law of armed conflict.

When hostilities began in the Persian Gulf on 17 January 1991, the wartime rules of engagement--devised by CENTCOM and CENTAF and approved by the JCS--guided coalition air combat operations. These rules recognized the coalition's state of hostilities with Iraq and authorized its air forces to seek and destroy targets connected with Iraq's war effort within the area of operations. These operations could now occur without reliance on the principle of self-defense for each engagement. p> This was in stark contrast to the wartime rules applicable during much of the Vietnam War. For instance, prior to attacking Vietnamese urban areas, US air forces were required to warn the inhabitants by leaflets, loudspeakers, or other appropriate means and give them sufficient time to evacuate the area, notwithstanding the fact that US air forces were receiving fire from the area and were legally permitted to attack.21 The constraints imposed by these rules of engagement included a requirement that American air forces could strike surface-to-air missile (SAM) sites only after the SAMs themselves had been launched at US aircraft.22 In the Persian Gulf, American political leaders embraced and heeded these lessons; they permitted their war fighters to conduct combat operations within the law of armed conflict without tying their hands with constraints. This, in turn, maximized the effectiveness of coalition air power.

Further, CENTAF judge advocates played a central role in assisting in the development of wartime rules of engagement. They ensured that the rules were not more restrictive of coalition operations than was required by the law of armed conflict and collateral limitations. The first draft of wartime rules of engagement was 18 pages long. Col Dennis Kansala--the CENTAF staff judge advocate--and his staff eventually condensed the rules to four pages that covered the generic precepts for coalition operations.23 Supplementing the basic rules were appendices that addressed rules for unique, sensitive US operations.24 This distillation of the rules made them "operationally friendly" for aircrews. Thus, Colonel Kansala and his staff adhered to a fundamental principle in drafting these wartime rules of engagement: no set rules--no matter how lengthy and detailed--can anticipate every potential scenario that aircrews might face in an area of operations. After everyone has been educated in the law of armed conflict and trained in the rules of engagement, it comes down to an aircrew commander's judgment in deciding when, where, and how to employ military force. There is no substitute for this judgment, and 18 or 100 pages of rules would have been a hindrance rather than a help. For aircrews flying missions into the maw of enemy air defenses, the fewer rules they have to rely upon, the better off they are.

A complete understanding of the rules of engagement requires that we look at them in the context of the targeting process used in Desert Storm. Early in the deployment to Saudi Arabia, the CENTAF commander, Lt Gen Charles A. Horner, assembled a special planning staff of combat planners, logisticians, and judge advocates to plot the air campaign against Iraq.25 Consigned to a basement storage room in the Royal Saudi Air Force Headquarters building, known as the "Black Hole," these people formed what was called the special planning staff's "Strike Cell."26 Brig Gen (now Maj Gen) Buster C. Glosson led the planning effort.
With reconnaissance and other sources providing raw intelligence data, the Black Hole team segregated Iraq's war resources into 12 target sets: leadership; command, control, and communications (C3) facilities and operations; air defense systems; conventional military depots and storage locations; nuclear, biological, and chemical weapons and their associated production facilities; airfields; railroads and bridges; Scud missiles; oil refineries; electrical production; naval ports; and the Republican Guard.27 Because these sets were at the heart of Iraq's war effort, the planning staff considered them key military objectives.

As alluded to earlier, General Horner and his staff had exceptionally broad latitude in determining the course of the air campaign. Although CENTAF's target selection and the rules of engagement for air combat operations had to be approved by the JCS, not once did Pentagon officials reverse decisions from the Black Hole about what weapons to use, what targets to strike, and how and when to attack them.28 In the war's aftermath, Secretary of Defense Dick Cheney has repeatedly defended target selection, calling every Iraqi target "perfectly legitimate."

One reason for this agreement between higher military authorities and the war planners was the early and frequent participation of judge advocates in the targeting process.29 Planning for a particular air strike could take anywhere from just a few hours to five days.30 Targeting officers received and confirmed intelligence data, evaluated targets to be nominated for attack in view of their proximity to locations where noncombatants were known to be, and assessed the threat that striking them would pose to those civilians. They nominated targets to the CENTAF consolidated target board, one member of which was an Air Force judge advocate. General Horner and one of his legal advisors "scrubbed" the targets approved by the board. If they survived this review, the targets were then put on the air tasking order (ATO). Compliance with the principles of military necessity and unnecessary suffering was an inherent part of assessing target values and validating targets for attack.

Adherence to these rules was also a part of the weapons evaluation and selection process. After the special planning staff refined the target list, their next challenge was to select weapons systems and munitions appropriate for the targets. This also required decisions about what the desired level of damage should be and how aircrews could best deliver the munitions, all the while considering aircrew safety as well as the protection of any Iraqi civilians nearby. In preparing strike packages of aircraft and munitions, planners took all reasonable precautions to minimize civilian casualties and damage to civilian objects.31 Each day this process culminated in an ATO that covered 2,000-3,000 sorties and detailed the targets, time over target, weapons systems, ordnance, communications frequencies, and refueling orbits. This order was sent to flying units for the next day's missions. Once targets had been struck, planners added new ones to the list.
Coalition air forces flew about 120,000 sorties during the 43-day war, 60 percent of which were combat missions.32 According to a briefing on 15 March 1991 by Gen Merrill A. McPeak, Air Force chief of staff, these combat sorties delivered 84,200 tons of ordnance, 8.8 percent (7,400 tons) of which were precision guided munitions.33 The remainder of the ordnance consisted of unguided conventional munitions.

Wartime rules of engagement in Operation Desert Storm permitted attacks on all Iraqi combatants, as well as their vehicles and equipment. However, other policy considerations--which were consistent with the law of armed conflict--placed several limitations on striking targets in Iraq. For example, mosques, shrines, schools, museums, national monuments, and other historical or cultural sites could not be engaged except in self-defense. Further, hospitals and archaeological property received the special protections afforded them by law (e.g., coalition aircrews could not engage hospitals and other medical facilities unless Iraqi forces were using them to commit acts harmful to US forces).

A review of the coalition rules of engagement reveals how expert CENTAF's staff had become in this area of operations law. A long-standing red herring in operations planning and execution had been the cautionary language regularly appended to rules of engagement urging forces to take measures "to minimize risk of civilian casualties," or words to that effect.34 The upshot of these warnings is that they misled aircrews about what the law required from their performance in combat. The fact that this frustrated them is less important than the fact that it often led to their deaths. This kind of language implied that avoiding collateral noncombatant casualties and incidental damage to civilian objects is a sine qua non to a lawful air campaign. It is not.

The law of armed conflict proscribes the intentional attack of individual noncombatants and the civilian populace per se. It also proscribes an attack that would result in so many collateral casualties and such severe damage that it would be considered an intentional attack on individual civilians, the civilian population, or civilian property.35 But the general immunity of civilians from attack does not prohibit operations that may cause collateral death or injury to civilians or incidental damage to their property. Thus, civilians who remain in or near a legitimate target after the onset of hostilities are not to be specifically attacked by air strikes, but they are at risk of injury or death otherwise.

According to one expert, superfluous language in rules of engagement has illogically and without legal foundation elevated the concern for civilian casualties above the desire for mission success and aircrew safety.36 US war planners recognized this problem, however, and coalition rules in the Persian Gulf contained none of these cautionary statements. In fact, the "boilerplate" language often grafted onto these rules was missing too.37 Maj Harry Heintzelman, a CENTAF legal officer consigned to the Black Hole, has indicated that this omission was intentional and was done to pare the rules to their essence for the benefit of aircrew members.38
About 30 days into the air campaign, several events led CENTAF to review the rules of engagement and determine whether certain considerations of the law of armed conflict might require changes in these rules.39 Iraq began storing military materiel in and near schools, medical facilities, and places of worship. It located command and control centers in schools and public buildings. The Iraqi military scattered antiaircraft weapons throughout residential areas and on rooftops of public buildings. Tanks and artillery pieces were placed near homes in small Iraqi villages. MiG fighters were parked next to the most important
archaeological sites within Iraq's borders. Iraq apparently did all this for one of two reasons: to shield legitimate targets from attack or to draw coalition forces into damaging civilian property and cultural objects. These actions complicated target planning because many of Iraq's cultural objects are popularly associated with the birthplace of civilization.

With regard to either or both of these premises, Saddam Hussein appeared to be walking in North Vietnamese-style shoes. During the Vietnam War, Hanoi successfully shielded military targets by commingling them with civilian property and cultural objects. Although these actions contravened the law and did not render these targets immune from attack, they remained off-limits to US air strikes. In those instances in which US attacks inadvertently hit prohibited targets, North Vietnam won the propaganda battle. International and American public opinion turned against the US military by alleging that illegal American air strikes caused the damage, notwithstanding the fact that American air combat operations intentionally attacked only legitimate targets under strict rules of engagement. Public opinion overlooked the strength of North Vietnam's air defense system, which interfered with the accuracy of US munitions delivery. Public opinion was likewise blind to the extent of self-inflicted damage caused by the discharge of North Vietnamese defensive weapons and the return of their projectiles to earth.40 Fortunately, Saddam Hussein did not fare as well in his efforts to emulate North Vietnam's successes.

Under the law of armed conflict, the responsibility for protecting noncombatants within a war zone lies with the attacker, the defender, and the noncombatants themselves. Although an attacking force may not specifically target noncombatants or civilian objects, a defender may not conceal or shield military targets from attack by moving them into civilian-populated areas or near protected objects.41 And under customary practice, noncombatants must exercise reasonable precaution to remove themselves from the vicinity of military objectives or military operations.

Iraq's acts violated these fundamental rules. In using civilians, civilian property, and cultural objects to shield legitimate military targets, Iraq breached its obligations as a signatory to the Geneva conventions by exposing its citizenry, their private property, and the heritage of the world's civilization to the increased risk of harm. At the Al Firdos bunker, discussed later, such an action by Iraq resulted in disaster. Coalition forces could have lawfully attacked military threats in, around, and on top of public buildings and cultural objects, but--in accordance with the rules of engagement--they did not strike those targets if noncombatants, purely civilian structures, or cultural objects were likely to suffer collateral damage. The law required the Iraqi government to take measures to segregate military targets from civilians. Unfortunately, collateral injury to Iraqi civilians and damage to their property occurred but were the incidental result of lawful coalition attacks on legitimate military targets.
Harry Summers, a leading military historian and strategist, has identified the incipient stages of what he calls the "Bambification" of Iraq and the war.42 This is the process critics are using to transform the consensus and accurate view of the war as a legitimate enterprise to one in which the American military is seen as brutish, inhumane, and indiscriminate in causing an excessive amount of death and destruction. They understand neither Clausewitz's maxim that war is an extension of politics by other means nor the method by which the law of armed conflict actually applies to the conduct of hostilities.
In view of the significant adverse press the air campaign has received and will likely continue to receive43 it is important to understand other allegations against the coalition. For instance, some critics have alleged that the coalition committed numerous violations of the law of armed conflict.44 We will discuss two prime examples. The first is that the coalition should not have struck the Al Firdos military bunker because it should have known that civilians were being sheltered there, or--alternatively--it should have done so only after issuing a warning to civilians. The second is that the coalition air campaign failed to minimize civilian casualties.
Should legal considerations and the rules of engagement have precluded the bomb strike which killed scores of Iraqi civilians in the Al Firdos bunker in Baghdad on 13 February 1991? In short, the answer is no. The evidence indicated that Iraq had converted this facility from a civil defense shelter to a C3 military command post. From the bunker's reinforced, 10-foot-thick concrete ceiling and secured entrances to its camouflaged exterior (painted to make it look as though it had already been struck), as well as the military command signals intercepted from it, the coalition's air planners reasonably concluded that the bunker was a military location. After intercepting the electronic command communications and detecting a military presence in the bunker through satellite imagery, the CENTCOM intelligence staff added it to the target list. Civilians sought refuge in the bunker on a floor above the command post during nighttime coalition air raids. Coalition planners were unaware of the civilians' presence, as noted by both Lt Gen Thomas W. Kelly, JCS director of operations, and the CENTCOM staff in their numerous media briefings after the strike.

45 Coalition personnel did not know that Iraq had allowed civilians in the bunker; in fact, these planners had taken reasonable precautions, despite the fog and friction of war, before assessing it as a valid military target.46
As noted previously, under customary law, Iraq and its noncombatant population were primarily responsible for limiting collateral civilian casualties. The coalition force had, at most, only a scant obligation to do so in these circumstances. Fortunately, the law of armed conflict is based on a commonsense view of how wars are fought and how forces engage one another, rather than on impractical restrictions. In most cases, an attacking force normally has no way of discovering with any certainty where an enemy's civilian populace will be situated at the time of attack. Given the mobile nature of a modern society--especially one in the throes of constant bombardment such as Iraq's was--a defending nation is virtually in absolute control of what areas and structures its populace travels in or moves to, respectively. Further, that nation is responsible for allocating resources to build a civil defense and warning system and is accountable for warning and evacuating its citizenry when attacks are imminent. It is reasonable to conclude that Iraq knew what its duties were with respect to protecting its noncombatant citizens. In December 1990, the Iraqi government conducted a major civil defense exercise during which as many as a million or more Baghdad residents evacuated the city.47 Curiously, no evacuation of any civilians from the capital occurred during the 43-day coalition bombing of Iraq. This further evidences Iraq's disregard for its citizens and the intentional commingling of civilians and their property with military targets.

Alternatively, the Al Firdos detractors allege that this air strike violated the law because the coalition failed to warn Iraq that an attack on the bunker was planned. This view holds that the legal requirement to minimize civilian casualties mandated coalition issuance of a public warning that it considered the bunker a military target at risk of imminent attack. This would have permitted civilians a chance to heed the warning, refrain from entering the bunker, and remove themselves from the vicinity.

This "lack of warning" allegation is legally and factually without merit. From a legal perspective, the law of armed conflict remains resolutely commonsensical in this regard. It aligns itself with the principle of war known as the element of surprise. On the one hand, providing a warning would have amounted to a death sentence for aircrews flying into heavily defended Baghdad. Iraq is sure to have increased its air defenses in the vicinity of the bunker, making a planned air strike even more hazardous. On the other hand, a warning would have permitted Iraq to move this important C3 function to a more secretive locale. In sum, a warning would have undermined the principle of surprise. Recognizing this dilemma and the fact that the defending nation is in control of its populace, the law does not require an attacker to provide such a warning.
Notwithstanding the gap in the legal argument that supports this allegation, the latter is factually wrong as well. Extensive coalition leaflet drops and radio broadcasts from three stations in the theater of operations warned Iraqi soldiers and civilians about the onslaught they faced.48 The air campaign's critics have overlooked this evidence. They have also ignored the fact that normal humans could not have continued to reside in Baghdad from the start of the air campaign (17 January 1991) to the date of the attack on Al Firdos (13 February 1991) without knowing that their safety was at risk.

There is no gainsaying that this was a military C3 bunker into which, unfortunately, noncombatants were allowed to enter. Clearly, the responsibility for these deaths lies with the Iraqi government and its leaders, who ignored their legal obligations on two counts. First, they failed to prevent noncombatants from entering a military facility. Second, they converted an air raid shelter to a C3 bunker, thereby locating a military objective in an area surrounded by its civilian populace. In short, these failures to segregate military facilities from the civilian populace transgressed the rule that a
party to a conflict which places its own citizens in positions of danger by failing to carry out the separation of military activities from civilian activities necessarily accepts . . . the results of otherwise lawful attacks upon valid military objectives in their territory.49
Had it been known that Iraqi civilians were occupying the bunker as a shelter, coalition commanders might have withheld attack until the civilians had removed themselves--even though the law of armed conflict does not require such restraint. Further, Iraq had other recourse than to commingle members of its civilian populace with an obvious military target. Under the law, Iraq could have desisted from using the bunker for military purposes and designated it a neutral zone for civilians.50 Iraq's failure to do so, however, exposed its citizens to the tragic consequences.
As the Desert Shield and Desert Storm operations showed, the rules of engagement reflect political and operational considerations that limit the application of military force. The coalition's refusal to attack legitimate targets that were commingled with the Iraqi civilian populace and civilian objects was based on an amalgam of political and policy reasons. For instance, its decision not to strike military targets near cultural objects (e.g., the two MiG-21 fighter aircraft parked adjacent to the ancient temple at Ur) was based on respect for the cultural value of these objects.51 Just as important was the fact that Iraq's positioning of these aircraft two miles from an air base effectively grounded them. Although the law of armed conflict would have permitted their destruction, these aircraft--as well as the other Iraqi military hardware purposefully collocated among archaeological sites and cultural objects--remained on the coalition "Joint No-Fire Target List" because of the cultural value of the objects nearby and because the location of the aircraft effectively took them out of the fight.52

The rules of engagement also contained other operational constraints which played a significant role in minimizing collateral damage and civilian casualties. For instance, if a coalition mission's "fragged" target or an alternative one could not be located, the rules required pilots to return with their weapons.53 Similarly, aircrews could attack a target in populated areas only if they were sure of the target's identification and location; otherwise, they were not to deliver their ordnance. Consequently, numerous coalition aircraft returned from combat sorties carrying undelivered ordnance. Indeed, approximately 25 percent of all combat missions culminated in undelivered ordnance.54

Many military strategists and historians doubt that this war will yield many valuable lessons about conducting warfare. They deride the war by saying it was too glib--a mismatch. However, it certainly can serve as a model for future combat operations insofar as the effective application of rules of engagement is concerned. Years of military education, preparation, exercises, and analysis of the Vietnam ordeal paid dividends. The coalition's prosecution of the air war was vigorous but discriminate. In fact, preliminary information indicates that it is arguably one of the most--if not the most--discriminate air campaigns in the history of modern warfare.
The test to determine a campaign's discrimination (hence, its legality) has traditionally examined its operations in toto. This test applies the concept of proportionality, which weighs noncombatant casualties and property damage against the overall military gains achieved.55 This concept proscribes combat operations whose negative results would clearly outweigh the anticipated military advantage. Although many people consider the concept ill suited to determine whether a single attack against a specific target should be planned and executed, it has also been used for precisely this purpose.
The concept of proportionality does not, however, restrict a nation from using its weapons systems to their fullest capabilities.56 It requires a nation to refrain from intentionally targeting and employing weapons against civilians who are not involved in the hostilities and prohibits the intentional attack of their property. But the concept recognizes that collateral casualties and damage to private property may inevitably occur during combat operations, stipulating only that combatants use ordinary care to minimize such occurrences.57
The coalition appears to have been highly successful in this area of its operations. As noted previously, if coalition aircrews could not positively identify their targets, they returned without expending their munitions. The coalition also selected aircraft and munitions so that any operation in a populated area would be carried out with maximum accuracy and minimal risk to civilians and their property. In locations where its aircraft were susceptible to antiaircraft artillery (AAA) and SAMs, the coalition tasked support aircraft to suppress enemy air defenses to minimize the distractions for aircrews delivering munitions.58

Although neither the amount of damage to Iraqi civilian property nor the number of Iraqi civilians injured has been definitively established, one prominent group of critics has estimated that 3,000 Iraqi noncombatants died as a result of coalition air operations.59 Based on these early estimates, this civilian death rate is lower than that of any other significant air campaign in history.60 Of course, attributing all of the Iraqi civilian deaths to the coalition's air campaign ignores wartime reports of television broadcasts and coalition aircrews about the destructive effects of heavy Iraqi AAA barrages, almost all of which missed their targets and returned to earth. Furthermore, Iraq sought to down attacking aircraft with SAMs, the vast majority of which also missed and crashed back to terra firma. Obviously, the deaths caused by these armaments are not attributable to the coalition's air strikes. Likewise, the coalition is not accountable for the 300 or so civilians killed in the Al Firdos bunker, since Iraq permitted their entry into it. Other noncombatants killed while shielding legitimate military objectives should not be assessed against the coalition either. More fact-finding may lower even further the number of civilian deaths for which the air campaign was responsible.
This war can also serve as a paradigm for political leaders and military commanders. The US NCA wielded its prerogatives of civilian control wisely by trusting its military commanders to prosecute a military operation. Military commanders exercised brilliant leadership by relying on their staffs to plan the war's operations. Military operators and their support elements executed the plan within the law and the rules of engagement. In the midst of all this, political and military decision makers at all levels found that DOD attorneys and judge advocates knew how to find legal ways to accomplish various missions. Operations law took full flight.
The Persian Gulf war proved that American civilian and military leaders had learned important lessons from Vietnam. Well-defined rules of engagement played an integral role in making this possible. Consequently, US operations in the Persian Gulf bore little resemblance to those in Vietnam, where restrictions on targets and aircrews unreasonably and unnecessarily hampered military effectiveness and exposed our aircrews to increased risks. Efforts to educate our personnel in the law of armed conflict have succeeded. Prosecuting the war legally while at the same time treating Iraqi soldiers and civilians humanely was essential to maintaining domestic and international public support. More importantly, it was the right thing to do. The practice of operations law contributed to this success.
1. Tom Shales, "Stormin' Norman, in High Command," Washington Post, 28 February 1991, D2.
2. Ibid. Admiral Sharp's account of his Vietnam War experience, Strategy for Defeat: Vietnam in Retrospect (San Rafael, Calif.: Presidio Press, 1978), attributed the loss of the war to the failure of American civilian leadership. If his assessment here is valid, tens of thousands of American lives, rather than "hundreds," would have been spared.
3. Article 1, Hague Convention No. 4 Respecting the Law and Customs of Warfare on Land of 1907, reprinted in Air Force Pamphlet (AFP) 110-20, Selected International Agreements, 1981, 3-5. Each of the Geneva conventions of 1949 directs its signatories to comply essentially with the same instructional requirements (see note 9).
4. DOD Directive 5100.77, DOD Law of War Program (GC), 10 July 1979, was first promulgated in 1974. It requires each military service to design a program to ensure that the law of war is observed and to prevent violations of that law. Military personnel are to receive training in the law of armed conflict commensurate with their duties and responsibilities. For example, the Air Force's compliance with this directive is implemented by Air Force Regulation (AFR) 110-32, Training and Reporting to Insure Compliance with the Law of Armed Conflict, 2 August 1976.
5. Steven Keeva, "Lawyers in the War Room," American Bar Association Journal, December 1991, 58. In recognition that Air Force judge advocates who practice international law are also involved in advising Air Force war fighters on legal issues related to military operations in peace and war, Maj Gen Keithe E. Nelson, the judge advocate general of the Air Force, redesignated the International Law Division as the International and Operations Law Division, Office of the Judge Advocate General, in January 1991. This was the official beginning of the practice of operations law in the Air Force.
6. On 13 December 1991, Lt Gen Michael A. Nelson, Air Force deputy chief of staff of plans and operations, and Maj Gen David C. Morehouse, the judge advocate general of the Air Force, signed a letter dealing with operations law. The letter exhorted operators and planners at all levels to forge closer ties with their judge advocates to ensure that air operations in peace and war continue to adhere to the requirements of the law.
7. DOD Directive 5100.77, 1. The "law of war" is synonymous with the "law of armed conflict." For the sake of uniformity, the latter is used throughout this article.
8. Hague conventions nos. 3, 4, 5, and 9 of 1907, reprinted in AFP 110-20, chap. 3.
9. The four conventions are (1) Geneva Convention for the Protection of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (GWS); (2) Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (GWS Sea); (3) Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949 (GPW); and (4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (GC). All are reprinted in AFP 110-20, chap. 3. Iraq and all of the coalition nations were parties to these conventions during the Persian Gulf war.
10. AFP 110-31, International Law--The Conduct of Armed Conflict and Air Operations, November 1976, 1-6.
11. Joint Publication 1-02, Dictionary of Military and Associated Terms, 1 December 1989, 317.
12. Ibid.
13. DOD, Conduct of the Persian Gulf Conflict: An Interim Report to Congress, July 1991, 16-1. The Persian Gulf war ultimately involved the air forces of our coalition partners; however, each nation relied on its own rules of engagement, which CENTAF succeeded in harmonizing through negotiations with representatives of each coalition air force.
14. Similarly, all US ground and naval forces in an area of operations such as the Persian Gulf theater have peacetime and wartime rules of engagement which guide their conduct.
15. AFP 110-31, 1-5, 1-6; Article 22, Annex to the Convention, Hague Convention No. 4 of 1907, reprinted in AFP 110-20, 3-8.
16. AFP 110-31, 1-6, 6-2.
17. J. Ashley Roach, "Rules of Engagement," Naval War College Review, January-February 1983, 47. Captain Roach, a Navy judge advocate, demonstrates how rules of engagement can restrict military operations far more than domestic or international laws do. He suggests that judge advocates render the best advice to combat commanders when they ensure that rules of engagement are not more restrictive than the law requires but are used for specific operational, political, or diplomatic purposes.
18. Walt W. Rostow, "Memorandum of May 6, 1967, on the Bombing Program," in Gerald Gold, Allen M. Siegal, and Samuel Abt, eds., The Pentagon Papers, New York Times ed. (New York: Bantam Books, 1971), 573-76. An article by W. Hays Parks, "Rolling Thunder and the Law of War," Air University Review 34, no. 2 (January-February 1982): 2-23, provides an excellent analysis of how the gradualism of the Rolling Thunder campaign, which resulted from overly severe restrictions on USAF operations, guaranteed its failure. Col Dennis M. Drew's Rolling Thunder 1965: Anatomy of a Failure,CADRE Papers, Report no. AU-ARI-CP-86-3 (Maxwell AFB, Ala.: Air University Press, October 1986) examines the extent to which the Vietnam War undermined American air power doctrine and the reasons for believing that the threat of intervention was probably overstated.
19. Roach, 49
20. Ibid. In fact, a fair reading of the Uniform Code of Military Justice, Title 10, United States Code, secs. 801-940, concludes that a commander who failed to do so could, as a consequence, face a trial by court-martial on a number of charges.
21. Parks, 12, 20.
22. Ibid., 9.
23. Col Dennis Kansala, CENTAF staff judge advocate, and Maj Harry Heintzelman, CENTAF assistant staff judge advocate, briefing, Air Force Judge Advocate General's Operation Desert Shield/Desert Storm After Action Workshop, subject: Rules of Engagement, Maxwell AFB, Ala., 10-14 June 1991.
24. Review of "Rules of Engagement" files, CENTAF Staff Judge Advocate's Office, Headquarters USAF International and Operations Law Division, Office of the Judge Advocate General, Washington, D.C., 7 January 1992. Although the specifics contained in these files remain classified, it is permissible and correct to say that they show how the military services had to work closely together on deconfliction and beyond visual range (BVR) issues.
25. Kansala and Heintzelman briefing. For an interesting account of this operation, see Tom Mathews, "The Secret History of the War," Newsweek, 18 March 1991, 28-39; and Barton Gellman, "Allied Air War Struck Broadly in Iraq," Washington Post, 23 June 1991, A1.
26. Mathews, 28-29.
27. Conduct of the Persian Gulf Conflict, 4-2.
28. Casey Anderson, "War Planner: Civilians Didn't Change Target List," Air Force Times, 8 July 1991, 27. This article reports on an interview with General Glosson, who explained another of the contentious targeting issues from the war. The question was whether the coalition had targeted statues of Saddam Hussein and the arcs of his hands and whether planners were told by Pentagon officials not to do so. General Glosson said that these objects were never on the target lists. His judge advocates advised him that it would be inconsistent with the law of armed conflict to strike them, inasmuch as they were cultural objects.
29. Keeva, 58. This article details only a part of the contributions of Major (Lieutenant Colonel-select) Heintzelman to the war effort. He was centrally involved in devising the wartime rules of engagement for coalition forces.
30. Kansala and Heintzelman briefing.
31. Richard MacKenzie, "A Conversation with Chuck Horner," Air Force Magazine 74, no. 6 (June 1991): 61.
32. Conduct of the Persian Gulf Conflict, 4-5.
33. Reported in Needless Deaths in the Gulf War: Civilian Casualties during the Air Campaign and Violations of the Laws of War, ed. Human Rights Watch Committee (New York: Human Rights Watch Committee, 1991), 114. General McPeak presented these data on a slide entitled "Tonnage Expended--U.S. Only," indicating that American air forces alone had delivered this amount of ordnance, although his remarks throughout suggested that this was the coalition's tonnage.
34. W. Hays Parks, "Righting the Rules of Engagement," US Naval Institute Proceedings, May 1989, 89.
35. AFP 110-31, 5-7 through 5-8.
36. Parks, "Righting the Rules of Engagement," 89.
37. Review of "Rules of Engagement" files.
38. Kansala and Heintzelman briefing.
39. Message, 162323Z, US Ambassador Thomas P. Pickering to Headquarters USAF/XO, February 1991, 4-5. Recounted in this paragraph is the ambassador's statement on developments in Operation Desert Storm, contained in the referenced message.
40. Parks, "Rolling Thunder and the Law of War," 20.
41. Articles 13-26, GC, contained the provisions that protect the entire civilian population. Articles 27-149, GC, provide for the treatment of protected civilians. Specifically, Article 28, GC, rules that a civilian "may not be used to render certain points or areas immune from military operations." Iraq, as a signatory to the Geneva conventions, was bound by this rule.
42. Harry Summers, "The Battlefield's No Forest of Bambis," Air Force Times, 30 September 1991, 62.
43. Tim Weiner, "Studies: 70,000 Deaths in Postwar Iraq," Philadelphia Inquirer, 9 January 1992, 3; William Matthews, "Greenpeace Criticizes High Iraqi Death Toll of War," Air Force Times 51, no. 45 (17 June 1991): 5; Richard Homan, "Report Says U.S.-Led Air Campaign against Iraq Violated `Law of War'," Washington Post, 17 November 1991, A37; and Julie Bird, "AF Faulted on Targeting in Gulf War," Air Force Times, 20 January 1992, 6.
44. Needless Deaths in the Gulf War, 128-47. Greenpeace International, too, has implied that the coalition's air campaign had to have been indiscriminate because of the extent of the damage to Iraqi society and the suffering of the Iraqi people since the war's end. See Weiner, 3. This is not, however, the test for whether a bombing campaign was discriminate. Interestingly, within days, Iraqi government officials reported they were making outstanding progress in restoring the country's infrastructure despite the continuation of UN sanctions. See Bernd Dubesmann, "Postwar Iraq Rebuilds Rapidly," Washington Times,12 January 1992, 14.
45. Rick Atkinson and Dan Balz, "Bomb Strike Kills Scores of Civilians in Building Called Military Bunker by U.S., Shelter by Iraq," Washington Post, 14 February 1991, A1.
46. Peter Tyler, "U.S. Stands Firm on Bomb Attack and Says Investigation Is Closed," New York Times, 15 February 1991, 1; and "Kelly: `We Knew This to Be' a Military Facility," Washington Post, 15 February 1991, A30.
47. Conduct of the Persian Gulf Conflict, 12-3.
48. Ibid., 5-3.
49. AFP 110-31, 5-31.
50. Articles 14 and 15, GC, reprinted in AFP 110-20, 3-82 through 3-83.
51. MacKenzie, 61; and Conduct of the Persian Gulf Conflict, 12-4.
52. Review of "Rules of Engagement" files. This list was updated throughout Operation Desert Storm and regularly contained 20 pages of off-limits targets.
53. Conduct of the Persian Gulf Conflict, 12-3.
54. Memorandum, W. Hays Parks, chief, International Law Branch, International Law Division, Office of the Army Judge Advocate General, to Col Robert L. Bridge, chief, International and Operations Law Division, Office of the Air Force Judge Advocate General, USAF, subject: Review of Coalition Air Operations, 10 December 1991.
55. AFP 110-31, 5-10.
56. Ibid.
57. Ibid., 5-10 through 5-11. See W. Hays Parks, "Linebacker and the Law of War," Air University Review 34, no. 2 (January-February 1983): 11-12.
58. Conduct of the Persian Gulf War, 12-3.
59. Needless Deaths in the Gulf War, 19.
60. Parks, "Linebacker and the Law of War," 19-20. Parks compares the number of civilian deaths per ton of bombs delivered in the 1972 Linebacker II operation with like figures from several earlier air operations. Although Linebacker II was the most discriminate of these operations, Desert Storm appears to have been marginally more discriminate in this regard. This observation, of course, is subject to change as more facts about the war come to light.

Lt Col John G. Humphries (USAFA; JD, University of Texas School of Law) is deputy staff judge advocate, US Forces Korea, Yong San, South Korea. In previous assignments, he served as staff judge advocate at both Plattsburg AFB, New York, and Air Forces Iceland, Naval Air Station Keflavik, Iceland; as deputy chief of the Military Justice Division at Headquarters USAF, Washington, D.C.; and as chief, Operations Law Branch, International and Operations Law Division, Office of the Judge Advocate General,

Headquarters USAF.

ignorance and Air Power: The Failure of U. S. Leadership to Properly Utilize Air Power in Vietnam

gnorance and Air Power: The Failure of U. S. Leadership to Properly Utilize Air Power in Vietnam 

Major Ted Tolman’s F-105 Thud fighter/bomber streaked through the air at just under the speed of sound. His aircraft performed modestly at best, struggling to maintain its speed and altitude under the heavy load of ordinance and fuel it carried under its wings (Patrick). 

Tolman, and his wingman Major Lonnie Ferguson, were en route to a rail line that served to distribute supplies from Cam Pha Harbor to enemy troops throughout NorthVietnam. The harbor itself was protected from attack by orders coming directly from Secretary of Defense Robert McNamara, meaning the only way to neutralize supplies coming through the harbor was to attack the distribution network that surrounded it (Patrick). 

As he flew low near the harbor, puffs of flack began to appear, and Tolman soon found himself under heavy attack from North Vietnamese ground based anti-aircraft artillery (AAA). He hesitated a moment, then decided that he did not want to become a prisoner in the infamous Hanoi Hilton. Tolman depressed his rudder pedal and rapidly swung his F-105 around, pointing the nose at the AAA emplacement and releasing a burst of 20mm cannon fire. In doing so, he made the biggest mistake of his career (Patrick). 

As he swung his fighter around, Tolman inadvertently passed his gun sight directly across the Soviet cargo ship Turkestan as it traversed towards its intended target. Designed to provide a record of the action, the gun camera mounted in the nose of Tolman’s F-105 caught an image of the Soviet ship, inside the Cam Pha Harbor sanctuary, directly centered in his sights (Patrick). 

There was nothing that suggested any of the rounds Tolman fired that day came close to the Turkestan, but the penalty for violating the rules set down by Secretary McNamara, even in self defense, was a court marital (Patrick). 

Understanding that the footage could falsely incriminate the pilot, Colonel Jacksel Broughton, commander of Tolman’s fighter wing, destroyed the tape. Unfortunately, word of this leaked to the Commander of the Pacific Air Force, who arranged court marshals for Broughton, Tolman, and Tolman’s wingman, Major Ferguson, charging them with conspiracy against the US Government (Patrick). 

Colonel Broughton took full responsibility in the matter, ensuring that both Tolman and Ferguson were found not guilty. Ultimately, the conspiracy charges against Broughton were dropped, although he was convicted of the lesser charge of destruction of government property (Patrick). 

Many, however, were not so lucky. Hundreds of pilots died in Vietnam because of unreasonable restrictions placed on them by political figures who did not understand how a war should be run. Secretary McNamara, along with President Lyndon B. Johnson, weakened the ability of the United States Air Force to wage an effective campaign in Vietnam due to their incompetent leadership

Since the founding of the United States, its military forces have always reported to and were subservient to the civilian leadership. Government officials would decide on a general course of action and establish goals for the military, while allowing military leaders to formulate their plans as necessary (Boyne 150). When Robert S. McNamara took over as Secretary of Defense in January 1961 (Operation), he immediately began to usurp powers previously given to field commanders and establish a highly centralized control structure. McNamara placed himself at the head of this new bureaucratic military, reporting to, and listening to, only the President (Boyne 150). 

An all-knowing attitude permeated the McNamara defense department, and soon senior military commanders began to find themselves being ignored (Boyne 142). Frustrated commanders were already seeing cracks form in the defense department, and many, particularly Air Force Chief of Staff Curtis LeMay, complained bitterly both privately and publicly (Boyne 150). 

The first major air campaign of the Vietnam War began on February 24, 1965 (Operation). Named Operation Rolling Thunder, it had three main goals. First, it was intended to reduce the flow of men and material from North Vietnam to the insurgents in the South; second, to send a message to the North Vietnamese, showing them that their support of the Viet Cong would be very costly; and third, to raise the morale of South Vietnamese troops (Dorschel 3). 

Rolling Thunder was based on the theory of strategic interdiction, which simply stated uses air power to reduce the enemy’s logistical abilities to a level below what is necessary to sustain combat operations (Dorschel 4). The most effective way to do this is to use overwhelming force to attack those targets most vital to the operation of the enemy’s military forces, including production and distribution facilities, military bases, and defense systems (Dorschel 4). 

When President Johnson decided that the US would take action against North Vietnam, US Air Force planners quickly put together a plan that called for the bombing of 94 targets over two weeks. The majority of the North’s industry would be destroyed in the campaign, and the distribution and transportation systems used by the North would be left in shambles (Rendall 129). Regrettably, the Air Force did not have the last word in this matter, and the plans were changed by Robert S. McNamara (Boyne 150). 

Johnson and McNamara vetoed the Air Force plan, choosing instead to use a concept of “flexible response” (Boyne 142). This strange new way of fighting a war applied force gradually, “punishing” the North Vietnamese incrementally every time they assisted the resistance forces in the South. The campaign was designed to send signals and messages to the North, reforming the enemy through a system of rewards and penalties. If the North persisted in arming and assisting the Viet Cong, air strikes would continue and grow in severity. If they stopped supplying resources to the Viet Cong, the bombing would halt (Boyne 143). 

Determined to keep the North Vietnamese, Chinese, and Soviets from thinking of the “graduated response” as a full-scale conflict, McNamara and Johnson instituted a system of Rules of Engagement (ROEs) which effectively restricted when, where, and how the military could engage enemy forces. Areas that were thought to contain Soviet advisors were placed off limits, as well as areas of political importance and those with large civilian populations (Dorschel 4). 

Both McNamara and Johnson feared that fighting aggressively in Vietnam could cause the leaders of the Soviet Union and China to think that the US was beginning a campaign against the Communist Block (Dorschel 6). Both the Soviet Union and China possessed nuclear weapons, meaning their direct involvement could lead to a war far more horrifying than any that had been seen before (Boyne 142). 

It makes sense that the Administration would take great care to ensure that China and the Soviet Union stayed out of the conflict, but in doing so McNamara and Johnson failed to see what the current world situation was really like and therefore made their policies in Vietnam far too restrictive. They looked at their relationship with China and the Soviet Union as teetering on the brink of war, and expected both of them to come to North Vietnam’s aide without hesitation if the US applied too much force on North Vietnam. The failed to realize that war was not in the best interests of the Soviet Union or China (McNamara 268). The Soviet Union was far from friendly, but it did not want to let a small conflict add to the animosity already between it and the United States. The Soviets were fully aware of what war with the Americans would mean, and they had no intention of risking a nuclear conflict. They continued to supply North Vietnam with arms primarily to preserve national prestige and prove that they would support other communist countries (McNamara 219). 

China was not inclined to fight the United States either. Like the Soviets, the Chinese knew that a conflict over Vietnam would be devastating for both sides, with losses far exceeding any potential gain. McNamara and Johnson also ignored the long standing hostility between China and Vietnam that had existed for centuries (McNamara 219). Additionally, China was experiencing setbacks in its political power and world influence at the time, and wanted to cut its losses and avoid the loss of any more national prestige. Robert McNamara sums up the United States’ appraisals of the communist nations as “totally incorrect” (McNamara 219). 

One of the greatest controversies regarding the ROEs were the limitations they placed on attacks against Surface to Air Missile sites (SAMs) (Boyne 142). SAMs were technologically advanced weapons provided by the Soviet Union, and gave the North the ability to intercept and destroy American aircraft. Nonetheless, it took nearly three years for McNamara and Johnson to allow SAM sites to be targeted, primarily because they feared that Soviet advisors, who assisted in the set up and operation of the sites, could be killed (Boyne 142). 

Various commanders made repeated requests to attack the SAMs, including General William Westmoreland, commander of Military Assistance Command, Vietnam. Assistant Secretary of Defense John T. McNaughton refused, saying, “You don’t think the North Vietnamese are going to use them! Putting them there is just a political ploy by the Russians to appease Hanoi” (Boyne 142). 

Refusal to keep the North Vietnamese SAM systems in check allowed the North to build an air defense system stronger than the one that protected Moscow. Later in the war, as US planes ventured deeper and deeper into the North, a force of 300 missile sites downed hundreds of American aircraft (Rendall 162). As losses became more and more extreme, the Defense Department was finally forced to reverse its decision, and the Air Force quickly developed a new force of SAM hunters, called the “Wild Weasels”. Wild Weasels flew specially equipped F-100F fighters and were armed with weapons specifically designed to track and destroy enemy SAM sites (Boyne 157). As soon as they entered service, losses to enemy missiles dropped dramatically. The Soviet Union and China took no notice of the new tactics, proving that the administration had used poor reasoning in attempting to justify their exclusion of SAM sites from the target lists (Boyne 157). 

Missile sites were not the only enemy targets that pilots were not allowed to attack. Enemy air fields were off limits as well, including the hundreds of dangerous Russian-built Mig fighters that lined their tarmacs (Rendall 148). The Migs themselves could not be engaged unless they were in the air with their landing gear fully retracted and “demonstrating hostile intent” (Rendall 132). Commanders knew the best method to weaken an Air Force was to destroy it on the ground by taking out aircraft and key facilities. McNamara and Johnson refused to allow this, forcing American pilots to engage the enemy in the air. Additionally, the Rules of Engagement set up immense areas of airspace that the US aircraft could not enter, including a ring around Hanoi 60 miles in diameter. Enemy aircraft could simply run back into these “sanctuaries” should the battle turn against them (Rendall 148). 

Staying ahead of the enemy despite these restrictive rules of engagement led to some of the most impressive missions of the war. One of the best known was Operation Bolo, planned by Colonel Robin Olds and Captain John Stone (Dorr 87). Old’s, commander of the 8th Tactical Fighter Wing, was frustrated by the rules of engagement. The old and unmaneuverable F-105 fighter/bombers, which made up the main body of the bomber force in the North, were easy targets for the Mig-17s and Mig-21s of the North Vietnamese Air Force. The F-105s would be decimated while flying to and from their targets. When American pilots flying the more modern and far more powerful F-4 Phantom fighter attempted to intervene, the Migs would hide inside restricted airspace (Dorr 87). 

In order to combat these restrictions, Captain Stone brought an idea to Colonel Olds in late 1966. He suggested that F-4 Phantoms fly the mission profiles normally used by the F-105s, and use the same type of electronics packs that the F-105s typically carried with them. Olds and Stone immediately began planning a mission that would, in the end, involve almost one hundred fighters, as well as nearly one hundred additional support aircraft (Dorr 87). The leading waves of the mission would look like vulnerable F-105s to the North Vietnamese radar operators, but when the unsuspecting Migs arrived, a squadron of heavily armed and extremely lethal F-4s would be waiting for them (Dorr 87). 

The operation was a total success. On the morning of January 2, 1967, seven enemy Migs were shot down without a single American loss. Sadly, the ROEs and other factors imposed on the military would continue to prevent similar successes (Dorr 87). Once the North Vietnamese Air Force figured out what had happened during Operation Bolo, they were unlikely to fall for a similar deception again. With their hands once again tied, US pilots would not see a success like the one on the morning of January second for four more years (Dorr 87). 

The restricted areas did not just benefit enemy pilots, but also North Vietnamese transportation systems. Although the Rolling Thunder campaign destroyed a substantial portion of the North Vietnamese infrastructure, including 55 percent of major bridges and 39 percent of railroad yards, the North Vietnamese were extremely resourceful, building pontoon bridges and bypassing damaged roads and rails (Dorschel 10). In 1965, one bridge was obliterated by US aircraft, only to be repaired overnight by more than 3,000 Vietnamese equipped with only lanterns and a few tools (Dorschel 10). 

The Vietnamese continued to supply the Viet Cong with resources even as Rolling Thunder increased in magnitude. If rails didn’t work, they took trucks. If the roads were out, they used ox drawn carts or even bicycles (Dorschel 11). 

In addition to providing safe havens, the Rules of Engagement required that pilots make visual confirmation before engaging a target. Various systems, such as radar guidance, had made direct visual confirmation unnecessary, but it was still required under the ROEs. Thus, American aircraft could not attack enemy convoys traveling at night or under heavy cloud cover (Dorschel 10). The North Vietnamese took advantage of this, and mustered their supplies and personnel in the safe areas during the day, and transported them at night or in poor weather when they were impervious to air assault. The safe areas were close enough together that they could be used as stepping stones, with supplies going from one to another until they reached their final destination (Dorschel 10). 

The requirement for visual identification was also present during air to air combat. American fighters could not engage enemy aircraft unless they visually confirmed that it was indeed an enemy (JCS Memorandum). This was an enormous blow to the US, which had put a great deal of faith into missile systems that were designed to be used in Beyond Visual Range (BVR) combat. The entire philosophy behind these weapons was to shoot the enemy before he even saw you. Now, American pilots were being forced to go deep inside the weapons range of the enemy before they could engage (Boyne 160). 

Visual identification forced the US pilots to fight close in, which was something they were not trained for, and their aircraft were not designed for. Generally, the smaller and lighter an aircraft is, the more maneuverable it is, and thus the more effective in a close-in dog fight. The F-4 Phantom, which had been designed to avoid dogfights by attacking the enemy from great distances, weighed in at 30,000 pounds empty (Boyne 161). By comparison, the empty weight of the Mig-21 fighter was only 13,500 pounds (Boyne 161). The additional weight on the Phantom was due in large part to systems that made it highly effective in BVR combat. At a range of ten or fifteen miles, it was devastatingly effective against the simpler Mig, but in close in combat it was far too heavy to be effective. Only the superior skill of US pilots kept the Air Force and Navy aircraft in Vietnam from being slaughtered in air to air combat (Boyne 161). 

One of the greatest failures of the administration was its decision to directly control which type of aircraft could be used for which missions. This resulted in an “inversion of tactics” (Boyne 165) where small, lightly armed aircraft were sent against heavily defended targets in North Vietnam while the massive bombers of the Strategic Air Command (SAC) hunted down small gatherings of Viet Cong in the south (Boyne 165). 

The F-105 “Thud” was the primary bomber used in the North. It was optimized for searching out and destroying small and mobile targets. Nonetheless, McNamara and Johnson sent Thuds out to attack bridges, buildings, railroad yards, and other large, heavily defended structures. It carried an impressive 14,000 pounds of ordinance, (this was often reduced to around 8,000 pounds to improve the aircraft’s performance) (Dorr 252). This, however, was nowhere near enough firepower to attack heavily defended areas in the North. Worse yet, the medium-altitude flight profile of the F-105 left it vulnerable to ground fire, as well as enemy fighters. Ultimately, 397 Thuds would be lost, accounting for one-fifth of the all USAF losses throughout the war (Dorr 252). 

Meanwhile, the massive B-52 Stratofortress, the crown jewel of SAC’s bomber fleet, was relegated to attacking small bands of Viet Cong hidden in the jungles of South Vietnam. The B-52, which flew at altitudes of 40,000 feet or more (Dorr 236), could rarely discern the small groups of enemy soldiers on the ground, and squadrons would normally release their weapons over areas of suspected enemy activity (Boyne 166). Each B-52 could carry up to 81,000 pounds of bombs, and its high cruising altitude put it beyond the reach of most enemy anti-aircraft weapons (Dorr 236). It was equipped with advanced electronic countermeasures that significantly reduced the effectiveness of enemy missiles (Dorr 236.) The B-52 was exactly what was needed to attack the large, heavily defended targets in the North, but the administration insisted that all of the massive bombers remain in South Vietnam (Boyne 166). 

Those Americans fighting in Southeast Asia were forced to contend with not only an enemy that wanted them dead, but also an administration that was so convinced of its own intellectual superiority it relied on its own twisted logic rather than the facts of what was occurring in Vietnam. Curtis LeMay and others who believed airpower had to be used decisively were right all along, and the administration’s refusal to listen to them resulted in the deaths of tens of thousands of American servicemen. 

Having won the 1972 Presidential Election on a campaign promise to secure “peace with honor” in Vietnam, President Richard Nixon was trying in vain to bring the North Vietnamese to the negotiating table. The North seemed hesitant to make any agreements, and took any gestures of good will from the United States as signs of weakness (Boyne 173). In 1972, President Nixon decided to use the strategy that had been first advocated by General LeMay in 1963, and subsequently supported by a number of the highest ranking military officers of the time. In ordering a new campaign, Linebacker II, President Nixon shed the chains of ROEs and micromanagement from the military. The results were impressive (Boyne 174). 

On December 18, 1972, 129 B-52s departed three bases and converged on North Vietnam, each carrying between 60,000 and 80,000 pounds of high-explosive bombs (Boyne 174). The Vietnamese air defense systems exacted a heavy toll on the bombers, destroying three on the first mission, but the mission was considered a total, if somewhat costly, success (Boyne 174). 

B-52s continued to fly unrestricted over the North for the next several days. The electronic countermeasures they used proved to be extremely effective, reducing the accuracy of the enemy SAMs to less than one downed bomber per 70 missiles launched (Boyne 175). This quickly depleted North Vietnam’s supply of missiles, and by December 22, 1972, the combination of diminished resources and damage from American bombs had reduced the efficiency of the Vietnamese defenses so much that no B-52s were being shot down (Boyne 175). 

The campaign paused on Christmas day, but resumed on December 26, 1972, when an armada of 78 B-52s arrived over Hanoi. Two were lost, as the respite of the previous day had given the Vietnamese a chance to rebuild and rearm some of their defenses. However, as the bombing continued, any progress they made against the Americans was soon lost (Boyne 175). 

The North Vietnamese leaders were frantic. Their military was being strangled, and would become totally ineffective in only a few weeks, if not less. In the prisoner of war camps, American POWs noticed a distinct change in the demeanor of the guards, who, fearing retaliation after a seemingly imminent American victory, became decidedly more pleasant (Boyne 175). 

By the eleventh day of Linebacker II, North Vietnam was out of missiles. It could no longer supply its fielded military forces with resources, and communications networks were in shambles. Vietnamese fighter jets sat unused in hangars, unfueled and unarmed. North Vietnamese leadership signaled the US they wanted to talk peace (Boyne 175). 

With the Vietnamese at the negotiating table, the Nixon administration made its major contribution to the failure of the operations in Vietnam: it ended the bombing. Past bombing halts had only increased Vietnamese resolve and given them time to rebuild, and the cessation following Linebacker II had a similar affect, taking a great deal of pressure off of the negotiators from North Vietnam (Boyne 175). The US was only weeks away from a complete and total military victory, but the administration’s desire to get out of Vietnam as rapidly as possible resulted in a peace settlement that accomplished very few of the things the US had set out to do. Following the greatest success of the war, Nixon caved to public opinion and ignored the advice of his military officers. Disregarding the military hadn’t worked for Johnson and McNamara, and it wouldn’t work for Nixon (Boyne 175). 

The US had effectively won the war by the end of 1972, but North Vietnam “secured victory at the peace tables” (Boyne 176). This lack of foresight on the part of the Nixon administration would lead to the collapse of South Vietnam less then three years after a peace treaty was signed (Boyne 176). 

Had airpower been applied as it should have been, B-52s would have engaged in Linebacker-type raids by 1965, unencumbered by the restraints of obsessive Rules of Engagement. In 1965, the incredible air defense network surrounding Hanoi and other key areas was in its infancy, and would have been even less effective against the bombers than it was in 1972 during Linebacker II (Boyne 177). The enemy likely would have been brought to its knees in only months, rather than years. Casualties could likely have been reduced by a factor of ten or more (Boyne 178). Those coming home from Vietnam would be able to know they made a true difference for the people of South Vietnam, and not have to spend the rest of their lives wondering what their best friend lost his life for. 

Robert McNamara, Lyndon B. Johnson, and later Richard Nixon ignored the advice of their military advisors and instead used their own logic to justify various courses of action. McNamara and Johnson looked at the North Vietnamese like businessmen, assuming that they would back down if the cost grew higher than the potential returns. They completely ignored human spirit and the reality of what was happening during the four years of Rolling Thunder. 

Nixon had the opportunity to end the war with a resounding US victory, but instead chose to satisfy anti-war protestors at home. In doing so, he neglected his responsibility to the soldiers in the field, the people of South Vietnam, and the people of the United States of America. 

Thus, the failure of Vietnam was not one of military defeat, but of incompetent leadership. The men who had been charged with commanding the armed forces of the United States failed at their jobs due to their own sense of self importance and political agendas. Their inability to put aside their own egos and agendas led to the deaths of tens of thousands of Americans, and the first and only loss of a war in American history. 

Works Cited 

Boyne, Walter J. Beyond the Wild Blue. New York: St. Martin’s Griffin, 1997. 

Dorr, Robert F. and Chris Bishop, eds. Vietnam Air Warfare. Edison, NJ: Chartwell Books, 1996. 

Dorschel, Mathew J. “The Effects of Restrictive Rules of Engagement on the Rolling Thunder Air Campaign.” Diss. United States Air Force Command Staff College, 1995. 

McNamara, Robert S. and Brian VanDeMark. In Retrospect. New York: Vintage Books, 1995. 

“Operation Rolling Thunder.” Military Analysis Network. 1998. Federation of American Scientists. 20 Dec. 2003<>. 

Patrick, Joe. “Testing the Rules of Engagement.” Vietnam Memoirs. 2003. 80th Fighter Squadron. 13 Nov. 2003.

Rendall, Ivan. Rolling Thunder. New York: The Free Press, 1997.

“Robert S. McNamara.” Secretaries of Defense. Defenselink. 20 Dec. 2003<>.

United States Joint Chiefs of Staff. Memorandum to CINPAC, Definitive Rules of Engagement Applying to Laos. Washington: DoD, 1964.