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FRIENDLY FIRE DURING THE WAR ON TERROR: THE LAW, PROCEDURE, AND LIKELIHOOD OF RECOVERY BASED ON THE TARNAK FARMS INCIDENT
N. Pieter M. O'Leary*
Within days of the September 11, 2001 attacks in the United States, President George Bush began assembling the Coalition of the Willing.[1] The coalition was made up of countries from all over the globe and ran the gamut from very tiny, obscure nations to clear world powers with obvious common interests in fighting global terrorism.[2] This broad coalition, under the direction the United States, implemented Operation Enduring Freedom designed to wipe out al-Qaeda in Afghanistan as well as the Taliban regime sheltering al-Qaeda fighters.[3] As noted, less than a week after the terrorist attacks, American policy focused on clarifying for all nations that "either you are with us, or you are with the terrorists."[4]
As America identified its enemies and assembled its friends, it set in motion events that brought countries together as never before. In so doing, allies fought side by side against a common enemy. On occasion, however, military service personnel from one coalition nation mistakenly engaged the military forces of another coalition nation. This article sets out to chronicle such incidents of "friendly fire" during the global War on Terror. Further, by focusing on one specific friendly fire incident, the April 2002 bombing of Canadian troops in Afghanistan,[5] the article addresses the legal plans and procedures for determining legal responsibility as well as how individuals injured or killed may recover damages. In light of the growing realization that the war on terror may take decades to fight and require a broad coalition of countries,[6] friendly fire incidents involving coalition partners are inevitable. The law, procedures, and recovery, however, are not always clear.
Part I of this article defines friendly fire and addresses its application throughout the article. Moreover, Part I also identifies the Coalition of the Willing and enumerates the motives for joining as well as a nation's level of participation. Part II addresses the causes and consequences of friendly fire incidents while intermixing notable historical examples. Part III identifies the laws and procedures in place dictating the delicate nature of how friendly, allied nations determine liability when troops of one nation injure or kill troops of another. This section focuses primarily on the Federal Tort Claims Act and the Feres Doctrine. Moreover, section III examines the methods and likelihood of recovering damages from a culpable member of another nation's armed forces or even the government itself. Part IV addresses specific incidents of friendly fire from October 2001 to the present with a tight focus on the April 17, 2002 bombing of Canadian troops in Afghanistan. Part V lists several recommendations for addressing friendly fire incidents within a broad coalition of nations and finally Part VI concludes.
Two key terms used throughout this article are often misperceived by the public and scholars alike. Friendly fire, especially, has a variety of connotations and is used to describe a myriad of unrelated concepts. Likewise, the Coalition of the Willing, assembled in the weeks and months after September 11, 2001, has undergone many changes since first assembled.[7] As such, both terms must be examined individually prior to exploring the broader arguments put forth in this article.
a. Friendly Fire
Lieutenant Colonel Charles R. Shrader[8] uses the term "amicicide" to define friendly fire. Taking the Latin noun "amicus," meaning friend and the Latinate suffix for killing, "cide," he developed a linguistically precise definition.[9] Shrader's definition describes "without distracting connotation the incidence of human casualties incurred by military forces in active combat operations as a result of being fired upon unintentionally by the weapons of their own or allied forces."[10] Moreover, the United States' Department of State defined friendly fire as "a circumstance in which members of the U.S. or friendly forces are mistakenly or accidentally killed or injured in action by U.S. or friendly forces actively engaged with an enemy or who are directing fire at a hostile force or what is thought to be a hostile force."[11] Other terms to describe friendly fire include fratricide,[12] fragging,[13] or blue on blue.[14] All have the same general meaning, however: fire that is not from enemy forces.
Accordingly, for the purpose of this article, the definition of friendly fire focuses narrowly on military actions of servicemen of one nation against the servicemen of a second nation allied with the first. Thus, mechanical malfunctions are not considered.[15] Additionally, incidents such as the downing of the Iranian airliner by the U.S.S. Vincennes in the Persian Gulf are not considered friendly fire within the scope of this article because the victims were neither allied nor military personnel. [16] Further, fragging incidents, an intentional killing, are also not considered. Also, although common in warfare, incidents where military personnel unintentionally kill or injure personnel of their own nation are not considered.[17] Finally, the recent killing of Iraqi policemen by U.S. military personnel does not fall within the definition of friendly fire as used in this article.[18] Although U.S. military police trained the Iraqis and were allies fighting insurgents, their status as non-military personnel removes them from the definition of friendly fire for the purpose of this paper.
b. Coalition of the Willing
The allied nations supporting the United States in its global war on terror comprise the Coalition of the Willing.[19] To date, the United Kingdom has been America's premier ally, supplying more intelligence, financial, and military support than any other coalition partner.[20] Forces from the United Kingdom are active in both Iraq and Afghanistan. Nations such as Australia,[21] Spain, Canada, the Netherlands, Poland,[22] Romania, and Georgia, among others, have contributed military forces to Afghanistan, Iraq, or both.[23] Arab or Muslim nations contributed aircraft landing rights or air transit rights and were counted among the Coalition.[24] Some countries, such as Spain and the Netherlands, later withdrew their troops from Iraq.[25] Finally, some nations, like Palau and Iceland, both of which have no military forces, are counted among the Coalition nations.[26] As such, the Coalition of nations is broad, fluid and susceptible to domestic pressures.[27]
Accordingly, for the purpose of this article, Coalition of the Willing is defined as the allied nations fighting alongside the United States militarily. These forces must be actively engaging the enemy, including Taliban fighters, al-Qaeda loyalists, or foreign insurgents in either Afghanistan or Iraq and doing so jointly with American military personnel.[28]
FRIENDLY FIRE: HISTORY, CAUSES, & CONSEQUENCES
There is a long history of friendly fire incidents. Each war has its infamous examples. For instance, the accidental killing of Confederate General Thomas "Stonewall" Jackson by his own troops in 1863 at the battle of Chancellorville[29] or the 1991 attack on British Armored Personnel Carriers by American A-10 Thunderbolts in the First Gulf War.[30] The A-10 attacked killed nine British troops.[31] From the 1967 accidental Israeli attack on the U.S.S. Liberty during the Six-Day War[32] to the 2004 killing of Pat Tillman in Afghanistan[33] each major engagement has had its major mistakes.
a. Common Causes of Friendly Fire
Many military historians and scholars use the phrase "Fog of War" to describe the chaos and confusion of battle leading to friendly fire incidents. [34] Accepting the "Fog of War" rationale, however, is difficult in light of the technological strides made to prevent such friendly fire incidents. For instance, in modern warfare, troops have uniforms to distinguish friend from foe,[35] radio communication to direct fire or confirm locations of friendly troops,[36] and vision enhancing equipment.[37]
Others argue, however, that technology and the nature of post Cold War military conflicts do more to cause friendly fire incidents than in the past.[38] Technology, for instance, now increases the "engagement range" of fighter aircraft so combatants no longer need to be in visual range of a target. Instead, pilots merely need to confirm a target's existence on radar.[39] Additionally, due to the smaller, more localized nature of post Cold War conflicts that bring together a broad array of nations with various levels of military experience and equipment, confusion may result for a number of reasons. [40] During the First Gulf War, for example, there was real concern about U.S. aircraft shooting down coalition fighters "of a type also used by Iraq."[41] Later in Operation Provide Comfort,[42] two F-15 fighter aircraft misidentified two Blackhawk helicopters as Iraq Hind helicopters and destroyed them.[43] Other common causes of friendly fire include the fact that weapons systems have become more accurate and lethal,[44] an increase in battle tempo,[45] navigation failures,[46] communication breakdowns,[47] and misidentification of targets. The primary element in all friendly fire incidents, however, is the human element.[48]
The human element relates to battle weariness, inexperience, "a cow-boy attitude" seen as over aggressiveness, and inadequate training among other factors.[49] Thus, when the human element combines with an increased lethality of weapons systems or the hastened tempo of modern warfare, things can still go wrong despite the most sophisticated technology systems.
b. Common Consequences of Friendly Fire
The consequences of friendly fire incidents are many. From the damage to individual families and military communities to undermining national military policy, friendly fire incidents cause great disruption and sadness.[50]
Modern media coverage of friendly fire incidents incites public anger, stirs patriotism, and forces governments to respond to domestic public opinion.[51] These factors drive national governments to scrutinize friendly fire incidents with great vigor.[52] Moreover, friendly fire incidents threaten coalition stability, troop morale, and unity of purpose.[53] What one nation deems an unavoidable accident, another may see as evidence of disregard for its nation's troops. The April 17, 2002 bombing of Canadian troops in Afghanistan[54] exemplifies such friendly fire incidents. These were the first combat deaths Canada suffered since the Korean War.[55] National outrage ran high after learning the details of the bombing. The Canadian media emphasized the issue of pilot amphetamine use coupled with a "gung-ho" American attitude[56] as the cause of the tragedy. The bombing played a significant part in generating anti-Americanism among Canadians.[57]
Consequently, friendly fire takes a drastic toll. From the military personnel themselves to the national governments directing policy and planning, all involved are forced to reassess their commitment.
•III. FRIENDLY FIRE AND THE LAW
The legal issues pertaining to friendly fire incidents between military personnel of one nation are quite complex, but when incidents involve personnel of different nations, legal questions of jurisdiction, procedure, and recovery play a large part in further complicating the matter. Moreover, domestic political issues, international relations, the pursuit of justice, and maintaining the appearance of national independence all mix in unique ways, shaping independent outcomes when the military personnel of two or more nations are involved in a friendly fire incident. Accordingly, friendly fire incidents are governed by a variety of laws, both national and international. Status of forces agreements ("SOFA") govern jurisdiction when military personnel of two nations kill or injure one another. Issues of jurisdiction are further complicated when friendly fire incidents occur in a third, non-signatory country. Additionally, should claimants pursue actions against the United States government, domestic laws such as the Federal Tort Claims Act, Military Claims Act, or Foreign Claims Act must be considered.
a. Status of Forces Agreements
The first issue to consider in any analysis of a friendly fire incident occurring during a deployment of coalition forces is the jurisdiction as laid out by any implemented SOFA.[58] SOFA's are legal agreements between nations addressing civil or criminal jurisdiction, taxation, and licensing among other things.[59] Customarily, a host nation retains jurisdiction over all crimes committed within its borders. Under a pre-agreed SOFA, however, "host nations voluntarily relinquish a degree of their sovereign authority."[60]
Jurisdiction over incidents among NATO countries, for instance, is founded in NATO's Status of Forces Agreement - Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces ("NATO SOFA").[61] The NATO SOFA is the basis for multilateral agreements between the United States and other NATO countries.[62] The NATO SOFA is both multilateral and reciprocal, meaning that it applies to all NATO countries and is reciprocal in that the agreement applies to U.S. military service personnel in a host nation and the host nation's personnel while on duty in the Untied States.[63]
Specifically, Article VII of the NATO SOFA governs the establishment of jurisdiction. Under § 1(a) "the military authorities of the sending State shall have the right to exercise...all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State."[64] Section 1(b) notes that the receiving State shall have jurisdiction over the members of a force...with respect to offenses committed within the territory of the receiving State and punishable by the law of that State."[65] Moreover, where one or more states have the right to exercise jurisdiction concurrently, under § 3(a) "the military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to:
I. offenses solely against the property or security of that State, or offenses solely against the person or property of another member of the force or civilian component of that State or of a dependent; or
II. offenses arising out of any act or omission done in the performance of official duty.[66]
Additionally, under Article XVI of the NATO SOFA, "all differences between the contracting parties relating to the interpretation or application of this Agreement shall be settled by negotiation between them without recourse to any outside jurisdiction."[67]
Thus, using the example noted in Part IV of this article, the U.S. bombing of friendly Canadian troops in Afghanistan, regardless of a claim made by the Canadian Government to try the U.S. pilots in Canada or even Afghanistan, the effort would fail due to the long-standing NATO SOFA between the United States and Canada.[68] Additionally, Afghanistan, despite not being a member to the NATO SOFA, would not be able to exert jurisdiction over the U.S. pilots despite being the receiving state because, not only was the country's judicial system far from functioning, but the sending state, the United States, punished the acts of the American pilots under the Uniform Code of Military Justice.[69] As such, the pilots fell under the jurisdiction of American military authorities.[70]
A SOFA, however, determines jurisdiction for the state sending troops to the receiving state. Those injured during a friendly fire incident, however, would not recover under a criminal prosecution by the sending state against its own troops. Accordingly, for civil claims against the sending state, specifically in the Untied States, military personnel from coalition nations injured or killed by U.S. forces would have to seek a remedy under American law.
b. Federal Tort Claims Act
In 1946, the United States Congress enacted the Federal Tort Claims Act ("FTCA") to replace the inadequate private member bill system for handling tort claims against the federal government.[71] Under the private member bill system, private individuals injured in their dealings with the federal government petitioned members of Congress for redress.[72] Because the federal government from its founding had deemed itself immune from such claims, only with the passage of a Congressional bill could citizens be compensated for wrongful government acts.[73] However, as the federal government expanded during the Depression in the 1930s and after World War Two, this private system became too cumbersome to manage.[74] Consequently, Congress passed the FTCA stripping the federal government of its sovereign immunity and, despite several exceptions, made it liable for its wrongful acts.[75] Accordingly, private citizens no longer had to petition members of Congress for redress. Rather, they could file suit directly against the government for the tortious conduct of a government employee acting within the scope of his duties resulting in personal injury, death, or loss of property.[76] In a sense, the federal government was treated as a private person and pursuant to the FTCA, 28 U.S.C.S. § 1346(b), victims and their families may file claims against the United States government for "...personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment..."[77] Case law and statutory law, however, preclude recovery for United States military personnel injured incident to their military service.
c. Statutory Exceptions Under 28 U.S.C. § 2680
There are two specific statutory exceptions to the Federal Tort Claims Act likely to prevent recovery by both foreign nationals and U.S. military personnel alike. The first, 28 U.S.C. § 2680 (j) precludes any claim "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war."[78] The second, 28 U.S.C. § 2680(k) precludes recovery for claims arising in a foreign country.[79] As such, any friendly fire claim arising during the War on Terror will likely be denied simply if it occurred abroad and/or during combat activities. Interestingly, however, neither of these exceptions was considered in the case of Ahmet Aketepe v. United States, discussed infra, which involved a friendly fire incident that occurred in the Aegean Sea during a war games exercise.[80]
d. Case Law Exception - The Feres Doctrine
The Feres Doctrine is an exception to the FTCA that the United State Supreme Court created in 1950.[81] The Feres Doctrine precludes recovery by service members for injuries or harm suffered "incident to service."[82] The phrase "incident to service," however, is much debated, as noted in the Feres' progeny.
The Feres Doctrine itself was the result of three separate cases consolidated by the Supreme Court.[83] All three cases involved servicemen injured or killed incident to service and who subsequently sought recovery from the Federal government under the FTCA for their injuries.[84] Feres v. United States stemmed from a fire at Pine Camp, New York wherein an active duty serviceman was killed when fire swept his barracks.[85] His widow alleged the Army was negligent in housing him in an unsafe barrack with a defective heater and failed to maintain an adequate fire watch.[86] The U.S. Court of Appeals for the Second Circuit affirmed the verdict for the widow.[87] The second case consolidated under Feres, Jefferson v. United States, involved a serviceman who underwent abdominal surgery while on active duty.[88] Approximately eight months later, while undergoing another operation, doctors discovered a towel measuring 30 inches by 18 inches and marked "Medical Department U.S. Army" inside the plaintiff's stomach.[89] Plaintiff sued in negligence.[90] Finally, from the Court of Appeals, Tenth Circuit came the case of Griggs v. United States wherein a young active duty serviceman died during surgery performed by United States Army surgeons.[91]
In the Feres opinion, penned by Supreme Court Justice Jackson, the Court rejected the idea that the government was liable in these cases for three reasons. The first was that the United States government could not be treated as a private individual in circumstances related to military personnel because the Court knew of "no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving."[92] Moreover, the Court reasoned that at no time has a private individual had "the power to conscript or mobilize a private army."[93] Thus, the Court held, the FTCA did not create new causes of action, it simply recognized those actions already available to private individuals.[94]
The second reason the Feres Court gave was the "distinctively federal" relationship that existed between members of the armed forces and the federal government.[95] Citing its decision in United States v. Standard Oil,[96] the Court noted "...the scope, nature, legal incidents and consequences of the relation between persons in the service and the Government are fundamentally derived from federal sources and governed by federal authority."[97] Thus, since the FTCA applied state law to the cause of action, the Feres Court felt not only was it unfair to apply varying state law to servicemen who had not chosen where they would be stationed, but also that it was cumbersome for state geography to dictate the law to be applied in each individual case.[98]
Finally, the third reason cited by the Feres Court for rejecting a service member's claims against the Federal government was that alternative remedies were available.[99] For instance, the Court noted that in Jefferson the plaintiff had been paid $3,645.50 and, based on life expectancy, would prospectively receive another $31,947.[100] Similarly in Griggs, the widow received approximately $2,100 and another $2,695, representing six months' death gratuity as well as a future pension in excess of $18,000.[101] This made her recovery under federal government sources in excess of $22,000 while her recovery under state law was a limit of $15,000.[102] In considering both the alternate sources of recovery, such as the Veterans Benefit Act, and the potential limits on recovery imposed by the states, the Feres Court again reasoned against the recovery for service members or their families. The Court wrote that the FTCA "must have intended that veterans' benefits to be the exclusive remedy for service members."[103]
Since Feres was decided in 1950, however, other cases have expanded or limited the reasoning of the Court. For example, in United States v. Brown,[104] the court relied on a fourth reason, unenumerated in Feres, to deny recovery under the FTCA. The Brown court noted that possible disruption of military discipline should also prevent recovery by a service member.[105] The Court feared suits by injured personnel against negligent commanding officers during military activities. Such suits could lead to second-guessing of military orders, hamstring an officers' decision making in critical moments, or disrupt the commander-commandee relationship.[106] These three concerns illuminated a possible threat to military discipline ever so vital to national security during the first decade of the Cold War. As such, the Brown Court denied recovery to a veteran who sustained a knee injury while on active duty but, after being discharged, had a defective tourniquet applied during a subsequent hospital procedure.[107] The Court noted the veteran was not injured incident to service and had already been compensated.[108]
In other cases, such as United States v. Shearer,[109] the Court disavowed the alternate remedy and distinctly federal reasons enumerated under Feres. Rather, the Shearer Court focused on the military discipline justification and all but abandoned the other Feres justifications for denying recovery under the FTCA.[110] In United States v. Johnson,[111] the Court held that military discipline would also be negatively impacted by allowing recovery against a civilian employee of the federal government. Also of note, in Hinkie v. United States, the Court rejected the claim of a widow who argued her children, both of whom had birth defects, had been injured due to their father's exposure to radioactive materials while working for the Army.[112] Again, the father's bar to recovery under the FTCA was transferred to his children, thereby preventing their claims.[113]
Consequently, modern courts appear to have downplayed the original reasoning outlined in the 1950 Feres decision and now focus primarily on the military discipline rationale for preventing recovery under FTCA.[114] Such broad application of the military discipline rationale, however, has application in cases brought as a result of friendly fire incidents, especially considering the necessity of maintaining discipline among coalition members. Denying recovery to coalition partners, however, may result in political turbulence among coalition partners.
e. The Feres Doctrine, Friendly Fire, and Ahmet Aketepe v. United States.
The Feres Court denied recovery under FTCA to American military personnel injured incident to service, but does Feres also preclude recovery to foreign military personnel killed or injured by American military actions? It depends on how courts would balance the various factors involved. At first glance, foreign military personnel lack the distinctly federal relationship with the United States federal government simply because they not American military personnel. However, no specific alternate forms of compensation have been created by the United States government to allow foreign military personnel to recover for damages. Moreover, many would argue allowing foreign military personnel to bring suit in American courts would not likely have a major impact on military discipline within the ranks of the American military services. However, others argue such suits would disrupt coalition discipline. Finally, under Baker v. Carr[115] and its progeny, American courts avoid hearing cases implicating factors impinging on the other branches of government, in this case, foreign affairs. American courts, however, have heard cases involving friendly fire incidents implicating Feres.
In the most notable case to date, Turkish military personnel or their families brought suit against the United States for a friendly fire incident in Aketepe v. United States.[116] During a 1992 North Atlantic Treaty Organization ("NATO") naval exercise in the Aegean Sea, the U.S.S. Saratoga fired two Sparrow missiles at the Turkish ship, Muavenet.[117] Several Turkish sailors were killed or injured and their families sought to recover under six separate causes of action based on that alleged negligence of the U.S.S. Saratoga crew.[118] The court in Aketepe, noting the uniqueness of the case at bar, held the Feres Doctrine applied not only to U.S. military service personnel, but also to foreign military personnel operating jointly with American forces.[119] The Aketepe court, however, refrained from deciding the case on political question grounds, recognizing that any decision in resolving the issue "would require the court to make a policy determination regarding the proper method or preparing sailors for battle situations, and would require this court to settle a dispute which would better be resolved by diplomatic means."[120]
In its analysis, however, the Ahmet Aketepe court applied Feres to its facts although the case was decided on political question grounds.[121] At no point did the court consider the statutory exceptions under 28 U.S.C. § 2680. In analyzing the plaintiff's claim, the Aketepe court noted members of the Turkish Navy, despite attempts to classify themselves as civilians, "participated in military exercises in which they were under the supervision of an American supervisor."[122] Thus, the Turkish personnel "should be treated as though they were serving with the Executive Branch [of the American government]."[123] Consequently, as the Aketepe Court noted, the case before it could have been dismissed on Feres grounds for the reasons noted as well as the fact the American government had made ex gratis payments to the Turkish government.[124] Thus, simply based on the alternate source of compensation reasoning, the Aketepe Court noted it could have dismissed the case.[125]
As such, prior to determining the applicability of Feres to any future friendly fire cases brought by foreign military personnel or their families against the United States, the U.S. court would likely analyze the justiciablity of the case under Baker v. Carr prior to undergoing a Feres analysis. Accordingly, in a case such as the friendly fire bombing of Canadian troops in Afghanistan by American pilots; while under ultimate Canadian control, the Canadians were serving under the operation command of U.S. Task Force Rakkasan.[126] Command by an American superior, therefore bringing the Canadians under the umbrella of the Executive Branch of the United States government, would prevent recovery due to the political question doctrine.
f. The Military Claims Act & The Foreign Claims Act
Coalition military personnel injured or killed by U.S. forces in friendly fire incidents are unlikely to recover under either the Military Claims Act ("MCA")[127] or the Foreign Claims Act ("FCA").[128] Specifically, the MCA permits recovery for property loss or personal injury or death "incident to non-combat activities" of the American military services.[129] As such, military personnel engaged in military conflict who happen to engage personnel from a coalition nation during combat precludes recovery under the MCA.[130]
Similarly, the FCA is inapplicable in friendly fire incidents because it also permits recovery for non-combat related activities.[131] The purpose of the FCA is to "maintain friendly relations through the prompt settlement of meritorious claims [against the United States]...in an amount not more than $100,000.00"[132] However, FCA claims must be brought within two years and they cannot have arisen "from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except as the claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft...."[133] As such, the FCA authorizes claims submitted by locals for injury or harm suffered due to non-combat activities or negligent or wrongful acts of American military personnel.[134]
Consequently, victims of friendly fire have few options. Pre-agreed SOFAs determine jurisdiction and American jurisprudence under the FTCA precludes recovery for the federal government for injury or death resulting incident to service. Rather, American military personnel causing friendly fire incidents are subject to the United States Code of Military Justice. No other incident of friendly fire during the War on Terror exemplifies the causes, consequence and interplay of law and politics than the April 17, 2002 bombing of Canadian infantry troops serving in Afghanistan.
IV. SPECIFIC FRIENDLY FIRE INCIDENTS FROM THE WAR ON TERROR
The War of Terror, beginning in October 2001 with attacks on Afghanistan and spreading to Iraq in March 2003, has witnessed several significant friendly fire incidents. Foremost is the April 2002 bombing of Canadian troops in Afghanistan.[135] Other incidents include the 2004 killing of National Football League star Pat Tillman,[136] the 2005 American attack on a Bulgarian convoy, killing one,[137] and the 2005 killing of an Italian intelligence agent by American forces when the agent,[138] who had just rescued a kidnapped Italian journalist, failed to stop at an American checkpoint. In 2006, an American A-10 aircraft struck NATO troops in Kandahar province southern Afghanistan, again killing one Canadian serviceman and injuring five others.[139] As such, the War on Terror, with its smart weapons, is no different than past military conflicts.
a. The Tarnak Farms Incident
The most significant incident of friendly fire since involving members of the Coalition of the Willing occurred on April 17, 2002 when an American F-16[140] pilot bombed Canadian troops operating at Tarnak Farms, Afghanistan. Tarnak Farms was once an al-Qeada training ground that was later utilized by coalition forces.[141] Based on the events of April 17, the Canadian government launched the Tarnak Farm Board of Inquiry probing the incident from the Canadian perspective,[142] while the American report from the Coalition Investigation Board probed the incident from the American perspective.[143]
Members of "A" Company, 3rd Battalion, Princess Patricia's Canadian Light Infantry (The Patricia's),[144] arrived in Afghanistan in January 2002 as part of Canada's commitment to assist the United States in the wake of the September 11, 2001 attacks.[145] The Patricia's were placed under the operational control of the American Task Force Rakkasan.[146] Rakkasan was formed from the 3rd Brigade, 101st Airborne Division permanently stationed at Fort Campbell, Kentucky.[147] The Patricia's, a light infantry brigade, were the single Canadian unit operating in Afghanistan at the time.[148] On the evening of April 17, 2002, the Patricia's engaged in a live fire training exercise on the Tarnak Farms Range. The exercise planned to develop night fighting techniques using small arms, heavy machine guns, and anti-armor weapons.[149] More than a week prior to the exercise and according to standard operating procedures, the Patricia's submitted a request to the task force headquarters requesting use of the range.[150] The Patricia's were not required to coordinate their exercise with the Task Force Air Component Command, "this was and is clearly a U.S. responsibility" which was complied with.[151]
b. Perspective From The Ground: The Canadian Report[152]
The Canadian live fire exercise was monitored by the Rakkasan Tactical Operations Center and the Kandahar Airfield Tower Sentry.[153] Evidence of this came when the Tower Sentry issued a "check fire" order as a transport aircraft approached for a landing at the nearby Kandahar Airport.[154] Additionally, approximately ten minutes before the bombing, two U.S. helicopters approached Kandahar Airfield from the east and were cleared by the Tower Sentry.[155] The helicopter pilots observed the Canadian training exercise and the resulting flashes.[156] The helicopter mission commander described seeing small arms fire and two bright flashes.[157] According to the Canadian report, the American helicopter pilot specifically described the fire as "surface-to-surface."[158] No mention of this description is found in the Coalition Investigation Board Report. The helicopter mission commander observed ricochets from the ground, but they went no higher than 500 - 1000 feet above ground level.[159] The Canadian report concluded that neither the weapons the Canadians utilized nor the ricocheting tracer fire presented a threat to the high-flying U.S. F-16s.[160]
At approximately 21:21 local time, members of the Patricia's reported hearing jets flying nearby.[161] It was at this time that two U.S. F-16s observed and reported on the Canadian ground fire.[162] At 21:24 the Patricia's fired a fifth anti-tank round.[163] Moments later, American pilot Major Harry Schmidt, call-sign Coffee 52, flying five nautical miles south, stated he saw men and artillery pieces on the road and was under anti-aircraft fire.[164] He immediately invoked his right of self-defense.[165] Seconds later, Major Schmidt initiated his attack using a 500-pound laser guided bomb, destroying the anti-tank firing position and killing four Canadian military personnel and wounding eight.[166] Approximately nine hours later, after the arrival of various investigation units and medical personnel, an American Criminal Investigations Division Team arrived to assist the Canadian Forces National Investigation Service officers already on site.[167]
i. Perspective From The Air: The American Report[168]
The American report, while detailing some of the activity transpiring on the firing range below, focused upon the actions of the two F-16 pilots, call sign Coffee 51 (Major William Umbach - flight leader) and Coffee 52 (Major Harry Schmidt - wingman).[169] The "Coffee Flight" had been flying in northeastern Afghanistan monitoring activities.[170] The pilots had been flying for approximately six hours before the bombing occurred and were flying with night vision goggles.[171] Both pilots had utilized their Dexedrine "go/no go pills" at the time the bombing occurred.[172]
While both official reports delete the exact altitude of the pilots when they first observed the ground fire, the Coalition Investigation Board Report states when they saw the ground fire, both pilots believed that its "burn out" was approximately 10,000 feet, "well below their initial transit altitude."[173] After witnessing what they believed to be threatening surface-to-air fire (SAFIRE), the Coffee Flight turned off their external lights and donned night vision goggles prior to activating their on board recorders.[174] Coffee 52 broke away from his flight lead and descended toward the live fire exercise.[175] After circling and establishing the coordinate source of the fire, Coffee 52 requested to "lay down some 20 mike-mike" meaning 20mm canon fire.[176] The Airborne Warning And Control System (AWACS) instructed Coffee 52 to "standby."[177] Subsequently, the Chief of Combat Operations told the AWACS controller to deny Coffee 52's request pending further information.[178]
At 21:24, while continuing to circle, Coffee 52 reported sighting fire that he believed was directed toward his flight leader, who was still flying at above 10,000 feet.[179] Coffee 52 reported "that there are some men on a road and it looks like a piece of artillery firing at us."[180] Coffee 52 then declared self-defense, rolled in and released his weapon.[181] Thirty-seven seconds later, the Combined Air Operations Center advised the Coffee Flight, "Kandahar has friendlies."[182] Thirteen seconds after that, Coffee 52 announced "shack," a direct hit on the target he believed had been firing.[183]
Nine seconds after impact, the Coalition Air Operations Center directed the Coffee Flight to "disengage, friendlies Kandahar."[184] As the Coffee Flight resumed its southerly course toward an aerial refueling rendezvous, Coffee 51 queried, "...uh, can you confirm that they were shooting at us?"[185]
ii. Report Conclusions
The Canadian report is clear in declaring blameless all Canadian Forces personnel who coordinated or planned the live fire exercise.[186] Moreover, it determined the actions of Coffee 51 were the primary cause of the injuries and death of the ground troops.[187] There were a series of "disturbing contradictions between their perceptions, their actions, and accepted procedures."[188] The inquiry listed several conclusions highlighting the contradictions.[189]
For example, approximately four minutes prior to invoking self-defense, Coffee 51 informed AWACS they had ordnance aboard.[190] The Canadian report found this a very inappropriate and unusual comment.[191] Additionally, both pilots were highly trained and had previous combat experience, including seeing hostile surface-to-air hostile fire.[192] The fact the tracer fire ricocheting from the ground never exceeded 1000 feet according to the helicopter commander is also highly suspicious.[193] Neither pilot's voice reflected concern in the minutes leading up to the invocation of self-defense.[194] Moreover, Coffee 52 not only remained in the area of suspected danger, but he also slowed and descended into the danger zone.[195] Coffee 52 invoked self-defense based on his belief Coffee 51 was in imminent danger.[196] But, Coffee 51 remained at a safe altitude and distance from the perceived threat. Furthermore, Coffee 51 never demonstrated feeling threatened by the fire on the ground.[197] Additionally, Coffee 52 never issued a defensive directive for Coffee 51 to avoid fire, as mandated by the Rules of Engagement.[198]
As a result, the Canadian inquiry concluded the pilots' actions were not consistent with either the expected practice for a defensive threat reaction or the existing published procedures including pre-flight special instructions.[199] There was a failure of leadership, airmanship, and technique.[200] Furthermore, their actions contravened the published Commander's direction with respect to the reaction to anti-aircraft fire and employment of ordnance outside of engagement zones.[201]
The Coalition Investigation Board, unlike the Canadian inquiry, heard taped interviews with pilots Major Schmidt and Major Umbach.[202] Furthermore, the Coalition Board heard from other U.S. F-16 pilots who were asked to testify.[203] Outlining the Rules of Engagement ("ROE"), the Board found, "by clear and convincing evidence that the cause of the friendly fire incident...was the fault" of Major Schmidt to exercise appropriate flight discipline resulting in a "violation of the Rules of Engagement and the inappropriate use of lethal force."[204] Major Umbach failed to "exercise in-flight leadership resulting in his wingman's violation of the Rules of Engagement."[205]
In making these findings, the Coalition Board, using the ROE, based their decision on six factors:
I. Necessity of lethal force. Numerous F-16 pilots testified before the Board that if they found themselves in a similar circumstance, their immediate reaction would have been to "accelerate to greater airspeed, climb in altitude, and leave the immediate area to evade and avoid the threat."[206] The Board found, however, Major Schmidt moved toward the SAFIRE and descended below the recommended altitude..."he never appeared to maneuver defensively."[207]
II. Proportionality of force used. Major Schmidt did not engage in any non-lethal means of self-defense, such as maneuvering away from the threat, before using lethal force.[208]
III. Utilized all available information. Neither pilot "actively queried their controlling AWACS" for information on the possibility of friendly forces in Kandahar.[209]
IV. Imminent danger. F-16 tactical employment materials indicate aircraft should not deliberately descend into the effective range of [anti-aircraft weapons] to engage and destroy [anti-aircraft] units which fire well below their altitude."[210]
V. Retaliation. The Board found no evidence indicating Major Schmidt was motivated by retaliation "or any other purpose prohibited by the laws of war."[211]
VI. Rules of Engagement restriction. Major Schmidt, by requesting to use his 20mm canon, would have placed himself in greater jeopardy due to the approach to suspected SAFIRE.[212] Additionally, descending into the lethal range of an [anti-aircraft] unit firing below them in order to attack in self-defense violated the Rules of Engagement.[213]
Additionally, the Coalition Investigation Board Report considered the pilots' use of amphetamine pills. The pills were used to combat fatigue.[214] Major Schmidt ingested 10mg of "Go pills" two hours before the incident and Major Umbach ingested 5mg at approximately midnight.[215] Neither report describes the nature of the pills. The Coalition Board found the pill use was neither excessive nor beyond what was typically used.[216] The Coalition Board concluded the "use of ‘Go/No Go pills' was not a factor" in the bombing.[217] "The lack of situational awareness" by both men, however, was the result of "poor planning and preparation combined with inattention, misperception, and fatigue" complicated by the challenges of night-flying.[218]
Eventually,[219] Major Schmidt and Major Umbach were charged with violating three Articles under the Uniform Code of Military Justice[220] and appeared at an Article 32 Hearing held at Barksdale Air Force Base in Louisiana.[221] They were charged with:
I. Article 92 - Dereliction of duty in the performance of duties by failing to comply with the applicable rules of engagement and special instructions to airmen issued that date.[222]
II. Article 119 - Involuntary manslaughter (four counts) by unlawfully killing four members of the Princess Patricia's Canadian Light Infantry with a 500-pound laser guided bomb.[223]
III. Article 128 - Aggravated assault (eight counts) by directing at or near the eight injured individuals of the Princess Patricia's Canadian Light Infantry a 500-pound laser guided bomb likely to produce death or grievous harm.[224]
At the conclusion of the Article 32 hearing,[225] the Convening Authority,[226] Colonel Patrick Rosenow recommended that the charges against both pilots be dropped.[227] Lt. General Bruce Carlson, to whom Colonel Rosenow made his recommendations, agreed with the recommendation with respect to Major William Umbach.[228]
As to Major Harry Schmidt, however, Lt. General Carlson offered him the opportunity to address the charges in an Article 15 hearing[229] in exchange for dropping the manslaughter and assault charges.[230] Major Schmidt refused and requested the full Article 32 hearing in the hopes of being awarded a full exoneration.[231] After a year of delays and postponements, however, Major Schmidt reversed course and opted for the Article 15 hearing.[232] Ultimately, Schmidt was fined and received a letter of reprimand declaring that he "flagrantly disregarded a direct order...exercised a total lack of flight discipline...and blatantly ignored the applicable rules of engagement."[233] The letter concluded questioning Schmidt's officership, judgment, and integrity."[234]
The April 2002 Tarnak Farms bombing, sadly, is not the only friendly fire incident involving coalition forces during the War on Terror. In April 2006, U.S. aircraft strafted coalition troops, including American, Canadian, and Afghan ground forces.[235] Undoubtedly, other friendly fire incidents will plague the coalition in the future.
c. Coalition-American Relations
In large part, the United States has an amicable relationship with the national governments comprising the Coalition of the Willing. Public opinion in some of these countries, as noted, is more tenuous. For instance, the government of Tony Blair is one of, if not the staunchest, American allies.[236] Public opinion in the Untied Kingdom, however, suffered a hit in light of the recent revelation American forces were responsible for killing a British journalist.[237] The incident, however, did not sway the resolve of Blair's government in supporting America. With respect to the Canadian-American relationship in light of the April 2002 bombing, it also remains intact despite Canadian public opinion.[238] Consequently, despite friendly fire incidents, coalition allies are not likely to withdraw solely due to the injury or death of their troops resulting from friendly fire rather than enemy fire.
In light of the multilateral nature of the War on Terror and the fact that friendly fire incidents will inevitably reoccur, certain steps can be taken to limit the destructive nature of such incidents and ideally prevent them outright.[239] Other measures should also be taken to insure stability and transparency in the wake of a friendly fire incident involving Coalition partners.
a. Each country involved should investigate
In order to stem domestic public outcry after a friendly fire incident, all nations involved must conduct independent investigations. Independent investigations will allow a nation's military forces to identify the specific causes of the incident. Whether human error, misidentification, or outright negligent conduct, a nation can address the causes and consequences of a friendly fire incident from within its own military structure.[240]
b. Information from all investigations must be shared
All information gathered by the independent national governments, however, should be shared in order to achieve as complete an understanding of how a friendly fire incident took place. Only be combining the perspective from, for instance, an artillery commander with the perspective of an infantry unit can a more complete understanding of the incident be acquired. By sharing the information, lessons can be learned and shared, for example, fighter pilots, may learn troops of a coalition partner have been trained in a particular way, which will allow the pilots to identify hostile behavior.
Moreover, by sharing the information gathered, coalition partners will reaffirm their commitment to one another by providing information necessary to prevent further such incidents.[241]
c. Work closely to perfect identification of friendly forces
There are two general technological approaches to addressing friendly fire: passive and active technologies. Passive technologies include painting symbols on equipment, such as the white chevron on allied tanks during the first Gulf War. The white symbol was easily identified during daylight operations. Other passive technologies include chemical agents or tapes used to mark friendly personnel when viewed through night vision goggles. Canadian troops, for example, use a small highly reflective patch on their shoulders to mark themselves as friendly troops.[242]
Active technologies include use of radar transmissions, such as Identification Friend or Foe (IFF) technology. Current use of IFF systems, however, must be expanded and take advantage of modern Radio Frequency Identification Technologies (RFID).[243] IFF systems date back to World War Two, when allied pilots used radar and high frequency transponders to identify friendly aircraft.[244] Modern IFF systems were utilized during the First Gulf War and later during Operation Provide Comfort and use four different "Modes" to help identify friendly forces.[245] Each Mode is an electronic signature allowing identification of allied forces and, if necessary, further interrogation of an aircraft once identified.[246] During Operation Provide Comfort, however, two Black Hawk helicopter pilots forgot to change IFF Modes when they flew from Turkey into Iraq. Moreover, Airborne Weapons and Control Systems (AWACS) aircraft monitoring flights into and out of Iraq neglected to inform the helicopter pilots to change IFF Modes.[247] Soon thereafter, F-15 pilots, unable to identify the friendly Black Hawks, shot them down. The incident, although rife with human error on the part of nearly everyone involved, highlights modern use of IFF technology.[248]
Modern RFID technology should, therefore, be implemented to remove the human element involved with IFF systems. RFID should be integrated into allied military equipment in order to transmit a signal to other allied forces. This RFID signal should require as little human involvement as possible. To prevent an RFID transmitter from falling into enemy hands and enabling enemy forces to fool allied forces, however, the RFID transmitter should have a limited life span or battery life.[249]
d. Insure that the injured or killed are compensated and honorably rewarded by all countries for their sacrifice
No nation or its people want to believe their troops died in vain against enemy combatants. More importantly, no people want to learn their troops were injured or killed by friendly fire and that those injured or killed troops have not been compensated or recognized for their sacrifice.
For instance, in a rare ceremony, the four Canadian infantry personnel killed on April 17, 2002 were posthumously awarded the Bronze Star for bravery.[250] The Bronze Star, America's fourth highest military award, may be awarded to coalition troops.[251] Such awards unite coalition militaries and bolster respect for the sacrifice of comrades in arms. Moreover, it atones for the loss and ispossibly is, possibly, a subtle recognition of culpability. However, Rreaction among family members, however, varies. For instance, the family of one of the Canadians killed viewed the medtal as a representation of her husband's ultimate sacrifice, while the mother of another fallen Canadian viewed the ceremony as "damage control."[252] Either way, a public ceremony by a high-ranking American official recognized the sacrifice of coalition troops and is advisable in the wake of all friendly fire incidents.
e. Punish the responsible individuals
Where military personnel are found culpable, they should be punished accordingly. This sense of punishment assists in the healing process and ensures that negligent or reckless conduct will not go unpunished. Moreover, the threat of punishment serves as a deterrent to such conduct and can only reinforce that all personnel operate within the proper Rules of Engagement.
f. Proper training
Coalition troops, whether pilots, artillery commanders, or infantrymen, must also take steps to prevent friendly fire. For instance, they must not only learn to recognize stress and fatigue among their comrades, but also not be afraid to address those issues with commanding officers. Additionally, maintaining communication links between air and ground forces is vital in order to relay current position information and insure positive target identification. Finally, learning to properly identify and properly distinguish various pieces of military equipment found on the battlefield is instrumental in preventing coalition partners from targeting friendly forces using equipment similar to the enemy. As such, enhanced use of RFID technology can remove the possibility of misidentifying friendly forces.
Whether by enemy fire or friendly fire, the loss of a nation's military personnel is a tragic event. Friendly fire losses rip families apart, threaten coalition stability, and destroy troop morale.[253] During the War on Terror, events in both Afghanistan and Iraq highlight the destructive nature of friendly fire. The War on Terror, as noted, is likely to continue for years. Moreover, considering the coalition-based nature of the conflict where diverse countries with various types of equipment[254] fight together against similar peoples using equipment identical to the allies, friendly fire incidents are undoubtedly going to reoccur. As such, and to insure cohesive alliances, undeterred by domestic public pressure, clear jurisdictional agreements with transparent procedures must be laid out. Most importantly, the injured serviceman or the family of service personnel killed in action must be able to recover for their losses and know the responsible party shall be punished, if found responsible.
The April 17, 2002, friendly-fire bombing of Canadian personnel shows alliances can survive such incidents. However, domestic pressures can create strident anti-Americanism and threaten to undermine coalition strength from within. Just think, could the next friendly fire incident prompt the government of the injured or killed military personnel to withdraw its support as Spain withdrew its support from the Iraq war? With opposition to the war so widespread in many allied nations, would a serious friendly fire incident push the opposition to the forefront and force a nation to withdraw its troops or face defeat at the polls? After the April 2002 bombing, Canada, rather than seek to challenge American jurisdiction under the NATO Status of Forces Agreement, properly accepted a hearing of the pilots in the United States. While widely unpopular in Canada, such a hearing, even by U.S. military authorities, was unprecedented and even caused some backlash in U.S. military circles. Coalition partners that find themselves in Canada's position should follow Canada's lead and maintaine their strong alliance with the United States, publish an independent report, cooperate with the American investigation and most, importantly, accept the sad reality of such incidents in the "Fog of War."
* J.D., California Western School of Law; M.A., Pepperdine University; B.A. Wilfrid Laurier University. The author wishes to thank Professor Charles A. Smith of the University of Miami for his comments and suggestions. Moreover, thanks to Kathryn Caretti for her editorial marvels. This article is dedicated to Professors Dennis P. Saccuzzo and Nancy E. Johnson as well as attorney Lisa J. Damiani, all of whom helped set me on my way as an attorney.
[1] President George W. Bush, Address to a Joint Session of Congress (Sept. 20, 2001). During this speech, President Bush announced the War on Terror and demanded that the Taliban government in Afghanistan hand over all al-Qaeda leaders in the country. Id. It was during this September 20th speech that President Bush declared to the world, "we will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime." Id. To the nations that chose to join the United States, the President asked for the "help of police forces, intelligence services, and banking systems around the world." Id. On October 7, 2001, President Bush reiterated his global offensive against the al-Qaeda terrorists when he announced the offensive against Afghanistan. "On my orders, the United States military has begun strikes against al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan... We are joined in this operation by our staunch friend, Great Britain. Other close friends, including Canada, Australia, Germany and France, have pledged forces as the operation unfolds. More than 40 countries in the Middle East, Africa, Europe and across Asia have granted air transit or landing rights. Many more have shared intelligence. We are supported by the collective will of the world." President George W. Bush, Address to the Nation (Oct. 7, 2001); See also Secretary of Defense, Donald Rumsfeld, Address to reporters at the Pentagon (Oct. 7, 2001).
[2] North Atlantic Treaty Organization ("NATO") countries affirmed their founding principal that an attack on one was an attack on all. Lt. General Thomas McInerney & Maj. General Paul Vallely, Endgame: The Blueprint for Victory in the War on Terror 118 (2004); See also Operation Iraqi Freedom, Coalition Members, The White House, http://www.whitehouse.gov/news/releases/2003/03/20030327-10.html (last visited Nov. 20, 2007); Perspective on World History and Current Events, Coalition of the Willing, http://pwhce.org/willing.html (last visited Nov. 20, 2007).
[3] See generally, International Law Studies: International Law and The War on Terror vol. 79 (Fred L. Borch & Paul S. Wilson, eds. 2003).
[4] President George W. Bush, Address to a Joint Session of Congress (Sept. 20, 2001).
[5] See infra § 4(a). The April 2002 friendly fire bombing has been the most deadly incident of friendly fire during the war on terror. See generally Michael Friscolanti, Friendly Fire: The Untold Story of The U.S. Bombing That Killed Four Canadian Soldiers in Afghanistan (John Wiley & Sons 2005).
[6] See generally Jonathan Marcus, Fighting an Unending War in The BBC Reports on America, Its Allies and Enemies, and the Counterattack on Terrorism 203-15(2002).
[7] For instance, countries that supported the United States in its efforts to remove the Taliban government from power in Afghanistan did not necessarily support American actions in Iraq in 2003. See Alissa J. Rubin, Few Signs of Bush Fans in Europe, L.A. Times, June 20, 2006, at A14.
[8] Lt. Col. Charles R. Shrader retired from the U.S. Army in 1987 and is the author of numerous books on American military history.
[9] See generally Charles R. Shrader, Amicicide: The Problem of Friendly Fire in Modern War (1982).
[10]Id. at viii.
[11] Coalition Investigation Board Report: Tarnak Farms, Afghanistan, Summary of Facts: Tarnak Farms Friendly
Fire Incident Near Kandahar, Afghanistan, 17 April 2002, http://www.globalsecurity.org/military/library/report/2002/tarnak_farms_report.doc (last visited Nov. 12, 2007) (hereinafter CIBR); see also Department of Defense, http://www.dtic.mil/doctrine/jel/doddict/data/f/02265.html (last visited Nov. 2, 2006) (noting the current DoD's current definition of friendly fire).
[12] Fratricide is literally the killing of one's brother. In a sense, fratricide may also be considered killing one's "brother-in-arms." See Fratricide, Dictionary.com, http://dictionary.reference.com/browse/fratricide (last visited Nov. 20, 2007).
[13] "Fragging" is a Vietnam era term used to describe killing of an officer by a subordinate, usually by grenade. See Patrick J. McDonnell, U.S. Sergeant Charged in Killing of 2 Officers, L.A. Times, June 17, 2005, A4 (noting the first case of fragging during the war in Iraq). Staff Sgt. Alberto Martinez allegedly utilized hand grenades and a claymore mine killing the officers during a conference. Id.; See also 'Fragging' Case Heads to Military Court, ABC News, http://abcnews.go.com/US/LegalCenter/wireStory?id=2625835 (last visited Nov. 10, 2006); See also Geoffrey Regan, Blue on Blue: A History of Friendly Fire 237-38 (Avon Books 1995)(giving a firsthand account of the motivations for fragging in Vietnam).
[14] "Blue-on-Blue" is a British term for friendly fire. It derives from British war game exercises where the good guys were blue and the bad guys were red. Thus, when the good guys engaged one another, the incident was deemed "Blue-on-Blue." Stuart Millar, The Language of War: An Occasional Series Decoding The Military Jargon, The Guardian, Mar. 24, 2003 available at http://www.guardian.co.uk/international/story/0,,920602,00.html (last visited Nov. 20, 2007).
[15]See Shrader, supra note 9, at 55; See also Dispatches: Lessons Learned for Soldiers Vol. 11 No. 1 Oct 2005 at http://armyapp.dnd.ca/allc/Downloads/dispatch/Vol_11/Dispatches_%20Vol_11%20No_1English.pdf (describing a 1968 incident in Vietnam where an American F-4 Phantom dropped a canister of napalm on a church killing 13 civilians. The bomb release, however, was deemed an accident resulting from a faulty bomb rack. Accordingly, the incident was not friendly fire) (hereinafter Dispatches).
[16] Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) cert. denied, 508 U.S. 960 (1993); Iranian Flight 655 was shot down off the coast of Iran by the U.S.S. Vincennes on July 3, 1988. The crew of the Vincennes wrongly believed that the civilian jetliner was a military aircraft and represented a threat. See generally, Will Rogers, et al., Storm Center: The USS Vincennes and Iran Air Flight 655: A Personal Account of Tragedy and Terrorism (Naval Institute Press 1992). See Darren C. Huskisson, The Air Bridge Denial Program and The Shootdown of Civil Aircraft Under International Law, 56 A.F.L. Rev. 109, fn. 132 (2005) (giving numerous factors used by the U.S.S. Vincennes crew in determining (wrongly) that Iranian Flight 655 was hostile).
[17] To include incidents where, for example, American military personnel kill or injure of other American service personnel would eliminate the international aspect considered in this article and the application of the Feres doctrine discussed infra in relation to coalition friendly fire incidents.
[18] Canadian Broadcasting Corporation, U.S. Troops Open Fire on Iraqi Police Officers, 8 Dead, Sept. 12, 2003, http://www.cbc.ca/world/story/2003/09/12/iraq030912.html (last visited Nov. 20, 2006) (one of several incidents during the U.S. occupation of Iraq when U.S. military personal kill or wound Iraqi police personnel).
[19] The post September 11 coalition was larger and more diverse than the coalition assembled by George Bush's father in 1991 when American troops led the march into Iraq. Glenn Kessler, United States Puts a Spin On Coalition Numbers, Wash. Post, Mar. 21, 2003, A29.
[20] Andrew Marr, Blair Steps Forward in The BBC Reports on America, Its Allies and Enemies, and the Counterattack on Terrorism 176 (2002); Fredric Pearson, Terror Symposium: A Global Declaration of War on Terrorism, Building Alliances and Defining Victory 10 MSU-DCL J. Int'l L. 578, 585 (2001). With respect to friendly fire, as of January 2006, British officials indicated that eight of the United Kingdom's 98 deaths of military personnel in Iraq may have been due to friendly fire rather than enemy fire. The source of the friendly fire was either British or American troops. Currently there is ongoing litigation in the U.K. by injured servicemen against the English government. See Terry Kirby, MoD to be Sued Over ‘Friendly-Fire' Cases, The Independent, Jan. 23, 2006, at 4.
[21] Australia Joins War on Terror, BBC News, Oct. 17, 2001, http://news.bbc.co.uk/1/hi/world/asia-pacific/1603660.stm (last visited Nov. 20, 2007).
[22] See generally President Bush Reaffirms Resolve to War on Terror, Iraq and Afghanistan, The White House, Mar. 14, 2004, at http://www.whitehouse.gov/news/releases/2004/03/20040319-3.html (last visited Nov. 27, 2007).
[23]McInerney, supra note 2, at 118. Canada actively participates in Afghanistan under NATO mandate, but refuses to participate in Iraq. Bob Woodward, Plan of Attack 373 (Simon & Schuster 2004); Afghanistan Won't be 'Canada's Iraq': O'Connor, CVT.ca at http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060319/qp_oconnor060319/20060319?hub=Qperiod (last visited Nov. 21, 2007); see generally, Tyler Marshall, The Conflict in Iraq, L.A. Times, Jan. 4, 2005, A5.
[24] Steve Schifferes, US Names "Coalition of the Willing" BBC News at http://news.bbc.co.uk/2/hi/americas/2862343.stm (last visited Nov. 1, 2006). Arab or Muslim countries, for instance, unwilling to directly support an attack on Iraq, allowed Coalition military forces to flyover their territories or use their military bases. See Paul Reynolds, Washington Readies for War in The BBC Reports on America, Its Allies and Enemies, and the Counterattack on Terrorism 96 (2002); Glenn Kessler & Bradley Graham, U.S. Coalition For War Has Few Partners, Troop Pledges, Wash. Post, Jan. 25. 2003, at A16. Other nations like Turkey, however, outright refused certain American requests. Turkey, in a surprise move, refused to allow U.S. military personnel to traverse its land to open a second, northern front in the Iraq war. John W. Egan, The Future of Criminal Jurisdiction Over the Deployed American Soldier: Four Major Trends in Bilateral U.S. Status of Forces Agreements, 20 Emory Int'l L. Rev. 291, 292 (2006); see also Woodward, supra note 23, at 83, 123 & 325. Additionally, El Salvador was the only Latin American nation to send troops (380 soldiers) to Iraq. Hector Tobar & Alex Renderos, A Mother's Loss Spurs War Debate, L.A. Times, Mar. 10, 2006, at A3.
[25] US Chides Spain For Iraq Pull-Out, B.B.C. News, http://news.bbc.co.uk/2/hi/americas/3640459.stm (last visited Nov. 23, 2007). The Netherlands withdrew its troops from Iraq in March 2005. Dutch Military Mission to Iraq, Government.nl, at http://www.government.nl/Subjects/Dutch_military_mission_to_Iraq (last visited October 10, 2007).
[26] Dana Milbank, Many Willing, But Only a Few Are Able, Wash. Post, Mar. 25, 2003, at A7.
[27] Domestic public opinion in Canada, Spain, England and Poland continues to oppose involvement in operations in Iraq.
[28] See Robert A. Pape, The True Worth of Air Power, Foreign Affairs, Mar./Apr. 2004 (noting NATO ground troops supported by U.S. airpower in Afghanistan).
[29]Confederate General Thomas J. "Stonewall" Jackson, whom General Robert E. Lee described as his "right arm," was killed by Confederate soldiers during the Battle of Chancellorville in May 1863. While riding horseback with several aides, Jackson crossed the firing line of an anxious North Carolina regiment. The North Carolinians, exhausted, tense, and expecting an attack from Federal cavalry troops, opened fire on General Jackson and his mounted aides when they appeared out of the shadows. Bruce Catton, The Centennial History of the Civil War: Never Call Retreat 154-55 (Doubleday & Co., Inc. 1965). General Jackson was hit and knocked from his horse after a volley of musket fire from a mere 20 paces. He died of his wounds soon thereafter. See Shelby Foote, The Civil War: A Narrative: From Fredericksburg to Meridian 301 (Vintage 1986).
[30] Patrick Cooper, Coalition Deaths Fewer Than in 1991, CNN, at http://www.cnn.com/2003/WORLD/meast/04/17/sprj.irq.casualties/index.html (last visited Nov. 21, 2007). The A-10 Thunderbolt, also known as the Warthog due to its appearance, is a low flying, maneuverable aircraft designed for close air support of ground forces. The primary weapon of the A-10 is the 30mm nose mounted Gatling gun capable of firing 3,900 rounds per minute. Col. Robb Coe & Mike Schmitt, Fighter Ops for Shoe Clerks, 42 A.F.L. Rev. 49, 65-6 (1997).
[31]Cooper, supra note 30.
[32] The U.S.S. Liberty was attacked off the Sinai Peninsula on June 8, 1967 by Israeli aircraft and torpedo boats. Israeli pilots either failed to identify the Liberty as a U.S. ship or mistook it for the Egyptian transport ship El Quesir. Ten U.S. personnel were killed, 90 wounded, and the ship was severely damaged. See Foreign Relations of the United States Vol. XIX 204-220 (Harriet Dashiell Schwar, ed., 2004); Foreign Assistance Act of 1961: Hearings on S. 1872 Before the S. Comm. on Foreign Relations, 90th Cong. 266-69 (1967) (statements of Sen. Hickenlooper and Sec. McNamara).
[33] In the immediate aftermath of his death, many believed Tillman was actually killed while battling al-Qeada or Taliban forces. Only later was it revealed that he was killed by members of his own unit. Jim Garamone, Pat Tillman USO Center Dedicated in Afghanistan, American Forces Information Services News Articles, Dec. 16, 2004. Pat Tillman walked away from a lucrative contract to play football with the Phoenix Cardinals to join the Army Rangers in the wake of the September 11 attacks. See Thom Loverro, Remembering a Real Sacrifice, Wash. Times, Apr. 24, 2004, at C1.
[34] The phrase "Fog of War" is accredited to Prussian military analyst Carl von Clausewitz. Von Clausewitz, in his book On War wrote, "[t]he great uncertainty of all data in war is a peculiar difficulty, because all action must, to a certain extent, be planned in a mere twilight, which in addition not infrequently - like the effect of a fog or moonshine - gives to things exaggerated dimensions and unnatural appearance." Carl von clausewitz, on war 105-6 (J.J. Graham trans., E.P. Dutton & Co., 1918) (1832). For example, the fog of war rationale in the Tarnak Farms incident, discussed infra, is best described by U.S. General Stephen G. Wood who, in a sworn affidavit to the Article 32 Investigating Officer, wrote, "[t]he situation on the ground was such that you could not tell where the enemy was and where the friendly forces or Afghani civilians were." Friscolanti, supra note 5, at 265.
[35] In his historical examination of friendly fire, Regan notes that in May 1645 during the English Civil War at the battle of Crewkerne, "Royalists under General Goring fought for nearly two hours against each other, entirely mistaking their colleagues for Parlimentarians. In Place of uniforms, identification was limited to battle signs - sometimes colored cloth or heather - but these were so easily acquired or discarded that they were worse than useless." Regan, supra note 13, at 36; see generally Dawn R. Eflein, A Case Study of Rules of Engagement In Joint Operations: The Air Force Shootdown Of Army Helicopters In Operation Provide Comfort, 44 A.F.L. Rev. 33, 48-60 (1998) (discussing the actual shootdown of two Black Hawk helicopters, the communications employed by all aircraft involved and general human error).
[36] On November 6, 1917, Canadian troops battling a fierce German resistance at Passchendaele were positioned 100 yards ahead of rather than behind the artillery barrage. As the artillery barrage crept forward, the Canadians were "blown to pieces" by the British guns. Sadly, as the Canadians retreated, they were set upon by their British allies who thought them advancing German troops. Reagan, supra note 13, at 97.
[37] Night vision goggles (NVGs) are used to fly at night despite they fact they reduce the vision of pilots. Coe et al., supra note 30, at 79.
[38] See generally The Particular Pain of ‘Friendly Fire:' Why Did The Rate of These Casualties Soar in The Gulf War? L.A. Times, Aug. 18, 1991, at M4 (discussing the increased rate of friendly fire incidents in the Gulf War); see also Alan Miller, Friendly Fire Lurks on The Front Lines, L.A. Times, Feb. 17, 1991, at A1.
[39] Dispatches, supra note 15, at 9.
[40] Eflein, supra note 35, at 34 (1998); Miller, supra note 38, at A1; See also Guy R. Phillips, Canadian Forces, Rules of Engagement: A Primer. 1993 Army Law 4, 24 (1993).
[41] Philips, supra note 40, at 17.
[42] Operation Provide Comfort was the U.S. led military/humanitarian operation in Iraq that commenced in July 1991 and ended in December 1996.
[43] Eflein, supra note 35, at 52-53.
[44] Dispatches, supra note 15, at 9; Miller, supra note 38, at A1.
[45] Dispatches, supra note 15, at 9.
[46] Id. at 12.
[47] Id.
[48] William Ayers, III U.S.N., Fratricide: Can it be Stopped? (1993) http://www.globalsecurity.org/military/library/report/1993/AWH.htm (last visited Nov. 22, 2007).
[49] See Regan, supra note 13, at 6 & 239; Ayers, supra note 48; Miller, supra note 38, at A1.
[50] Miller, supra note 38, at A1.
[51] Regan, supra note 13, at 4-5; See Ayers, supra note 49.
[52] See Regan, supra note 13, at 5.
[53] Shrader, supra note 9, at 29;Phillips, supra note 40, at 17 & 24; Miller, supra note 38, at A1.
[54] See infra § 4.
[55] Kathleen Harris, Worst Moment of The War: Deaths Revive Memories of World War II Incidents, The Ottawa Sun, Apr. 19, 2002, at 4.
[56] See Peter Worthington, Too Often, Americans Shoot First ... and Sort Out The Bodies Afterward, The Toronto Sun, Jan. 26, 2003, at C8.
[57] What many Canadians do not know, however, is that while the composition of American board of inquiry was largely American, there were several Canadians on the board, including the appointment of a Canadian Co-President, Brigadier-General Marc J. Dumais. This was an unprecedented appointment in such an inquiry.
[58] See generally Lt. Colonel Eugene E. Baime & Aletha Friedel, A Pre-Deployment Guide to Ensuring a Successful Claims Operation in an Eastern European Country, 2006 Army Law 15 (2006).
[59] Alyssa K. Dragnich, Jurisdictional Wrangling: U.S. Military Troops Overseas and the Death Penalty, 4 Chi. J. Int'l L. 571, 572 (2003).
[60] Egan, supra note 24, at 292. During the Cold War the United States permanently deployed troops in Europe and Asia to counter a possible Soviet attack. In so doing however, the United States needed to clarify the legal status of its troops. Accordingly and in an effort to protect its troops from foreign litigation, the U.S. often pushed countries to sign SOFAs. Countries hosting U.S. troops also had an interest in signing SOFAs in that the presence of American troops meant protection from attack. See generally Dragnich, supra note 59, at 572.
[61] Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, Jun. 19, 1951, 4 U.S.T. 1792 (hereinafter NATO SOFA).
[62] See Egan, supra note 24, at 293. For instance, the United States has SOFAs with all NATO countries as well as South Korea and Japan. Id. at 314.
[63]Dragnich, supra note 59, at 572. Some SOFAs, however, are not reciprocal like the NATO SOFA. Thus, while U.S. troops are governed by the terms of the SOFA while serving in the host nation, the host nation's troops are not governed by the terms of the SOFA while stationed in the U.S. Id.; See generally Moore v. United Kingdom, 384 F.3d 1079 (2004).
[64]NATO SOFA, supra note 61, at art. VII § 1(a).
[65]Id. at art. VII § 1(b). Moreover, under § 2, the sending state retains exclusive jurisdiction over offenses criminalized under its laws but not criminalized under the laws of the receiving state. Section 1(b), however, holds that where a crime is not punishable under the laws of the sending State, but is punishable under the laws of the receiving State, then the receiving has exclusive jurisdiction over the offense. Dragnich, supra note 59, at 572, 3.
[66] NATO SOFA, supra note 61, at art. VII § 3(a).
[67] Id. at art. XVI.
[68] The fact Canadian forces operating in Afghanistan were subject to the NATO agreement insured the American pilots would be tried under U.S. law. The Canadian public, largely unaware of the agreement, wrongly believed the U.S. bullied its way into trying its own troops for their actions. Furthermore, the Canadian public was not aware of the novelty of the proceedings against the U.S. pilots. Dave Hirschman, Ex-military Pilots Call Charges Risky Precedent, Atlanta Journal-Constitution, Jan. 21, 2003, at A-12.
[69] See Egan, supra note 24, at 303-06.
[70] Moreover, a hearing of the U.S. pilots under American military law was already unprecedented and unwelcome by many in the United States. Hirschman, supra note 68; Frank Main, Parents of Illinois Guard Pilot Want Congress to See Trial, Chicago Sun-Times, Oct. 14, 2003; Esther Schrader & Lianne Hart, Pilots "Friendly Fire' Hearing Opens With Focus on PepPills; Defense Attorneys Attack The Air Force's Use of Amphetamines. Critics See Political Overtones in The Two Reserve Officers' Criminal Charges, L.A. Times, Jan. 15, 2003 (expressing belief the charges and trial of the U.S. pilots was initiated to appease the Canadian Government, to cement an existing partnership and show other allies the U.S. would act amicably in similar circumstances with troops of their nation).
[71] R. Matthew Molash, Transition: If You Can't Save Us, Save Our Families: The Feres Doctrine and Servicemen's Kin, 1983 U. Ill. L. Rev. 317, 320 (1983).
[72] Id. at 319-20.
[73] Id. at 319. Federal immunity in the United States was based on the English concept of immunity whereby the Crown was immune from suit unless it consented to be sued. Id. Thus, Colonial America adopted the concept of sovereign immunity to protect the nascent government from a suit to which it had not consented. William Brook Lafferty, Comment, The Persian Gulf War Syndrome: Rethinking Government Tort Liability, 25 Stetson L. Rev. 137, 148 (1995); see also Feres v. United States, 340 U.S. 135, 139-40 (1950) (discussing the FTCA and the sovereign immunity of the English Crown).
[74] Molash, supra note 71, at 320.
[75] Id.
[76] Kelly L. Dill, Comment, The Feres Bar: The Right Ruling For The Wrong Reason, 24 Campbell L. Rev. 71, 73 (2001).
[77] 28 U.S.C.S. § 1346(b) (Lexis 2003). Compare the FTCA with the Federal Claims Act ("FCA") under 10 U.S.C. § 2734, which applies only outside the United States. See Capt. Jeffrey S. Palmer, Claims Encountered During an Operational Contingency, 42 A.F.L. Rev. 227 (1997). The majority of claimants under the FCA are foreign inhabitants or their companies as well as foreign governments. FCA claims are for injury or property damage resulting from the non-combat activities of American armed forces. Id. at 229.
[78] 28 U.S.C. § 2680(j) (2000). "Combat activities" denote actual conflict where the instruments of war are utilized not in practice, but in the actual bombing of enemy occupied territory, forces, or vessels, in attacking or defending against enemy forces. Skeels v. United States, 72 F. Supp. 372, 374 (1947). Moreover, the statute denies plaintiffs the right to sue for combat activities stemming from an "undeclared war." See Morrison v. United States, 316 F Supp. 78, 79 (1970).
[79] 28 U.S.C. § 2680(k) (2000). See generally Armiger et al. Estates v. United States, 339 F.2d 625 (1964); Lassiter v. United States Lines, Inc., 370 F. Supp. 427, 431 (E.D. Va. 1973) ( (holding the FTCA does not apply to claims of negligence against the United States government when they arise in a foreign country).
[80] See infra § 3(e).
[81] Dill, supra note 76, at 73.
[82] Anne R. Riley, United States v. Johnson: Expansion of The Feres Doctrine to Include Service Members' FCTA Suits Against Civilian Government Employees, 42 Vand. L. Rev. 233, 234 (1989).
[83] Molash, supra note 71, at 322.
[84] Id. The three cases were Feres v. United States, Jefferson v. United States, and Griggs v. United States. See Feres, 340 U.S. 135.
[85] Feres, 340 U.S. at 137.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Feres, 340 U.S. at 137.
[91] Griggs, 178 F.2d 1, 2 (10th Cir. 1949).
[92] Feres, 340 U.S. at 141.
[93] Id.
[94] Riley, supra note 82, at 239 (1989). Riley also notes that this first reason for precluding action against the Federal government under the FTCA by military personnel was rejected in subsequent case law. Id. at 240. See also Indian Towing Co. v. United States, 350 U.S. 61 (1955) (holding that the Federal government could in fact be held liable under the FTCA because the FTCA did not exclude liability for negligence stemming from "uniquely governmental" actions).
[95] Feres, 340 U.S. at 143.
[96] United States v. Standard Oil, 332 U.S. 301 (1947).
[97] Feres, 340 U.S. at 143-44 citing Standard Oil, 332 U.S. at 305-6.
[98] Riley, supra note 82, at 241. Riley notes that this reason, first cited in Feres, was rejected years later in United States v. Muniz, 374 U.S. 150 (1963).
[99] Feres, 340 U.S. at 144-45.
[100] Id. at 145.
[101] Id.
[102] Id.
[103] Riley, supra note 82, at 242. The "Uniform Compensation Rationale," as noted by Riley, "has never been a strong justification for the Feres Doctrine, and it continues to be non-determinative." Id.; See also Lafferty, supra note 73, at 153.
[104] United States v. Brown, 348 U.S. 110 (1954).
[105] Lafferty, supra note 73, at 153.
[106] Lafferty, supra note 73, at 153-54.; See also Dill, supra note 76, at 75. Dill notes that today, the military rationale announced in Brown "has become the primary justification for the Feres Doctrine." Id. at 76.
[107] Brown, 348 U.S. at 112.
[108] Id. at 111-12.
[109] United States v. Shearer, 473 U.S. 52 (1985).
[110] Lafferty, supra note 73, at 155.
[111] United States v. Johnson, 481 U.S. 681 (1981). Johnson involved a claim by a Coast Guard Helicopter pilot who crashed into a mountain after requesting assistance from a civilian air traffic controller employed by the Federal Aviation Administration.
[112] Hinkie v. United States, 715 F. 2d 96 (3rd Cir. 1983).
[113] Id. at 99.
[114] See generally Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 Geo. Wash. L. Rev. 1, 16-27 (2003); See also Ruggiero v. United States, 162 Fed. Appx. 140, 2006 U.S. App. LEXIS 213 (2006) (applying the incident to service standard to a navy midshipman's death due to a fall from a fourth floor window at the Naval Academy).
[115] Baker v. Carr, 369 U.S. 186 (1962) (discussing six factors which indicate non-justiciability as political matters).
[116] Aketepe v. United States, 925 F. Supp. 731,(M.D. Fla. Jan. 3, 1996).
[117] Id. at 735. The exercises took place between September 25, 1992 and October 8, 1992 as part of exercise "Display Determination 1992." Countries were divided into two opposing forces to simulate wartime attacks. Id. at 734. The Turkish Destroyer Muavenet was on one side and the U.S.S. Saratoga on the opposing side. During a simulated amphibious assault, the U.S.S. Saratoga fired two live Sparrow Missiles at the Muavenet. Id. at 734.
[118] Id. at 735.
[119] Compare Id. at 737. n. 2. with Whitley v. United States, 170 F. 3d 1061 (11th Cir. 1999) (holding Feres inapplicable in a case where a foreign military service member was killed in a car accident resulting from the negligence of an on duty American Army driver because the foreign service member was off duty while in the United States). Whitley, however, is not a case of friendly fire. Rather, the case stemmed from participation in Rugby game and a subsequent car accident. As such, Whitely falls outside the definition of "friendly fire" as defined in this article and likely would be inapplicable in a Court's analysis of a friendly fire incident where the military personnel would likely be deemed on duty.
[120]Aketepe, 925 F. Supp. at 738.
[121] Id. at 736-7 (identifying the 6 factors a court considers in determining if the issue before it constitutes a political question and noting that issues related to foreign relations and military training fall under the powers of the Executive branch and are, therefore, beyond the constitutional rule of the judicial branch of government).
[122] Id. at 737.
[123] Id. citing Daberkow v. United States, 581 F.2d. 785, 788 (9th Cir. 1978) (holding that "the relationship between a foreign soldier engaged in joint military activities and his American superiors is similar to the relationship of an American soldier to an American superior; military discipline could be disrupted just as much by a foreign serviceman's lawsuit as by an American").
[124] Id. at 737.
[125] Id.
[126] See Tarnak Farm Board of Inquiry-Final Report, at 11, available at http://www.vcds.forces.gc.ca/BOI/00native/final-report.doc (last visited Nov. 27, 2007) (hereinafter TFBI).
[127] 10 U.S.C. § 2733 (2006).
[128] 10 U.S.C. § 2734 (2006).
[129] 10 U.S.C. § 2733 (2006); see generally Lundeen v. Dep't of Labor & Indust. 78 Wash. 2d 66 (1970). Moreover, a claim under the MCA is permissible only if, among other things, "it is not for personal injury or death of such a member [of the Army, Navy, Air Force, Marine Corps, or Coast Guard] whose injury or death is incident to his service." 10 U.S.C. § 2733 § (b)(3); see also Hata v. United States 23 F.3d 230 (9th Cir. 1994)(applying Feres doctrine analysis in determining incident to service exclusion enunciated in 10 U.S.C. § 2733 (b)(3)). Finally, those residing abroad (outside the United States) are ineligible to bring a claim under the MCA. See Niedbala v. United States 37 Fed. CL. 43 (1996).
[130] See generally Col. R. Peter Masterton, Managing a Claims Office, 2005 Army Law 46, 61 (2005).
[131] 10 U.S.C. § 2734 (b)(3).
[132] 10 U.S.C. § 2734 (a).
[133] 10 U.S.C. § 2734 (b)(1)-(3); see generally Askov v. Aldridge 695 F. Supp. 595 (D.C. Dist. 1988) (holding Danish and American injury claims stemming from a crash of an American bomber in Greenland were governed by the NATO SOFA and that the Secretary of the Air Force had discretion to decide whether to settle any individual claim against the American Government for the non-combat related injuries).
[134] Masterton, supra note 130, at 62.
[135] See generally Friscolanti, supra note 5.
[136] See Garamone, supra note 33.
[137] On March 4, 2005, U.S. forces fired upon a Bulgarian patrol killing Bulgarian Junior Sergeant, Gadri Gardev. Gardev was on patrol in an armored humvee when a civilian Iraqi car approached prompting Bulgarian personnel to fire warning shots. Immediately after doing so, the Bulgarian patrol was "massively fired upon from the west," a US. Army position. The U.S. Military later admitted U.S. personnel did not follow the rules of engagement in firing on the Bulgarians. Robert F. Worth, Shooting in Iraq Called Error, INT'L HERALD TRIBUNE, Mar. 14, 2005, at 5; Soldier's Death Ruled Accident, N.Y. TIMES, Apr. 3, 2005, at 11.
[138] On March 4, 2005, U.S. Army personnel fired upon a car carrying Maj. General Nicola Calipari. Calipari, an Italian agent, had just rescued Giuliana Sgrena, an Italian journalist, from Iraqi insurgents. Calipari was killed and Sgrene and another colleague were injured in the incident. Italian officials later charged Mario Lazano with muder in the death of Calipari after Lozano's name was mistakenly revealed as the U.S. serviceman responsible for fatally killing Calipari. See Thom Shanker & Sabrina Tavernise, Murder Charges for 3 G.I.'s in Iraq, N.Y. TIMES Jun. 20, 2006, at A1; See also Nicola Calipari: An ‘Extraordinary Hero', BBC NEWS at http://news.bbc.co.uk/2/hi/europe/4323209.stm (last visited Nov. 18, 2007).
[139] On September 4, 2006, Canadian soldiers were struck by a U.S. A-10 Thunderbolt as they sat next to a campfire. Thirty Canadians were wounded and Pvt. Mark Anthony Graham was killed. Pvt. Graham represented Canada at the 1992 Olympic games. Bruce Rolfsen, Canadians: Pilot May Have Mistaken us For Taliban; Soldiers Say They Aren't Bitter Over The Attack, Air Force Times, Oct. 2, 2006, at 13; Greg McArthur, An Unknown Soldier, The Globe and Mail, Oct. 28, 2006.
[140] The F-16 Fighting Falcon, also know as the Viper, is the most prevalent aircraft used by the U.S. Air Force. The F-16 has a top speed of approximately Mach 2+ (1,500+ miles per hour) and has a bubble canopy giving the pilot an unparalleled 360 degrees of visibility. Coe et al., supra note 30, at 60-61.
[141] Tarnak Farms was where thousands of al-Qeada loyalists trained in the years before September 2001. Osama bin Laden is rumored to have been targeted several times by American forces in the late 1990s while at Tarnak Farms. See Friscolanti, supra note 5, at 29 (2005); See also TFBI, supra note 126, at 12.
[142] See generally TFBI, supra note 126 (comprising of the findings on an independent Canadian inquiry into the Afghanistan bombing with members who were exclusively Canadian).
[143] See generally CIBR, supra note 11. (This investigative body was made up of members of both the American and Canadian military services).
[144] See generally The 1st Battalion Princess Patricia's Canadian Light Infantry, Canada National Defence, at http://www.army.dnd.ca/1PPCLI/contents.htm (last visited Nov. 23, 2007).
[145] TFBI, supra note 126, at 11. Canada contributed approximately 3,400 men in support of Operation Enduring Freedom of which the Princess Patricia's were an integral part. See C. Peter Dungan, Comment, Rules Of Engagement and Fratricide Prevention: Lessons From The Tarnak Farms Incident, 9 UCLA J. Int'l L. & For. Aff. 301, 314 (2004).
[146] TFBI, supra note 126, at 11; Rakkasan was a 2,000 man strong American Army unit under the command of U.S. Colonel Frank Wiercinski. Id.
[147] Friscolanti, supra note 5, at 8.
[148] CIBR, supra note 11, at 9.
[149] Id.
[150] TFBI, supra note 126; Friscolanti, supra note 5, at 220; See also CIBR, supra note 11, at 19-20.
[151] Friscolanti, supra note 5, at 200.
[152] TFBI supra note 126, at 13.
[153] Id. at 13.
[154] Id. at 15.
[155] Friscolanti, supra note 5, at 43.
[156]TFBI supra note 126, at 16.
[157] Id.
[158] Id.
[159] Id.
[160] Id.
[161] TFBI, supra note 126, at 16.
[162] Id.
[163] Id. at 17.
[164] Friscolanti, supra note 5, at 260, 506 (Some of the Canadians on the ground at Tarnak Farms were firing an anti tank weapon named the Carl Gustav. It was the Carl Gustav firing away at Tarnak Farms that caught Major Schmidt's attention. Major Schmidt reportedly radios that "Okay, I've got a, uh, "I've got some men on a road and it looks like a piece of artillery firing at us." He then radioed "I am rolling in self-defense."); see generally, Australian Army 84mm Carl Gustav Practice, http://www.youtube.com/watch?v=r1qJOp2i9Bg (last visited Oct. 31, 2006) (showing the firing of a Carl Gustav anti-tank weapon)..
[165] Friscolanti, supra note 5, at 47.
[166] Friscolanti, supra note 5, at 47; see infra note 178.
[167] TFIB, supra note 126, at 18.
[168] Id. at 20.
[169] Id.
[170] CIBR, supra note 11, at 11.
[171] Id. at 11-12.
[172] Friscolanti, supra note 155, at 24, 25, 209, 299, 432.
[173] CIBR, supra note 11, at 25.
[174] Id. at 12.
[175] Id.
[176] Id. at 13.
[177] CIBR, supra note 11, at 13.
[178] Id.
[179] Id.
[180] Id.
[181] Id. (Maj. Schmidt dropped a 500 pound GBU-12 bomb on the Canadian position); see generally Guided Bomb Unit-12 (GBU-12) Paveway II, Global Security.Org at http://www.globalsecurity.org/military/systems/munitions/gbu-12.htm (last visited Nov. 29. 2007).
[182] CIBR, supra note 11, at 13
[183] Id. at 14.
[184] Id.
[185] Id.
[186] TFBI supra note 126, at 38.
[187] Id.
[188] Id.
[189] Id.
[190] Id.
[191] Id.
[192] Friscolanti, supra note 5, at 17 (detailing highlights of Major Harry Schmidt's career, including a stint at the elite Navy Fighter Weapons School - "Top Gun" in San Diego, California); see also TFBI supra note 126, at 39.
[193] TFBI supra note 126, at 39.
[194] Id.
[195] Id.
[196] Id. at 40.
[197] Id.
[198] Id. at 38-41 (outlining a series of perceptions, actions and procedures that contradicted procedure and reality according to the Canadian report).
[199] Id. at 41.
[200] Id.
[201] Id.
[202] CIBR supra note 11, at 56.
[203] Id. at 57.
[204] Id. at 58.
[205] Id. The Rules of Engagement ("ROE") are the primary tool regulating the use of force and detail the circumstances under which an enemy may be engaged. Dungan, supra note 145, at 304. As Dungan notes, the ROE in place during April 2002 were unchanged from January 2000 and remained unchanged until at least 2004. Id. at 315. Dungan, however, notes that the ROE of April 2002 contributed to the friendly fire incident in that they were "inadequately drafted, ambiguous, and contradictory." Id. at 318. If this was the case, I ask why the ROE of January 2000 remained in effect after both the Canadian Tarnak Farms Inquiry Board and the American led Coalition Investigation Board both scrutinized the ROE in place at the time of the incident. Dungan, however, specifically points to the ROE's failure to clarify the "use of deadly force in self defense." Id. Moreover, Dungan writes of having to make split second decisions and thus terms like necessity and proportionality are hollow and meaningless. Id. However, during the events of April 17, 2002, no split-second decisions were required. Rather, as noted supra, Major Harry Schmidt descended into what he believed was offensive ground to air fire. See also Major Mark S. Martins, Rules of Engagement For Land Forces: A Matter Of Training, Not Lawyering, 143 Mil. L. Rev. 1 (1994); Maj. Paul E. Jeter, What do Special Instructions Bring to the Rules of Engagement? Chaos or Clarity, 55 A.F.L. Rev. 377, 399-403 (2004) (applying the extensively applying the ROE and SPINS to the 2002 Tarnak Farms Incident). While Maj. Jeter's study focuses on the ROE and SPINS, this article which focuses on the legal procedures for determining jurisdiction and the law permitting or precluding recovery for friendly fire incidents.
[206] CIBR supra note 11, at 25.
[207] Id.
[208] Id.
[209] Id.
[210] Id.
[211] Id. at 26.
[212] Id. at 25.
[213] Id.
[214] FRISCOLANTI, supra note 5, at 209, 299, & 432.
[215] CIBR supra note 11, at 51.
[216] Id.
[217] Id. at 52.
[218] Id. at 53
[219] The Coalition Board's report, however, clearly stated no part of its opinion could be considered as evidence in any civil or criminal proceedings under the treatment of reports of aircraft accident investigations. 10 U.S.C.S. § 2254(d) (LexisNexis 2002); see also Friscolanti, supra note 5, at 391.
[220] See generally Uniform Code of Military Justice, 10 U.S.C.S. §§ 801-985 (LexisNexis 2006).
[221] An Article 32 hearing is roughly the civilian equivalent of a grand jury in civilian trials. The hearing is basically an investigation convened in order to determine if the charges should be referred to a general court martial. The accused has the right to be present and to be represented by counsel. See Lt. Col. R. Peter Masterton, The Defense Function: The Role of The U.S. Army Trial Defense Service, 2001 Army Law. 1, 21-22 (2001).
[222] 10 U.S.C.S. § 892 (LexisNexis 2001).
[223] 10 U.S.C.S. § 919 (LexisNexis 2001).
[224] 10 U.S.C.S. § 928 (LexisNexis 2001).
[225] See generally Friscolanti, supra note 5, at 266-423 (chronicling the 9 days of testimony from 19 witnesses).
[226] See generally Lt. Colonel James B. Roan & Capt. Cynthia Buxton, The American Military Justice System in the New Millennium, 52 A.F. L. Rev. 185, 196-200 (2002) (discussing the qualifications and general duties of the convening authority).
[227] See generally Friscolanti, supra note 5, at 444. In his recommendation, Col. Rosenow questions the lack of lighting on the range used by the Canadians, states the anti-tank Carl Gustev was too large a weapon for the range, and queries why the AWACS pilots knew nothing of the Canadian live-fire exercise etc. Id. at 447. Col. Rosenow wrote in his recommendation, however, that none of the actions or inactions of the Canadians or other third parties rendered the pilots blameless. "None of the conduct offered by the defense rose to an unforeseeable independent cause intervening between Coffee Flight's actions and the deaths..." wrote Col. Rosenow. Id. In concluding, Col. Rosenow noted the likely difficulty in securing a conviction where achieving deterrence, retribution, and protecting society could all be achieved using administrative remedies. Moreover, there was "almost no chance that a court would find culpability beyond a reasonable doubt. Id. at 450-51.
[228] Id. at 444. A five-paragraph letter of reprimand is placed into Umbach's file. The letter noted, among other things, that "[y]our failure to exercise command responsibility resulted in an unacceptable breakdown of flight discipline in combat." Id. at 457.
[229] An Article 15 hearing under the UCMJ authorizes a commanding officer to impose non-judicial punishment upon personnel. Maj. Grant Blowers & Capt. David P. S. Charitat, Disciplining The Force: Jurisdictional Issues in The Joint and Total Force, 42 A.F.L. Rev. 1, 6 (1997).
[230] Friscolanti, supra note 5, at 458 .
[231] Id. at 460-61.
[232] Id. at 476-77.
[233] Id. at 479.
[234] Id. at 480. Major Schmidt's lawyer described the letter of reprimand as a joke and meant to appease Canadians.
[235] NATO troops in Southern Afghanistan were recently involved in a friendly fire incident during a Taliban assault on Forward Operation Base Robinson in Helmand Province, one American. Rosie DiManno, Was Canadian Soldier Slain by Friendly Fire?, Toronto Star, Apr. 5, 2006, at A1. One American and one Canadian were killed and several other Canadian, American, and Afghan military personnel were injured. Id. Each country is currently investigating the incident. Paul Watson, Afghanistan ‘Friendly Fire' Inquiry Set, L.A. Times, Apr. 5, 2006, at A26.
[236] President George W. Bush, Address to the Nation (Oct. 7, 2001).
[237] In March 2003, British ITN journalist Terry Lloyd was killed by tank fire from a Marine tank just outside Basra, Iraq. Lloyd's family called the Marines "trigger happy cowboys." Stewart Payne, ITN Man Shot Dead by US Troops was Killed Unlawfully, Says Corner, The Daily Telegraph, Oct. 14, 2006, at 11. The U.S. Department of Defense, however, declared the Marines "followed the applicable rules of engagement." Andrew Barrow & Aislinn Simpson, Family Call on ‘Killer Soldiers', Birmingham Evening Mail, Oct. 14, 2006, at 4.
[238] In his first interview with the Canadian press from his Illinois home, an emotional Major Umbach stated he considered the dead and injured Canadians his brothers and that "[o]ur two countries are together." Friscolanti, supra note 5, at 235. Captain Joe Jasper, a Canadian on the ground at Tarnak Farms when the bomb hit stated later "I think the Americans are our best friends in the world, whether we like it or not...[t]here is no American bashing when their helicopters are rescuing our wounded. There is no American bashing when they are flying us into combat and covering our ass. They were there when we needed them." Id at 508. Injured Canadian Sergeant Lorne Ford expressed no bitterness to Major Umbach whom he says showed remorse for the incident. But of Major Schmidt, "he showed no remorse...I wouldn't fucking piss on him if he was on fire." Id. at 500; see also Id. at 245-48
[239] Many argue that while reducing the number of friendly fire incidents during a large-scale military operation is an achievable goal, totally eliminating friendly fire injuries or deaths is impossible. See Lt. Colonel Scott Snook, Friendly Fire: The Accidental Shootdown of U.S. Blackhawks Over Northern Iraq (1992).
[240] As noted in Watson, supra note 235, at A26. The most recent incident of friendly fire in Afghanistan involving Canadian, American and Afghan troops. Each country is conducting its own military investigation into the incident.
[241] While much of the information gathered by the American and Canadian investigating boards was shared, some of it was not. For instance, Maj. Schmidt and Maj. Umbach did not testify before the Canadian Board of Inquiry and some of their testimony before the Coalition Board of Inquiry was not made available to the Canadian Inquiry.
[242] Dispatches, supra note 15, at 31.
[243] Radio Frequency Identification Technology is revolutionizing the reporting of information. See generally Reepal S. Dalal, Chipping Away at The Constitution: the Increasing Use of RFID Chips Could Lead to an Erosion of Privacy Rights, 86 B.U.L. Rev. 485, 485-86 (2006). RFID is already widely used in tracking and identifying commercial goods, people, and pets in numerous environments. RFID uses radio signals that do not require a direct line of sight to be read. It is approximately the size of a grain of rice, although most of its size is devoted to the antenna. Katherine Delaney, 2004 Privacy Year in Review Special Topic: RFID Privacy Year in Review: America's Privacy Laws Fall Short with RFID Regulation, 1 I/S J. L. & Pol'y. Info. Soc. 543, 543 (2005).
[244] See generally Delaney, supra note 243 at 543-45.
[245] Eflein, supra note 35, at 49 n. 98; Coe et al., supra note 30 at 78-9.
[246] Eflein, supra note 35 at 49 n. 98. Modern IFF systems operate in a way that a "questioning" electronic signal is emitted and an "answering" electronic signal responds with an identifying code. There are over 4,000 possible responses for friendly aircraft. Obviously, enemy aircraft are not able to emit the "answering" signal and thus are identified as potential targets. See generally Identification Friend or Foe (IFF) Systems, IFF Questions and Answers, at http://www.dean-boys.com/extras/iff/iffqa.html (last visited Nov. 21, 2007).
[247] Eflein, supra note 35, at 49-52.
[248] Id. "[F]ailing to enter the proper IFF code can be an unforgiving error in a combat environment." Coe et al., supra note 30, at 79.
[249] Delaney, supra note 243, at 543, 549 (discussing a "kill switch" enabling the user to disable the RFID tag).
[250] Friscolanti, supra note 5, at 466-67 .
[251] The Bronze Star is awarded to military personnel who "shall have distinguished himself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy." See Air Force Personnel Center: Air Force Recognition Programs, http://wwa.afpc.randolph.af.mil/AwardsNet/Decoration.aspx?Mode=Graphics&Decoration=BSM (last visited Sept. 23, 2007).
[252] Friscolanti, supra note 5, at 467.
[253] Regan, supra note 13, at 167 & 171 (noting an example from World War II where American pilots dropped their ordinance short of their German target and decimated an American position prompting the embittered American ground troops to fire their weapons at the "American Luftwaffe").
[254] Over the last several years, several European countries have collaborated on the development of the Eurofighter. It is a multi-role fighter aircraft currently deployed by several European countries in the coming decade. See Eurofighter Typhoon, http://eurofighter.com (last visited Sept. 23, 2007).
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