My Lai, the Law of War, and Justifiable Homicide
This firm is one of the most experienced firms in the country in cases involving the use of force in combat.
In 1972, Mr. Myers was first exposed to use of force and law of war cases in US v. Medina. That case stemmed from the killing of women and children in the hamlet of My Lai, Vietnam in 1968. Mr. Myers represented a key witness. Captain Medina was represented by F. Lee Bailey.
Bailey aggressively pursued a defense of justifiable homicide. Bailey told the court that there was a difference between a battlefield homicide and a murder in the street.
It is that very concept that Mr. Myers and Mr. Conway have continued to dedicate their careers to studying. Unfortunately, the law does a poor job of recognizing the differences between a killing on the battlefield and a killing on the street. In many cases, US service members have fewer legal protections overseas than police officers who use force in the United States.
Mr. Myers' role in the Medina case was later memorialized in the book "Medina" by Mary McCarthy. She wrote:
"Widmer's (Captain Medina's RTO and Captain Myers' client) determination, in any case, was matched by that of his defender, who appeared in the courtroom like some uncompromising puritan angel, wearing full regulation uniform that stood out dark and trim against the summer tans of military counsel and the M.P.'s on guard. Gary Myers was the Aubrey Daniel (Lt Calley's prosecutor) of the Medina case. One could imagine him as belonging to that idealistic cell of young lawyers in JAG who had argued for a Nuremberg-style war-crimes trial." Pg. 51.
Medina was acquitted. The jury deliberated for approximately an hour. Decades later, in 2005, as Mr. Conway was joining the firm, the alleged killings of civilians occurred in the city of Haditha, Iraq. With Mr. Conway's prior enlisted intelligence experience, he was able to develop a rapport with many of the witnesses before even NCIS had made contact. Ultimately, the firm would successfully obtain the dismissal of charges against a lance corporal at an Article 32 Investigation. Involving experienced counsel in a use of force case as early as possible can often change the tide of the case.
Haditha and Problems With Law of War in the Military
Questions regarding use of force were central in the Haditha case. Following the detonation of an Improvised Explosive Device that killed a Marine, a squad proceeded to clear several houses from which they were taking small arms fire. Civilians were killed in the fighting.
The Haditha case brought to light significant problems with the Law of War, Rules of Engagement, and Uniform Code of Military Justice in combat related use of force cases. Many of these problems persist to this day:
-Frontline troops are not always well trained on the Rules of Engagement and Threat Identification;
-Most use of force cases are investigated by criminal investigators who often lack any experience or expertise in infantry tactics;
-Troops accused of Rule of Engagement violations are often isolated in combat theaters with little or no access to experienced counsel;
-There is rarely any useful forensic evidence collected from the scene of the combat engagement;
-Prosecutors and investigators are able to easily coerce witnesses into making incriminating statements under threat of life imprisonment;
-Troops are not afforded the same kinds of qualified immunity (benefit of the doubt) that police officers are afforded;
-The Law of War and Rules of Engagement are poorly understood even by lawyers; and,
-The Uniform Code of Military Justice makes no meaningful distinction between homicides on the street and homicides in combat.
General Thoughts on the Rules of Engagement
Because most of America’s enemies are no longer wearing uniforms which readily identify them as hostile combatants, Soldiers, Sailors, Airmen, and Marines – both in the United States and in actual combatant zones – are often placed in the unenviable position of having to react to threats in the same manner as law enforcement officers do here in the States. In other words, deadly force is only authorized in self-defense, defense of innocent others, or in response to an imminent threat of death or serious bodily injury. The choices they have to make are often impossible choices. The results are far too often political.
The problems are compounded by the fact that most of our forces are not being adequately trained on threat identification and appropriate response to a hostile act or demonstrated hostile intent. That is leading to two problems - the risk of US forces being killed, or the risk of US forces using inappropriate levels of force.
The concept of Positive Identification is frequently misunderstood even by lawyers who profess to be experts. "PID" is a term under the rules of engagement that has everything to do with identifying a declared hostile actor.
In other words, if a young Marine, Soldier, or higher level commander can positively identify a hostile target with reasonable certainty they can engage the target anywhere - including where they sleep. You do not have to wake up the enemy to make it a fair fight.
Soldiers and Marines frequently encounter trouble in their responses to either hostile acts or demonstrated hostile intent. Because the enemy does not wear a uniform, it is exceptionally difficult to obtain positive identification on a declared hostile target. And the law can be very unforgiving of mistakes.
Lawyers often make mistakes because they fail to understand that the subjective intent of the bad actor is irrelevant.
For those reasons, the successful defense of service members accused of war crimes often rests on defense counsel's ability to explain the law, explain the threat identification processes, help expose witnesses who are coerced into statements, and help the jury understand that warriors are afforded the benefit of the doubt.
Marine Corps Special Operations Command
Not long after achieving success in the Haditha case, a Marine Corps Special Operations Command unit encountered trouble.
On 4 March 2007, a convoy of Special Operations Marines came under attack outside of Jalalabad, Afghanistan. A suicide bomber detonated his car between two of the vehicles in the convoy. Immediately after the explosion, the Marines came under small-arms fire from both sides of the street.
The Marines responded with suppressive fire. On 14 March 2007, the Afghanistan Independent Human Rights authored a report stating that 12 civilians were killed and 35 wounded.
The firm became involved and successfully defended one of the members of the convoy. It was clear from that case that political pressures would continue to influence the investigations and decision-making process even when Soldiers and Marines are falsely accused of misconduct.
Careers Dedicated to Protecting Warriors in Use of Force Cases
Shortly after the MARSOC case, the firm began the representations of an Army sniper accused of murder and later a Marine Corps sniper. We were again confronted with a law that utterly fails to give service members the benefit of the doubt when presented with life or death decisions to use force.
With each of the cases we undertook at the height of the fighting, more issues became clear:
-Decisions to prosecute are often political. The reputation of the Armed Services is sometimes more important to military leaders than the truth;
-Not all military jurors will have combat experience - though they may think that they are experts on the use of force;
-There is almost never any value in a Soldier or Marine making a statement to investigators;
-Investigators are almost always criminal, rather than experts in use of force;
-The earlier experienced defense counsel becomes involved in the case the greater the odds of success.
A Proposal For New Laws Affording Service Members with Qualified Immunity in All Combat Related Use of Force Cases
Since 2005, Mr. Conway has advocated for changes in the law that would protect warriors in the same way that state and federal law enforcement officials are protected when they make good faith decisions to use force.
Some of those changes include:
-Affording service members qualified immunity;
-Establishing line of duty / use of force investigation teams that have expertise in use of force cases;
-Ensuring that service members who use force in combat are immediately given defense counsel;
-Establishing clear guidelines for the collection of photographs and evidence in use of force cases; and,
-Transferring the decision to prosecute to a commander who is not conflicted by his relationship with local national leaders.
This discussion, however, will focus on the issue of qualified immunity.
The Uniform Code of Military Justice (UCMJ) and the case law interpreting it is ever-evolving. The UCMJ, however, is grounded in the principle enunciated in 1949 by Edmund Morgan in testifying before the House of Representatives:
"[A] Code of Military Justice cannot ignore the military circumstances in which it
must operate but…that it must be designated to administer justice. 
Regrettably the UCMJ and case law interpreting it have ignored the military circumstance that exists in modern combat conditions where an amorphous enemy has become the order of the day. Moving forward, we have the opportunity to correct that failing.
In the civilian sector a body of law has evolved which serves to provide pragmatic protection to law enforcement officers who employ deadly force in the line of duty. The concept is called the “Qualified Immunity Doctrine.”
In Graham v. Connor  the United States Supreme Court applied this doctrine to a law enforcement officer declaring that such officer could not be sued for his conduct so long as his conduct was reasonable and done under color of law. In Saucier v. Katz the United States Supreme Court extended qualified immunity to an active duty military police officer stationed in California. 
All service members acting under color of law by enforcing the foreign policy of his or her nation against its declared enemies should be entitled to the same protections as police officers acting under color of law domestically.
Two questions should be answered before any service member is ever accused of combat-related crimes:
1. Was the service member acting under color of law?
2. Did the service member's conduct unreasonably violate the applicable and clearly established rules of engagement in effect at the time of the engagement? 
Ground forces should not be subjected to different rules than air assets.
It is axiomatic that ground forces in harm’s way (as opposed to the targeting cell and command structure often hundreds of miles away) should be given the same deference and authority to employ much less devastating weapons systems without concern that they will be second guessed based solely on the politics of their actions and any apparent resulting civilian casualties.
In other words, there are no legal consequences when a targeting cell and command has acted appropriately under the ROE by dropping a 2,000lb bomb on a suspected target - even if more civilians are killed than alleged at Haditha. Similarly, when a Marine or Army squad deploys against a hostile force and there are resulting civilian casualties alleged, then that tactical decision-maker on the ground under fire should be afforded the same deference and protections of the ROE as are the targeting officers and commanders who have the luxury of time, information, and safety to calculate the value of civilian life.
The UCMJ and military case law are deafeningly silent on these points, relegating the Combat Marine or Soldier to civilian concepts of self-defense. This silence places the burden on the Combat Marine or Soldier to show some evidence that he acted in self-defense during a combat engagement!
Qualified Combat Immunity properly places the burden on the government to show that the Combat Marine’s actions were unreasonable and not under color of law as a threshold barrier to prosecution. This is the very least a Nation can do for those it sends into combat to kill. To do otherwise creates a ground force reluctant to discharge its weapons for fear of enduring prosecution.
 Hearings on H.R. 2498 Before a Subcomm. Of the House Armed Services Comm., 81st Cong., 1st Sess., at 606 (1949) (statement of Professor Edmund G. Morgan).
 Graham v. Connor, 490 U.S. 386 (1989).
 Saucier v. Katz, 533 U.S.194 (2001); Graham v. Connor, 490 U.S. 386 (1989).
 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Harlow v. Fitzgerald, 457 US 800, 819 (1982).
See also, Joint Publication 2-01.1 – Joint Tactics, Techniques, and Procedures for Intelligence Support to Targeting. Appendix G. 9 January 2003. http://www.fas.org/irp/doddir/dod/jp2_01_1.pdf.
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