The Slippery Slope

Bloggers love the internet - the federal government must really hate the whole chaotic, node-centric process sometimes. It's like having thousands of researchers on-line constantly watching, looking, probing. I had not heard any rumors of OSD pushing to relax the regulations on the use of riot control agents (RCAs), but Sharon Weinberger did. This is really, really interesting news.

I was clearing out my in-box when I noticed this note: “EDITORS ALERT: The American Forces Press Service recalls the article titled “DoD Officials Urge Use of Non-lethal Weapons in Terror War” by Jim Garamone, published Sept. 27, 2006. The article contains inaccurate information and should not be used.”

Usually, news services correct innacurate [sic] information. The Armed Forces Press Service didn’t do this, however, they just withdrew the entire article from their site. The great thing about the Internet, however, is that the article lives on through other websites. I’ve attached the full article below.

The Armed Forces Press Service article is printed in full at her site. Let me hit the juicy parts here (links added for reference information).

At issue is an Executive Order issued in 1975 that forbids American service members’ “first use of riot control agents in war, except in defensive military modes to save lives.” The policy further states that all use of riot control agents in war “is prohibited unless such use has presidential approval in advance.”

An amendment in the fiscal 2006 National Defense Authorization Act — the Ensign Amendment after subcommittee chairman Nevada Sen. John Ensign — takes non-lethal weapons for riot control out of this prohibition.

[Joseph] Benkert [principal deputy assistant defense secretary for international security policy] said officials want  “to assure that our men and women in uniform have the full range of options available to them to carry out their missions.”

Benkert stressed that the riot control agents he was talking about are not listed in a Chemical Weapons Convention schedule. He is referring to such non-lethal weapons as tear gas and pepper spray. He also said his testimony did not address other non-chemical, non-lethal weapons such as foams, water canons, beanbags or rubber bullets.

I found a few things out about Joseph A. Benkert (unless there is another one) - former Navy captain, just joined OSD policy after his last assignment in Iraq. He was the Deputy Director for the Defense Reconstruction Support Office, which was created by DepSecDef Wolfowitz in 2005 to coordinate U.S. reconstruction efforts in Iraq and Afghanistan (and you know what a good job they've done). But we're talking about RCAs...

The reason that there is a presidential executive order on RCAs is because during the Vietnam conflict, some pansey-assed journalists took exception to U.S. military forces using RCAs in offensive modes, such as salting the Ho Chi Mihn trail with CS powder and using "Mighty Mites" to blow burning CS powder into underground lairs, in an attempt to force the Viet Cong to surface so we could kill capture them, and they blasted that story into the news. And the thing was, it was a way to save U.S. forces lives, because if we didn't neutralize the underground lairs, the VC would pop up and kill our men. Thus this passage:

"It is my firm belief that substantial military advantages can be gained by employing RCA against tunnels, caves and underground shelters. I am convinced that US and ARVN casualties would be reduced in assaulting these positions. Lastly, I am utterly convinced that the use of RCA is both militarily and morally preferable to the use of high explosives or flame weapons in circumstances where non-combatants are habitually encountered."

Westmoreland also stated that "...tactical commanders at all levels of US and ARVN forces have stated a desire to use RCA." He finished by requesting authority to use RCA to clear tunnels and caves. Ambassador Henry C. Lodge agreed with Westmoreland. He followed the MACV cable with his own, stating that he supported the commander's request, and that,

"Developments have made it increasingly clear that this is a humane as well as effective weapon...I wonder if the time has not come to make these facts again clear to the public. If it is considered inexpedient for this to be done by the President or the Secretary, I will be glad to issue statement here. We must not be dissuaded from doing something which is essentially constructive because a few tendentious writers who do not, I am confident, represent public opinion sentiment, but are out simply to make a sensation."

Using CS powder (also called tear gas when burned) saved lives (also see this Vietnam account). The arms control community, however, believed that it was close enough to lethal chemical warfare agent use to call it a violation of the 1925 Geneva Protocol, and the military use of RCAs was fiercely debated during the development of the Chemical Warfare Convention. While the U.S. government's position is that RCAs are not CW agents, there is language to the effect that "Each State Party undertakes not to use riot control agents as a method of warfare."

So what happened last week? Joseph Benkert talks to the Senate Armed Services Committee on the issue of  "U.S. Policy and Practice with Respect to the Use of Riot Control Agents by the U.S. Armed Forces." He's here to tell them that the president is preparing the final report on the use of RCAs in accordance with a request from Congress (through the National Defense Authorization Act for FY 2006, dated Jan 05) to report on the use of RCAs by US military forces. The report is late - typical. Pretty basic stuff - what do we have in the military in terms of RCAs, how do we use them, when and where have we used them since 1992, what are the rules of engagement, and tell us why EO 11850 is still valid.

Now the language in the NDA Act for FY 2005 did NOT take non-lethal weapons, and specifically RCAs, out of the 1975 presidential executive order restricting the use of RCAs to defensive modes and requiring presidential approval, so the article is wrong. But what is unclear are these things:

1. Why did Senator John Ensign (R-NV) feel that a restatement of policy on RCAs was necessary? Maybe this was just his way of re-affirming what he believed to be true as far as there are legitimate, legal, and non-lethal alternatives to the use of force such as RCAs, but at the same time, there are still restrictions. Maybe.
2. Why is Benkert insisting on addressing the results of the report in closed session? President George H.W. Bush authorized the use of RCAs in the first Gulf War for defensive purposes (controlling POWs, crowd control), but this report won't cover that. I know that the military was pushing to use RCAs in Operation Iraqi Freedom, and they had to be reminded about the executive order, but I don't recall hearing about any RCA use.
3. The EO does not cover peacetime use of RCAs by military police in the execution of duties such as riot control at installations, civil disturbance operations, or noncombatant evacuation operations. But Benkert says that we're in a "changing environment" where "peacekeeping, law enforcement, and traditional battlefield roles . . . may be present at different times within the same theater of operations." So... it's a kinda gray area to explain why RCAs might have been used in the Middle East? Hmmmmm.

There's something going on here. I don't think that there was any "offensive use" of RCAs in the scale that it was done in Vietnam, but perhaps some overzealous troops used CS grenades to coax insurgents out of buildings. Who knows? I don't agree with the arms control community that RCAs are CW agents, but the Russian use of fentanyl during the Moscow theater Chechen incident shows the fine line between "non-lethal," "less-than-lethal," and "toxic CW agents" that they always worry about. But did US troops slip over the line in Iraq, and is the administration covering for them? Would you be surprised if both are true?

For what it's worth, I'm all for using RCAs and fentanyls as a military option - but it does cause such a public controversy. It's the whole "stormtrooper/Chicago 1968" look while gassing noncombatants that really looks bad. Let the police use the non-lethal RCAs, and let the military stick to non-chemical non-lethal options. Our primary job ought to be using lethal force (or the threat of lethal force) to complete a mission. Once military personnel start assuming responsibilities and actions of the police, we're in big trouble.

Comments

[CKR]

Non-lethal weapons are hard to think about. Many in the military like to keep the tactics simple: kill or not. The limitations of non-lethal weapons cut both ways: if they don't kill the enemy, he may kill you. In the wrong doses, like the fentanyl debacle in the Russian theater, they may kill too many.

Some of these riot control agents are toxic in too high a dose, and some individuals are more than usually sensitive to them. They're not bad enough to be banned by the CWC, though.

And then there's the yuck factor, as well as the slippery slope you describe.

I agree that in some cases, riot control agents may be more humane than gunfire, but making that kind of decision in combat is awfully difficult, more so than shoot 'em or not.

I guess I've come to the conclusion that riot control agents have very, very limited areas of use.

[Joseph Tessier]

Point 1: General, if you look at the hearings before the Senate Arms Committee at the time of the CWC, there is a general consensus that prohibited “method of warfare” includes the use of RCAs to amplify the use of lethal force.

Thus, if soldiers are using CS to drive the enemy from buildings where they can be shot or hit by high explosives as they run out-- then this would be a violation of the CWC. For a good discussion on this topic see Ernest Harper, A Call for a Definition of Method of Warfare in Relation to the Chemical Weapons Convention, 48 Naval L. Rev. 132, 133 (2005).

Point 2: See Kerry Boyd., "Rumsfeld Wants to Use Riot Control Agents in Combat.", Arms Control Today., March 2003. Available at: http://www.armscontrol.org/act/2003_03/nonlethal_mar03.asp?print.

Bush then Approves RCA use in in Iraq.
See Nicholas Wade., U.S. Use of Tear Gas Could Violate Treaty, Critics Say., New York Times, April 5, 2003

Point 3. Seems like CS was used in afghani caves.

"Despite the clear prohibition against RCAs as a method of warfare under the CWC, the United States continues to use tear gas in military operations. At the beginning of the War in Afghanistan, some analysts encouraged the use of gases to force combatants out of the caves. Apparently the U.S. military had these same thoughts, as it made the use of CS tear gas a fundamental part of its cave-clearing techniques. When cave-clearing teams fear enemy attack in a cave, they use a burning type CS grenade (M7A2) and a Mity Mite Portable Blower to "flush the enemy from the tunnels." Once a cave is cleared, CS is placed throughout the cave and CS powder is blown into the cave's entrance by the Mity Mite in order to temporarily prevent reentry by enemy forces until the cave complex can be completely demolished."

James D. Fry, Contextualized Reviews for The Method and Means of Warfare: Cave Combat and International Humanitarian Law, 44 Colum. J. Transnat’l L. 453, 455 (2006).

Citing See Mir Bahmanyar, "Afghanistan Cave Complexes 1979-2004: Mountain Strongholds of the Mujahideen, Taliban & Al Qaeda" Pg 31-32 (2004)

[Alan Pearson]

You are right when you say that "using CS powder (also called tear gas when burned) saved lives." But it wasn't non-combatant lives.

Here's the 1973 DoD assessment(Paul L Howard, Operational Aspects of Agent CS, USATECOM Deseret Test Center technical report DTC-FR-S700M, April 1973 (regraded unclassified December 1979), AD525499L. page 117):

"[e]xperience with CS in Vietnam has indicated that ... the reduction in casualties has not been in enemy or noncombatant personnel but, rather, friendly troops, as a result of using CS to make other fires more effective."

Whatever your feelings about the moral, ethical or political implications of this, it is important to base arguments on fact, not on stories.

Frankly, I'm not surprised - in kill or be killed situations wouldn't you use everything at your disposal? But should that "everything" include toxic chemicals, and how do you draw a line if it does?

[J.]

Thanks for the comment, but I believe that in the blogpost, I did say that it saved U.S. forces lives in the paragraph above Westie's statement. I agree that, during Nam, the focus was not on saving non-combatant lives. That's why the politicians got involved and Pres Ford made his decision on military use of RCAs. And to answer your last point, I draw a line when the military uses toxic and/or nonlethal incapacitants on noncombatants. Everyone else wearing a uniform or holding a weapon pointed at a US troop can take their chances on what's thrown against them.

[Tess]

Alan,

I understand your military necessity argument. If it is killed or be killed, why not?

However, I cannot find a military necessity exception in Chemical Weapons Treaty for RCAs. Nor can i find one in the Chemical Weapons Convention Implementation Act of 1998.

Article 1 General obligations reads:

"5. Each State Party undertakes not to use riot control agents as a method of warfare."

http://www.opcw.org/

Armchair general,

Yes, RCAs were used in Vietnam. Specifically in the Hue assault. The AAR points out that the RCA saved American lives See Hue AAR at:http://www.au.af.mil/au/awc/awcgate/lessons/hue.pdf

However, CS was also used by Saddam in the Iran and Iraq War. Specifically for the purpose of disrupting Iranian troops so they could be killed with high explosives.

See "Republic of Fear" at http://www.amazon.com/Republic-Fear-Politics-Modern-Updated/dp/0520214390

Also, some have pointed out that the use of non-lethal chemicals in combat have preceded almost every outbreak of lethal chemical warfare:

"Police gases extensively used in war include ethyl bromoacetate and congeners in the first World War; agent CN in Ethiopia (from December 1935), China (from late 1937) and the Yemen (1963); and agent CS in the Vietnam War and the Iraq-Iran war. In each case, these agents were used mainly or entirely not to avoid the use of conventional firepower but in conjunction with it, as a force multiplier. Moreover, starting in World War I, combat use of such gases preceded every significant outbreak of lethal chemical warfare"

Editors, 15 Chemical Weapons Convention Bull. 4 (March 1992)

That is my rant.

[Alan]

J-

That wasn't the line I meant - but you point out an important line nonetheless. I take it that means you would also draw the line at military use of toxic chemicals in situations where combatants and non-combatants are mixed.

As for the line that I failed to articulate clearly - by your logic I assume that any old toxic chemical would be fine to use against someone "wearing a uniform or holding a weapon pointed at a US troop." That would include mustard and nerve gases, yes?

By the same logic, our adversaries would be similarly justified to use mustard and nerve gases against our troops, yes?

That's the line I meant. What kind of "toxic chemical" is okay, and what kind is not? Can a meaningful and clear distinction be made, one that allows the potential user to cleanly bin every toxic chemical into either the permitted or the prohibited category? I think not, nor does the Chemical Weapons Convention make such a distinction. I, for one, am glad it does not.

Now, if we could only find a way to deal with that pesky law enforcement exception in Article II.9(d)....

[J.]

Alan - I'm a Cold War dinosaur, I expect the enemy to use CB weapons against our forces, and I strongly believe that deterrence via retaliation in kind works. I think there is a big difference between toxic chemical warfare munitions and RCAs. I don't think that CW agents should be used against noncombatants in any situation, but military use of RCAs to defend oneself against civilians or to control a mob is legitimate. Using RCAs in an offensive fashion to force combatants out into the open when they may be mixed with noncombatants, while against the CWC, seems to me to make sense also. I think the alternative, using high-explosives to attack combatants in a civilian area (vis a vie Israeli air/artillery attacks in Lebanon), is far worse and should be discouraged.

[Tess]

Alan,

(i)Do you think Article II 9(D) of the CWC:

(d) Law enforcement including domestic riot control purposes.

could be read broadly enough to include U.S. counter-insurgency operations in Iraq?

Was the Fallujah assault a police action?? Do you think RCAs were used in Fallujah?

(ii) General, I see where you are coming from. Clearly, it would be better to use non-lethal gases then to drop cluster munitions on a city when combatants are inter-mixed with non-combatants. However, I do not think the treaty and the federal statute permit it. But, lets face it, the AUMF (Authorization for the Use of Military Force) pretty much obliterates everything.

Here are some of my problems (along the same lines as you mentioned earlier) with using RCAs:

a. it has a disproportionate and indiscriminate effect on the young, pregnant, elderly, and those with respiratory ailments.

b. the lethality of an RCA can depend on its concentration and whether or not the attack occurs in an enclosed space. Zyklon B was a harmless "delousing" and "disinfecting" agent until the doors were closed.

c. If the enemy doesn't know they are being attacked with RCAs, they could wrongly assume that they are being attacked with lethal agents and respond in kind. Then we would respond in kind.

d. Some RCAs are more toxic than others. For example, isn't DM more toxic than CS? Also, even the most benign RCA can have a fatality rate. Is civilian collateral damage acceptable in a RCA attack?

(iii) Alan,
I cannot think of a non-prohibited use for Sarin. However, some toxic chemicals have multiple purposes (both prohibited and non-prohibited).

For example, some military smokes are toxic (especially in enclosed spaces) and there legality would depend on what purpose the smoke was being used for. Was it being used for its toxic properties? A toxic millitary smoke is okay if the smoke is not being used for its "noxious" properties. If it is used for marking or obscuring then that would be acceptable.

Agent Orange has the non-prohibited purpose of being a defoliant. However, if used directly against human beings then that would be a prohibited purpose. The CWC treaty recognizes the prohibition of herbicides as a "method of warfare".

(iv) What kind of chemicals do you think are going to be discussed in these closed sessions? Do you think they involve non-lethal chemicals as lethal force multipliers?

(v) Should we really care about international law anyway? This thug didn't:

"I will kill them all with chemical weapons! Who is going to say anything? The international community? F@ck them! The international community, and those who listen to them!"

-Ali Hassan Al Majid 1988

See: www.hrw.org/english/docs/2003/04/07/iraq5508.htm

Slippery Slopes...slide on