U.S. Secretary of Defense Pete Hegseth listed many targets during his speech to the largest assembled gathering of U.S. generals and admirals in American history, along with their senior enlisted advisers. In his quest to rebuild a supposedly broken warrior mindset, Hegseth named “toxic leadership,” “wokeness,” fitness and grooming standards, and the Pentagon’s whistleblower system as areas for reform. He also decried the military’s “stupid rules of engagement” (ROE), which he considers “politically correct and overbearing.” He told the group gathered at Quantico, Va:
We fight to win. We unleash overwhelming and punishing violence on the enemy. We also don’t fight with stupid rules of engagement. We untie the hands of our warfighters to intimidate, demoralize, hunt and kill the enemies of our country. No more politically correct and overbearing rules of engagement, just common sense, maximum lethality and authority for warfighters. You kill people and break things for a living. You are not politically correct and don’t necessarily belong always in polite society.
Hegseth’s latest attack on the ROE demonstrates a dangerously limited, tactical – and legally incorrect – view about these rules and what they are for. He misunderstands how ROE work, how they enable judicious and legally permissible deadly force in light of larger strategic concerns, and how they promote American –and human – values. Delegitimizing the role of the ROE – and what values, norms, and legal obligations they represent – also delegitimizes U.S. military operations overseas, erodes professional values, and will hasten the erosion of public confidence and trust in the military as the Trump administration expands its deployment on American city streets.
Rules of Engagement
The military’s rules of engagement are, in their simplest version, a list of conditions in which deadly force can be employed and how to treat civilians, prisoners, and detainees on or near the battlefield. They are brief permissions and prohibitions given to troops, in the form of a direct order from their commander, tied to the type of mission or operation those troops are executing. Ground combat troops fighting in the initial invasion of Iraq in 2003 received a small card with these simple rules. Such ROE cards are small enough to fit in one’s uniform pocket and direct enough to commit to memory. They are provided in every significant military deployment, whether large-scale combat operations against another nation, counter-insurgency operations, or humanitarian missions. ROE, moreover, are not limited to just American military forces. Nearly every modern military publishes ROE to ensure their troops obey certain foundational limits and operate within clearly defined permissions.
But the ROE are not actually all that simple, and Hegseth’s military experience at the junior officer tactical level has informed his beliefs about what these rules do, and why. These brief ROE cards for troops on the front line are derived from much longer, much more elaborately detailed ROE published as part of an operations order. That order articulates the commander’s understanding of the current military “situation” (the nature of the enemy threat as well as civilian considerations) and his or her desired end state given the intent and overarching plans of even higher headquarters. These orders are the result of extraordinarily exhaustive planning among various subject-matter experts within the commander’s staff working collaboratively to coordinate and synchronize the multiple subordinate units with different functions and responsibilities (such as naval ships, tank battalions, remotely piloted drones, light infantry, demolition-expert combat engineers, civil affairs teams, medical evacuation and attack helicopters, special operations teams, mortars and long-range artillery batteries); the logistics of movement and resupply; the methods of communication; personnel allocations, among many other subjects. Essentially, these operations orders explain the who, what, where, when, why, and how of a particular operation or campaign. The more complex and longer the mission, and the higher up the headquarters that issues it is, the more exhaustive these orders tend to be.
One mandatory section of that operations order is the classified appendix called the “Rules of Engagement” – at least at levels of command above brigade level (well above the platoon and company-level operations Hegseth participated in as a National Guard junior infantry officer in Iraq, Afghanistan, and at Guantanamo Bay overseeing detainees). This document, written by a multi-disciplinary “cell” that includes the military lawyers (Judge Advocates, or JAGs), operations planners, and often weapons experts and civil affairs personnel – is ultimately approved by the commander. It specifies what can be described as
control measures employed by the chain-of-command with respect to, inter alia, necessary conditions (including where and how) for use of lethal force, the scope of collective and unit self-defense, identification of “declared hostile forces,” restrictions on certain types of weapons, treatment of prisoners of war and other detainees and noncombatant civilians, and procedures for commanders at all echelons to request additional authorities as missions and circumstances change.
These orders are usually first detailed in this defined way at the Combatant Command, the four-star headquarters responsible for overseeing operations in a particular theater of war or conflict, such as U.S. Central Command, which oversees operations in the Middle East. These commanding officers, all of whom attended Hegseth’s conclave, report only to the secretary of defense and the president in the operational chain-of-command. They command and control forces assigned to their headquarters from all the armed services (e.g., Army, Navy, Air Force, Space Force) for specific operations and various steady-state peacetime training and other military engagements in their respective theater of operations.
But these theater-specific orders are not written in a vacuum. They are derived from the Standing Rules of Engagement (SROE), a document first published in 1994 and since then updated infrequently (the most recent was in 2005), signed by the chairman of the Joint Chiefs of Staff. The SROE has “establish[ed] fundamental policies and procedures” that regulate the use of lethal and non-lethal force in somewhat generic terms. It applies to U.S. commanders and military operations outside of U.S. territory or territorial seas, as well as for contingencies involving hostile actions against foreign threats during armed conflict. The current unclassified sections of the SROE define terms such as “hostile act” and “hostile intent,” and “inherent right to self-defense.” They provide guidelines for requesting various “supplemental measures,” additional permissive authorities that may be delegated lower down the chain-of-command, such as the permission to use certain types of weapons or tactics that would normally be withheld to higher echelons of command. The SROE is broadly drafted, intending to “ensure they allow maximum flexibility for mission accomplishment while providing clear, unambiguous guidance to the forces affected.”
Therefore, because the theater-specific ROE and those issued by subordinate commands are tailored to particular times, places, and threats, these ROE are always a modification of the original baseline SROE. As retired Brigadier General (and former JAG) Mark Martins, a leading authority on rules of engagement, once wrote, the SROE “undergo amplification at as many as nine subordinate levels of authority.” In other words, the ROE card that ends up in the pocket of a soldier digging a trench, distributing aid after an earthquake, or patrolling a village is like a Russian nesting doll: it fits within the ROE of his immediate commander, which in turn fits inside the ROE of that commander’s commander, and so on.
The Constituent Elements of ROE
Superficially, and perhaps from the vantage point of the average soldier or junior officer down in the mud or sand, the ROE is a just collection of “shall,” “shall not,” and “may” and has the force of a lawful order that must be obeyed. At the lowest tactical levels, the “pointy end of the spear,” the ROE is not justified, defended, or explained. But the content of ROE, even at the tactical level of a 30-soldier platoon or a 12-man Special Forces Operational Detachment, reflects three distinct but overlapping interests and concerns about the use of armed force: national policy (at the highest, strategic levels of government); the particular operational environment and mission; and the international law of armed conflict (also known as International Humanitarian Law).
First, a particular administration may believe that fighting a controversial counter-insurgency mission with the consent of another host nation, amidst a civilian population, requires a policy of restraint and particular concern for conditions that would trigger a soldier’s authority to use lethal force. It might take the form, in the ROE, of explicit restrictions on where and under what threat conditions certain types of munitions may be used, or impose tight limits on how long a military unit may detain a suspected insurgent before release or transfer to a higher headquarters for interrogation. Or the administration may believe that fighting a war of attrition against a near-peer competitor, more like the battles of World War II than Afghanistan in 2015, justifies less restraint and a more aggressive, permissive use of lethal force. In the ROE, this might look like permission to use lethal force immediately upon contact with a designated enemy combatant or giving relatively low-ranking commanders greater authority to use certain weapon systems without asking for permission first. Or the administration might believe that deliberate restraint is called for in one area of operations but more deliberate destruction in another. These are national policy decisions made by the president and his advisers, usually in consultation with field commanders, and often made with considerations for domestic public opinion and foreign relations with allies and partner nations.
Second, such policies are subject to a vote by the enemy. Conditions on the ground, at sea, or in the air – be they environmental, tactics and movements by the enemy, or local civilian population concerns – drive the strategic, operational, and tactical choices available to the chain-of-command. Commanders therefore organize, plan, and execute missions that look like proactive implementations of national policy and theater strategies but can also look like reactive responses, contingent upon choices made by the adversary, sensitive to the fluid and sometimes unpredictable character of any military operation – the fog and friction of war, according to Clausewitz. In the ROE, this may take the form of which organizations or armed groups are “designated hostile forces,” which civilians and which partner nation forces may be protected by U.S. military units under the notion of collective self-defense, or the tactical directives that authorize or restrict the employment of munitions under specified triggering conditions.
Third, regardless of operational conditions and missions, and regardless of strategic (but never static) national policies, international law provides an invariant baseline below which choices about how, where, and when to use armed force cannot sink. For international armed conflicts (IACs), such as the war between Russia and Ukraine, the four Geneva Conventions of 1949 provide most of the rules that regulate how militaries may treat adversaries, prisoners of war, civilians and their property, and the wounded or sick. The Conventions reflect the “principles of international humanitarian law” which include distinction (between civilians and civilian objects and military targets), military necessity, humanity (also called “unnecessary suffering”), and proportionality. The principles reflect the special care the Conventions insist that militaries take toward protecting civilians and other non-combatants from the ravages of warfare.
To follow those rules, militaries and their finite resources are necessarily imposed upon. For example, military commanders and their troops must take “feasible precautions” during the planning and execution of operations to reduce the likelihood and scale of collateral damage to civilians and property (Additional Protocol I, arts. 57 and 58, which the United States considers part of customary international law). The Conventions demand consideration of civilian non-combatants “without any adverse distinction based, in particular, on race, nationality, religion or political opinion” (Geneva Convention IV, art. 13) and with
respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs [and they] shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity (Geneva Convention IV, art. 27).
The Conventions expect militaries to secure and treat wounded enemy soldiers and to prioritize treatment based on seriousness of the wounds rather than nationality (Geneva Convention I, art. 12). The Conventions impose a requirement for safeguarding, caring for, and respecting prisoners of war (Geneva Convention III, arts. 12-20 and 25-108). Such requirements may often tax a military unit’s resources, slow its advance, deny it an efficient weapon or tactic, or even expose U.S. forces to increased risk of an attack by the enemy. But such is the accepted cost of waging modern war under a rules-based international order.
For non-international armed conflicts (NIACs), States are bound to follow the basic admonitions of Common Article 3 of the Geneva Conventions:
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.
Legitimate Operations Are More Effective Operations
This body of international law is not simply best practice or a recommendation to follow only when operationally convenient. As a ratifier of the Conventions, the U.S. government is bound by its terms like it is bound by federal statutes. These Conventions are part of the law that the president is constitutionally required to “take care” is “faithfully executed.” Indeed, Congress has long emphasized the importance of such laws, basing the U.S. war crimes statute on violations of certain critical sections of the Geneva Conventions. Not to be overlooked, the Department of Defense has as well, directing subordinate components and commands to:
implement effective programs to prevent violations of the law of war, including . . . [i]nstructions, regulations, and procedures to implement law of war standards and establish processes for ensuring compliance [and take] [a]ppropriate actions to ensure accountability and to improve efforts to prevent violations of the law of war in U.S. military operations.
The Department has further directed the chairman of the Joint Chiefs of Staff to:
[p]rovide[] appropriate guidance to the Combatant Commanders, consistent with Section 163 of Title 10, U.S.C., [and] [re]view[] appropriate plans, policies, directives, joint doctrine, and rules of engagement, as necessary, ensuring their consistency with this issuance and the law of war [to] [h]elp[] ensure that plans, policies, directives, and rules of engagement issued by the Combatant Commanders are consistent with this issuance and the law of war.
This is not paying mere lip service to an international treaty. As its own Law of War Manual demonstrates, the Department of Defense has long understood that compliance with the laws armed conflict, including its fundamental principles regardless of operation type, are critical if the United States at all cares about the perception (both domestically and abroad) of the mission’s legitimacy. As Geoffrey Corn has written,
respect for international humanitarian law (or the law of armed conflict) is also a – if not the singular – touchstone for the legitimacy of a military operation. Legitimacy, in turn, is a central tenet of effective military operations, especially for democratic nations committed to respect for the rule of law and the protection of fundamental human rights.
The Department recognizes the importance of legitimacy – so much so that it has been elevated to a “principle of war” in its contemporary operations doctrine. It has even defined the term:
[Legitimacy is] based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences. These audiences will include our national leadership and domestic population, governments, and civilian populations in the [operating area], and nations and organizations around the world.
Ultimately, a soldier who dutifully obeys the dictates of a carefully drafted and well-designed ROE will be, necessarily, complying with the basic protections afforded to both his enemy and to surrounding civilians by international law, all in full consideration of the unit’s mission and the president’s strategic goals and policies. The ROE are not handcuffs; they are the recipe for a successful disciplined military operation at any scale. Most, if not all, of the senior officers sitting through Hegseth’s remarks know this, having served decades in uniform and during both conventional and unconventional armed conflicts. As then-Secretary of Defense James Mattis wrote to the entire Department in 2018, a focus on lethality does not contradict or invalidate well-established rules.
enhanced lethality demands more than increasing the size of our formations and obtaining newer, more advanced equipment – it also requires having a more disciplined force.
. . .
forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield . . . Discipline is a competitive edge we must seek and maintain each day if we are to keep America safe from its enemies.
In speaking about the SEAL Team 6 raid that killed Osama Bin Laden, Bill McRaven, the four-star admiral who oversaw the operation, emphasized that this kind of discipline need not and should not get checked at the door when a mission is exceptionally difficult or of vital national interest. “You follow the rules of engagement and the law of armed conflict,” he said in 2023. “You protect yourself and your organization. We want to walk away from this operation with bin Laden either captured or killed and with the dignity of the United States still intact.”
Hegseth’s Rule-Breaking Encourages Lawlessness
That view of ROE, however, is not embraced by everybody. On the same day as Hegseth’s speech, the New York Times published a four-part expose on extrajudicial killings of Afghan detainees and other lawlessness by American Special Forces soldiers during the second decade of the war in Afghanistan. There are uncomfortable parallels between how some of those operators justified their lawless violence, beginning with taking small risks and breaking small rules, and how Hegseth frames the role of the military.
As one former Special Forces officer put it: “You’re always on that razor’s edge . . . Any rule that I broke, I broke in such a way that I was like, I have righteousness on my side.” An entire Special Forces battalion adopted as its motto: “We do bad things to bad people.” According to Matthieu Aikins, the Times journalist who spent four years interviewing members of these units, visiting their remote Afghan compounds, talking with locals, and reviewing thousands of pages of investigative files:
this outlaw ethos emerged from the murky terrain of irregular warfare. Often fighting deep in enemy territory, at remote firebases far from the eye of headquarters or the public, many operators came to embrace the idea that rule-breaking could be justified by the higher good of getting the mission done.
Aikins quotes former Special Forces Major Matthew Golsteyn, who was nearly court-martialed for killing a suspected insurgent.
“I’m not in America. I’m not a cop. I’m not here to judge you. I am an imperial stormtrooper. Let’s get it done.”
Golsteyn avoided punishment thanks to a pardon from President Donald Trump, who had been lobbied to act by Hegseth, who at the time was a host on Fox News.
Hegseth’s argument echoes this type of rule-breaking, lacking the same nuance about the use of military force. “You kill people and break things for a living. You are not politically correct and don’t necessarily belong always in polite society,” he told the generals and admirals at Quantico.
After re-branding the Defense Department the “Department of War” in early September, Hegseth said the name change reflected the proper attitude or culture of “maximum lethality, not tepid legality.” On three occasions later that month, the Department carried out lethal air strikes on alleged “narco-terrorists” on boats in the Caribbean Sea without a clear legal justification based on national or unit self-defense. The strikes were without authorization from Congress or the participation of the U.S. Coast Guard, despite the service being fully capable of safely interdicting the boats, one of its routine law enforcement missions.
The lawlessness of these strikes has been thoroughly discussed on this site and others, and is beyond dispute, at least according to most commentators. But one other thing is certain: the strikes reflect Hegseth’s stated view that “there is no world in which high intensity war exists without pain, agony and human tragedy,” and the U.S. military will “unleash overwhelming and punishing violence on the enemy.” Taken out of context, those statements are not all that extraordinary or objectionable – they are not substantially different from Mattis’ view. But taken in context of the administration’s actions, they are gravely concerning.
Just days before Hegseth’s remarks, Trump announced a plan to deploy the military to Portland, Oregon, in support of I.C.E. raids and to protect federal property; but he also described Portland – inconceivably – as “war ravaged” and stated that he’s authorized the military to use “full force” in response to civilian protests outside any I.C.E. facilities. Later, at Quantico, Trump said that the military would be used in “dangerous” places such as Portland, Chicago, and Memphis to “straighten them out one by one.” To Trump, civil unrest – even mostly peaceful protests– is “a war from within.” And in what was sure to confuse and alarm many in the audience at Quantico, Trump suggested that the military ought to use American cities as “training grounds” for future armed conflicts. This is a frightening prospect for several reasons, not the least of which is the defense secretary’s evident disdain for rules regulating how troops use force.
The president’s penchant for norm-defying, potentially unlawful, and widely unpopular use of the military in domestic cities, as well as his apparent tolerance for unlawful strikes abroad on criminals he deems “terrorists,” make Hegseth’s censure of ROE all the more dangerous. To naïvely endorse “maximum lethality and authority for our warfighters” and label the ROE that regulated force during extremely complex counterinsurgency campaigns over two decades as “stupid . . . [and] overbearing” is to signal that the secretary of defense really fails to understand four important facts. First, that the ROE function as reasonable and necessary control measures for the disciplined application of lethal force. Second, the underlying legal principles were designed to balance the self-evident need for military effectiveness against the universally accepted value of protecting innocent victims of war. Third, that the international law of armed conflict is just the baseline; ROE also reflects the character of the armed conflict and the missions required to successfully end it, as well as larger political goals and considerations of the civilian officials ultimately in charge of national security. And fourth, that strategic risks to American legitimacy increase, professional military values erode, and public confidence and trust in its military falters when the government fosters an undisciplined inattention or dismissal of these rules as mere unimportant distractions to warfighters.
The irony is that each of those senior leaders in Hegseth’s audience could have explained, and defended the importance of, these four facts to their boss. Hegseth’s overconfidence in his beliefs, coupled with Trump’s muscular vision for the military and his disregard for domestic and international laws, should leave all Americans deeply troubled about how the military will be used in their name and in their cities.
