"I helped her out of a jam, I guess, but I used a little too much force."
Bob Dylan, "Tangled Up in Blue" 1974
The governmental mechanisms that exercise a state's physical coercive power--various cadres of military and law enforcement agencies--often face a difficult dilemma. In confrontations with recalcitrant opposing forces, the authorities must recognize that if they exercise too much power, they incur an unacceptable danger of "collateral damage," unintended casualties to civilians and unnecessary destruction of valuable property. On the other hand, if they exercise too little power, they may risk the safety of their own personnel and compromise the accomplishment of an important and legitimate mission.
In recent years, this dilemma has arisen with painful frequency inside the United States and elsewhere. Officials increasingly express frustration at having only an impoverished array of tools at their disposal, especially regarding confrontations in which the specific target of the police or military forces is intermingled with civilians or innocent bystanders. Government actors may have only "bullhorns or bullets" to choose from; if emphatic verbal instructions and warnings do not suffice, the only recourse official forces have is the application of deadly force, which often cannot be applied with anything like the desired surgical precision.
This Article presents that dilemma in the context of the imminent development of a novel toolkit of so-called "non-lethal weapons" (NLW), which promise to radically alter the existing Hobson's choice. These armaments--a wide range of technologies, new and old, incorporating different types of physical mechanisms, capable of both anti-personnel and anti-materiel operations--seek to provide a viable intermediate capability, for the first time affording governmental actors additional options in volatile situations. These emerging capabilities include a breathtaking array of devices such as enhancements of the traditional "rubber bullets"; foam sprays that make a surface either impossibly slippery or impassively sticky; millimeter wave "heat rays" that peacefully repel people without inflicting lasting harm; projectile netting or other entangling devices to capture individuals or vehicles; chemicals that temporarily irritate, repel, or becalm a person; biological agents that embrittle metal or contaminate petroleum products; and many more.
This Article examines three representative recent confrontations: the 1993 shootout and siege at Waco, Texas, involving federal ATF and FBI units against the Branch Davidians led by millennialist David Koresh; the 2002 seizure of the Dubrovka Theater in Moscow by Chechen separatists; and the 2003 Gulf War II fighting by the British Army against indigenous resistance in Basra, Iraq. Although in each of these episodes government forces "prevailed" in some crude sense, each was at least partially unsatisfactory, resulting in more carnage and more destruction than anyone would have wanted. Therefore, the goal of this Article is to determine whether the availability of a richer configuration of non-lethal weapons might have made a difference.
These three case studies provide an array of contrasts: they occurred on three different continents, they involved three different countries and three different types of resistance units as protagonists, and they engaged notably different genres of armaments and tactics. In addition, the three selected incidents are usefully diverse in yet another regard. The first, Waco, was clearly a law enforcement operation, initially occasioned by the effort to serve ordinary arrest and search warrants. In contrast, the third, Basra, was plainly a conventional military operation, occurring in the midst of a broad-gauged international armed conflict. The second, Moscow, presents a sort of middle ground, containing aspects of both law enforcement and military counter-terrorism operations, thereby illuminating the rainbow of legal and policy considerations at play.
This Article does not argue that non-lethal weapons should have been applied in these confrontations, or that they necessarily would have made a profound difference in resolving the clashes at appreciably less cost. It may be that these instances were simply intractable, that the opposing forces were so resistant, fanatic, or entrenched that even improved technology and tactics would have proven unavailing. Still, the hypothetical inquiry remains: in these three tragic cases, what might have happened if the respective governments had been able to try something else--something non-lethal?
The Article proceeds in the following steps. First, Section II surveys the emerging world of non-lethal weapons, beginning with the observation that the very name "non-lethal" is at least partially misleading; any application of force by police or military units inherently carries the potential for death. Although this new family of technologies at least attempts to reduce greatly the probability of mortality and widespread destruction of property, it offers no absolute guarantees.
Section II also describes a variety of NLW technologies, starting with the more familiar devices long used by governments around the world, such as tear gas, water cannon, and plastic bullets, among others. It then introduces some of the more tantalizing possibilities that loom on, or just over, the horizon: gizmos that disable or deter, that ensnare or blockade, that corrode or contaminate. Section II also describes some of the animating spirit behind the investigation of, and the burgeoning investment in, these esoteric capabilities: the classic scenarios in which military and police forces imagine they would be better able to control incendiary situations, perform their assigned missions, and protect themselves and any bystanders with greatly reduced fatalities and destruction.
Next, Section III assesses the law applicable to non-lethal weapons, starting with the international legal constraints upon battlefield violence. Treaties that regulate chemical, biological, and other categories of specialized conventional armaments are highlighted, along with the more general evolving law of armed conflict. This body of law was crafted largely with other kinds of implements of war in mind, but it must now adapt to embrace NLW as well. Domestic United States law also governs non-lethals, constraining both the research on selected armaments concepts and the application of force by federal and local law enforcement in specific situations. In particular, the prohibition against, and the definition of, "excessive" force by police demands attention in the context of NLW.
Next, the Article presents three selected case studies: Waco in Section IV, Moscow in Section V, and Basra in Section VI. Many recent events have provided an altogether too rich assortment of unhappy incidents of collective violence to choose from, but these three representatives usefully characterize the field. Each of the three confrontations has already been described in the relevant literature; thus, the focus here is not to re-tell each story in lurid detail, but to concentrate on the types of weapons used by police, military, and their opponents. More tellingly, this inquiry asks about the types of weapons that were not used in each incident: what might have happened, and how might things have turned out differently, if an additional category of weapons, with a variety of specialized non-lethal effects and attributes, had been available? The point is not simply to critique the beleaguered combatants or to second-guess their choices of negotiating strategies, political positions, or assault tactics. Instead, this Article poses the hypothetical inquiry about whether NLW could have played a useful contributing role in saving lives and accomplishing missions.
Section VII then sounds a necessary cautionary note, recounting some of the many critiques of the nascent movement to embrace non-lethal weapons and exploring a miscellany of arguments as to why the United States and other governments might still hesitate to go wholeheartedly down this procurement pathway. Even if one believes that NLW could have made a positive contribution to a more peaceful resolution of the three selected case studies, there are counterbalancing considerations. Prominent among these concerns are the danger of proliferation of the weaponry--to opposing military forces, to criminals, to human rights abusers--and the release of existing inhibitions against too-adventurous applications of governmental force.
Finally, Section VIII offers some recommendations and conclusions, boiling down to a cautious "green light" for NLW development programs. There are good reasons to be hopeful that emerging non-lethal technologies can liberate police and military forces from their existing dilemma; if the military or police have only the ability to over-react or to under-react, then they cannot do a very good job of promoting law, order, and security. If sticky foam, acoustic rays, tasers, vehicle nets, and other esoteric devices could enable military and law enforcement authorities to behave with a more deft touch, complementing existing firepower with an enriched range of possibilities, this would be a most welcome boon. But international and domestic law restraints, and prudent projections about how other actors might respond to the U.S. articulation of new NLW capabilities, mandate a reflective, step-by-step approach. Indeed, non-lethal weapons might be helpful in some categories of important, challenging, and all-too-frequent confrontations, but such weapons are no panacea.
THE WORLD OF NON-LETHAL WEAPONS
What does the term "non-lethal" weapons mean? A variety of definitions has been proffered, the most visible of which comes from the U.S. Department of Defense (DoD), where the U.S. Marine Corps houses the Joint...