Special Forces' Wear of Non-Standard Uniforms

• Author: W. Hays Parks
• Position: Holds the Law of War Chair, Office of General Counsel, Department of Defense
• Pages: 69-119

VI

Special Forces' Wear

of Non-Standard Uniforms

W. Hays Parks1

In February 2002, newspapers in the United States and United Kingdom pub-

lished complaints by some nongovernmental organizations (NGOs) about US

and other Coalition Special Operations Forces operating in Afghanistan in "civilian

clothing."2The reports sparked debate within the NGO community and military

judge advocate ranks about the legality ofsuch actions. At the US Special Operations

Command (USSOCOM) Annual Legal Conference May 13-17, 2002, the judge ad-

vocate debate became intense. While some attendees raised questions of "illegality"

and the right or obligation of special operations forces to refuse an "illegal order" to

wear "civilian clothing," others urged caution. The discussion was unclassified, and

many in the room were not privy to information regarding Operation Enduring

Freedom Special Forces,3its special mission units, or the missions assigned them.

The topic provides lessons and questions for consideration of future issues by

judge advocates. The questions are:

(a) What are the facts?

(b) What is the nature of the armed conflict, and its armed participants?

(c) What is the relevant law of war?

(d) What is State practice?

Special Forces' Wear ofNon-Standard Uniforms

What Are The Facts?

Thirty years ago it was my privilege to serve as the first Marine Corps Representa-

tive at The Judge Advocate General's School, US Army, in Charlottesville, Virginia.

As the lone Marine on the faculty, Iwas expected to attend all major public cere-

monies, including the graduation of each Judge Advocate Officers Basic Course

—

the accession course for new lawyers entering the Army. Course graduation war-

ranted aspeech by one of the Army JAG Corps' flag officers. Regardless of who the

graduation speaker was, the speech was the same. Written by The Assistant Judge

Advocate General of the Army, the late Major General Lawrence H. Williams, it

was called "the facts speech." Its message was simple and straightforward: Before

charging off to tilt at windmills, be sure you have the facts.

There is much to be said for this admonition and its application in the case at

hand. Condemning certain actions or declaring them alaw of war violation based

upon news accounts is not asound basis for analysis. No lawyer would prepare his

case based solely upon news accounts. Indeed, media reports generally are inad-

missible as evidence. Regrettably, there was arush to judgment by some based on a

less-than-reliable source.

The facts surrounding the issue were two-fold. The first had to do with what was be-

ing worn, and by whom. The second concerned the motive for the NGO complaint.4

In response to the September 11, 2001 al Qaeda terrorist attacks against the

World Trade Center and Pentagon, US and coalition Special Forces began opera-

tions in Afghanistan in late September 2001. At the request—initially insistence

—

of the leaders of the indigenous forces they supported, they dressed in indigenous

attire. For identification purposes within the Northern Alliance, this included the

Massoud pakol (a round brownish-tan or gray wool cap) and Massoud checkered

scarf, each named for former Northern Alliance leader Ahmad Shah Massoud, as-

sassinated days before the al Qaeda attacks on the World Trade Center and Penta-

gon. This attire was not worn to appear as civilians, or to blend in with the civilian

population, but rather to lower visibility of US forces vis-a-vis the forces they sup-

ported. Al Qaeda and the Taliban had announced a$25,000 per head bounty on

uniformed US military personnel. Placing aUS soldier in Battle Dress Uniform

(BDU) or Desert Camouflaged Uniform (DCU) in the midst of aNorthern Alli-

ance formation would greatly facilitate al Qaeda/Taliban targeting of US Special

Forces.5As will be seen in review of the law, dressing in this manner more accurately

may be described as wearing a"non-standard uniform" than "dressing as civil-

ians." Special Forces personnel who had served in Afghanistan with whom Ispoke

stated that al Qaeda and the Taliban had no difficulty in distinguishing Northern

Alliance or Southern Alliance forces from the civilian population.6

70

W. Hays Parks

The fall of Kandahar in early December 2001 was followed by the collapse of

the Taliban regime and the swearing-in of Hamid Karzai as Prime Minister. An-

other aspect of US Special Operations Forces—Army Civil Affairs—began to en-

ter Afghanistan. In November 2001, US Army Forces Central Command

(USARCENT) had established the Coalition and Joint Civil Military Operations

Task Force (CJCMOTF) using soldiers from the 377th Theater Support Com-

mand (TSC), the 122nd Rear Operations Center, and the 352 nd Civil Affairs Com-

mand. By January 3, 2002, the CJCMOTF was established in Kabul. It served as

liaison with local officials ofthe Interim Government and supervised the human-

itarian assistance from US Army Civil Affairs (CA) teams from the 96th Civil Af-

fairs Battalion, who were beginning to operate throughout Afghanistan.

CJCMOTF also was the liaison with the US Embassy, and coordinated coalition

humanitarian assistance contributions.

The USARCENT Commanding General made the uniform decision, favoring

civilian clothing over DCU. His rationale was based on two factors: (a) ability of

soldiers to perform humanitarian assistance operations; and (b) safety of Civil Af-

fairs personnel, that is, force protection.7Astrong desire existed at the US Central

Command (USCENTCOM) headquarters (Tampa) to present anon-confronta-

tional face, as well as asentiment expressed that NGO would be reluctant to be seen

working with uniformed soldiers. Additionally, 96th Civil Affairs Battalion person-

nel, who initially operated in Islamabad, Pakistan, were ordered by the US Ambas-

sador to Pakistan to wear civilian clothing rather than their uniforms, reflecting the

sensitive and unique political environment in which US Army forces were operat-

ing. This order was not clarified or countermanded on entry into Afghanistan.

Civil Affairs personnel continued to wear Western civilian attire. Eventually some

adopted Afghan native attire. 8

Other reasons existed for continued wear of civilian attire. In some areas, local

governors would not talk to uniformed Civil Affairs personnel. In December 2001,

the UN-sanctioned International Security Assistance Force (ISAF) began arriving

in Kabul in accordance with the Bonn Agreement. United Nations representatives

refused to meet with US Army Civil Affairs leaders if they were in uniform.

US Army Civil Affairs units have along, distinguished history. They played an in-

dispensable role in the European Theater of Operations during and after World War

II, and in the postwar occupation of Japan. US Army and Marine Corps Civic Action

units played an equally indispensable humanitarian assistance role during the Viet-

nam War. NGO involvement during those conflicts was virtually non-existent

(World War II) or extremely limited (Vietnam).

Under the terms of the 1949 Geneva Convention Relative to the Protection of

Civilian Persons in Time of War (GC), NGOs operate subject to the consent of

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