I’ll go a step further. ROE isn’t supposed to constrain self-defense. All service members retain that right, the same as civilians. From the 2017 edition of the Operational Law Handbook, Chapter (Rules of Engagement), Section III (CJCS Standing Rules of Engagement)
Even if it’s not specifically permitted in the ROE, self-defense remains legal. It’s an inherent right.
My experience is as an officer and all after we formally transitioned in 1982 to a mission-oriented philosophy based on the Napoleonic war era Prussian military reforms. Unlike the competing directive-oriented philosophy (just follow lawful orders) that people tend to think we operate under, the current doctrine also includes disobeying orders because they are unduly risky to the lives of Soldiers or no longer fit the situation. All three of my commands were conducted under that philosophy. Subordinates questioned and argued against my orders all the time; I encouraged it. When time was too limited to talk it out, they exercised disciplined initiative, did the right thing instead of what I ordered, and reported the change after the fact. I encouraged that too.
I can’t think of any cases in my three commands where I issued or was issued clearly unlawful orders. Some regulations implement federal law and the laws of land warfare; orders violating those would be clearly unlawful. Other regulations are standing orders about how we do business but aren’t based on supporting federal law. I violated plenty of those regulations. I had senior commanders issue orders, which I followed, that violated those regs. (I knew officers that claimed never to have violated regulations as a commander. Those claims never survived more than a couple of questions from me.) Working within a mission-oriented philosophy I avoided violating federal law and tried to minimize violation of non-law based regulations. I tried to only violate them when it was absolutely essential to accomplish the mission. I also tended to give myself a little cover by including by simply deprioritizing things I intended to ignore. (“See I issued written policy guidance to accomplish that as priority #50. We ran out of time before we got that low on the priority list. Oops!” not so innocent blinking) My commanders weren’t stupid; they at least understood the trick I was using if they weren’t using it themselves.
Questions about orders that seemed to violate regulation came up often for me. Subordinates did sometimes put that in the terms of unlawful orders. If we count those, I easily had hundreds of discussions during my career about whether orders I issued were lawful for that usage of the term. Sometimes I changed my mind. Sometimes I didn’t. I just didn’t agree that they were unlawful and was accepting the risk for violating regulation.
Having had both civilian and Army leadership positions, IME subordinates in uniform were a lot more likely to challenge my decisions. It’s not limited to merely unlawful orders. Senior NCOs, especially, could be counted on for frank and passionate push back when they thought my head was in rectal defilade. It’s one of their super powers.
The UCMJ is not different for domestic operations. What’s allowed by federal law is wildly different. Take a look at my lengthy post in this other thread for a lot more detail. There’s been a lot of misunderstanding of the law and speculation about the military performing tasks that would seem to violate Posse Comitatus from the media… and from POTUS.:smack:
From coverage of the NORTHCOM Commander’s press conference