TANGLED UP IN KHAKI AND BLUE: LETHAL AND NON-LETHAL WEAPONS IN RECENT CONFRONTATIONS
“I helped her out of a jam, I guess, but I used a little loo much force.”
Bob Dylan, “Tangled Up in Blue” 1974
I. INTRODUCTION
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 shouldhave 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.