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COPYRIGHT 2005 Georgetown University Law Center
"I helped her out of a jam, I guess, but I used a little too 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 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.
II. THE WORLD OF NON-LETHAL WEAPONS
A. Defining "Non-Lethal"
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 Non-Lethal Weapons Directorate (JNLWD), the leading military arm in research, development, and procurement in the field. As specified in the definition section of DoD Directive 3000.3:
3.1. Non-Lethal Weapons. Weapons that are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury to personnel, and undesired damage to property and the environment.
3.1.1. Unlike conventional lethal weapons that destroy their targets principally through blast, penetration and fragmentation, non-lethal weapons employ means other than gross physical destruction to prevent the target from functioning.
3.1.2. Non-lethal weapons are intended to have one, or both, of the following characteristics:
3.1.2.1. They have relatively reversible effects on personnel or materiel.
3.1.2.2. They affect objects differently within their area of influence. (1)
In partial contrast, the National Institute of Justice, which orchestrates the U.S. Department of Justice's exploratory programs in the field, articulates the objective as the "identification and development of new or improved weapons and other technology that will minimize the risk of death and injury to officers, suspects, prisoners and the public, and contribute to the reduction of civil and criminal liability suits against police, sheriff, and corrections departments." (2)
Other experts have promulgated rival definitions with varying degrees of formality and inclusiveness. (3) NATO, for example, formally refers to the area as "weapons which are explicitly designed and developed to incapacitate or repel personnel, with a low probability of fatality or permanent injury, or to disable equipment with minimal undesired damage or impact on the environment." (4)
For purposes of this Article, it is useful to supplement these working definitions by differentiating more precisely between anti-personnel and anti-materiel NLW. Anti-personnel NLW are weapons designed and used to have relatively temporary effects, which disappear either simply via the passage of time or via the administration of relatively minor treatment. Anti-materiel NLW are designed and used either: a) to have relatively temporary effects, which disappear either simply via the passage of time or via the administration of relatively minor treatment; or b) to destroy a target via non-explosive means. (5)
It is important to note that none of these definitions includes any complete assurance against lethal effects of the weaponry. (6) The effort is to reduce the probability of mortality, but not necessarily to negate it altogether. In any application of organized violence, especially one undertaken in such a wide variety of environments and contexts, against people of diverse health histories, strengths, and weaknesses, there is some inherent, irreducible danger of fatalities. A projectile, chemical, or other mechanism that would merely disable or temporarily incapacitate one person (e.g., a young, healthy soldier in the open air) might well inflict mortal injury on another (e.g., a child in a confined space or an elderly person already compromised by illness). (7)
Many observers, therefore, regard the very term "non-lethal weapon" as an oxymoron and have substituted alternative vocabularies. (8) They would refer to the topic as embracing weapons that are "sub-lethal," "less lethal," "less than lethal," "disabling," or that accomplish a "soft kill" or a "mission kill." (9) For similar reasons, the International Committee of the Red Cross and some other authors, when referring to this entire category of ordnance, routinely place the term "non-lethal weapons" inside quotation marks or use a phrase like "so-called non-lethal weapons." (10)
While acknowledging the somewhat misleading connotation of the term, this Article will follow the mainstream of the literature and employ the term "non-lethal" (ordinarily without quotation marks). For better or worse, this is the language that has established itself as the leading expression and, lacking an obviously-better alternative, it remains a plausible form of reference.
B. Traditional Forms of Non-Lethal Weapons
The concept of a non-lethal weapon is hardly a recent creation. Indeed, a variety of NLW have been staples in the inventories of armies--and especially of police--around the world for decades. Among the most familiar low-technology devices for crowd control have been truncheons, water cannon, K-9 corps, and cattle prods. (11) One step higher on the ladder of escalation have been rubber or plastic bullets, or, more generally, firearms that utilize projectiles that inflict a blunt trauma upon the target, without intending to penetrate the skin or inflict fatal wounds, such as aerodynamic beanbags or plastic batons. (12) A different approach comes from the world of chemistry: law enforcement officials in the United States, the United Kingdom, and many other countries have employed sequential generations of tear gas or other noxious vapors, designated CN, CS, or Mace. (13)
These devices and tactics proliferated around the world, frequently demonstrating at least partial tactical successes. In many instances, police use of these limited, albeit crude, measures aided in breaking up a crowd, isolating the most determined opponents, and deterring the more faint of heart. In several turbulent settings, authorities succeeded in protecting property, fracturing an illegal demonstration, apprehending ringleaders, and avoiding further incitement of the populace. (14)
But these immature mechanisms were burdened with important defects and limitations. Many operated only at short range--for example, a police officer would have to come within arm's length of the offender to strike with a nightstick--and that proximity could be hazardous in situations where the police might be outnumbered. (15) Some of the devices were unreliable (the electric charge in a cattle prod might fail or might be insufficient to alter the target's behavior) or subject to available countermeasures (crowds could avoid water cannon, or outmaneuver or outlast the vehicles transporting it). (16) Chemical sprays could be dissipated by adverse weather--rain degrades some chemicals very quickly--and a capricious wind could turn the gas back onto the police themselves. (17) Importantly, these devices were sometimes not non-lethal; deaths from plastic bullets, for example, were not uncommon, as a projectile might strike a particularly vulnerable person, might hit someone at a closer range than anticipated, or might impact a sensitive body part. (18) Of course, public reaction to these displays of force was frequently adverse; police sometimes seemed to create additional enemies and damage their own reputations, even when they were sincerely attempting to modulate their application of restrained power. (19)
C. Modern Non-Lethal Weapons Concepts
The turn of the century has ushered in a dramatically new era of NLW; a bewildering array of unforeseen capabilities is now set to spill out of laboratories and test sites. (20) The literature on NLW has likewise mushroomed, including contributions from a wide range of disciplines, such as public policy, (21) medicine, (22) popular culture, (23) military science, (24) and law. (25) Both U.S. (26) and international (27) authorities, especially British, (28) are engaged, and a variety of academic (29) and commercial NLW activities (30) have captured the imagination. The U.S. Government has started to devote significant funds to the area, (31) and U.S. NATO allies are being brought to the topic as well, (32) despite criticisms that progress has not been as rapid as promised. (33)
Some of the new NLW advances are sequential improvements on existing concepts, incrementally upgrading the current arsenal. Others augur entirely new technologies, never before seen on the battlefield or the streets. (34) A few have already been tried and found wanting; insurmountable (at least for now) technical problems make them infeasible or unattractive. Many NLW advances are still in development and may similarly fail to meet the complete set of design criteria and operational desiderata. (35) Others, however, have already been deployed to troops in the field or held in reserve for emergencies. (36) This Section cannot undertake to survey all of the NLW technologies in various stages of development. (37) But the Section does introduce a sampling of the most salient NLW technologies, describing a few of the emerging systems, ranging from the increasingly familiar to the "gee wiz."
Sticky foam and slippery foam. Among the earliest modern NLW concepts that fleetingly grabbed public attention in the 1990s were sticky foam and slippery foam. The former would be expelled, like a high-pressure aerosol, from a backpack tank worn by a soldier or police officer. The sticky foam might reach a range of 10 yards or so and would douse a targeted person with a moist spray, which would quickly harden to a styrofoam-like rigidity. Once so ensnared, the target could not run away, could not maintain aggressive actions, and could not effectively resist police arrest. (38)
Slippery foam would be similarly sprayed from a tank or ejected from a projectile. It would be designed to spread itself to cover a flat surface--for example, a hallway, road, bridge, or runway--with a super-slippery sheen, preventing people from walking or vehicles from driving on it. The prototypes of the "liquid ball bearings" were hundreds of times more slippery than the slickest ice sheets, inspiring the hope that the system could be used, for example, to protect an embassy from an advancing crowd, to foreclose enemy use of a strategic intersection or rail yard without permanently destroying it, or to prevent demonstrators from crossing a coated municipal square. (39)
Unfortunately, the promise has to date exceeded the reality. Sticky foam lost favor with researchers and has largely been abandoned because the foam was not reliably non-lethal; the substance could cover the target's nose and mouth, blocking airways. (40) Slippery foam, which is still being actively investigated, might be negated by simple countermeasures such as throwing sand or dirt onto the coated surface, quickly and cheaply restoring the attackers' traction.
Electric guns. Instead of a gun firing lethal (or sometimes-lethal) projectiles, electricity might be marshaled to stop an attacker. Electric handguns, such as the Taser brand, have become quite popular with law enforcement authorities and, more recently, with the U.S. military. (41) These sidearms typically eject a pair of small darts, trailing very thin wires to a distance of twenty-one feet (a longer range version, to allow engagements at greater standoff distance, is under development). Barbs on the darts attach to the target's skin or clothing, and a brief but powerful electric shock is administered. The electric charge (50,000 volts) causes the target immediately to lose muscle control, fall down, and be unable to resist for five seconds or longer. (42)
Proponents assert that the charge is highly effective, even against the most determined (or substance-abusing) resisters, yet no permanent injury is inflicted. (43) Electric guns are also much more useable in confined spaces, such as inside an aircraft in flight, where use of a conventional bullet would be inadvisable. (44) Critics, on the other hand, challenge the effectiveness and the safety of the system, noting severe or lasting injuries and several deaths following exposure to Taser power. (45)
Pepper Spray. The search for a more effective, yet safer, chemical means of crowd control has inspired generations of alchemists and inventors. The newly-emerging leading technology employs oleoresin capsicum (OC), derived from natural cayenne pepper plants. Available in spray cans that project to a distance of twelve feet or more, OC has already earned such a reputation for effectiveness that it has very largely displaced earlier CS and CN (mace) chemical sprays in the United States. Vendors and advocates contend that pepper spray acts much more quickly (a two-second burst can inflame the eyes, nose, throat, and lungs, causing temporary blindness and shortness of breath for fifteen to sixty minutes) and that it will safely incapacitate even individuals who are under the influence of alcohol or drugs and beyond the reach of other chemicals. (46) Again, critics contest: (1) the effectiveness of the substance, asserting that a substantial percentage of people are not restrained by it; (2) its safety, noting deaths associated with OC use; and (3) its propensity for inappropriate use, such as application against individuals who are already under restraint. (47)
Acoustic rays. One of the most evocative early NLW candidate technologies was a concept for an acoustic ray. This tool would have emitted inaudible, invisible sound waves--perhaps from a parabolic dish mounted on top of a jeep or Humvee that also carried the power source--to a distance of approximately 100 yards. The infrasound waves would penetrate the target's body, disrupting internal organs (stomach, lungs, etc.) with unfamiliar harmonics, inducing uncontrollable nausea. The victim would have no choice but to retreat or to fall down with paralyzing sickness, which would ebb once the originating wave source was removed. The acoustic waves would propagate efficiently even through dust, fog, or smoke. Early tests validated the principle that targets were rendered unfit for combat or any other concerted action, but developers to date have been unable to craft a suitably directional device. The acoustic beam fans out from the emitting source, affecting anyone nearby, both friendly and opposing forces. (48)
Directed energy heat ray. Greater success has been earned by a facially similar device that employs millimeter waves instead of acoustic waves. A mobile prototype, denominated "Active Denial System" (ADS) or "Vehicle-Mounted Active Denial System" (VMADS), has been thoroughly tested by the U.S. Air Force Research Laboratory in the New Mexico desert and is approaching the stage of operational deployment. The invisible millimeter wave--effective at the speed of light to a remarkable range of a kilometer or more--stimulates the nerve endings in human skin, but penetrates only 1/64 of an inch. It almost immediately produces a powerful sensation of heat--as if the person were touching a hot light bulb--but does not, in fact, burn the skin or inflict any injury. The targeted person cannot resist the pain--one must involuntarily recoil or avoid the painful stimulus--but the punishment ceases as soon as the person withdraws or the device is aimed elsewhere. The device is effective even through heavy clothing, and the utility of other avoidance tactics (hiding behind a mirror or layers of wet towels, for example) is still being explored. Proponents foresee using the millimeter wave to "clear a space"--to compel a crowd to abandon a contested area--or at least to differentiate between civilians or others who might just be "hangers-on" in a mob versus those more determined and prepared individuals who may constitute a real threat. (49) Four to six of the VMADS devices are being mounted onto armored vehicles denominated "Sheriffs" and are planned to be rushed into service in Iraq as early as September 2005, to help scatter crowds and root out insurgent fighters. (50)
Chemical calmatives or malodorants. Additional chemical anti-personnel systems are also under consideration. The "holy grail" for researchers would be a chemical that produced an immediate incapacitating effect, but inflicted no lasting harm, and was safe and effective for the full range of human populations. That goal is likely to continue to prove as elusive as the real holy grail itself. (51) The unavoidable problem is the range of human physiology; a dose that would be just barely sufficient to generate the intended effect on one person would be simultaneously too much for someone else, causing death or lasting injury, and too little for a third person, not sufficing to ensure disability. Even in a closely controlled and monitored setting such as a hospital operating room, the proper amount of anesthetic can vary in dramatic and unpredictable ways. When police or military authorities confront a crowd that includes young, healthy kidnappers and infirm civilians, the proper amount of chemicals to apply becomes hopelessly inexact. (52)
Nonetheless, a pharmucopia of candidate chemicals is under exploration, including some that "becalm" a targeted person, rendering him or her listless, disoriented, or unconscious, (53) and "malodorants," substances that simply smell so bad that people--other than those pre-equipped with specialized breathing apparatus--feel compelled to escape. (54) Again, the utility of these concoctions is hotly debated. (55)
Projectile netting. Non-lethal weapons' capabilities tackle anti-vehicle missions, as well as anti-personnel missions. One of the most vexing cross-cutting demands is the challenge of stopping a fleeing or oncoming person, car, truck, boat, or airplane without inflicting permanent harm. A family of nascent capabilities seeks to employ netting of different composition and strength for these tasks. For example, a small anti-personnel version could be fired from a shotgun-like arm, flying out to ensnare a person in inescapable but non-damaging rope bindings. (56)
A larger, stronger version could tackle the job of stopping a car or truck possibly driven by a terrorist carrying explosives, but also possibly transporting a family of innocent civilians who did not recognize or understand signs and orders to stop. One model, denominated "Portable Vehicle-Arresting Barrier," could be embedded in a roadway near a contested military checkpoint and is portable enough to be transported by police to a highway ahead of a fleeing vehicle. It relies upon ropes and netting to entangle a vehicle's tires and undercarriage and is capable of stopping a 7,500 pound truck traveling at 45 miles per hour within a distance of 200 feet. (57) Trailing in the development sequence is the "Running Gear Entanglement System," a waterborne mechanism that the Coast Guard, for example, might use to interdict cigarette boats suspected of drug trafficking. If the suspect is fast enough to outrun law enforcement cutters, and the officials are constrained not to employ deadly gunfire in ambiguous circumstances, a neat alternative might be to launch a netting that could capture the target's propellers, forcing the craft to stop for boarding and inspection. (58)
Anti-materiel biological and chemical agents. Modern biotechnology and chemistry suggest a variety of other capabilities that might be adapted to police or military NLW missions. Genetically engineered microbes can be imagined--whether they can actually be created on a practical scale is still an open question--to degrade the petroleum in an enemy's repositories, to corrode rubber tires and gaskets on enemy vehicles, to abrade moving parts, or to perform other similar mischief. A particularly tantalizing image is a metal "embrittlement" agent or other supercaustic chemicals, which hypothetically could be spread surreptitiously by aerosol or liquid onto enemy tanks or other equipment, rendering them, unbeknownst to the enemy, much more fragile and vulnerable in combat. (59)
Again, critics question the feasibility of these devices (could microbiological processes work quickly enough to have a measurable effect on combat), their controllability (might they proliferate beyond the intended target area, befouling our own materiel), and their military value (if our agents could get close enough to enemy forces to deploy these devices, why not simply use ordinary explosives). (60)
Miscellaneous NLW concepts. This abbreviated roster of extant and nascent non-lethal weapons capabilities merely scratches the surface; enthusiasts have compiled inventories of two dozen or more NLW notions in varying stages of development. (61) Some seem hopelessly ambitious, others may be of questionable military or police value, but work is progressing apace. In one program, researchers are exploring high power microwave or electromagnetic pulse (EMP) devices that might be able to turn off the electrical system of an approaching car or truck at a standoff distance, so that even if the driver refused directions to stop at a checkpoint, the vehicle could be halted before it got too close. But so far, the concept works only against modern computer-assisted cars, not against the older, simpler iterations of vehicles that would be more readily employed against American forces by terrorists in developing countries. (62) Another mysterious technology would employ a "vortex ring generator" to create invisible energy circles (akin to smoke rings, but with a tremendous punch) that could be propagated through the air at fifty to seventy meters per second to collide with targeted individuals. (63)
Some of the new technologies may provide a modern twist to old problems. For example, a "ring airfoil grenade" might provide a new form of non-lethal bullet. The grenade would be an aerodynamic, soft rubber-like ring designed to spin in flight after being shot from a ordinary-looking firearm, making it accurate to forty to sixty meters, with a stunning--but not lethal--impact. (64) Another modest advance would be newer generations of "flash-bangs," multisensory grenade-like devices that an assault team could use to temporarily stun barricaded targets through dazzling lights, loud noises, and foul smells, enabling the authorities to seize control of the situation in the moments of chaos. (65) Other forms of momentarily blinding laser "dazzlers" might also be improved to provide a short-term advantage for a police or military assault squad. (66) Yet another program suggests creating a vast quantity of opaque, breathable aqueous foam--like a wall of soap bubbles--to disorient and subdivide a crowd. (67)
The candidate NLW technologies could be combined in all sorts of ingenious ways. A plastic bullet can be contrived to carry a packet of OC, to explode into a disabling spray upon impact; projectile netting might be outfitted to carry an electrical charge, to further encumber the victim. (68) As Malcolm Wiener has noted, even if a target of police or military forces came to the fray equipped to negate one form of NLW, it is difficult to imagine a terrorist or street-mob armed simultaneously with gas masks, earplugs, body armor, shield mirrors, sand (to throw on slippery foam), and medications (to combat nausea). (69)
D. Non-Lethal Missions
Where did all the sudden interest in NLW come from? What has inspired so many recent investigations into novel non-lethal concepts? This Section describes a few of the "classic" scenarios in which military and police officials imagine that new capabilities might prove useful and superior to existing arms that too often leave them inadequate flexibility and deftness. (70)
1. Military Scenarios
The first element animating the newfound military curiosity about NLW comes from "military operations other than war" (MOOTW). (71) American forces nowadays are increasingly deployed abroad to perform functions that differ in significant respects from the traditional notion of large-scale, force-on-force combat. Peacekeeping operations, for example, may emphasize the task of separating two wary combatants, providing a disengagement barrier to deter further fighting. An armed U.S. military force may sometimes provide the best such bulwark, but any exercise of traditional, lethal force--even in self-defense--might trigger an outbreak of the very hostilities the United States is seeking to avoid. (72)
Similarly, other military missions require a forceful presence, but with a discreet touch. If U.S. troops are performing a humanitarian mission--for example, providing protection for a relief mission that is distributing meals and medical services to a war-ravaged locale--it hardly makes sense to train deadly force upon the very people we are trying to aid. But what should the troops do if the populace, growing weary of their plight, riots at the sight of a food truck? (73)
To take a slight variant, imagine U.S. troops dispatched into a volatile country to provide protection for a U.S. embassy or base, or to help evacuate American civilians who have fallen into harm's way in the midst of a coup d'etat or a martial law situation. What should the troops do if their position is approached by a large and unruly crowd, a mob composed mostly of unarmed angry civilians, sprinkled with a handful of more determined armed provocateurs? In particular, what should the U.S. soldiers do if a shot is fired? Loosing indiscriminate lethal force upon the crowd is obviously unacceptable, but so is doing nothing while allowing the perpetrators a safe haven to keep firing. (74)
The first concerted application of significant NLW in modern military history came in just this sort of situation, where civilians and fighters were thoroughly mixed, and where U.S. forces could not adequately differentiate between threatening and non-threatening groups aligned against them. In 1995, the thirteenth Marine Expeditionary Unit was assigned the daunting mission of covering the withdrawal of 2,500 United Nations peacekeepers from chaotic Somalia, while providing protection against native war lords, disorganized military, and paramilitary units.
Lieutenant General Anthony C. Zinni boldly decided to include a variety of NLW in the Marines' training and equipment for this operation "United Shield," and his departure from standard operating procedures garnered a substantial amount of publicity. Among the unconventional tools deployed to Somalia were: sticky foam, used to create temporary, immediate barriers; caltrops, sharp-edged pyramids that could puncture the tires of vehicles following too closely; flashbang and stinger grenades; low-kinetic-energy rounds which fired beanbags or wooden plugs; laser dazzlers and target designators; and chemical riot control agents.
The mission was a resounding success, due at least in part to the deterrent effect of the unfamiliar non-lethal arms, which allowed the Marines to protect themselves and the UN forces, even against hordes of people pressing around them. The UN forces successfully completed their withdrawal from Mogadishu, and Lieutenant Zinni, reflecting upon the precedent-setting use of NLW, concluded, "I think the whole nature of warfare is changing." (75)
A rather different motivation for NLW has also emerged even in the context of full-scale traditional combat. (76) Since World War II, the United States and its allies have fought limited wars for limited purposes. Even during the most intense combat, the United States contemplates what will be done once the shooting stops, hoping to create the most advantageous post-conflict environment. In particular, it often turns out that the United States will help reconstruct the erstwhile enemy and, therefore, will share an interest in preserving intact as much as possible of the country's infrastructure. In short, the United States fights to win the war as quickly as possible, while simultaneously keeping one eye on winning the peace. The latter process is often materially assisted by avoiding cataclysmic damage to critical roads, bridges, power plants, and the like. (77)
Non-lethal weapons can provide a rare mechanism for pursuing both sets of goals simultaneously, preventing the enemy from using a resource to the detriment of the United States during the war, but also preserving it so it can more quickly and easily be restored to full functioning to assist the civilian economy in post-war recovery. For example, during the 1999 fighting in Yugoslavia, the United States refrained from attacking a crucial electrical switching installation in Belgrade with ordinary explosive ordnance. The facility was a legitimate military target, providing power used by the armed forces, but its complete destruction would also have retarded restoration of normal services to civilians during and after that short conflict. The solution was a "soft kill" attack: loads of carbon fiber strips were dropped onto the facility, causing massive electrical short-circuits and putting the grid out of order (thereby denying service to the military) in the short term. The results were reversible relatively rapidly, facilitating the subsequent restoration of normal service for peaceful purposes. (78)
Non-lethal weapons, therefore, offer the possibility of multiple technologies available for a variety of modern military missions. NLW may find application in both tactical, short-range maneuvers--e.g., to facilitate the operations and self-protection of a small unit operating within a confined space--and in strategic, long-range operations--e.g., to help prepare the battle-space by compromising the integrity of enemy assets such as airstrips and railyards long before assaulting troops arrive on the scene.
2. Police Scenarios
Like the military, the police (79) are frequently confounded by sensitive and complex use of force situations. The police may need, for example, to control an unruly crowd of demonstrators and to prevent them from destroying property, but they obviously do not want to apply deadly force. (80) They may need to pursue a fleeing felon, but high-speed car chases are notoriously dangerous in urban areas. (81) The police may need to subdue a belligerent person, especially someone intoxicated by alcohol or drugs, impeding compliance with verbal instructions, but ordinary measures of force can quickly become excessive. (82) They frequently need to transport a dangerous person--dangerous to himself, to the officers, and even to their squad car--to a station or jail. (83) Corrections institutions, too, are another plausible venue for law enforcement NLW; prison disruptions and riots can be disastrous, and conventional weaponry alone may not provide a sufficiently discriminating response. (84)
In the worst scenarios, police may confront a hostage or barricade situation, in which an armed individual or group is positioned in the midst of, and shielded by, innocents. Extreme measures of force may be required to apprehend and disarm the antagonist and free the victims--as well as to protect the police themselves--but too often bystanders may be jeopardized by a lethal crossfire. (85)
Like the military, police officials experience the most severe strains regarding the use of deadly force, and they do so on a daily basis. The "mixed" situation--any of those in which the legitimate target of force is intermingled with innocents--provokes the greatest disquiet; deft applications of official violence are, too often, impossible. Compared to military forces, police often operate at closer range and, quite frequently, with greater presence of nearby civilians and with an even greater intolerance for collateral damage. (86)
Against that background, police forces across the country have a much greater wealth of experience in operating the low-tech, inexpensive variants of NLW. But the available NLW arsenal for law enforcement is far from adequate. As far back as Lyndon Johnson's administration, the United States Government recognized the need for, and committed itself to develop and procure, safer and more effective mechanisms of crowd control. (87) Nonetheless, despite immense technological growth in so many other sectors of modern American life, domestic law enforcement officials still often feel that they are equipped little differently than their nineteenth century predecessors, such as Wyatt Earp; if somebody will not heed their verbal commands, their only real recourse is to a firearm.
In sum, non-lethal weapons carry the promise of important new capabilities for police and military units in the twenty-first century. It is difficult to predict at this point which of these novel systems will ultimately prove to be "revolutionary technologies" and which will be revealed as dead ends, but it is clear that something important is already occurring.
The most obvious and familiar manifestations of NLW innovation may be the least provocative: caltrops, flash-bangs, projectile netting, and the like are useful, but they can be improved only so much further and do not raise the most pressing questions of law, tactics, or ethics. Similarly, the JNLWD has concluded, and the Department of Justice seems to concur, that the wave of the future for NLW does not feature further refinements on kinetic energy projectiles--technology has, for the most part, gone about as far as possible with plastic, rubber, and wooden bullets--so future iterations of blunt trauma munitions will be noteworthy only if they can offer appreciably greater range, safety, or reliability.
For very different reasons, the realm of chemical and biological NLW proceeds under a cloud. As discussed in the next section, international obligations and domestic statutes put Biological Warfare (BW) entirely off limits, and there is little reason to want to disturb those strictures in order to proceed with biological or toxin weapons designed for antipersonnel applications. The notion of anti-materiel BW (bugs that would quickly and perhaps covertly degrade metal armor, petroleum products, or machine parts) still seems far-fetched. The Chemical Weapons Convention likewise takes most military applications of toxic chemicals off the table; despite the lingering notion that chemical combat (especially non-lethal chemical combat) might be useful and even humane in some circumstances, the global consensus has strongly moved in the opposite direction. Riot control agents--including possibly a wide range of new calmative, malodorant, and other concoctions--remain available for domestic law enforcement purposes, as well as for a host of "military operations other than war." The prospect of leakage from permitted chemical NLW operations into treaty-forbidden practices is a serious issue; so again, there is a cap on the future utility of non-lethal chemicals.
The realm of directed-energy NLW seems to be the most tantalizing prospect. The VMADS millimeter wave heat ray, the possibility of improved acoustic systems, and comparable mechanisms suggest the ability to affect people, buildings, and objects at standoff distances that would truly provide a revolutionary new capability. The technology is not yet battle-tested--the new Sheriff system planned for deployment in Iraq will provide the first operational evaluation (88)--but already there is reason to be hopeful that the new NLW can make a useful contribution in the most difficult engagements.
No one should be too sanguine about the promise of NLW; there have been plenty of instances in which a promising new military technology conspicuously failed to live up to its advance billing. And even advocates grumble that progress has been slower than anticipated in bringing advanced NLW concepts from the drawing-board into the field. (89)
What is clear, however, is the large and growing effort now being devoted to the enterprise. Government-sponsored research is progressing, loosely coordinated between the Department of Defense, which brings more money to the table, and the Department of Justice, which draws upon more extensive experience in operating NLW through state and local police forces. (90) Even more, private enterprise has adopted the NLW mission with alacrity and enthusiasm, and human inventiveness guarantees that candidate non-lethal programs of all sorts, based on a wide variety of physical mechanisms, will be explored and tested, and perhaps deployed and utilized, in the coming years. (91)
III. THE LAW OF NON-LETHAL WEAPONS
Both international and domestic law fail to make adequate provision for non-lethal weapons. The existing standards were, of course, crafted with other stimuli in mind, and contemporary treaties, statutes, and other legal tools have, for the most part, not yet been adapted to the unprecedented stresses and opportunities of the modern capabilities. Still, there are some shreds of law that do regulate the emerging world of NLW, for better or worse. (92) This Section explores three topics. First, it surveys the international context, treaties, and customary rules that govern selected aspects of the weaponry wielded by American and other armed forces. Second, it looks at the domestic U.S. statutory law that forecloses one important potential avenue of NLW research and development regarding biological weapons. Third, it examines the domestic U.S. constitutional and other law regulating police use of force, including NLW capabilities, and highlights the evolving jurisprudence in the field.
A. International Law on NLW
Only a few treaties deal directly with non-lethal weapons, and they do so in a distinctly incomplete fashion, but those few exemplars are worth exploring. Similarly, the international law of armed conflict imposes a number of general limits on the use of non-lethal weapons.
1. Chemical Weapons Convention
The first noteworthy relevant international agreement is the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention or CWC). (93) The CWC is a comprehensive edict against a particularly obnoxious form of combat, and it has attracted 164 parties, reflecting the world's consensus that this hideous scourge is to be avoided absolutely. (94) At the same time, however, the scope of the treaty's prohibitions must not be too broad. Because of the phenomenon of "dual capability"--many of the same chemical substances can be used both for weapons and for plastics, paints, fertilizers, and insecticides across the full spectrum of the global civilian economy--the treaty must be careful not to disrupt essential patterns of commercial activity. (95)
The CWC, therefore, defines its applicable coverage with care. A "chemical weapon" includes "[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes." (96) This definition leads to two other essential definitions. First, a "toxic chemical" is "[a] ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." (97) The most important of such toxic chemicals are identified on a series of three "schedules" annexed to the treaty and are the subject of a detailed verification regime, incorporating elaborate reporting and inspection requirements. (98)
Second, the term "purposes not prohibited under this Convention" includes an array of industrial, agricultural, medical, and other peaceful purposes, as well as "[l]aw enforcement including domestic riot control purposes." (99) This last exemption then requires the introduction of an additional set of crucial terms and constraints. Under the CWC, "[e]ach State Party undertakes not to use riot control agents as a method of warfare." (100) Riot control agent is then defined as "[a]ny chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure." (101)
The CWC further requires each party to declare the chemical name, structural formula, and registry number (although not the quantity produced, the location, or the purpose) of each chemical held for riot control purposes and to update the information within thirty days of any change. (102)
The interplay of these terms and their net effect on non-lethal chemicals have been muddled and controversial; the suitability of riot control agents on the battlefield has been a legal, tactical, and political quagmire for decades predating and under the CWC. (103) The United States has traditionally argued that riot control agents do not fit the criteria of "toxic chemicals" and are therefore not "chemical weapons" under the treaty. Accordingly, riot control agents may be produced, stockpiled, and deployed without limits,...
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