The firefight that would take the lives of two Pearl Harbor-based SEALs in the mountains of Afghanistan had yet to come, but what preceded it was a moral, legal and ethical dilemma.

Three goat herders — a boy about 14 and two adults — had stumbled on the four-man SEAL team after it had been dropped deep behind enemy lines at the 10,000-foot level in June 2005.

Now, the SEALs had to decide what to do with the three Afghans.

They could kill the unarmed trio and worry about the repercussions, or they could let them go. There was serious consideration of both.

Former Pearl Harbor SEAL Marcus Luttrell wrote in his book, "Lone Survivor," that "if we were thinking like ordinary law-abiding U.S. citizens, we would find it very hard to carry out the imperative military decision, the overriding one, the decision any great commander would have made: these guys can never leave this place alive."

Instead, their consciences weighed on them. The SEALs let the civilians go, giving them the chance to alert the Taliban. Within hours, the SEALs were attacked by 80 to 100 heavily armed Taliban fighters.

The actions of the SEALs, and those of some Schofield Barracks soldiers in Iraq, recently made headlines, but with far different results. Both involved unarmed civilians.

Lt. Michael Murphy, one of the Pearl Harbor SEALs killed in Afghanistan and the team's leader, received the Medal of Honor posthumously on Oct. 22.

Four days earlier, a military judge heard a Schofield Barracks soldier testify that he had witnessed his platoon sergeant in June shoot an unarmed Iraqi man who had refused to pick up an AK-47 assault rifle and whose hands were on his head.

That case, too, involved moral, legal and ethical decisions, but resulted in premeditated murder charges against two Schofield soldiers that are still pending.

Other soldiers testified that an order had been given to shoot at unarmed villagers and kill all "military aged males" during the same mission.

Both point to the difficulty and uncertainty of battlefield decisions, and squaring those decisions with the sometimes confusing, sometimes changing "rules of engagement," or ROEs, that govern when a U.S. service member can and cannot shoot in a war zone.

Eric Seitz, a Honolulu defense attorney who has handled hundreds of military cases, said ROEs are what combat troops debate the most.

"Let me tell you, if you talk to any current student at West Point, you can find this debate — it rages," Seitz said.

"This is the debate that rages most significantly in their ethics classes — about what to do in these circumstances."

There are plenty of opinions to go around.

J.J. Aguirre, a former Kane'ohe Bay Marine who fought door-to-door in Fallujah with the 1st Battalion, 3rd Marines, against a determined enemy in late 2004, said "it's easier for someone to see it from the outside versus someone who's actually had to apply it." Combat troops receive pocket-sized rules-of-engagement cards that in the past have included seven conditions to fire on a perceived enemy, including the requirements that a threat has to be clearly seen and identified.

But those rules have varied in practice depending on the level of threat, and what is determined to be hostile action.

"No matter how you go about it — whether you break the ROEs or you use the ROEs — people are going to be upset because, 'My home got burnt down, my little girl got killed, or boy,' " said Aguirre, 25, who now lives in Fayetteville, N.C. "It's just being in the wrong place at the wrong time and insurgents use that to their advantage."

Fighters would drop their weapons, blend into the civilian population and pick up a rocket-propelled grenade on a neighboring rooftop.

RULES TOO VAGUE?

In Fallujah, as elsewhere, U.S. troops had to make split-second life-or-death decisions. Even then it sometimes was too late. Sgt. Rafael Peralta, a Kane'ohe Bay Marine, was shot by three waiting insurgents when he opened the door of a room in Fallujah in 2004.

Shot in the face and torso, he had the presence of mind to pull an enemy grenade into his body, saving four other Marines. He was recommended for the Medal of Honor.

Former Secretary of State Colin Powell wrote in his book, "My American Journey," about his Vietnam experience, saying, "The kill-or-be-killed nature of combat tends to dull fine perceptions of right and wrong."

At the same time, some have accused the Pentagon of employing loose rules of engagement in Iraq and Afghanistan as cover for civilian casualties.

Last February, William B. Caldwell, then a major general and spokesman for Multinational Force-Iraq, said the rules were neither vague nor confusing.

Caldwell said the overriding rule is that "nothing in our rules of engagement prevents our troops from using necessary and proportional force to defend themselves." Combatants must distinguish individuals presenting a threat from innocent civilians, he said, while also acknowledging that that might be difficult to do.

"In the counterinsurgency we are now fighting, disciplined application of force is even more critical because our enemies camouflage themselves in the civilian population," he said. "Our success in Iraq depends on our ability to treat the civilian population with humanity and dignity, even as we remain ready to immediately defend ourselves or Iraqi civilians when a threat is detected."

But in July testimony in the case of Camp Pendleton Marines accused of killing 24 civilians in Haditha, Iraq, the definitions of positive identification, hostile intent and hostile action were shown to be subjective, and could change from one area to the next, one day to the next, the Los Angeles Times reported.

Capt. Jeffrey Dinsmore, who was a battalion intelligence officer, testified that there was continuing conflict between frontline Marines and upper-level officers about what constituted positive identification and what behavior defined hostile action, the Times said.

Charges have been dropped against four Marines, and cases against four others either remain pending or have been referred for court-martial.

'I HAD TO DO SOMETHING'

The ambiguity of combat often blurs the edges of such cases, or mitigates the penalties, experts say.

In the case involving the two Schofield soldiers, Sgt. 1st Class Trey A. Corrales, 35, of San Antonio, and Spc. Christopher P. Shore, 25, of Winder, Ga., were charged with one count of premeditated murder in the death of an unidentified Iraqi man on June 23 in al Saheed near the northern city of Kirkuk.

The Army accused Shore of shooting the Iraqi after being ordered to do so by Corrales. The soldiers were looking for roadside bomb planters, and spray tests turned up positives for explosives residue.

A fellow soldier testified at a preliminary hearing last month for Shore that Corrales pulled the Iraqi man out of a house that had been secured, and told him to run.

As the confused Iraqi started backing up, the soldier said he saw Corrales start to raise his weapon. The soldier said he turned, not wanting to see what came next, and heard up to five shots.

After being ordered to "finish" the wounded Iraqi by Corrales, Shore said, "I had to act. I had to do something."

He said he fired off two shots in the dirt, to the side of the Iraqi's head without Corrales seeing that he did not shoot the man. But he acknowledged that he had previously said he had shot at the Iraqi because he thought the incident would be swept under the rug and he did not want to get on Corrales' "bad side."

Several soldiers testified that Corrales was a mercurial and tyrannical platoon sergeant who told them to "kill all military-age males" in the village and the target house.

The soldiers said they did not believe Corrales actually wanted them to kill people indiscriminately, but there was testimony that shots were fired at villagers.

Lt. Col. Raul Gonzalez, the officer who presided over the hearing last month to determine whether Shore should be tried, recommended recently that Shore not be tried for murder, but that he should be court-martialed for aggravated assault.

Gonzalez also said there was "overwhelming evidence" showing Corrales shot at the man multiple times with the intention of killing him. Corrales waived his right to a hearing prior to a decision on whether he should be court-martialed for the Iraqi's killing.

A decision on how to proceed on both cases by Maj. Gen. Benjamin R. Mixon, the commander of the 25th Infantry Division, is not expected before Dec. 10.

OBLIGATIONS

Seitz, the defense attorney, said in neither the Iraq case nor in the mountains of Afghanistan, were shootings of civilians justified.

The SEALs — three out of Hawai'i and one from Colorado — were worried that if they killed the Afghans, they would have faced charges, and Seitz said "they are right, and they would have and they should have" if they had gone through with it.

"Basically, military expedience and protection of yourself in a vague and murky situation is not a justification for using deadly force against unarmed people," Seitz said. "Otherwise, anytime in the middle of battle, if you take a prisoner, you could shoot him."

The Geneva Conventions set out that once prisoners are taken, there are obligations toward them, he said.

Ultimately, the rules of engagement may have worked in the mountains of Afghanistan — with tragic results for three of the four SEALs on the mission.

And in al Saheed outside Kirkuk, they may not have worked.

"If the discipline on the field is undermined by people who either have their own agenda or are not properly trained, then it doesn't work," Seitz said.

Reach William Cole at wcole@honoluluadvertiser.com.