Targeting Transparency: A Call for DoD to Automatically Release Investigations of Civilian Casualties in Armed Conflict

There has been much discussion on the lack of demonstrable government follow through after President Obama’s 2013 claims of increased transparency of US lethal targeting of suspected terrorists. In his State of the Union address, later reinforced in remarks at National Defense University, the President

recognize[d] that in our democracy, no one should just take my word for it that we’re doing things the right way.  So in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.

Yet months have become almost a year-and-a-half with little discernible increase in transparency. Somewhat ironically given the manner in which it conveys information, the Department of Defense is even purportedly frustrated with the delay.

This post suggests a step which could be quickly implemented and constitute actual transparency: for DoD to automatically release redacted post strike investigations of allegations that civilians were seriously injured or killed during armed conflict engagements involving DoD personnel. The defense department is and has been conducting these investigations, generally in a thorough and professional manner. And most of these investigations are already releasable by request.

Releasing the investigations occupies the accountability narrative field, disrupting claims that the US isn’t concerned about civilian casualties or investigating and holding its service members accountable. Moreover, release at least partially counters Al Qaeda false propaganda concerning a number of incidents. Release also has the added benefit of reinforcing the US’ lex specialis argument on the application of the law of armed conflict when evaluating whether use of lethal force was appropriate.

This step would not apply to the CIA or to pre-strike targeting criteria. And as discussed below, to the extent it applies to Joint Special Operations Command (JSOC) drone strikes in Yemen and Pakistan, the corresponding release of investigations would be more limited. Nonetheless, while human rights groups will find the disclosures only a partial step, it nonetheless constitutes progress in an absolute sense. In a relative sense, given the dearth of any significant action thus far, automatic disclosure of post strike investigations would constitute significant progress.

DoD is and has been conducting investigations into civilian casualties

For the US military, conducting investigations while still in the fight is nothing new. Civilian colleagues are often surprised when in response to the question of what did I do as an Army Judge Advocate (JA) in Iraq I respond with “investigations.” I was one of two Army JAs assigned to a Stryker Brigade Combat Team (SBCT) in Mosul, Iraq. The SBCT was comprised of roughly 4000 Soldiers. I estimate that 40% (if not more) of my and fellow JA JJ Merriam’s time was devoted to ensuring investigations were properly initiated, conducted, reviewed and completed. What did our unit investigate? Basically any incident that involved one of our units and injury to a civilian requiring hospitalization or significant civilian property damage.

In terms of triggering an investigation, it didn’t matter whether US forces or insurgents caused the injury or damage. That’s because the primary purpose of the investigations is to document what happened, where, when, how and why and whether there were any lessons learned or other follow-on action warranted.

Lest readers think this was military lawyering run amok, the SBCT commander determined our unit investigation criteria, which supplemented the Army’s criteria. This was not an invention of my commander. US military officers, even those in vital positions, like commanders and operations officers, have always served as investigating officers into incidents involving other units while their own units continued the fight. Post Vietnam armed conflicts prior to Operations Enduring Freedom in Afghanistan and Iraqi Freedom in Iraq were just of such short duration that the issue of investigating while fighting less seldom arose.

While there was some initial pushback from our subordinate units, over time they recognized the benefits from a timely, professional investigation conducted by a line officer with situational awareness of the operating environment. These investigations provide important feedback to the military commander seeking to maximize unit effectiveness in accomplishing their mission. They also document events likely to receive interest from the media, higher commands, or mischaracterized in insurgent propaganda.

The investigations led to any number of outcomes. Some led to modifying how units interacted with the local population or conducted convoy or checkpoint operations. Others led to soldiers being retrained, and a small number led to the initiation of adverse administrative or criminal action against US service members. The investigations also documented the lack of US involvement in alleged civilian casualties and property damage, as in one instance where insurgents waited for the presence of a bus full of school children to initiate an ambush of a unit convoy. Through cross-referenced interviews, sworn statements, revisiting the scene and nearby hospitals, the investigation documented that no children were wounded.

During my time in Iraq, my unit conducted several hundred investigations. And while other units and commands had slightly different triggering criteria, my unit was not unique. The bottom line is that the US military investigates civilian casualties during armed conflict. The investigations are fraught with difficulties and challenges. The overwhelming majority of these investigations are, under the circumstances, thoroughly and professional conducted, reviewed, and completed.

Admittedly, investigations of incidents by conventional units in an operating environment in which they are present on the ground are generally speaking easier than those of drone strikes in Pakistan and Yemen and/or those conducted by JSOC. Classification of JSOC units, sources, methods, and tactics, host nation deniability of cooperation with the US, and lack of on the ground presence add complexity to an already difficult task.

Regardless of those challenges, DoD conducts investigations of drone strikes claimed to have seriously injured or killed civilians. Where the US military at all levels remains seemingly perpetually challenged is in showing its work.

Most DoD investigations are already releasable

Not only are these investigations being conducted, at least in terms of the conventional military, they are largely releasable under the Freedom of Information Act (FOIA). This requires someone taking the affirmative step of making a request. If DoD is serious about transparency, why not automatically release at least certain types of investigations?

The status quo is disorganized and inconsistent, which yields the needlessly unfortunate result of undermining the hard work and dedication of military units conducting the investigations under trying circumstances.

Individuals and entities request investigations and then post portions online, often on websites with, to put it mildly, diverse perspectives and outlooks on government and society. The administrative process and delays in obtaining the investigations then plays into a “this is the information the government doesn’t want you to know” conspiracy narrative.

To varying degrees of efficacy there are FOIA online “reading rooms,” DoD websites containing investigations and other releasable information (for examples, Office of the Secretary of Defense/Joint Staff and the US Army). But these sites contain a number of dead links and often only contain investigations which someone has already requested under FOIA, and not even all of them. When you do reach the right DoD website and there are investigations listed, there is little to no organization. Indeed, when searching for Army investigations, one is currently far better served looking at an ACLU website, which, unlike the US Army, has organized a number of investigations of civilian casualties and in one place.

DoD can and should do a better job of online availability and organization of military service and combatant command investigations already released. Why can’t Central Command (CENTCOM) ensure that subordinate units investigating alleged serious civilian injury forward those investigations to CENTCOM, where they would be reviewed, redacted as appropriate, and posted online under “Civilian Casualty Allegations”? From there, if DoD is serious about transparency of targeting operations, why not affirmatively and automatically release post strike investigations into civilian casualties?

Ultimately, the US will need to determine how it prioritizes competing interests associated with JSOC drone strikes. If following through on claims of increased transparency, providing the public with how the US assesses civilian casualties, and countering Al Qaeda propaganda trump, the US will release highly redacted investigations or summaries of JSOC drone strikes. If the operational security or host nation concerns trump, the US will not release and the gap between claims of transparency and actual transparency will only increase, as will the lost ground in the accountability narrative. But the answer to the release of JSOC drone strike investigations need not impact this proposal.

While JSOC, the CIA (which is outside the scope of this proposal), and drone strikes in Yemen and Pakistan receive considerable public attention, its important to place them in context in terms of causation of alleged civilian casualties. There is simply no comparison between the levels of magnitude of US conventional operations involving hundreds of thousands of service members and the small numbers of JSOC personnel and missions. Correspondingly, the vast majority of resulting civilian casualties have involved US conventional forces. While by no means discounting alleged civilian casualties stemming from JSOC/Pakistan/Yemen drone strikes, greater focus should be placed on increased transparency for the source of the greater number of civilian casualties: conventional military operations.

While it’s laudable to strive for increased transparency of all US targeting operations which are credibly alleged to have seriously injured or killed civilians, we need not–and we should not–let perfection be the enemy of the good.

If you do not occupy the narrative field with your version of what happened, someone else will. It is past time for the US to regain the accountability and transparency high ground it never need have lost in the first place.

DoD can and should automatically release redacted post strike investigations of civilian casualties stemming from incidents involving conventional US military units. Investigations have been (and in Afghanistan are still being) conducted. These investigations are releasable. DoD should organize and release them proactively. We have more to gain than to lose. 

About the Author(s)

Chris Jenks

Assistant Professor at the SMU Dedman School of Law, Formerly Served in the United States Army, Former Chief of the Army’s International Law Branch in the Pentagon Follow him on Twitter (@ChrisJenks_SMU).