Thus far, many discussions of the US military’s release of a 120-page detailed report of the lawfulness of its attack on the Médicins Sans Frontières (MSF) facility in Kunduz, Afghanistan have focused on the war crimes question (though the commentary is starting to branch out to other topics). I want to highlight three of the report’s far-reaching implications that have yet to receive significant attention: the relationship between transparency and our national security interests, the possibility of a judicial check on military uses of force, and the availability of relief for those harmed by unlawful military actions.
At the most general level, the report’s extraordinary transparency naturally raises the question of whether such transparency would better serve our national security interests if it were made routine rather than reserved only for highly controversial and error ridden cases. More specifically, the report’s clear and extensive legal analysis provides a blueprint for how to analyze the lawfulness of military uses of force. Given the transparency of the report’s legal analysis, it suggests that the judiciary could provide an effective check on the military’s self-reporting and that Article III judges could, in fact, review military uses of force as well. Finally, the admission that condolence payments have been provided “to more than 170 individuals and families affected by the tragedy” raises the question of whether civilians harmed by unlawful military strikes in far less publicized cases should also be eligible for legal relief from the US.
I. Transparency and National Security
While the military, and the Obama administration more generally, should be applauded for their public reckoning of errors committed, one can’t help but wonder why this kind of transparency is so rare. Some may consider the public accounting in the report to be risky from both a policy and a propaganda perspective. The more facts that are released — the report was accompanied by several hundred pages of additional materials from the investigation — the more they can be subject to nitpicking and manipulation, both at home and, more dangerously, by enemies abroad.
However, these fears quickly become self-fulfilling prophecy if transparency is only exercised in tragic and contentious cases like the Kunduz strike. Moreover, the historic lack of transparency has had real costs for US national security as allies have become wary partners and curtailed intelligence sharing over fears that US military practices are not governed by a commitment to the law of armed conflict (LOAC). The Kunduz report shows that frank transparency in military operations is possible. Our national security and public relations interests show that public demonstrations of the US military’s commitment to the LOAC should be routine rather than reluctant.
II. A Judicial Check on Military Uses of Force
One avenue of transparency the executive branch has consistently worked to block is judicial review of military incidents such as the Kunduz strike in Article III courts. The executive has maintained that federal judges would be ill-suited to review military uses of force. Even judges themselves have hidden behind a host of judicially created doctrines to avoid a merits-based review of military strikes.
The Kunduz report shows that the legality of how specific strikes are carried out is distinct from, and can be assessed quite independently of, policy decisions to use military force. (This is contrary to the government’s recent political question argument in Ali Jaber v. United States.) The report identifies the law that governs the military’s use of force, as well as the criteria of reasonable compliance and unreasonable violations. The report then demonstrates how to apply those legal standards to a complex set of facts. For example, the report clarifies how the military interprets and applies distinction and proportionality:
The GFC [ground force commander] and the Aircraft Commander failed to identify the MSF Trauma Center as a lawful target. Therefore, it should have been presumed to be a civilian compound. …
Proportionality assumes that the target to be engaged is a lawful military objective. Therefore, any engagement of a target that is not a lawful military objective is facially disproportional.
It then draws clear conclusions about the overall unlawfulness of the attack: “The GFC and aircrew failed to comply with the LOAC.”
The report’s detailed analysis of the LOAC principles of distinction, proportionality, and precaution in attack demonstrates that the legal analysis is neither arcane nor beyond the competency of Article III judges. Given the detailed analysis of core LOAC principles carried out in the report, there is no reason to think that federal judges would be ill-suited to review the military’s analysis for its accuracy and reasonableness. Indeed, judges could do so in a manner formally equivalent to a court’s review of any agency’s compliance with its own governing rules.
Some may protest that adjudicating claims based on law of war violations is simply not the province of Article III courts. However, as I argue in a recent piece in the Yale Journal of International Law, those critics must answer to “the long line of cases” from Little v. Barreme to Boumediene v. Bush in which Article III courts have asserted their authority to grant “judicial relief … against unlawful actions taken in the context of foreign and military affairs.” As the Supreme Court recently affirmed in Boumediene, the judicial power to review “the Executive’s powers as Commander in Chief” is one of the most “legitimate” and “necessary” responsibilities “[w]ithin the Constitution’s separation-of-powers structure.” Both our constitutional structure and two centuries of case law support the view that our courts have the competency and authority to review military uses of force.
III. A Legal Remedy for Civilians Injured in Unlawful Attacks
Finally, the release of the report and admission of condolence payments raises the question of the availability of legal recourse for civilians harmed in attacks that do not receive the degree of international outcry and publicity that has surrounded the tragic strike on the MSF facility. The law as it stands is relatively clear that damages are (at least practically) unavailable for suits challenging the lawfulness of military uses of force in armed conflict. Judicial review is also controversial and may be legally barred in the “hot battlefield” context in which the Kunduz strike was conducted. However, at least for uses of force away from “active hostilities,” and even if damages are unavailable, Article III courts are empowered to issue declaratory judgments on the compliance of military strikes with the LOAC.
The availability of a declaratory judgment would serve both the dignitary interests of victims and further our national security interest through increased transparency. The recognition and respect of formal legal proceedings may bring closure to the wrongful deaths or injuries of victims. A declaratory judgment may have the further effect of either publically demonstrating the military’s adherence to the LOAC, or prompting internal reform where specific attacks are found to be carried out unlawfully. If the President and military are truly interested in convincing the American people and our allies of the legality and legitimacy of our military and counterterrorism operations, a declaratory judgment on the lawfulness of an operation presents an excellent avenue for doing so. As I argue in the context of drone strikes, the government should embrace ex post judicial review of lethal military force as the best way to vindicate our commitment to the rule of law and bolster our national security.
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Whether or not the Kunduz report got the war crime question right, it has the potential to be a critical first step in reestablishing transparency and rule of law in our military affairs. A transparent demonstration of our adherence to the rule of law is not only essential in a democratic nation founded on separation of powers, it is crucial in a world where intelligence sharing and the support of our allies is necessary to our national security. Given the value of intelligence cooperation in counterterrorism, transparency in our military affairs should be a national security priority.
The views expressed in this post are the author’s alone and not necessarily those of the US government.