On the same day that The New York Times Magazine published a disturbing account of the monumental gap between the number of acknowledged civilian casualties and the number of casualties found by the Times’ reporters, Congress passed two little-noticed but very important provisions on oversight of civilian harm and reporting on counterterrorism operations as part of the FY2018 National Defense Authorization Act (“NDAA”).
Changes to the Legal and Policy Frameworks Governing Military Force
Section 1264 of the NDAA requires the president to submit a report within 90 days to the appropriate congressional committees on the legal and policy frameworks governing the United States’ use of military force and related national security operations, à la the report by the same name released by the last administration to the public in December 2016. The 2016 Report, which was widely praised as a major step forward on transparency, covered the full range of issues related to overseeing the use of military force, from the scope of authority under the 2001 Authorization for Use of Military Force to detainee captures, prosecution, and treatment. President Obama issued a memorandum alongside the report mandating that it be updated annually and released to the public.
It is of course up to the new president to decide whether to continue this practice of transparency to the public, but at a minimum, lawmakers have now mandated that the Trump Administration at least provide updates to Congress. The initial report to Congress must include “the legal, factual, and policy justifications for any changes made to such legal and policy frameworks during the period beginning on January 20, 2017, and ending on the date the report is submitted.” In other words, the Trump Administration must explain any changes in policy—including the reported changes to the Presidential Policy Guidance governing lethal strikes outside areas of active hostilities—as well as any changes to how it interprets its legal authorities for using military force and provide the reason for the change.
Importantly, the bill also includes an ongoing requirement to inform Congress of any future changes within 30 days and again provide the legal, factual, and policy reason for the change.
Civilian Casualties Reporting
The NDAA also contains a provision requiring annual reporting to the congressional defense committees on civilian casualties caused as a result of U.S. military operations during the preceding year. The report must include a list of all U.S. military operations (not just airstrikes) that were confirmed or reasonably suspected to have resulted in civilian casualties. For each such operation, the report must provide the date, location, whether the strike was inside or outside areas of a declared theater of active armed conflict, the type of operation, and an assessment of the number of civilian and combatant casualties.
The provision also separately requires a description of the Defense Department’s process for investigating allegations of civilian casualties and a description of the steps taken by the Defense Department to mitigate harm to civilians caused by U.S. military operations. And, last but not least, the bill includes an important requirement to take into account “relevant and credible all-source reporting, including information from public reports and nongovernmental sources.”
Needless to say, both of these provisions are incredibly important steps forward. As dozens of former national security officials wrote to the Trump Administration earlier this year:
While certain kinds of information must remain secret in the interest of national security, transparency to the public and oversight by Congress enhances the legitimacy of U.S. actions. Public disclosure regarding the legal and policy frameworks pursuant to which the U.S. operates—and the effects of those operations—enables the United States to broadcast successes; restore credibility when mistakes occur; and correct erroneous allegations of civilian casualties or unlawful operations that fuel enemy propaganda and recruitment, and can turn allies, partners, and local populations against the United States. Effective congressional oversight helps maintain confidence in U.S. operations when certain details must be withheld from the public.
Congress should be applauded for the bipartisan effort that went into passing these provisions. The administration, for its part, should ensure that as much of these reports as possible are provided in unclassified form and make them available to the public.
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