What Questions Should Congress Be Asking DoD About Civilian Casualties?

The Trump administration is due to submit today two important reports on civilian casualties—one to Congress and one to the public. In the time since President Donald Trump has been in office, his administration has secretly changed U.S. policy rules on the use of lethal force abroad, refused even to admit the new policy exists, increased the number of lethal operations in places like Yemen and Somalia, and­—according to independent monitoring groups like Airwars—was responsible for a significant uptick in civilian deaths in Iraq and Syria in 2017. In this context of increased secrecy, expanded military operations, and credible allegations of civilian casualties, congressional scrutiny of the executive branch is crucial.

Section 1057 of the 2018 National Defense Authorization Act (NDAA) specifically requires the Department of Defense (DoD) to report to Congress by May 1 all U.S. military operations that were “confirmed, or reasonably suspected to have resulted in civilian casualties” in the preceding year. A 2016 Executive Order separately requires the government to report today on civilian casualties in areas it deems “outside of active hostilities.” As Luke Hartig and Joshua Geltzer explained last week in a post focused on the Executive Order reporting requirement, these reports present the Trump administration with an important opportunity to “reverse a backslide towards opacity” in U.S. counterterrorism operations.

Key, however, will be Congress’ role in scrutinizing the NDAA report and asking the administration the right questions. To assist in this endeavor, we offer a short, annotated commentary of section 1057 of the NDAA. A DoD report including the detail we set out below would greatly enhance the perceived legitimacy of DoD civilian casualty tracking, enable a critical evaluation of strengths and gaps in civilian protection, provide an opportunity to establish more consistent and uniform practices for tracking civilian casualties across theaters and operations in the future, and, if made public, be an important step in acknowledging the harm civilians have suffered at the hands of the U.S. military. Accordingly, congress should do its best to hold DoD to the high standards to which the U.S. military rightly deserves to be held:

“(a) Annual Report Required.—Not later than May 1 each year, the Secretary of Defense shall submit to the congressional defense committees a report on civilian casualties caused as a result of United States military operations during the preceding year.”

Section 1057 includes United States military operations anywhere in the world, but does not cover those unilaterally carried out by the CIA (although notably the Executive Order requires reporting on civilian casualties by all agencies in “areas outside of active hostilities”).

What the report should include. The report should contain a list of all civilian casualty incidents involving the U.S. military, including in Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria and Yemen.  Congress should evaluate whether the report mentions types of operations in which DoD personnel are involved in other agency operations, including that of the CIA and Joint Special Operations Command, and how it evaluates and accounts for civilian casualties in those types of incidents.

Key questions for DoD

How is “operation” defined by DoD for the purposes of this report?

Does the DoD report include civilian casualties resulting from operations it conducts jointly with other agencies?

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“(b) Elements.—Each report under subsection (a) shall set forth the following:

(1) A list of all the United States military operations during the year covered by such report that were confirmed, or reasonably suspected, to have resulted in civilian casualties.”

By including “reasonably suspected” incidents, Congress likely intended to close the gap between public reporting and DoD’s own reports by expanding the range of cases to include those that DoD was not able to confirm due to its lack of access or other obstacles. However, as Ryan Goodman has recently noted, DoD has set an extremely high bar for assessing whether claims of civilian casualties are credible, by evaluating initial claims of civilian casualties—and not just allegations of wrongdoing—on the basis of “preponderance of evidence.” There is accordingly a concern that cases involving credible allegations of civilian harm will not be included in this report because they are judged not to reach the “indefensibly” high standard that the U.S. military applies to such assessments.

What the report should include. Congress should seek clarification about the way DoD interprets and defines “reasonably suspected,” how it assesses claims and reports of civilian casualties as worthy of further investigation, and an explanation of the weight it gives to different types of sources.

Key questions for DoD

How do you interpret and define “reasonably suspected to have resulted in civilian casualties”?

What sources do you rely on to assess whether an incident is “reasonably suspected to have resulted in civilian casualties”?

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“(2) For each military operation listed pursuant to paragraph (1), each of the following:

(A) The date.

(B) The location.

(C) An identification of whether the operation occurred inside or outside of a declared theater of active armed conflict.

(D) The type of operation.”

As noted in a joint report by the Columbia Law School Human Rights Clinic and the Sana’a Center for Strategic Studies, which two of us co-authored, the release of disaggregated, statistical information is key to understanding the true cost of U.S. lethal operations abroad. The 1057 NDAA provision goes some way towards ensuring transparency in this area by requiring the disclosure of the date, location and type of operation in relation to each military operation.

What the report should include. The report should include as much specificity as possible to facilitate the comparison of U.S. government estimates with independent claims of civilian casualties by civil society and independent monitors. For instance, outside groups such as Airwars depend heavily on specific locational data to connect reports from NGOs and individuals to correctly attribute the incident.

Key questions for DoD

Does the report include operations in which the U.S. military was working with other government agencies? How are civilian casualties evaluated in such operations?

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“(E) An assessment of the number of civilian and enemy combatant casualties.”

Section 1(e) requires DoD to include the number of “civilian and “enemy combatant casualties.” Central to the collection of civilian casualty data is the actual definition used of “civilian.” If the definition is a narrow one, then the civilian casualty figures will be much lower, and vice versa. Civil society organizations and commentators have long been concerned that the administration may be undercounting or overlooking civilian casualties.

What the report should include. The report should contain definitions of “civilian” and “enemy combatant” used by DoD, with a detailed explanation of how these concepts are applied and how “civilian” or “enemy combatant” status is determined. Congress should check to ensure that the report includes both those killed and injured, as the reporting requirement includes all “civilian casualties,” not just civilian deaths.

The report should also include the number of casualties for which it has not been able to make an assessment of status. DoD should also include the names (as possible and with appropriate concern for privacy or physical safety) of civilians and “enemy combatants” so that names can be de-conflicted with outside sources of reporting.

Key questions for DoD  

How does DoD define “civilian” and “enemy combatant”?

How does DoD tabulate individuals killed and injured whose status is unknown?

Does DoD share geo-locational data with outside groups to enable cross referencing of civilian casualties with DoD operations?

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“(3) A description of the process by which the Department of Defense investigates allegations of civilian casualties resulting from United States military operations.”

Section (3) calls for a description of the process of how allegations of civilian casualties are investigated.

What the report should include. DoD’s report should include details not only about the process for formal administrative or criminal investigations, but also about how DoD initially assesses the credibility of external and internal reports of harm. This should include the criteria by which internal and external information is assessed; how DoD determines which cases to investigate and what form those investigations take; whether witnesses, victims, and family member were interviewed—a key concern that has been previously highlighted by civil society organizations; the records DoD considers in its investigations; and the means by which DoD compensates for the lack of access to witnesses when applicable. The report would also be much more useful if it contained information on actual investigations conducted and the specific outcomes in those investigations, so that it is possible to assess whether the system itself is working.

Key questions for DoD

What criteria do you apply to assess the credibility of external allegations of civilian harm?

Do you carry out interviews—remotely, or in person—with alleged victims and eye-witnesses? If not, why not?

What methods have you used to overcome security or physical obstacles to accessing a site or witnesses?

On what bases are formal investigations into civilian casualties conducted, and how are otherwise credible reports of civilian casualties that fall short of meeting these bases dealt with?

What are the outcomes of investigations into specific incidents of civilian harm in the past year?

Who has the responsibility for the preliminary evaluation of civilian casualty claims, and how are they trained?

How does DoD share information about the status of an investigation with victims, their families, or others?

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“(4) A description of steps taken by the Department to mitigate harm to civilians in conducting such operations.”

Section 1057(b)(4) requires DoD to report on steps taken to mitigate harm to civilians.

What the report should include. This part of the report will be most useful if it includes not only general information but also incident-specific information, as this will help give an indication of what the U.S. military has actually done in particular cases, and whether efforts to mitigate civilian harm are working. The report should include how it reduced the risk of harm in specific cases or through specific directives or tactics, techniques, and procedures. The report should also set out how personnel are trained and educated in civilian harm mitigation, and how and if sources of doctrine, such as the Army Techniques Publication on Civilian Casualty Mitigation is followed. For strikes resulting in civilian casualties, DoD should also explain what lessons were learned, and how and whether practices and procedures were changed to mitigate civilian harm.

Key questions for DoD

What specific measures did DoD take to mitigate harm to civilians in the incidents listed in this report?

What lessons were learned from the incidents listed in this report, and what measures were taken after these incidents to mitigate future civilian harm? What assessment has been made of those measures to evaluate whether they are effective?

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“(5) Any other matters the Secretary of Defense determines are relevant.”

It is not clear what DoD might include here, but Congress should be asking important questions about compensation, ex gratia payments, and apologies for civilian casualties caused by the U.S. military. Civil society organizations and civilians harmed in strikes by the U.S. military continue to demand proper acknowledgments, apology and condolence payments, but it is unclear that DoD is operating in a standardized way.

What the report should include. In particular, Congress should demand information on payments DoD has made (including relating to which country and to whom the payments were made), the criteria for who is entitled to these forms of redress, as well as details on any obstacles to implementing the program in places where Congress has provided the authority and funding to do so and means of overcoming them.

Key questions for DoD 

What criteria does DoD use to assess whether a civilian is entitled to compensation or condolence payments?

Has DoD made any payments of compensation or solatia in relation to any of the incidents listed in this report? How much was paid and through what means?

Has DoD publicly acknowledged and apologized to civilians harmed in the incidents listed in this report? If not, why not?

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“(c) Use Of Sources.—In preparing a report under this section, the Secretary of Defense shall take into account relevant and credible all-source reporting, including information from public reports and nongovernmental sources.”

Congress made clear that the defense secretary must take into account “relevant and credible all-source reporting, including information from public reports and non-governmental sources.”

What the report should include. Civil society organizations have long called for more information on how the U.S. government assesses external sources and for explanations where there are discrepancies between U.S. government findings and those of the United Nations, human rights organizations, and journalists—who are all often able to access many of the witnesses and sites which DoD does not. 

Key questions for DoD

What public and NGO reporting was consulted for the purposes of this assessment?

According to what criteria was the public and NGO reporting assessed? How did DoD address discrepancies between external reporting and DoD’s own documentation of specific incidents?

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(d) Form.—Each report under subsection (a) shall be submitted in unclassified form, but may include a classified annex.

Section 1057 allows for part of the report to be submitted in a classified annex. Some of the information in the report may have to be classified for legitimate reasons of national security and because revealing that information may specifically endanger someone. This may also be beneficial in allowing Congress to exercise fuller oversight by allowing it to see both classified and unclassified material. However, it should be recalled that the previous administration released to the public similar reports on civilian casualties on two occasions, and that there is a strong public interest in disclosure of this information. It also really matters to the civilians harmed in these operations. As Abdulrasheed al-Faqih recently wrote: “Acknowledgment of accidental civilian deaths can be a vital step toward preventing further acts of violence.” 

Key questions for DoD

When will the report be publicly released?

Image: Afghan war amputees and children practice walking at the International Committee of the Red Cross (ICRC), orthopedic center in September, 2011 in Kabul, Afghanistan. Photo by John Moore/Getty Images

 

About the Author(s)

Daniel R. Mahanty

Director for the U.S. program at the Center for Civilians in Conflict; served at the State Department (1999-2015); led the creation of the Office of Security and Human Rights in the Bureau of Democracy, Human Rights and Labor. Follow him on Twitter (@danmahanty).

Alex Moorehead

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute Follow him on Twitter (@apmoorehead).

Rahma A. Hussein

Legal Fellow at Columbia Law School’s Project on Counterterrorism, Armed Conflict and Human Rights