The text of the National Defense Authorization Act for Fiscal Year 2019 just reported out of conference contains two important provisions related to civilian casualties resulting from U.S. military operations.

The first provision, Section 936, requires the designation of a senior civilian official within the Department of Defense to “develop, coordinate, and oversee compliance with the policy of the Department relating to civilian casualties resulting from United States military operations.” The Under Secretary of Defense for Policy is tasked with designating a senior official within the Office of the Secretary of Defense who must be at or above the Assistant Secretary of Defense level.

Importantly, the senior civilian official is also tasked with significant responsibilities, including ensuring that the Department’s policy he or she develops and oversees provides for seven key components (plus a catchall):

● Uniform processes and standards across the combatant commands for accurately recording strikes;

● Development and dissemination of best practices for reducing the likelihood of civilian casualties;

● Development of publicly available means, including an internet-based portal, for outsiders to submit reports of civilian casualties;

● Uniform processes and standards across the combatant commands for reviewing and investigating reports of civilian casualties, including consideration of relevant information from all available sources;

● Uniform processes and standards across the combatant commands for a) acknowledging U.S. responsibility for U.S. caused casualties and b) offering ex gratia payments as appropriate;

● A process for regular engagement with relevant intergovernmental and nongovernmental organizations;

● Public affairs guidance; and

● Any other matters related to civilian casualties the senior civilian official considers appropriate.

Lest this important set of duties fall to the wayside, Congress wisely provided for an update within 180 days from the designated official. The senior civilian official must provide a report to the congressional defense committees that details the policy he or she has developed and the efforts of the Department to implement the new policy.

The requirement to designate a senior level official within the Office of the Secretary of Defense is an opportunity for Secretary Jim Mattis, who has been very vocal that reducing and responding to civilian casualties is a top priority for him, to ensure that meaningful advances are made under his watch.

The second provision, Section 1062, strengthens the civilian casualty reporting requirement passed last year. The initial report, which was due on May 1, was both late and partially incomplete, at least in part because of disagreements and misunderstandings between Congress and DoD about what exactly DoD was statutorily required to report (Daniel R. Mahanty, Rahma A. Hussein and Alex Moorehead’s ’Just Security article in June provides an excellent analysis of DoD’s initial report).

To avoid some of the confusion going forward and to strengthen some of the earlier requirements, this year’s NDAA makes the following changes and additions:

● Clarifies that Congress wants reporting on each individual operation in the colloquial sense of that term, not the literal military meaning. In other words, Congress wanted detailed reporting on each strike or engagement that is reasonably suspected of resulting in civilian casualties not reporting on “Operation Inherent Resolve” writ large. To fix this confusion, Congress added, “including each specific mission, strike, engagement, raid, or incident,” after the term “military operations” in the original provision;

● Addresses possible confusion resulting from the use of the term civilian casualty, which includes both those killed and those that are injured, by requiring the Department to differentiate between the two categories;

● Adds to the requirement that DoD describe its process for investigating reports of civilian casualties the requirement that DoD also describe the process for making ex gratia payments to victims or their families when appropriate;

● Requires that any update to prior reports is included in the report the following year, a critical revision given that in this year’s report DoD noted that in Operation Inherent Resolve alone more than 450 reports of civilian casualties from 2017 remain to be assessed;

● Clarifies that an unclassified version of the report must list each mission, strike, engagement, raid, etc., for which a civilian casualty is reasonably suspected and include the information required under subsection b of the original provision, namely, the date, location, whether in a declared theater of active armed conflict, the type of operation, and the assessed number of civilians and combatant casualties; and

● Requires that the unclassified version of the report be made available to the public at the same time it is submitted to Congress.

These are important clarifications and improvements on last year’s provision that should lead to a significantly stronger and more detailed report next May. One remaining point of likely confusion, however, is how DoD interprets the requirement to provide details for all engagements that are “reasonably suspected” to have resulted in civilian casualties. While the additional details for each engagement reasonably suspected of causing a civilian casualty must include the number of actual casualties for each of these engagements as assessed by DoD, the overall total of engagements in the reasonably suspected category should be much broader than engagements where DoD eventually confirmed that a civilian casualty occurred. While the final assessment for the purposes of confirmed civilian casualties may appropriately (reasonable minds can disagree) be based on a more likely than not standard, the reasonably suspected category should not be based on such a strict standard.

The purpose of the reasonably suspected language, as I understand it, is to require DoD to list out the engagements for which there are non-frivolous reports of civilian casualties. DoD is then required to provide the number of civilian and combatant casualties it has assessed for each of those individual engagements. This approach enables Congress to make its own assessment of the reports DoD has received and to compare DoD’s final assessment of the number of casualties with outside assessments. Given that the unclassified version of the May 2018 report did not include the engagement-by-engagement breakdown of either combatant or civilian casualties, it’s unclear what was included in the reasonably suspected category. As DoD looks toward preparing the May 2019 report, it is important that it include all engagements where civilian casualties were reasonably suspected and not just those where DoD was able to confirm a civilian casualty under its more likely than not standard.


Image: Defense Secretary James N. Mattis and Marine Corps Gen. Joseph F. Dunford Jr., chairman of the Joint Chiefs of Staff, provide testimony on the Fiscal Year 2019 National Defense Authorization Budget Request from the Department of Defense to members of the House Armed Services Committee at the Rayburn House Office Building in Washington D.C., April 12, 2018. (DOD Photo by Navy Petty Officer 1st Class Dominique A. Pineiro)