Late on Friday night, the Pentagon submitted to Congress and publicly released a 17-page report required under the 2019 John S. McCain National Defense Authorization Act (NDAA) describing the department’s development and implementation of a new, comprehensive policy on civilian casualties. Under Section 936 of the NDAA, the administration was also required to appoint a senior civilian official for civilian casualties policy (recently announced as Deputy Under Secretary David Trachtenberg). The Pentagon submitted the 936 Report fresh on the heels of news that the Department had spent much of 2018 conducting a limited-scope study of its civilian casualties policy (the contents of which we analyzed previously at Just Security). Friday’s 936 Report was not only submitted on time but also provided detailed insights into several promising developments underway to meet Section 936 requirements. This article provides a quick review of what is required under Section 936, and some of the highlights from the Pentagon’s update to Congress.
Key Elements of Section 936
Section 936 of the 2019 NDAA contained several important features, including the important requirement to designate 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.” (You can read a more thorough summary of the requirements of Section 936 detailed in a prior Just Security article). The senior civilian official is tasked with several significant responsibilities, including ensuring that the Department’s new policy provides for seven key components (plus an eighth catchall category), including:
- Uniform standards across the combatant commands for recording strikes, investigating claims, acknowledging civilian casualties, and offering, where appropriate, ex gratia to those harmed and survivors;
- Dissemination of best practices and lessons learned for preventing civilian casualties;
- Processes for engaging with nongovernmental organizations (NGOs), and the development of a publicly available means for submitting claims of civilian casualties, along with public affairs guidance.
The provision’s requirements work in combination to encourage greater transparency for the harm caused during US operations, to reduce confusion about how individuals or NGOs can report claims of civilian casualties, to reduce confusion about how reports are assessed and investigated, and to generate more consistent practices in the way that the Department responds to credible reports. Section 936 also required the Department to submit a report detailing the resulting policy and efforts taken to implement it, within 180 days of enactment.
Important Steps Already Taken by the Pentagon
The Pentagon’s fairly detailed report lists several activities and initiatives by the Pentagon over the course of the last year to evaluate its practices, consult with outside groups, and develop internal coordination mechanisms that could serve to improve Department-wide practices in the future. The report highlights:
- A Secretary of Defense-led roundtable with NGOs on civilian casualties;
- The internal Pentagon study and resulting report on civilian casualties practices, which we summarized previously;
- The development of a Department-wide working group on civilian casualties, which includes representatives from the Office of the Secretary of Defense, Office of the General Counsel, the Joint Staff, two outside research entities (RAND and CNA), the services, and the combatant commands;
- An interagency two-day table top exercise on civilian casualties (in characteristic Pentagon-fashion, called “PROFOUND VOYAGE”);
- Mention of several consultative meetings with NGOs, to include general roundtables and a thematic roundtable on ex gratia.
These are of course welcome developments, and the fact that they occurred at all provides reason for optimism. Yet the key is whether these activities and others like them over the coming year will lead to a new policy that can produce tangible results.
Looking to the Future
The 936 Report also provides specific details about its plans to develop a Department-wide policy by the end of 2019 that will meet, but could also exceed, the requirement set by Congress in both process and substance. At various places, the report suggests that the new policy will address all eight requirements established by Section 936 of the NDAA but will also reaffirm the commitments made in the July 2016 Executive Order on civilian casualties. The report makes specific mention of the following notable elements that will be covered by the new policy:
- Measures to ensure that those responsible for assessing civilian casualties (e.g. in civilian casualties “cells” in the combatant commands) have access to strike data;
- Means by which the public can provide reports of civilian casualties;
- Policy guidance for assessing and investigating civilian casualties;
- Guidance for publicly acknowledging civilian casualties caused by US military operations;
- “Culturally appropriate” policies for responding to the death and injury of civilians, involving a broader range of options that includes not only ex gratia but also acknowledgement;
- Channels and means of engaging NGOs and other stakeholders, including in conflict zones;
- The proactive release of accurate information “to put military operations in context” and to “facilitate informed perceptions,” and to “counter misinformation and propaganda;”
- Last but not least, the policy will “account for the need to ensure that development and acquisition processes [related to technology] consider the protection of civilians and the need to minimize civilian casualties.”
As with the steps taken this past year, these forward-looking commitments are welcome and important to the extent that they signal the intention to consider seriously the concerns held by outside groups and to modify practices accordingly. Even with the best of intentions, the process of making institutional reforms across several commands and offices at the Pentagon is not a process for the faint of heart, and will require leadership from the highest levels, ample resources, and stable staffing to succeed.
How Congress – and the Rest of Us Can Help
With the delivery of this report, Congress and external stakeholders can help ensure that the Pentagon’s efforts over the next year result in robust, meaningful changes. For example, Congress can use the Fiscal Year 2020 NDAA to ensure that the Department has the necessary resources to implement needed changes, including both staff and technology. Congress could and should also encourage the Pentagon to use existing resources to fund additional independent research by Federally Funded Research and Development Corporations, including to examine the potential causes of disparity between independent public estimates and official government estimates (which was excluded in the scope of the internal Pentagon study), and lessons learned from specific operations that represent challenges that the military is likely to encounter again in the future (urban operations or “by, with, and through” operations). Meanwhile, NGOs can provide recommendations to the Pentagon for improving its capacity to engage with civilians or intermediaries in the many countries in which it conducts operations.
Overall, the 936 report is a valuable product both for its detailed description of ongoing activities, and for the opportunities it signals for progress in key areas of civilian casualties policy. Ultimately, however, progress will be measured by whether the Pentagon’s new policy results in fewer non-combatants being targeted by mistake, an internal assessment and investigations process that is highly accurate, and effective responses for those unfortunate casualties that will likely occur. In short, progress will be measured by how effective the new policy is in reflecting the high value the military places on protecting civilians’ lives.