New DoD Policy on Amends Needs to Address Transparency Gap

New information from the U.S. Department of Defense (DoD) reveals a previously unrecognized transparency gap in the U.S. military’s efforts to acknowledge and address civilian harm over the past five years.

In a response to my Freedom of Information Act (FOIA) request, DoD said that it had not submitted reports to Congress on ex gratia payments, based on its assessment that such reports were only required if DoD made use of associated fiscal authorities, which it said it did not.

Ex gratia payments, which include both condolence and solatia payments, are payments for civilian loss of life or injury in which there is no admission of legal wrongdoing. Such payments are part of the practice by which warring parties make amends, which can also include public acknowledgement, apologies, and livelihood assistance.

DoD has released FOIA data previously revealing condolence payments made in Afghanistan from 2014-2016. News reports suggest that at least one payment was made in Iraq in 2016, and two more were offered in 2017. Several statutes require DoD to report on the number of cases considered, amounts offered, and the response from ex gratia payment recipients, but DoD has not done so.

I have previously noted the need for more transparency on U.S. policy regarding amends and provided recommendations as to how DoD can standardize its response to civilian harm. DoD has since appointed a senior civilian official under Section 936 of the National Defense Authorization Act (NDAA) of 2019 and released a report outlining its plans to standardize its approach.

As DoD develops the elements of a uniform policy on amends, it should also address its failure to submit five years of reports to Congress on the subject. In recent weeks, a number of analysts have noted the importance of transparency to affected communities, the U.S. public, the U.S. government, and efforts to reduce civilian casualties. This discussion emerged after the Trump administration rescinded certain civilian casualty reporting requirements under an Obama-era Executive Order.

The news that DoD has failed to submit five years of reports to Congress on ex gratia payments—across two presidential administrations—raises new questions around transparency and DoD’s assessment of its reporting obligations.

The FOIA Request

In June 2018, I submitted a FOIA request for every report DoD was instructed to submit to Congress on ex gratia payments during 2014-2018. At the time of my request, five Consolidated Appropriations Acts and two NDAAs from that period granted DoD authority to make ex gratia payments and called for reporting on the program.

This month, DoD’s FOIA Division sent me a letter stating that the Under Secretary of Defense for Policy (USD(P)) could not identify any records of this kind. The USD(P) concluded that since DoD had not made use of fiscal authorities associated with the reports requested, it was not required to submit the requested reports. “Reports were only required if DoD made use of authorities,” the letter stated.

DoD’s statement is grim confirmation that DoD has not made use of these fiscal authorities on ex gratia payments over the past five years. DoD’s failure to enact the provisions on condolence payments in two recent military spending bills has already been the subject of in-depth news coverage.

More surprising is DoD’s conclusion that the failure to utilize associated fiscal authorities exempts DoD from reporting on ex gratia payments.

Only two of the seven laws I referenced in my FOIA request (the NDAAs of 2016 and 2017) explicitly state that report submission was only required if DoD made use of associated fiscal authorities. The relevant subsections of the Consolidated Appropriations Acts of 2014-2018 contain no such qualifying language. My assessment is that DoD was required to submit reports under those subsections regardless of whether it exercised the authority. Given that DoD offered and made such payments over the past five years, it was obligated to meet statutory reporting requirements on such payments regardless of what authorization it used to spend the money.

In the following paragraphs, I examine the language of each of the seven laws to explain my conclusions as to the nature of DoD’s reporting obligations.

NDAA of 2017: DoD Report was Contingent on Use of Fiscal Authority 

Of the seven laws I referenced in my FOIA request, only one contained explicit language stating that DoD should submit a report upon the exercise of the authority in the subsection.

Section 1211(b)(2) of the NDAA of 2017 states:

(2) NOTICE — The Secretary of Defense shall, upon each exercise of the authority in this subsection [emphasis added], submit to the congressional defense committees a report setting forth the following:

(A) The amount that will be used for payments pursuant to this subsection.

(B) The manner in which claims for payments shall be verified.

(C) The officers or officials who shall be authorized to approve claims for payments.

(D) The manner in which payments shall be made.

In regard to this subsection, DoD was correct in its determination that reports pursuant to it were only required if it made use of associated authorities. The qualifying language in the subsection makes this explicit. The same is true for the relevant subsection of the NDAA of 2019 (which was not a subject of my FOIA request), which contains identical language. Of course, nothing would preclude DoD from, as a policy matter, voluntarily submitting a report.

NDAA of 2016: DoD Report was a Prerequisite for Use of Fiscal Authority

The reverse was true for the NDAA of 2016: the authority could not be exercised until after a report was submitted. Subsection 1211(d)(2) states:

(2) NOTICE AND WAIT — The authority in this subsection may not be used until 30 days after the date on which the Secretary of Defense submits to the congressional defense committees a report setting forth the following:

(A) The amount that will be used for payments pursuant to this subsection.

(B) The manner in which claims for payments shall be verified.

(C) The officers or officials who shall be authorized to approve claims for payments.

(D) The manner in which payments shall be made.

Since DoD, by its own admission, never submitted this report to the congressional defense committees, it would have been unable to make use of this fiscal authority to make ex gratia payments.

DoD was still correct in its ultimate determination, however, that the report was only required if DoD made use of associated fiscal authorities. In this case, the report submission just had to precede the exercise of said authorities.

Appropriations Acts 2014-2018: DoD Reports Were Required Regardless of Authority Used

In 2014, Sahr Muhammadally of the Center for Civilians in Conflict noted the passage of the very first Consolidated Appropriation Act explicitly authorizing ex gratia payments, stating that the law “also require[d] the defense secretary to report to congressional defense committees on an annual basis.” Indeed, that law and the four subsequent Consolidated Appropriations Acts all contain the following subsection:

REPORT — The Secretary of Defense shall report to the congressional defense committees on an annual basis the efficacy of the ex gratia payment program including the number of types of cases considered, amounts offered, the response from ex gratia payment recipients, and any recommended modifications to the program.

Nothing in this subsection suggests that report submission is contingent on DoD making use of fiscal authorities. In the case of the NDAAs of 2016 and 2017, qualifying language was added to modify the nature of DoD’s reporting obligations, making explicit that reports were only required upon the exercise of authority or were a prerequisite for the exercise of authority.

Absent such qualifying language, the subsection should be read as a clear instruction to DoD: “The Secretary of Defense shall report to the congressional defense committees on an annual basis [emphasis added].” Annual reports on ex gratia payments were required regardless of DoD’s making use of fiscal authorities.

It is disturbing that DoD determined that such reports were optional, given that it had concrete cases to report on during at least four of the five years in question. DoD might counter that it made all recent ex gratia payment offers and payments under separate authority and was therefore exempt from reporting under these statutes. My assessment, however, is that the reporting requirements were not optional: if DoD offered or made ex gratia payments under any authority, it was required to submit a report.

It is worth noting that DoD classified one recent case, namely the $15,000 payment offered to Basim Razzo in Iraq for the loss of four close family members in a U.S. strike, as a solatia payment, whereas it described recent payments in Afghanistan as condolence payments.

Solatia payments come from unit operation and maintenance funds, and condolence payments are made under the Commander’s Emergency Response Program (CERP).

By DoD’s own definition, the term ex gratia is broader, encompassing both solatia and condolence payments. DoD stated, in a 2010 report to Congress I previously obtained through FOIA:

An ex-gratia payment is made without the giver recognizing any liability or legal obligation. Payments are made ex-gratia when a government is prepared to recognize an injurious event to a victim, but is not willing to admit governmental liability for causing the event or to compensate for it. Solatia payments and condolence payments under CERP are ex-gratia as are battle damage payments funded by the CERP.

Therefore, DoD was obligated to report on both condolence and solatia payments to meet its statutory reporting requirements on ex gratia payments.

That means that from at least 2014-2016, DoD should have submitted annual reports to Congress covering condolence payments made in Afghanistan, as well as the response of recipients like the nurse in Kunduz who called his payment “ridiculous and insulting.” In its annual reports, DoD should have also acknowledged the payment of $15,000 offered to Basim Razzo, who called it “an insult to me,” the payment offered in response to a March 2017 strike that killed over 100 people in west Mosul, and a payment of $2,500 to an unknown individual in Iraq in 2016.

Those are only the payments on which there is public data. Others, too, may have been offered or made, and should have also been included in annual DoD reports.

Given the requirement that the reports address the efficacy of the program, DoD should have also examined the absence of any acknowledgement of civilian harm in Syria, as Human Rights Watch has documented, and the extremely limited response to civilian casualties in Iraq.

The Way Forward 

DoD’s view that it was not obligated to submit five years of reports on ex gratia payments is deeply concerning. Congress instructed DoD to submit these reports to allow it to exert effective oversight of DoD’s response to civilian harm.

Given that it failed to submit reports on ex gratia payments to Congress for five years, DoD should address this transparency gap now as it works to reform its amends policy. DoD should release detailed information on ex gratia payments offered and made from the years the reports would have covered (2014-2018), as well as the response of recipients. Given its assertion that it did not make use of the aforementioned spending authorities, DoD should disclose which authorities it relied on to make such offers and payments. DoD should also analyze the effectiveness of the program over the past five years.

Underlying the lack of transparency is an abject failure to acknowledge harm and make amends. DoD’s response confirms that, despite some payments being made under other authorities, the Department has not made use of any of the funds specifically authorized for ex gratia payments over the last five years.

The NDAA of 2019 offers the most expansive authority yet for ex gratia payments, allowing them for the first time in Somalia, Libya, and Yemen, in addition to Afghanistan, Iraq, and Syria. DoD should learn from its past failures and ensure that this new authority has concrete meaning for civilians harmed in U.S. operations in those countries.

(Note: The author submitted the FOIA request referenced in this article in conjunction with a law school research project, prior to her time at Human Rights Watch.)

IMAGE: Marine Corps Gen. Joseph Dunford (right) and Patrick M. Shanahan, Acting U.S. Secretary of Defense, (left) before a Senate Armed Services Committee hearing on April 11, 2019 in Washington, DC.  (Photo by Alex Wroblewski/Getty Images)

 

About the Author(s)

Joanna Naples-Mitchell

New York University School of Law Fellow at Human Rights Watch for 2018-2019. She previously served as a paralegal with the Human Rights and Special Prosecutions Section of the Criminal Division of the U.S. Department of Justice. Follow her on Twitter (@joanna_nm)