Defense Policy Bill Should Require Reporting of Ex Gratia Payments

The House Armed Services Committee voted on Thursday morning to send the National Defense Authorization Act (NDAA) of 2020 to the House floor. Like the NDAA of 2019, the chairman’s markup of the bill contains a provision—Section 1215—authorizing up to $5,000,000 for ex gratia payments “for damage, personal injury, or death that is incident to combat operations of the United States Armed Forces” in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen. But a continuing loophole allows the Department of Defense (DoD) to skirt public reporting requirements, a gap that should be addressed as debate proceeds.

Ex gratia payments are payments to survivors for civilian loss of life or injury in warfare in which there is no admission of legal wrongdoing. They provide a valuable opportunity for the U.S. government not only to acknowledge harm but also to rebuild trust with affected communities.

Human Rights Watch has documented numerous instances in which the U.S. government was responsible for harming civilians in its military operations—in many cases admitting it—and yet failed to provide any type of redress. In some cases, U.S. military operations unlawfully caused civilian deaths, but the U.S. did not provide any compensation or even acknowledgement of the harm. In others, we documented weak investigation methods that are unlikely to produce accurate assessments of civilian harm.

Congress, by requiring reporting on ex gratia payments made under this and previous NDAAs, has demonstrated an interest in greater transparency around DoD’s response to civilian harm. Members of Congress should be concerned, then, that the department has found a way to make and offer payments over the past several years without keeping Congress informed.

Although DoD made ex gratia payments in Afghanistan and Iraq in 2016 and offered further payments in Iraq in 2017, it did not submit any reports to Congress under the NDAA. DoD informed me in April in response to my Freedom of Information Act request that since it had not used the authority to make payments under the 2016 or 2017 NDAAs, it did not submit any reports. This implies that DoD found some other authority for payments and, in doing so, avoided the reporting requirements. (I took issue with DoD’s interpretation of ex gratia payment reporting requirements under the Consolidated Appropriations Act but concluded that its understanding of NDAA requirements was correct.)

DoD’s response reveals a loophole in the NDAA language on ex gratia payments: it gives DoD leeway not to submit reports to Congress if it makes payments under some other authority.

Like the NDAA of 2019 and previous ones, the draft Section 1215 includes a subsection only requiring DoD to report to Congress on payments made “upon each exercise of the authority in this subsection.”

The draft NDAA does include one notable departure from prior laws. While previous NDAAs authorized such payments under the Commanders’ Emergency Response Program, the draft NDAA of 2020 authorizes payments under the DoD-wide Operation and Maintenance account instead. The change in fiscal authority may not yield any change in transparency on payments, however, unless Congress takes steps to ensure that DoD submits reports.

Ex gratia payments are an important part of DoD’s response to civilian injuries and deaths in its combat operations. They are one means by which DoD can take responsibility for civilian casualties and seek to dignify losses. If Congress is serious about transparency, then it should make explicit that reports on ex gratia payments are mandatory regardless of the fiscal authority DoD relies on.

Section 1215(b) should be revised to read, “The Secretary of Defense shall, upon each exercise of the authority in this subsection—or upon the exercise of any other authority to make ex gratia payments— submit to the congressional defense committees a report within 30 days setting forth the following…”

Below this section, a new Section 1215(c) should be added:

(c) NOTICE ON LACK OF PAYMENTS—If no ex gratia payments are made under this or any other authority in a given year, the Secretary of Defense shall, on an annual basis, submit to the congressional defense committees a report setting forth the following:

(1) The arrangements made for ex gratia payments that year.

(2) The reason no payments were made.

(3) The number of payments that were offered and refused, along with the reason given for each refusal.

Without mandatory reporting on condolence payments in the NDAA, Congress—and the public—may remain in the dark about whether and how DoD is acknowledging civilian harm. This NDAA gives Congress the opportunity to change that. Congress should make it clear that DoD is required to report on all ex gratia payments—regardless of the authority used—going forward.

Photo: 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)