Hidden Gems: Civilian Casualties and Use of Force Reporting Provisions in the Annual Defense Bill

Today, the Senate is expected to vote on and pass the Fiscal Year 2020 National Defense Authorization Act (NDAA)—the annual “must-pass” bill that authorizes defense spending and typically includes many other related provisions—passed by the House of Representatives last week by a vote of 377-48.

When Democrats assumed control of the House following the 2018 elections, a sense of optimism that the NDAA would serve as a vehicle for long-desired progressive changes emerged among the human rights community. And indeed, the pre-conference House version of the NDAA delivered. It included, for example, measures to:

  • impose sanctions on those responsible for the murder of Washington Post columnist and Virginia resident Jamal Khashoggi;
  • prohibit various forms of support for the Saudi-led military campaign in Yemen;
  • prohibit the detention of new individuals at Guantanamo Bay;
  • repeal the 2002 Authorization for Use of Military Force (AUMF) for the Iraq war; express the sense of Congress that the 2001 AUMF, which authorized military force against those who were responsible for the attacks of 9/11, has been abused to perpetuate expansive and endless wars; outline limitations that should be adopted if the 2001 AUMF is replaced; and explicitly prohibit the use of military force against Iran without clear legal authority;
  • reverse the Trump administration’s ban on transgender military service;
  • limit the ability of the Defense Department to support Immigration and Customs Enforcement (ICE) detention; and
  • prohibit the diversion of previously authorized military construction funds to the border wall.

Unfortunately, these provisions and others did not survive the conference negotiations and do not appear in the final version of the NDAA. These are serious, glaring shortcomings, and while Democratic leaders in the House have defended the NDAA, stripping the bill of these provisions has transformed the NDAA from the once-promising vehicle of serious change to an object of much disappointment.

Yet, for all the ways that the NDAA falls short on various human rights issues, there are some bright spots that should not be overlooked. Prominent among them is the fact that the NDAA includes several measures that build on prior efforts to improve the Defense Department’s civilian casualties practices and to increase transparency in this area and others. This post will briefly discuss each provision.

Civilian Casualties Policies and Reporting

The bill contains several measures on civilian casualties—some that continue to build upon and refine requirements established by Congress through previous NDAAs, and others that represent new initiatives. Taken together, these measures suggest that attention to civilian casualties remains an issue of bipartisan congressional interest, and they reflect areas where Congress clearly has the sense that DoD should be providing more detail or making greater efforts to meet the intent of previously enacted mandates:

  • Additional civilian casualty reporting requirements: In Section 1703, the NDAA modifies and adds elements to previously enacted reporting requirements. (See here for more analysis of the 2019 requirements and here for analysis of the resulting report.) These adjustments should result in additional details about the military’s consideration of external sources of information. For example, the military now must explain the steps it takes to interview outside sources when examining claims and must include in its report the investigations that were initiated as a result of external allegations. In addition, the military must report the steps it takes in response to confirmed incidents of civilian harm (e.g., ex gratia payments). The bill also requires a report (Sec. 1274) on the civilian casualties caused by the Saudi-led coalition and by the Houthis in the course of hostilities in Yemen and an assessment of whether their operations comply with the laws of armed conflict. This report is unlikely to placate calls for more direct and meaningful restrictions on U.S. support for the Saudi-led coalition. It could, however, shed light upon the U.S. government’s official analysis of the conflict and thereby help with efforts to hold the U.S. government to task if its public assertions and policies regarding the conflict in Yemen grossly mismatch the grave situation on the ground, as documented by external organizations.
  • Additional and clarified elements of required DoD policy and responsibilities for the senior official overseeing DoD civilian casualties policy: Last year, the NDAA called for the much-needed designation of a senior official to oversee DoD’s civilian casualties policies, specifying that among this official’s duties would be overseeing the development and dissemination of a DoD policy on civilian casualties and what, in general, the policy should include. This year’s provision (Sec. 1282) further clarifies congressional expectations, adding that the forthcoming policy must provide for “cultivating, developing, retaining, and disseminating lessons learned for integrating civilian protection into operational planning and identifying the proximate cause(s) of civilian casualties, and practices developed to prevent, mitigate, or respond to casualties.” Perhaps most importantly, this year’s NDAA requires the senior official overseeing DoD’s civilian casualties policy to improve coordination with the Department of State and Chiefs of Mission—a recognition that the State Department has an important role to play in preventing and responding to civilian casualties and that civilian casualties are as much a foreign policy matter as a military issue.
  • Expanded ex gratia payments: The NDAA replaces previously enacted measures that authorized the use of the Commander’s Emergency Response Program for ex gratia payments for civilian harm resulting from U.S. military operations in certain countries. The new authority allows payments to be drawn from DoD-wide Operations and Maintenance (O&M) funds without any specified geographic limitations. And crucially, the bill authorizes the provision of ex gratia to those harmed as a result of partnered and coalition operations. This change fills a major gap and could address concerns stemming from the fact that the military currently does not pay ex gratia for civilian harm in coalition operations (e.g., Operation Inherent Resolve in Iraq and Syria) or in partnered operations (e.g., Somalia) without direct attribution to U.S. armed forces. (For more on the challenge of responding to civilian harm in coalition operations, read the CIVIC report The Sum of All Parts.) Now, when the U.S. military very clearly has some responsibility—either by virtue of its leadership role or the significance of its presence—and has an enduring interest, it can provide redress. These changes provide no guarantee that the military will choose to make more ex gratia payments, but Congress providing explicit authority for doing so eliminates any impediment or confusion that was associated with the previous lack of clear authority.
  • Resources needed for civilian casualties policy: Congress wisely included a provision (Sec. 923) requiring a DoD assessment of the resources it needs to fulfill the mandate created with the designation of the senior official for civilian casualties policy. This assessment is likely meant to include the resources needed to meet the broader set of requirements related to civilian harm mitigation and response in practice, such as responding to and tracking reports of civilian casualties, and overseeing implementation of the forthcoming DoD policy on civilian casualties. By making DoD specify its precise needs for ensuring that it can prevent, mitigate, and respond to civilian casualties, this requirement presumably will help Congress better respond to any claims made from within DoD that the mandate created by Congress and the demands of civil society are inadequately resourced. If necessary, Congress can then work with the Pentagon to ensure the proper prioritization of existing resources or to allocate additional resources.
  • Independent study: The NDAA contains a requirement (Sec. 1721) that DoD commission a comprehensive independent study to be conducted by one of the federally funded research and development centers (FFRDCs) into the full spectrum of the military’s civilian harm policies, practices, resources, and standards. While some in DoD might believe that this effort will be redundant with its own internal review conducted at the behest of the Chairman of the Joint Chiefs of Staff and the Secretary of Defense in 2018, the new study should be welcomed as an opportunity to fill important gaps left by the narrow scope of the 2018 effort with a more empirically grounded and independent review. Indeed, it should be seen as an important opportunity for DoD to catch issues it might not have identified on its own and to assess the effectiveness of its own policies and practices. Further, the new study will address operations since the conclusion of the 2018 review.
  • Other provisions: While unlikely to garner as much attention, the NDAA contains other important provisions that authorize the use of existing authorities to enhance the capacity of foreign security forces to protect civilians. For instance, in light of several major civilian casualty incidents, the NDAA added a requirement (Sec. 1269) that DoD report on Nigeria’s efforts to reduce civilian casualties in anticipation of the delivery of A-29 Super Tucano aircraft to the Nigerian Air Force , and it called for an in-depth study (Sec. 1225) of the U.S. operations in Raqqa and Mosul, including civilian casualties that resulted from the operations.

Use-of-Force Reporting Requirements

While several of the NDAA’s shortcomings relate to the use of force—it failed to repeal the 2002 AUMF, for example—the bill does contain several important features aimed at increasing transparency vis-à-vis U.S. use of force. This increased transparency could help bolster public understanding of the extent of the country’s use of force and provide material that external organizations, constituents, and lawmakers alike could rely on in pursuing future changes.

  • Report on the use of force outside of “areas of active hostilities”: Earlier this year, the White House issued an Executive Order that had the effect of preserving an Obama-era executive order on civilian casualties while removing an important portion the same Obama-era order. The excised measure required the Director of National Intelligence to publicly report U.S. strikes and any resulting casualties that occur outside of “areas of active hostilities”—the term of art used to describe lethal operations that occur outside of war zones. The change in policy also effectively eliminated any commitment by the executive branch to include CIA strikes in public accounts of the government’s lethal operations and civilian casualties. In a relatively predictable response, Congress filled the gap created by this decision by codifying in legislation the reporting requirements that had until this point been a discretionary matter of executive policy. Section 1723 of this year’s NDAA requires “a report on the number of strikes undertaken by the United States against terrorist targets outside areas of active hostilities,” along with an estimate of civilian and “combatant” casualties. Also, like the Obama executive order on civilian casualties, the NDAA introduces a requirement to consider information from NGOs in the preparation of the report and to provide an explanation of any discrepancies between the government’s estimates and those of outside sources.
  • Use of 2001 AUMF: The NDAA contains a provision (Sec. 1285) that requires a recurring, semi-annual (every 180 days) report describing any “actions” taken pursuant to the 2001 AUMF against countries or organizations implicated therein. The report must include the legal and factual basis for the invocation of the AUMF in the cases described by the report, an intelligence risk assessment of the groups or countries against which the United States acted under the authorization, a description of the operation, and an assessment of the operation’s scope and duration.
  • Report on legal and policy frameworks: Section 1261 of the 2020 NDAA adds important changes to the 2018 NDAA (Sec. 1264), which required reporting from the executive on the legal and policy frameworks for the use of force and “related national security operations.” Previously, beyond the initial report required by the 2018 NDAA, the executive was only required to report changes within 30 days of any such changes. Now, pursuant to the new NDAA, the executive is also required to provide an annual report compiling the changes, making it easier to monitor, assess, and ensure compliance with the ongoing requirements and making it simpler for Congress and the public to review the material in a consolidated report. The 2020 NDAA also adds a requirement to include a list of any of the forces for which a determination has been made that force can be legally used under the 2001 AUMF, the factual and legal basis for any such determination, and a description of whether force has been used against them. The bill also requires DoD to report “the criteria and any changes to the criteria for designating a foreign force, irregular force, group, or individual as lawfully targetable, as a high value target, and as formally or functionally a member of a group covered under the Authorization for Use of Military Force.” Further, the provision stipulates that the unclassified portion of the report must include each change made to the legal and policy frameworks during the preceding year. The NDAA, however, did not include a separate but important House provision that would require the president to report within 48 hours any incident in which U.S. armed forces are involved in an attack or hostilities.
  • Rule of construction regarding the use of military force: Section 1284 of the NDAA specifies that nothing in the NDAA “may be construed to authorize the use of military force, including the use of military force against Iran or any other country.” While not a particularly significant provision, it does make clear that by passing certain measures, such as requiring reports relating to the executive’s invocations and interpretations of the 2001 AUMF, Congress is not tacitly authorizing any associated use of military force.

Partnered Operations, “Collective Self-Defense,” and Special Operations Forces

  • Support to partners: In addition to requiring a report of actions taken under the 2001 AUMF, Section 1285 also mandates a description in the report of “any actions taken to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such forces are engaged in hostilities or in situations where imminent involvement in hostilities is clearly indicated by the circumstances,” as well as a list of any partner forces and countries with whom the United States has taken any such actions. Importantly, the NDAA also specifies the requirement that any time U.S. armed forces are introduced into hostilities or situations where there is a clear risk of imminent involvement in hostilities, the president must comply with the reporting requirements under this provision and under the War Powers Resolution.
  • Collective self-defense: Section 1754 of the NDAA requires DoD to develop a comprehensive policy on the use or provision of collective self-defense by U.S. armed forces in connection with foreign nationals or property. The requirement presumably reflects congressional concerns about DoD applying an overly broad interpretation of collective self-defense as a legal basis for certain military operations. The NDAA specifies, among other things, that the policy must clarify the legal bases providing authorization to engage in collective self-defense.
  • Revisions to Special Operations to Combat Terrorism (i.e., “127e”): The NDAA includes an amendment that strengthen congressional oversight of special operations activities conducted under the authority (Title X, Section 127e) that allows the expenditure of $100 million to aid partner forces supporting American military counterterrorism operations. These changes reflect concerns that American special operations forces have been using the authority to initiate secretive and risky combat missions by enlisting partner forces in several countries, potentially against targets that fall outside of any authorized use of military force. Importantly, the provision limits the use of the fund such that it may be used only for the support or facilitation of authorized operations. The provision also strengthens Congress’s hand to exercise oversight of the highly secretive program by stipulating that notifications to Congress provided before using the authority include more details, such as a description of operations and the groups being supported, the nature of support, the expected duration of the support, and the legal basis of the operations being supported.

Conclusions

In spite of the progress made by DoD to improve its approach to civilian casualties, the past year has unfortunately supplied too many reasons to welcome this raft of new NDAA provisions. For the first six months of 2019, the United Nations for the first time estimated that pro-government forces in Afghanistan, including the United States, had caused more civilian deaths than the Taliban and other groups. The U.S.-led coalition against ISIS maintained that throughout the course of the conflict it has caused only 1,300 civilian casualties—a number that is likely a great underestimate of the extent of the harm. And U.S. forces participated in partnered operations in places like Somalia, where allegations of harm go largely unacknowledged and unresolved.

Against this backdrop, the addition of new requirements in the civilian casualties report and the addition of responsibilities for the senior official charged with DoD’s civilian casualties policy carry an important message. They convey the sense that Congress believes that DoD needs further clarification of congressional intent. This is meant to achieve greater transparency but also to press DoD to reckon more honestly with the effects of its operations by acknowledging the instances of harm raised by outside sources and to actually reduce civilian casualties.

Separately, while many had hoped that Congress, via the NDAA, would adopt more meaningful provisions relating to the 2001 and 2002 AUMFs, the use-of-force reporting requirements are nonetheless positive—albeit incremental—steps. They will help deliver needed insight and transparency regarding the administration’s use of the 2001 AUMF and its strikes outside areas of active hostilities. And the information provided pursuant to these reporting requirements could in turn prove useful in future efforts to pass use-of-force legislation.

Finally, much more than prior NDAAs, this bill recognizes the significant degree to which the U.S. government has relied on partnered and coalition operations—the “by, with, and through” model—to obscure the depth and breadth of American military involvement around the world. To an extent far beyond the common understanding of the American public, these operations have been inexorably linked to America’s increasingly concerning trends with the use of force and civilian casualties. The United States, of course, will almost certainly continue to engage in partnered and coalition operations, but it should do so with appropriate legal authorities, with transparency, and with an enthusiasm for improving its practices to better protect human rights. And the new NDAA requirements are a step in this direction.

Image: A U.S. Army helicopter flies outside of Camp Shorab on a flight to Camp Post on September 11, 2017 at Camp Shorab in Helmand Province, Afghanistan. Photo by Andrew Renneisen/Getty Images

 

About the Author(s)

Daniel R. Mahanty

Director of the U.S. program at the Center for Civilians in Conflict (CIVIC). He previously served 16 years at the U.S. Department of State. Follow him on Twitter (@danmahanty).

Benjamin Haas

Advocacy Counsel at Human Rights First, Former Army Intelligence Officer, Graduate of West Point and Stanford Law School - Follow him on Twitter (@BenjaminEHaas).