The National Defense Authorization Act (NDAA) of 2020, expected to be signed into law this week, contains a small victory for congressional oversight of the U.S. military’s response to civilian harm in its operations. This progress is worth noting even as the law disappoints in other respects.
Under Section 1213 of the new law, the Department of Defense (DoD) must submit quarterly reports to Congress delineating all payments made in response to civilian casualties during the preceding period or explaining why no payments were made. Such payments, known as ex gratia, solatia, or condolence payments, are monetary payments for civilian loss of life or injury in U.S. military operations. The gestures carry no admission of legal wrongdoing.
As others have noted at Just Security, Section 1213 also removes geographic limitations on ex gratia payments and explicitly authorizes them for the first time to civilians harmed in partnered or coalition operations. This change comes in addition to parallel improvements in annual civilian casualty reporting requirements in Section 1703, which now also includes a report on ex gratia payments.
Previous NDAAs contained a loophole that allowed DoD to keep Congress in the dark about ex gratia payments: the provisions authorizing ex gratia payments noted that reports were only required “upon each exercise of the authority in this subsection.” DoD informed me last spring that it had never submitted any such reports, despite making payments during the relevant time, because it had relied on authority outside the NDAA to provide ex gratia payments and was therefore exempt from informing Congress.
This meant that the U.S. military was able to make condolence payments to civilians in Afghanistan and Iraq for deaths and injuries without congressional knowledge or oversight. Given that ex gratia payments are one of the only avenues through which the U.S. military acknowledges and responds to civilian deaths or injuries in its operations, such oversight is critical. Reports on ex gratia payments specifically demonstrate how and in what contexts the U.S. military is expending resources to make amends for civilian harm it has caused.
Last June, I proposed in Just Security an amendment to the NDAA of 2020 to close the transparency gap. Congressman Earl Blumenauer’s office reached out to Human Rights Watch, my employer at the time, expressing an interest in introducing the amendment to what was then Section 1215 in the Chairman’s markup of the bill. A colleague and I provided input on the draft amendment, which is reflected in the final House version of the bill passed in July. Despite a grueling Conference Committee process that stymied many other progressive national security goals, the changes were largely preserved in Section 1213 of the bill that passed this week.
The following identifies how the text has changed and the implications for accountability and transparency.
New Quarterly Reporting Requirement
Section 1213(g) of the NDAA of 2020 requires the Secretary of Defense to submit a report to the congressional defense committees every 90 days. For each ex gratia payment the U.S. military makes during this period, the report should include the following information:
(A) The amount used for such payments and the country with respect to which each such payment was made.
(B) The manner in which claims for such payments were verified.
(C) The position of the official who approved the payment.
(D) The manner in which payments are made.
Notably, the Secretary of Defense now has to report to Congress the total number of payments made to affected civilians in a given 90-day period, the payment amount in each case, and the country where each payment was made.
If the U.S. military does not make any ex gratia payments during this period, the Secretary of Defense is obligated to submit a report to Congress that stipulates:
(A) whether any such payment was refused, along with the reason for such refusal; or
(B) any other reason for which no such payments were made.
Under previous NDAAs, DoD was under no obligation to inform Congress when it neglected to make any ex gratia payments for civilian deaths or injuries during a given period.
Under the new provision, if all the payments offered during a given 90-day period were refused, the Secretary of Defense would have to inform Congress why each individual had refused the payment (but again, only if all the payments offered during the period were refused). This information is important because it provides insight into the limitations of ex gratia payments as an effective response to civilian harm. The DoD report might state that a payment was refused due to perceptions that it did not match the gravity of the loss experienced. Or it might note that a recipient was offended by the manner in which the payment was offered, in that there was no acknowledgment of legal responsibility.
Finally, if no payments were even offered during a given period — as was the case in Syria until this year — the Secretary of Defense would now have to provide a reason. Were investigations still pending? Had no claimants come forward? Did DoD dispute media accounts of civilian casualties? Were there logistical barriers to reaching claimants?
Why the Reports Matter
In October 2015, Zahibullah Niazi was working as a nurse at a Doctors Without Borders Hospital in Kunduz, Afghanistan, when the U.S. military bombed his workplace repeatedly in an attack it would later call a grave error. Niazi, who lost an eye, most of one arm, and two fingers, was permanently disabled. Like the dozens of other survivors who were injured, he received a condolence payment of $3,000 from the U.S. military the following spring. (Families of the 42 dead received $6,000 for each person killed.)
Niazi called the payment “ridiculous and insulting” and vowed to return it. (At the time, Physicians for Human Rights called for a criminal investigation into the attack and for victims and their families to get “a full opportunity to present their claims for compensation beyond the narrow claims they have been directed to.”)
In September 2015, the U.S. coalition in Iraq bombed two houses in Mosul, killing four of Basim Razzo’s family members. In February 2017, almost 1.5 years later, a U.S. army captain sat across from Razzo in a military trailer, offering him $15,000 in response to the death of his family members and the destruction of two homes and cars.
Razzo, like Niazi, used the word “ridiculous” to describe the proposed payment, calling it “an insult to me,” and said he would not accept it.
These are two of the most high-profile accounts of condolence payments offered and declined in recent years. In each case, the U.S. government refused to acknowledge any possibility that the attack breached international law; DoD maintained that it had no legal obligation to compensate survivors. Ex gratia payments, the only mechanism DoD saw as an option, were not only discretionary — they were made, or potentially declined, with Congress left in the dark until news media covered the incidents.
In such contexts, as well as in cases that don’t reach the international news media, the new reporting requirements provide a small measure of additional accountability.
By requiring DoD to inform Congress of the nature of the response to civilian deaths or injuries, the new NDAA creates an opening for further inquiry. Members of the congressional defense committees should seize the opportunity to ask tough questions about the U.S. military’s handling of such losses and its efforts to prevent them.
IMAGE: The damaged interior of the hospital in which the Medecins Sans Frontieres (MSF) medical charity operated is seen on October 13, 2015 following a US air strike in the northern city of Kunduz. (Photo by STR/AFP via Getty Images)