The Pentagon has three months to investigate the disturbing New York Times report that the military conducted and covered up airstrikes in Baghuz, Syria that killed up to 64 civilians. On Nov. 29, Pentagon Press Secretary John Kirby announced that the Secretary of Defense directed General Michael Garrett, the commander of U.S. Army Forces Command, to conduct a review of the civilian casualty incident. The inquiry will assess, among other things, compliance with the law of war, potential accountability measures, and whether “authorities, procedures, or processes should be altered.”
It is unclear whether the results of this investigation will be made public. In order to restore credibility and public trust, the Pentagon should declassify and release the findings of this investigation. More broadly, the Pentagon should increase transparency by publishing its investigations into civilian casualty reports and evaluations and reviews of the targeting process. It is only by taking these steps that the Pentagon can address concerns raised by former U.S. government officials and experts who have assessed that the pattern of civilian harm in DOD targeting operations is systemic.
Congress has an important role to play in spearheading bipartisan efforts to increase protection for civilians. Congress should pass a Global War on Terror (GWOT) Transparency Act to bring much needed transparency to DOD targeting activities through declassifying and publicly releasing these studies and reports.
The Importance of Independent Oversight
I previously worked in the U.S. Department of Defense Office of Inspector General (DOD OIG), and co-wrote one of the targeting evaluation reports cited in the Times investigation. I will not address the specifics of the Times article nor the classified DOD OIG reports, but will acknowledge that, consistent with targeting evaluations and standard practice, the team I was part of examined the pre-strike targeting process, the damage assessment and civilian casualty review and reporting process, and the post-strike reporting of information. This OIG report we produced was one of several independent reviews (here, here, here, and here) which have or are currently being produced to evaluate the DOD kinetic targeting process.
The DOD OIG, like other statutory OIGs, was created by Congress to provide unbiased and impartial evaluations, inspections, and reviews of DOD activities. The DOD OIG’s significant value proposition is its ability to call “balls and strikes” on the propriety of military activities due to its near total independence from the rest of DOD (and even from the Secretary of Defense).
The same cannot be said for other offices in the DOD that reportedly are conducting their own targeting reviews, such as the Office of the Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict (OASD(SO/LIC)) and Army Forces Command. The OASD(SO/LIC) has a Service-like relationship with the special operations forces it oversees which means it is responsible for the management of administrative matters relating to the organization, training, and equipping of special operations forces. The ASD(SO/LIC) also reports indirectly to the Secretary of Defense through the Undersecretary of Defense for Policy. Separately, Army Forces Command is directly subordinate to the Chief of Staff of the Army and exercises administrative management of a large swath of the Army’s combat forces.
An inherent flaw with military commands evaluating or investigating their own subordinate units are real and perceived conflicts of interest. For example, this was evident in a recent United States Special Operations Command (USSOCOM) study on professional ethics concerns within special operations forces (SOF). USSOCOM, grading its own subordinate force and culture, concluded: “The Review Team did not assess that USSOCOM has a systemic ethics problem. The Review Team did assess that in some instances USSOCOM’s cultural focus on SOF employment and mission accomplishment is to the detriment of leadership, discipline and accountability.” It is challenging for people who follow special operations affairs to accept this finding in light of all the recent ethics violations across SOF. Even if USSOCOM’s conclusion in the report were accurate the lack of an independent investigation ultimately tainted the findings and created the perception of bias. Similarly, any DOD investigation led by an office that is not sufficiently independent from military targeting activities likely would be viewed with skepticism.
The Transparency Conundrum
The findings and results of these reviews of DOD targeting activities and processes are unlikely to reach the public due to the combination of over-classification across the DOD and the classified exemption of public release of these documents, provided by the Freedom of Information Act (FOIA). For example, on November 30th, the DOD OIG, in response to a FOIA request, did publicly release one of its CENTCOM targeting evaluation reports. However, this report was highly redacted with several findings completely exempt from release. And in response to a different FOIA request for another sensitive DOD OIG targeting and civilian casualty evaluation report, the DOD OIG determined that all 123 pages of the report were exempt from public release.
Therefore, even if additional targeting reports are redacted and publicly released, like other classified reports processed through FOIA, problems with the targeting process — located in the “findings” section of the reports — likely will be heavily blackened out, like this OIG report or Tweet of a redacted report. These reports, if released at all, will provide marginal insight into whether U.S. counterterrorism (CT) operations were conducted effectively, efficiently, and in accordance with U.S. and international laws, as well as White House policies on direct action. Civilian casualty (CIVCAS) experts also have expressed trepidation that, without increased transparency, it is impossible for the public to “grade the grader” and determine if these targeting reviews were thorough, analytically rigorous, and legally sound.
One last point on the FOIA process. The OIG and DOD records have been notoriously slow-moving through FOIA due to the volume of cases, which are processed on a first-in, first-out basis. So, without additional Congressional insistence, it could be years before even snippets of these other reports reach the public.
The Senate in June 2020 introduced legislation to increase public transparency on civilian casualty investigations through the Protection of Civilians in Military Operations Act, which stipulates that the public should have access to a database “that preserves and organizes reports [and results] of the Department on investigations of civilian casualties resulting from United States military operations.” However, the Act is limited to increasing transparency only on civilian casualty investigations and does not address the numerous oversight evaluations, assessments, and reviews of DOD targeting activities, processes, and procedures. The Act also does not resolve the over-classification issue and allows DOD to create a classified annex that would be “appropriately limited.” Therefore, it’s questionable whether this legislation will achieve its intended purpose. Broader and more intrusive transparency legislation is still greatly needed.
Currently, the public has more insight into strategic CT policies than into how these polices are executed at a tactical level. The Obama White House’s Presidential Policy Guidance (PPG), superseded by President Trump’s Principles, Standards, and Procedures for Direct Action Against Terrorist Targets (PSP), were classified policy documents that were subsequently redacted, declassified in significant part, and released to the public. The Obama administration and the courts determined that the public had a right to understand the policies governing operations that were carried out secretly in its name. The Trump administration, however, declined to release a version of the PSP, which was only declassified after the Biden administration came into office.
The PSP requires U.S. forces to “…take extraordinary measures to ensure with near certainty that noncombatants will not be injured or killed in the course of [direct action] operations, using all reasonably available information and means of verification.” The policy document also states that “departments and agencies will undertake independent post-operation analysis, in part to be postured to provide, when appropriate, a factual response to any claims of noncombatant casualties or collateral damage.”
The challenge for the public in grading these policy statements is that the reports which evaluate the military’s extraordinary measures taken to mitigate collateral harm and the independent post-operation analysis do not exist in the public domain.
So, how can the public assess whether these CT policies are being executed by the military as intended?
A New Perspective on “Classified” Targeting Information
Security classifications, such as Secret and Top Secret, are used on government documents that contain information that if disclosed could be expected to cause “serious” or “exceptionally grave damage” to national security. Examples of this might include information on sensitive military operations or intelligence capabilities and activities. However, the answers to the following questions (below), which generally should be addressed in any targeting evaluation, might prove embarrassing for the military, but would be unlikely to undermine national security or degrade military operations if shared with the public. Critics might claim that any disclosure of the military’s rules of engagement would prove harmful for military operations; however, at a high level, revealing the rules of engagement (ROE), like the DOD did in 2003 for Iraq, arguably had no significant impact on combat effectiveness.
Standard questions in a targeting evaluation:
- Did the ROE comply with the laws of war?
- Was the ROE clear and well understood by the evaluated units(s)?
- Did the evaluated unit(s) comply with the ROE?
- Were feasible measures taken to identify the risks of collateral damage (civilians and civilian objects in the strike area and to mitigate such risks?
- Was post-strike collateral damage accurately identified, recorded, and reported to proper authorities, and were these findings independently investigated and verified?
- Were deviations from the targeting process identified and reviewed? Was anyone held accountable for these errors and, if so, what disciplinary measures were taken?
- Were there systemic problems in the targeting and strike approval process? What procedures were put in place to address these problems?
Without knowing the answers to these important questions and others, Americans will remain uninformed on whether the military’s role in the “War on Terror” was consistent with national policy. Pentagon spokesperson John Kirby recent claimed that “no military in the world, works as hard as we do to avoid civilian casualties.” Absent greater transparency, the public has no way of verifying the veracity of such statements.
Congressional Momentum for a GWOT Transparency Act
The good news is that Congress recently has stepped up efforts to oversee, investigate catastrophic air strikes, and, in some instances, request agencies to declassify concerning military activities. This shift has come largely in response to the publication of the Special Inspector General for Afghanistan Reconstruction’s (SIGAR) Afghanistan Papers, the haphazard military withdrawal from Afghanistan, and renewed concerns about questionable strikes.
However, Congress can and should do more to advance public awareness. If Congress is serious about fixing these mistakes, then it should add robust transparency requirements to the next National Defense Authorization Act. Alternatively, the body could send a strong message by passing a stand-alone bill to compel oversight agencies like the DOD OIG, SIGAR, or the Government Accountability Office (GAO) and the military services, including OASD(SO/LIC), to declassify (broadly with minimal redactions and with urgency) these evaluative reports on targeting, military operations, and CIVCAS. Barring full declassification of these reports, DOD should issue separate, unclassified reports capturing all of the major findings and recommendations contained in the classified reports.
The recently introduced September 11 Transparency Act of 2021 (Sept. 11 Act) in the Senate could provide a roadmap for a GWOT transparency act. The Sept. 11 Act “require[s] a declassification review of certain investigation documents concerning foreign support for the terrorist attacks of September 11, 2001.”
The Sept. 11 Act stipulates that the Director of National Intelligence, the Attorney General, and the Director of the Central Intelligence Agency conduct expediently (within 90 days) declassification reviews and submit detailed justifications to the Intelligence Congressional Committees “for each decision not to declassify a document, record, or information.” Adding this important requirement places an additional burden on agencies to “show their work” and prove to Congress that any information that remains redacted from the public record is necessary to protect vital national security interests.
Once these classification reviews are complete, the Sept. 11 Act requires “all nonclassified information [be] disentangled and, to the extent practicable, made available to the public.”
Certainly, evidence of foreign support for planning activities surrounding the 9/11 attacks warrants significant congressional attention and public awareness. Likewise, there should be commensurate transparency legislation on how the American military has waged the post-9/11 wars.
The 19th century British historian and ambassador to the U.S. James Bryce made an astute observation on transparency in the American political system. Bryce says, “Selfishness, injustice, cruelty, tricks…shun the light; to expose them is to defeat them. No serious evils, no rankling sore in the body politic, can remained long concealed, and when disclosed, it is half destroyed.”
The second half of Bryce’s statement focuses on accountability. If the declassified reports reveal that the prescribed DOD targeting processes were sound but intentionally disregarded, or that there was demonstrated gross negligence, then the individuals managing these activities should be held accountable through the Uniform Code of Military Justice (UCMJ) process. However, if these reports reveal that the targeting process itself, or an overly expansive interpretation of the ROE, led to civilian harm, then the civilian policymakers, legal advisors, and senior generals who drafted these policies and oversaw their implementation should be held accountable. Accountability options for current or former officials might prove limited, but at a minimum, these individuals should carry an administrative mark on their official record that prohibits them from working on targeting and CIVCAS policy, including its operational execution, management, and oversight.
The immediate result of greater transparency might be public opprobrium. But Congress has an obligation to the American people and the victims of U.S. military operations to improve measures intended to reduce civilian harm. In the long term, transparency and accountability are essential for maintaining trust with the American people and the world—a crucial element of any secure and stable democracy.
Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of Defense, the DOD Office of Inspector General or the U.S. Government.