Recent months have seen a flood of revelations concerning civilian harm resulting from U.S. military operations. The last U.S. airstrike of the war in Afghanistan, which killed ten civilians including an aid worker and seven children, was soon followed by news of U.S. operations in Syria targeting and endangering civilians. Reporting from The New York Times found that the Department of Defense (DOD) failed to investigate properly several civilian casualty incidents in Syria, including the March 2019 airstrikes in Baghuz that killed as many as seventy civilians. This reporting, along with five years of other in-depth New York Times investigations, illustrates the systemic failures of accountability for civilian casualties which have plagued U.S. air wars in Syria, Iraq, and Afghanistan.

These recent revelations and DOD’s apparent inability to investigate itself have renewed demands for increased congressional oversight over DOD civilian harm policies. Meanwhile, Congress has spent much of the last few months considering the National Defense Authorization Act (NDAA), the annual must-pass defense bill containing some of Congress’s most important national security measures. This year, the road to NDAA passage was particularly difficult, with gridlock and competing priorities delaying the process. Last week, although many of the most promising amendments on civilian harm issues were cut in negotiations, the Senate finally passed the bill with a vote of 88-11, sending it to the President’s desk for his signature. While the NDAA takes some important steps towards congressional oversight of civilian harm, especially in the amends process, it does not go far enough in preventing and monitoring the U.S. role in civilian harm, particularly through its security partnerships. Further legislative action is needed, then, not only to investigate and make amends for civilian harm, but to implement strong policies concerning the protection of civilians in U.S. and partner military operations.

Promising Steps on Amends for Civilian Harm

This year’s defense authorization bill extends funding for ex gratia payments (also known as condolence payments) and requires the Secretary of Defense to “establish procedures to receive, evaluate, and respond to allegations of civilian harm resulting from military operations” in which the United States is involved.

The FY2020 NDAA authorized $3 million annually for ex gratia payments to civilians harmed by U.S. or partnered operations anywhere in the world. In June 2020, DOD released interim regulations for the implementation of that provision. This year’s version makes much-needed improvements to current ex gratia policies by:

  • Extending funding: The ex gratia provision in the FY2022 NDAA extends $3,000,000 in annual funding until the end of 2023.
  • Establishing a claims process: For the first time, the FY2022 NDAA requires DOD to establish procedures to receive, evaluate, and respond to allegations of civilian harm, including by formally acknowledging harm, making a condolence payment, or through other non-monetary expressions of condolence. This is a critical step because ex gratia payments are discretionary, and DOD rarely issues these payments even in the many cases where it has admitted causing civilian harm. For example, in 2020, DOD disbursed zero ex gratia payments despite congressional authorization to do so and access to millions of dollars in funding for that purpose. The new process would allow civilians to report harm and request amends prior to DOD acknowledgement, allowing survivors to access a claims process in cases where DOD may be slow or reluctant to acknowledge harm. As DOD establishes these procedures for amends, the FY2022 NDAA will also require it to consult with “the Secretary of State and with nongovernmental organizations that focus on addressing civilian harm in conflict.”
  • Removing language about “friendly” civilians: The FY2020 NDAA and the Department of Defense’s interim regulation limited eligibility for ex gratia payments to individuals deemed “friendly to the United States,” a poorly defined concept that disqualified many civilians. This year’s NDAA makes the welcome change of removing the friendliness requirement.

These provisions are encouraging. Moving forward, DOD should heed the recommendations of civil society organizations, ensuring that procedures for ex gratia payments are transparent and accessible, with clear and culturally appropriate procedures available in languages spoken by survivors. Ex gratia should also be one part of a broader amends process, to include acknowledgment of and apologies for harm, access to physical and mental health services, community-level reparations, and other offerings in accordance with survivors’ needs and preferences. For more analysis of civilian harm amends provisions in past NDAAs, see the reference guide compiled by Center for Civilians in Conflict (CIVIC).

Pushing the Pentagon to Release Its Civilian Casualties Policy

In another signal of growing congressional impatience with DOD’s lack of progress on civilian protection, Congress used the FY2022 NDAA to call for the release of the much-anticipated Department of Defense Instruction on Minimizing and Responding to Civilian Harm in Military (DOD-I). Civil society has advocated for the DOD-I to recognize minimizing and responding to civilian harm as a legal, moral, and strategic priority and outlined principles that should be included in such a policy. Nearly two years after the FY2020 NDAA mandated the development of a civilian harm DOD-I, however, the policy still has not been released.

Section 1048 of the new NDAA employs the power of the purse to urge the DOD-I’s publication. The section restricts the release of a quarter of funds allocated for operation and maintenance and available for the Office of the Secretary of Defense in the NDAA until fifteen days after the Pentagon presents the civilian harm instruction to Congress. Amid new reporting about failures of accountability in Kabul and Baghuz, a coalition of civil society organizations has called on DOD to review the DOD-I to ensure that the new policy adequately addresses issues that The New York Times reporting uncovered.

Conditioning some funds on the DOD-I’s publication, like the steps towards reform of ex gratia funding, speaks to the still-small but growing congressional attention to protection of civilian policies. Congress should continue exercising its power of the purse to push for stronger protection of civilians policies and practices. As lawmakers react to recent revelations of civilian harm, they could prohibit the use of funds for activities associated with a high risk of civilian harm and condition the release of funds on DOD reports and reforms.

Reports on Human Rights in Security Cooperation

Security cooperation is the most common way the United States involves itself in armed conflict, spending over $19.5 billion dollars a year on security assistance programs. The FY2022 NDAA requires several reports on U.S. security assistance and human rights that introduce much-needed transparency and scrutiny on security cooperation. The most far-reaching report will review human rights training requirements for security cooperation programs, assess data collection practices for evaluating human rights training, and analyze the efficacy of such trainings.

In addition to the overarching security cooperation report, the bill includes various country-specific reporting requirements including:

  • Azerbaijan: The NDAA requires the Secretary of Defense to submit a report on the 2020 Nagorno-Karabakh war, including an assessment of the use of U.S. weapons in the conflict. An amendment from Senator Menendez (D-NJ) to repeal a presidential waiver authority over a ban on U.S. security assistance to Azerbaijan did not make it into the final NDAA.
  • Colombia: Based on a House amendment from Representative Ocasio-Cortez (D-NY), the bill requires a report on U.S.-Colombia security cooperation, including a description of human-rights and rule-of-law training activities in the relationship.
  • Northern Triangle: The NDAA includes provisions requiring reports on security cooperation with El Salvador, Guatemala, and Honduras. The required reports include a description of credible information regarding gross violations of human rights (which could trigger restrictions under the Leahy Laws) and an evaluation of end-use monitoring procedures regarding the misuse of U.S.-provided equipment.

A Missed Opportunity on the War in Yemen

Despite these reforms, the final NDAA does not take much needed steps to ensure that the United States is not complicit in civilian harm resulting from the Saudi-led coalition’s operations in Yemen. In the first major foreign policy speech of his term, President Joe Biden promised to end “all American support for offensive operations in the war in Yemen, including relevant arms sales.” However, in cases like the recent high-profile approval of a sale of air-to-air missiles, analysts disagree with the administration’s position on which weapons and services have plausible “offensive use.”

An early Senate version of the NDAA would have enshrined President Biden’s promise in law, prohibiting the use of authorized funds to provide “Department of Defense support for the Saudi-led coalition’s offensive operations against the Houthis in Yemen, including for coalition strikes.” In a statement, the Biden administration opposed the provision, calling it unnecessary in light of administration policy. The provision was left out of the NDAA in negotiations between the House and Senate Armed Services Committees, and the Senate never voted on Saudi Arabia amendments from Senators Menendez (D-NJ) and Sanders (I-VT).

On the other side of the Hill, the House voted to incorporate two Yemen amendments into its version of the NDAA. Representative Ro Khanna (D-CA) introduced an amendment that would have functionally terminated U.S. military support for the Saudi-led coalition, barring the logistical support, intelligence sharing, and transfer of spare parts that have enabled the coalition to conduct strikes on the Houthis. A less assertive amendment from Representative Gregory Meeks (D-NY) would have suspended maintenance support only to Saudi units “determined to be responsible for airstrikes resulting in civilian casualties in Yemen” with certain exemptions. Despite the House votes in favor of the amendments, both measures were stripped from the final bill in negotiations.

In the end, Congress sent President Biden an NDAA that is even weaker than past NDAAs on the war in Yemen. While the bill requires reports on coalition airstrikes as the FY2020 and FY2021 NDAAs did, Sec. 1340 of the FY2022 NDAA removes the requirement contained in both previous bills to determine whether offensive Saudi airstrikes complied with the U.S. interpretation of the law of armed conflict. This oversight is significant because it suggests that DOD is not required to assess the legality of Saudi-led operations in Yemen. The NDAA thus does little to address the problem of U.S. security partnerships that result in civilian harm in Yemen, potentially in violation of international law.

Left on the Cutting Room Floor

This year, members of Congress filed over 1,000 amendments to the NDAA. Although the House voted to include dozens of amendments related to the protection of civilians, many were left out of the final version of the bill negotiated by leaders of the armed services committees. No Senate amendment went to a vote, including measures to exercise congressional oversight on executive branch policies that contribute to civilian harm. Crucial amendments on civilian harm that did not make it into the final NDAA include:

  • Flipping the script on arms transfers: Senators Murphy (D-CT), Sanders (I-VT), and Lee (R-UT), introduced their National Security Powers Act as a Senate amendment to the NDAA. The legislation would, among other reforms strengthen Congress’s oversight role in arms sales. Instead of requiring Congress to pass a joint resolution of disapproval and override a presumptive veto to block a president’s arms sale, the Act would require the President to secure congressional approval for certain high-risk arms sales.
  • Keeping Congress apprised of arms shipments: Representative Tom Malinowski’s (D-NJ) NDAA amendment would have required the President to notify Congress in advance of shipping arms to foreign buyers, giving legislators another chance to block the shipments in addition to the currently required pre-agreement notification.
  • Extending human rights vetting to recipients of counterterrorism support: An amendment proposed by Representative Sara Jacobs (D-CA) would have required human rights vetting for partner forces receiving support under 10 U.S. Code § 127e, which regulates U.S. security cooperation in counterterrorism operations. Mirroring the language of the Leahy Laws, the amendment would have closed a loophole exempting 127e assistance from human rights vetting. Although the House adopted the measure in its initial version of the bill, it did not appear in the final version that armed services committee leaders in both chambers negotiated.
  • Reviewing the humanitarian consequences of U.S. economic sanctions: After a Treasury Department sanctions review evaded the issue of civilian harm from economic sanctions, Senator Elizabeth Warren’s (D-MA) amendment would have required a report on all active comprehensive sanctions, including assessments of the humanitarian consequences for civilians.

Human Rights Watch’s Leah Hebron and Kate Weine have highlighted other promising amendments related to accountability and transparency for human rights violations that did not make it into the final bill.

What’s Next

A public reckoning with civilian harm resulting from U.S. military operations may be on the horizon as civilian casualties receive mainstream media coverage that challenges longstanding executive branch assertions about the human costs of U.S. air wars. Congress should continue building on the measures in this year’s NDAA to prioritize civilian harm and ensure that the executive branch and DOD adhere to stated policies on civilian harm, as well as domestic and international law.

Just as important as the contents of the NDAA is DOD’s implementation of the bill’s requirements. Both the civilian harm DOD-I and the ex gratia claims procedures resulted from years of congressional requirements in successive NDAAs. Since DOD has demonstrated its inability to self-regulate effectively, Congress must exercise oversight at every stage of the implementation process. For example, Congress should regularly revisit DOD’s amends procedures to ensure that the United States actually issues ex gratia payments. After the release of the civilian harm DOD-I, lawmakers should similarly identify any remaining gaps and require new iterations of the policy as the security landscape changes.

Congress should also take initiative to prevent and account for civilian harm with legislation outside of the NDAA process. Recent New York Times investigations demonstrate a lack of DOD transparency and failure to self-regulate that requires legislative action. The inadequacy of DOD investigations necessitate legislative reckoning with the U.S. military’s disregard for civilian lives. When it comes to arms sales, longstanding power imbalances in favor of the executive branch undercut oversight, requiring the sort of restructuring contained in the National Security Powers Act.

In addition to passing legislation, Congress should strengthen its oversight on civilian harm with non-legislative measures, such as through holding hearings or requesting briefings. Legislators should ask hard questions of DOD in light of recent revelations of civilian harm, thoroughly investigate longstanding shortcomings, and work to facilitate transparency and amends for twenty years of civilian harm in the so-called “war on terror.”

Image: Clouds pass over the Capitol Dome as the Senate resumes debate on the National Defense Authorization Act (NDAA)(Photo by Joshua Roberts/Getty Images).