When U.S. forces killed ISIS leader Abu Ibrahim al-Hashimi al-Qurayshi last week, President Joe Biden and top U.S. officials rightly touted the skill and courage of U.S. counterterrorism professionals and how the world is a safer place without Qurayshi in it. But they also took great pains to explain the care taken to prevent civilian casualties and how the only assessed civilian deaths resulting from the operation were those caused by Qurayshi himself. It’s a notable, albeit unsurprising, shift after months of criticism over the disastrous Aug. 29 air strike in Kabul that killed 10 civilians and a steady stream of New York Times reports documenting substantial and unaccounted for civilian casualties in U.S. counterterrorism operations.

The question is whether the Qurayshi raid points to meaningful systemic change to prevent civilian casualties. Shortly before the raid, on Jan. 27, the Department of Defense (DOD) responded to the criticism it has faced by releasing a memorandum from Secretary of Defense Lloyd Austin, accompanied by a report from the RAND Corporation, outlining a roadmap for tackling longstanding concerns about civilian casualties. It’s an encouraging first step but the proof will be in the follow through. DOD has faced steady allegations of unnecessary and reckless civilian harm for many years and by the Times’ reporting and DOD’s own admission, a great many of what the military calls “lessons learned” have never actually been learned. Problems that should have been solved long ago – that many policymakers assumed had been solved – are now revealed to be chronic features of U.S. counterterrorism operations.

The steps Austin has directed could amount to bureaucratic half measures or they could mark the beginning of a new approach. For this effort to produce meaningful change where others have fallen short depends first on getting the scope of the problem right and then real and sustained leadership from Secretary Austin and his staff, uniformed military leadership, the White House, and Congress. It’s a massive task that requires assessing a complex problem, pushing against ossified procedures and institutional norms, and navigating what is likely to be a tense process. It’s daunting, but essential.

The RAND Report and DOD Memo

The RAND report published alongside Austin’s memo should be required reading for counterterrorism professionals and anybody who cares about civilian harm. It’s a stunning, detailed account of why, despite good intentions, the U.S. military so often fails to account for civilian casualties. It focuses on several DOD processes, including post-strike civilian casualty assessment reports (CCAR), investigations, and responses to civilian harm, as well as how DOD has resourced and structured itself to address such harm. Among the many troubling patterns the report cites are: DOD’s failure to track data and trends on civilian casualties over time, chronic under-resourcing of civilian casualty assessment functions, a shoddy and inconsistent record of making ex gratia payments after errant strikes, chronic undercounting of civilian casualties especially when they occur in urban environments or within collapsed structures, a lack of consistent leadership commitment to preventing and addressing civilian harm, systemic discounting of information on civilian casualties provided by third parties with on the ground access, and failure to learn these lessons despite the fact that most of the patterns of institutional behavior in the RAND report have been cited many times in the past 20 years of war.

These are issues that many policymakers had assumed were long since resolved. Indeed, the confident statements from senior officials over the past decade – about waging precise campaigns, that nobody works harder than the United States to prevent civilian casualties, and that “near certainty” standards of no civilian casualties applied outside of hot battlefields – conveyed a sense of policies and campaigns built on a strong operational foundation. The RAND report shows that the prevailing media and NGO narrative on U.S. strikes is correct – much of that confidence in the fundamentals is misplaced. The report also foretells that reform will be a daunting task that will take massive and widespread commitment to get it right.

Read alongside the RAND report, here’s why Austin’s memo suggests a promising start. He begins by stating that reform is “a strategic and a moral imperative” – which is notable in itself, since DOD historically has highlighted the strategic perils of civilian casualties but shied away from any discussion of morality or ethics. The memo directs the development of a Civilian Harm Mitigation and Response Action Plan (CHMRAP) within 90 days that will outline DOD’s actions in response to the RAND report and other DOD reviews of civilian casualties and ultimately feed into a DOD Instruction (DODI). Austin also directs four immediate actions:

(1) Establish a “civilian protection center of excellence”

(2) Develop improved operational reporting and data management processes to enable learning from operations over time

(3) Review guidance on how DOD responds to civilian harm, including via condolence payments and public acknowledgment

(4) “Incorporate guidance for addressing civilian harm across the full spectrum of armed conflict” so that the policy addresses a range of conflicts, not just counterterrorism and counterinsurgency.

The memo, and particularly the four immediate actions that Austin outlines, directly address many of the issues raised in the RAND report.

But will these steps be effective? It depends. DOD has for 20 years now failed to correct some of the most systemic problems with its targeted strikes. And a DOD-led review, absent interagency or congressional oversight, is simply unlikely to produce sustained change.

Consider the first steps that Austin directs. While working on a separate issue in the Pentagon, I coauthored a DODI that also directed updates to guidance and the establishment of a center of excellence. These are the bureaucratic tools of the Pentagon staff officer. They can mark the beginning of real change, or they can be half measures adopted in response to outside pressure that never gain traction with the military services or combatant commands (the fate of the DODI I worked on). DODIs and guidance can sit on the shelf, formal policy that’s widely disregarded or watered down in practice. Centers of excellence can study important missions but have little plug into how the military services or combatant commands do business.

Well before honing these solutions, DOD needs to make sure it scopes the problem correctly, and it’s not clear that it has. A proper project scope would begin by carefully working through and incorporating the recommendations from the RAND report, as well as the recommendations from the 2018 Joint Staff Civilian Casualty Review, which RAND notes have gone largely unimplemented.

The Credibility Gap

DOD must also open the aperture wider and tackle issues not addressed in these reports. This should begin by digging into accountability mechanisms and addressing what observers have called a “culture of impunity” and a “system of negligence.” This includes evaluating themes like why accountability measures are seemingly so infrequent after errant strikes and whether it makes sense for operational units to investigate themselves when credible indicators of significant civilian harm emerge.

DOD should review how it interprets the laws of war compared to its international partners and leading experts. In particular, it should review how the military defines combatants and non-combatants and what it considers to be “direct participation in hostilities.” This is important both to address longstanding concerns that DOD has been too quick to assume adult males in some circumstances are combatants, lingering questions about when DOD assesses that women and children are combatants and other target engagement criteria.

What’s more, DOD should evaluate why the U.S. military, which prides itself on being a learning organization, has failed to actually learn so many of the lessons identified over the past two decades, about things like confirmation bias, scanning for the presence of children, and ensuring shared situational awareness across operational units.

Beyond these operational issues, DOD’s plan must address the large and growing credibility gap on civilian casualties. Recent responses to reported civilian casualties are illustrative. As the New York Times has noted multiple times, “nearly everything that senior defense officials asserted in the hours, days and weeks after the [Aug. 29 strike in Kabul] turned out to be false.” The Chairman of the Joint Chiefs of Staff characterized that strike as “righteous” even while it was still undergoing a formal investigation that ultimately found that the operation killed 10 civilians, including seven children, and no enemy combatants. DOD initially failed to report and may have even attempted to cover up a March 2019 strike in Baghuz, Syria that may have killed more than 60 civilians. Pentagon spokesman John Kirby told a reporter that he was “not going to relitigate” that strike, even though it had never been properly reviewed in the first place. In nearly every theater where DOD operates, it assesses substantially fewer civilian casualties than reputable media and NGOs report but rarely explains why in any meaningful sense. Senior legal and counterterrorism officials have made only limited public statements about the legal or policy frameworks governing counterterrorism in the Biden administration. Deliberations around the administration’s updated drone strike guidance remain shrouded in secrecy. Without the New York Times’ dogged reporting, the public would hardly know it exists.

In short, DOD statements about civilian casualties that later turn out to be overconfident or inaccurate, as well as recent revelations concerning systemic problems with civilian harm, undermine the U.S. government’s credibility,  with serious implications for U.S. foreign policy. When a reporter pressed White House spokeswoman Jen Psaki last week for evidence that the U.S. military did not cause civilian casualties in the Qurayshi raid, Psaki questioned whether skeptics were trusting ISIS information over the U.S. military’s information. In response, the reporter noted that “the U.S. has not always been straightforward about what happens with civilians.” If DOD and the administration can’t figure out how to share timely, accurate information on its lethal targeting efforts, its reforms, along with other foreign policy communications, will be met with skepticism from the media, Congress, U.S. military personnel, and allies, not to mention the public here at home and abroad.

Toward Real Change

As to actually implementing reforms, success or failure will depend on concerted commitment in the months and years to come from the Defense Secretary, his staff, the uniformed military, the White House, and Congress.

In the power structures of the Pentagon, the Secretary’s persistent queries drive action, and so Austin should request regular updates and repeatedly demonstrate that he prioritizes civilian harm. He also needs to make sure his most talented and best positioned staff are working on the effort. The New York Times reports that the Assistant Secretary of Defense (ASD) for Special Operations and Low-Intensity Conflict (SO/LIC), Christopher Maier, will be leading the effort. This is a good choice, actually a better arrangement than establishing a new civilian casualty official, as some have suggested, in that the ASD SO/LIC is optimally positioned among the Secretary’s staff to engage with operational elements, particularly Special Operations Forces (SOF), who are driving targeting. Maier will need to be backed up by a well-resourced and competent staff.

The RAND report shows how effective civilian harm mitigation is possible when supported by military leadership, as was the case in Afghanistan from 2009-2012. This must be a priority for uniformed leadership, and President Biden should make clear that he expects a strong commitment to preventing civilian casualties from his nominees for key combatant commander roles that are about to turn over, especially Central Command (SOF general Erik Kurilla has his nomination hearing for that post today), Africa Command, and Special Operations Command.

But there are strong reasons to think DOD simply cannot resolve, and should not be tasked with resolving, this problem for the United States alone. Engagement from the White House and civilian departments and agencies is key. The National Security Council has reportedly completed its review of counterterrorism lethal strike policy and is poised to release new guidance soon. These policy commitments, however, will ring hollow if the administration can’t credibly vouch for the underlying fundamentals of the program. It’s essential then that the White House work closely with DOD on this review, applying necessary pressure and elevating tough issues that arise.

The NSC can also play an important role in facilitating feedback from other departments and agencies on DOD’s process. The Intelligence Community, for example, can provide a perspective on how DOD is utilizing intelligence both pre- and post-strike and why analytic failings, like confirmation bias, seem to be prevalent in DOD operations. The State Department can provide views including on how DOD can more regularly engage people on the ground to assess the results of strikes and properly account for civilian casualties. All can apply consistent pressure so that DOD’s process doesn’t fade away like prior efforts. The White House may be wary of the impression that it’s getting into the operational weeds, but it’s not really clear that there is another option, given the importance of getting this right and DOD’s record of addressing civilian harm before now.

Congressional leadership is also critical. So many of the efforts over the past several years to address shortcomings in the military’s lethal strike operations ultimately stem from congressional action. The RAND report was directed by the fiscal year 2020 National Defense Authorization Act (NDAA). Requirements for DOD to release annual statistics on strikes and the number of civilian casualties, establish a policy on condolence and ex gratia payments, and report on the resources needed to reduce and respond to civilian harm were included in other NDAAs. Future legislation may be necessary to properly resource DOD efforts to reduce and better account for civilian casualties and to provide much-needed transparency around operations (including curing ongoing gaps between congressional reporting requirements and the lack of corresponding information in DOD reports).

Congress must also posture itself to properly oversee both DOD’s reform efforts and, when appropriate, individual strikes. This would likely require expanding the oversight staff on the congressional defense committees and ensuring that they’re supported by committee members in carrying out their oversight responsibilities. A recent decision to provide Top Secret clearances to one staff member in every Senate office could also help ensure broader access to information and allow a wider range of lawmakers to engage on civilian harm reduction.

Finally, DOD should ensure a formal role for civil society in advising and informing its activities, including by considering some dramatic reforms to ensure outside accountability. This could take the form of a civilian oversight panel of experts with proper security clearances and the training and experience to evaluate DOD information on its operations. A parallel panel of NGO representatives, think tank experts, and possibly even journalists could provide input on DOD policies and ensure that relevant parts of DOD have access to the non-government information that DOD so often discounts.

This is big, complex work, and it may all prove to be just too heavy of a lift for a department that confidently asserts that “no military in the world works as hard as we do to avoid civilian casualties,” and that has already shifted away from counterterrorism as a strategic priority. Bureaucratic half measures may be all that results from this policy. In that case, the Biden administration may do well to dramatically reduce the number of strikes that it conducts in the first place, as it appears to have done over the past year. For if the administration is not able to demonstrate that its lethal strikes are as discriminate and precise as it claims, any military gain from its operations will be undermined by the strategic blowback and moral stain resulting from civilian deaths.


Photo credit: U.S. Army (retired) General Lloyd Austin after being formally nominated to be Secretary of the Department of Defense by U.S. President-elect Joe Biden at the Queen Theatre on Dec. 9, 2020 in Wilmington, Delaware (Chip Somodevilla/Getty Images)