Editor’s Note: This article represents the first installment of a two-part series on the FY23 National Defense Authorization Act, civilian harm policy, and security sector assistance.
In just a few weeks, Congress will resume session with a busy legislative schedule that includes passing the Fiscal Year 2023 National Defense Authorization Act (NDAA), the annual “must-pass” bill that authorizes defense spending and typically includes many other related provisions. This year, following civil society calls for urgent congressional action, both the House and Senate bills include important proposals to better prevent and respond to civilian harm caused by U.S. military operations abroad. As the Department of Defense (DoD) works to overhaul its civilian harm policies, congressional action and oversight is crucial for ensuring that these efforts are transparent, sustainable, accountable, and effective.
Although the Senate has not yet taken up the bill on the floor, informal negotiations are likely already underway in the face of a crowded legislative calendar, and it’s uncertain what the remainder of the process will look like. Whether it is through a Senate floor process or the bills’ conference, Congress should carry forward and pass the following elements of each bill.
A Bipartisan Commission on Civilian Harm
Section 1084 of the House bill (H.R. 7900) would create a bipartisan commission on civilian harm, thus providing a much-needed independent examination of twenty years of repeated civilian harm incidents and lessons learned in both the prevention of and response to such harm. This measure would fill a key accountability gap: while the Defense Department’s current process grapples with the important work of reforming civilian harm policies for the future, it’s just as important to look back at the staggering number of past cases that have gone under-investigated, unacknowledged, and without amends. Reviewing past cases is also necessary for learning from longstanding shortcomings, an explicit goal of Sec. of Defense Lloyd Austin’s January directive. Given that the U.S. military has historically failed to effectively investigate itself, and that, by Sec. Austin’s own admission, the Department does not currently plan to reopen erroneously dismissed cases, an independent congressional review is critical.
The bipartisan Commission on Civilian Harm envisioned in the House bill would carry out a study on civilian harm caused by the U.S. armed forces since the enactment of the 2001 Authorization for the Use of Military Force, including, inter alia, investigating a representative sample of civilian harm incidents (both alleged and officially confirmed); identifying recurring causes of civilian harm; assessing the Department’s policies, rules, and practices for preventing and addressing civilian harm, including the armed forces’ compliance with said rules and the implementation of past recommendations; and assessing the Department’s responsiveness to civilian harm incidents, including through investigations, public acknowledgement, and the provision of compensation payments. The Commission would be composed of twelve non-governmental members appointed on a bipartisan basis and would culminate its work with a report due in 2024.
The Commission was included in the House Armed Services Committee’s chairman’s mark, indicating strong committee support for the concept. The provision should be prioritized throughout the remainder of the Senate process and conference.
Staffing and Resourcing Civilian Harm Policy
Section 1043 of the Senate mark and section 1085 of the House bill each include provisions designed to ensure that civilian harm prevention, mitigation, and response activities are adequately staffed, resourced, and centralized within the Department.
Section 1043 of the Senate mark would create an Office for Civilian Casualty Prevention, Mitigation, and Response to serve as the focal point for matters related to civilian harm. The office would be responsible for, among other things, collecting and analyzing civilian harm data; conducting regular reviews of civilian harm policies and practices across the Department; referring incidents for investigation; ensuring lessons learned are captured and institutionalized; and coordinating efforts across the U.S. government and engaging with civil society. The provision would also require the Office to, within one year of the law’s enactment, submit to the Secretary an analysis of a representative sample of civilian casualty assessment reports since 2014 to identify trends and factors leading to civilian harm, capture lessons learned, and evaluate the extent to which past recommendations have been incorporated into policy.
Section 1085 of the House bill would create a Center for Excellence in Civilian Harm Mitigation – institutionalizing an entity the Secretary of Defense has already committed to creating – responsible for improving how the Department collects and analyzes civilian harm data to learn from incidents; developing and reviewing guidance on how the Department responds to civilian harm; developing guidance for addressing civilian harm through doctrine, operational planning, and training; and developing a repository of civilian casualty and civilian harm information.
There are strong merits to both proposals, which would build the architecture and bureaucratic power necessary to sustainably implement improvements in how the Department prevents and responds to civilian harm – including through implementation of the forthcoming Civilian Harm Mitigation and Response Action Plan and the Department of Defense Instruction on Civilian Harm.
Both provisions should be reconciled in the final bill, being careful to maintain the following necessary functions:
- Developing and ensuring implementation of policy, as well as conducting regular reviews of policies and practices across the Department;
- Advising the Secretary and Joint Chiefs of Staff on ways to improve and institutionalize policy, training, tactics, techniques, and procedures of the Department;
- Referring civilian harm incidents for investigations outside the chain of command;
- Ensuring standardized policy and practice regarding amends for civilian harm, including but not limited to condolence payments;
- Developing and ensuring implementation of lessons learned, including through the coordination of operational data reporting and analysis;
- Fulfilling congressional reporting requirements on civilian harm and transparently and regularly reporting to the public; and
- Consulting with civil society.
Additionally, Section 1099D of the House bill would provide further resources to implement Department policy on civilian harm, including assigning staff at each combatant command, the Office of the Under Secretary of Defense for Policy, and the Joint Staff with responsibility for civilian harm prevention and response policy implementation. The section would also provide $5 million for training, information technology, and data storage.
Improved Transparency and Responses to Civilian Harm
Finally, the House bill also includes provisions that would improve transparency around civilian harm caused by U.S. forces and ensure the continued availability of tools to respond to civilian harm.
Section 1071 of the House bill would make essential updates to the annual report on civilian casualties, expanding the information available to the public on civilian harm caused by U.S. operations around the world. If enacted, the bill would require annual reporting to include the geographic coordinates of strikes; the justification for strikes; the number of men, women, and children involved; damage to civilian objects and property; a summary of the completed civilian harm assessment or investigation; whether the investigation included witness interviews, site visits, or incorporated information from civil society; and a description of any new or updated civilian harm policies and procedures implemented by the Department. (The provision mirrors elements of the Department of Defense Civilian Harm Transparency Act introduced in April, covered in Just Security here.)
Section 1079A of the House bill would also improve transparency and facilitate learning from past harm by requiring the Department of Defense to enter into an agreement with a federally funded research and development center to conduct an independent report on U.S. military practices for distinguishing between combatants and civilians in its operations. This is important because, to date, the U.S. military has adopted deeply flawed, overly permissive, and often secretive interpretations of legal and policy standards that have directly resulted in civilian harm, including an overly broad definition of what constitutes direct participation in hostilities and a repeated failed to presume civilian status in cases of doubt as required under international law. DoD’s own studies and investigations have also identified persistent problems with confirmation bias and misidentification that have not been adequately addressed, problems which in part led to civilian harm in the Kabul and Baghuz incidents. (This and other provisions above mirror elements of the Protection of Civilians in Military Operations Act, also introduced in April, covered in Just Security here.)
Lastly, Section 1332 of the House bill would permanently extend the Defense Department’s authority for issuing ex gratia payments to civilian victims and survivors of U.S. military operations, one of many important tools for responding to devastating harm. While the permanent extension of this authority is critical, continued congressional oversight will be essential to ensuring that the Department actually utilizes the millions of dollars authorized annually by Congress for this purpose. In 2020, the latest year for which this information is available, the Department did not make a single ex gratia payment despite a $3 million authorization and the large number of cases where the Department had confirmed civilian casualties and had the necessary information to contact survivors.
Successfully reckoning with past civilian harm and overhauling U.S. policies for preventing and responding to harm will require sustained engagement not only from the Department of Defense and the White House, but also from Congress. If passed, the above provisions would fill critical gaps in Defense Department policy, strengthen and resource the Secretary’s vision for reform, and ensure necessary oversight over the too-often devastating human impacts of the United States’ use of force abroad. Congress should ensure that these provisions are reflected in the final law.