Last week, after an unusually polarized political process, the House of Representatives passed the annual defense spending bill—the National Defense Authorization Act (NDAA). The Senate is set to vote on their version of the NDAA as early as this week.
Despite piecemeal progress in Congress on increasing civilian protection, this year’s NDAA represents missed opportunities to further strengthen critical protections.
The FY24 House NDAA comes on the heels of a banner year for civilian protection. After a string of reporting on egregious civilian casualties, U.S. Secretary of Defense Lloyd Austin ordered the Department of Defense (DoD) to develop the Civilian Harm Mitigation and Response Action Plan (CHMR-AP). Meanwhile, Congress made incremental progress in last year’s NDAA, including by increasing reporting on civilian casualties and creating a DoD Center of Excellence as a focal point for civilian protection efforts.
Civilian harm continues to be a salient issue in need of congressional oversight. As recently as May 2023, the DoD walked back claims that it killed a senior al-Qaeda leader in Syria as evidence emerged that the victim was instead a civilian shepard and father. While it’s still unclear whether changes from last year will improve his family’s prospects for accountability or amends, no investigation or payment can bring him back from the dead. Meanwhile, the armed conflict in Ukraine—the largest in Europe since World War II—underscores the continued need to protect civilians, many of whom appear to have been targeted by Russia.
Here are some key civilian harm provisions to watch in this year’s NDAA, and some others that the House left on the cutting room floor.
What to Watch: Increased Reporting or Funds For Some Civilian Protection Issues
- Modified ex gratia reporting requirement: Despite the availability of funding for ex gratia payments to civilian survivors of U.S. military operations, U.S. amends for harm are few and far between—in fact, DoD made no payments in 2020 and only one in 2021. Representative Andy Kim’s amendment provides more transparency to the ex gratia process by requiring reports detailing when requests are made, how they were handled by DoD, and, when applicable, why they are denied. It also requires reporting on the status of pending requests, which is important given the number of civilian victims who never receive any response from DoD after requesting a payment.
- GAO assessment of efficacy of training on civilian casualty mitigation: Independent, government-commissioned research has identified civilian protection training deficiencies within DoD. An amendment introduced by Representative Sara Jacobs would mandate a Government Accountability Organization (GAO) report to study the efficacy of these trainings and make recommendations for improvement.
- Increased funds for humanitarian demining: A Representative Chrissy Houlahan amendment proposes increased funds for humanitarian demining, the process of removing and destroying landmines, cluster munitions, and other unexploded ordnance from areas affected by conflict. Humanitarian demining allows displaced families to safely return to their homes and communities, and has been shown to increase community income.
- Improved transparency and accountability for misuse of potentially dangerous technology: A trifecta of amendments would strengthen guardrails around risky technology. First, a proposed Representative Jacobs amendment would mandate that the Secretary of Defense create criteria to determine whether artificial intelligence (AI) is being used responsibly. If AI is misused, either now or in the future, the provision would require the Secretary to remediate issues. Second, a Representative Kim amendment would direct DoD to issue an unclassified report on the legal implications of lethal autonomous systems, including with regard to the use of force. Third, another Representative Kim amendment would require DoD to brief Congress if DoD makes changes to the policy or guidelines governing lethal autonomous weapons.
Missed Opportunities to Reduce Civilian Harm
Unfortunately for civilians, several important proposals were never voted on by the full House. Instead, these provisions never made it beyond the House Committee on Rules, a key gatekeeper of which NDAA Amendments are eventually considered by all representatives.
- Continued accountability gaps for past civilian harm: An amendment proposed by Representative Jacobs would have required the Secretary of Defense to “establish procedures to review and re-investigate” allegations of civilian harm from the U.S. military operations between 2011-2023 that were likely incorrectly dismissed. This provision would have helped fill a critical gap in current DoD commitments and would have strengthened U.S. credibility in the civilian protection space.
- Insufficient transparency on civilian casualties from certain U.S. strikes: After its sunset in 2022, Representative Jason Crow introduced an amendment to extend until 2027 reporting on U.S. strikes against terrorist targets “outside areas of active hostilities” and resulting civilian casualties. While DoD currently reports annually on civilian harm caused by its own operations, this reporting requirement was the only window into civilian harm caused by operations by other U.S. agencies, such as the CIA. If it had passed, this amendment would have facilitated transparency that is key to evaluating recent changes in civilian protection as well as broader oversight over the U.S. use of force globally.
- Lack of focus on civilian casualties in Nigeria: Despite reports of civilian harm in Nigeria, an amendment proposing a report on U.S. strategy for justice and accountability in the Nigerian Armed Forces also did not receive full House consideration.
Calling on the Senate
As the Senate considers the NDAA, U.S. policymakers should rally around the passed House provisions to make progress on civilian harm. But they must not stop there. Instead, the Senate NDAA should also include provisions seeking accountability for past harms as well as shoring up transparency on civilian harm and the use of force globally.