US Senator Elizabeth Warren and Representatives Ro Khanna, Jason Crow , Sara Jacobs, and Tom Malinowski proposed two pieces of legislation that would overhaul the prevention, mitigation, reporting, and transparency of civilian harm caused by U.S. military operations.
The Democratic lawmakers will introduce the Department of Defense Civilian Harm Transparency Act and reintroduce a new version of the Protection of Civilians in Military Operations Act, which Warren and Khanna introduced in 2020.
The two pieces of legislation are endorsed by 18 human rights groups, veteran’s organizations, and think tanks, including Human Rights Watch and the Center for Civilians in Conflict.
Senators Dick Durbin, Jeff Merkley, and Bernie Sanders are co-sponsors of both pieces of legislation in the Senate.
“You can’t look at the faces of the seven children killed in the August 29th Kabul drone strike and not act on our moral imperative to protect the lives of children and other civilians in U.S. military operations. I strongly urge the Pentagon to incorporate the proposals in this legislation in their upcoming review to ensure integrity in civilian harm investigations and resources needed for a Center of Excellence for the Protection of Civilians that is truly up to the task,” said Khanna.
“The evidence is clear: after twenty years of mostly unfulfilled pledges on preventing civilian harm, the Pentagon has shown that it needs the involvement of others outside the chain of command in setting policy and ensuring accountability,” said Malinowski, a New Jersey Democrat who is facing a tough re-election campaign. “It is time to provide additional oversight through interagency partners and these bills do just that.”
“We cannot continue to accept the deaths of innocent civilians as an unavoidable cost of war – the Department of Defense has a moral responsibility to prevent civilian harm from its military operations and investigate if civilians are harmed,” said Warren. “The bicameral legislation that my colleagues and I are introducing builds from reforms that Secretary Austin has already asked DoD to consider, will put significant guardrails and transparency requirements in place, and establish a much-needed focal point in the government to investigate, report, and prevent civilian harm.”
While the U.S. waged a war in Vietnam 50 years ago with 2.7 million men conscripted from every segment of society, less than one-half of 1% of the U.S. population is in the armed services today — the lowest rate since World War II.
America’s most recent wars were authorized by a U.S. Congress whose members have the lowest rate of military service in history, led by five successive commanders in chief who never served on active duty.
Rachel Maddow.’s book, Drift: The Unmooring of American Military Power, explored how American military operations have gradually become more secretive, less democratic, and increasingly in the hands of the American president rather than Congress.
Consequently, there is less accountability for the deaths of innocent civilians.
“Our government owes it to Americans to be transparent about both our successes and our failures,” said Crow. “I’m proud to join Reps. Khanna, Jacobs, and Malinowski and Senator Warren in introducing the DoD Civilian Harm Transparency Act. These transparency measures will shed light for the public on US-caused civilian casualties overseas – holding our government accountable, and safeguarding the trust of the American people.”
“Civilian casualties are a moral stain on our military operations and are counterproductive to our security goals. When we kill civilians, we’re not only taking innocent life, we’re recruiting another generation to take up arms against us. As a member of the House Armed Services Committee, I have been incredibly frustrated by a lack of transparency and a lack of accountability at the Pentagon on civilian casualties. The process is broken and we need major reforms. I’m proud to work with my colleagues to address this vital issue and to serve as a co-lead on this legislative package to increase transparency and improve our efforts to protect civilians,” said Jacobs.
“The United States has a responsibility to minimize harm to civilians caused by U.S. military operations. We must address the systemic problems that for two decades have routinely led to the erroneous or avoidable targeting of civilians,” said Durbin. “In joining my colleagues on the Protection of Civilians in Military Operations Act and the Department of Defense Civilian Harm Transparency Act, we can do more to prevent harm and ensure that erroneous strikes are followed by appropriate investigations and accountability, including redress for victims and their families.”
“Protecting civilians during conflict is not only a cornerstone of international law, it is imperative for our national security. By improving reporting and investigating civilian harm of our own military operations, and those of our allies, these two bills increase transparency to help prevent needless loss of life. I look forward to working with my colleagues in both the House and Senate to get these bills passed,” said Merkley.
The Protection of Civilians in Military Operation Act, which Senator Warren and Representative Khanna introduced in 2020, now includes a requirement to establish a Department of Defense Center of Excellence for The Protection of Civilians within the Department of Defense (DoD), which would serve as the focal point of the U.S. government for civilian harm.
Defense Secretary Austin announced the creation of the Center as a part of his January 27 directive instructing DoD to improve its civilian harm mitigation.
The legislation includes the following provisions to improve the United States’ prevention of and response to civilian harm and to ensure the Center has the authority and resources it needs to protect civilians:
- Ensures Integrity of Civilian Harm Investigations
- Requires that any investigation into civilian harm be conducted outside the immediate chain of command of the unit responsible.
- Requires each investigation of harm to include interviews of civilian survivors and witnesses and to consult with civil society and incorporate any information or documentation available to them.
- Requires Coordination Between Geographic Combatant Commands and Special Operations Command and The Department of State
- Requires the Secretary of Defense to direct each U.S. combatant command to coordinate with the Department of State to establish a line of communication with the Chief of Mission in any country in which the United States is conducting military operations with the goal of coordinating and responding to reports of civilian harm.
- Establishes Database on Reports on Assessments and Investigations
- Requires the Secretary to establish and regularly update a public database that preserves and organizes reports of the Department on assessments and investigations of harm to civilians resulting from United States military operations, no later than one year after enactment of this law.
- Authorizes Resources to Implement Department of Defense Policy on Civilian Harm in Connection with United States Military Operations
- Authorizes $5 million for the Secretary to establish and assign to each combatant command and the Office of the Under Secretary for Policy personnel who will be responsible for overseeing, analyzing, and reporting on reports of civilian harm resulting from U.S. military operations.
- Creates Department of Defense Center of Excellence for the Protection of Civilians to Serve as Focal Point of U.S. Government for Civilian Harm
- Establishes the Center as the primary advisor to DoD and the federal government on best practices for preventing, mitigating, responding to civilian harm, and responsibility for ensuring the full implementation of the Department of Defense Instruction on Responding to Civilian Harm in Military Operations and any subsequent guidance.
- Enhances civilian oversight by establishing the position of Director of the Center, who is required to be a civilian with significant experience and expertise relating to the protection of civilians and authorizes $25 million to support hiring a general officer and analysts and investigators detailed from across the federal government and civil society.
- Requires that the Director submit an annual public report to Congress detailing the actions of the Center and assessment of U.S. policy on civilian harm.
- Requires Report on Department of Defense Practices Regarding Distinction Between Combatants and Civilians in United States Military Operations
- Requires the Secretary to contract with a federally funded research and development center to publish an unclassified report on how DoD has distinguished between combatants and civilians in United States military operations in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen since 2001.
Congress adopted several provisions of the Protection of Civilians in Military Operations Act into law, including Section 1057 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 (FY 2018) requires the Department of Defense (DoD) to produce and submit an annual report to Congress on civilian casualties resulting from U.S. military operations, release an unclassified version of the report to the public and describes DoD’s process for investigating cases of civilian casualties and making ex gratia payments.
The Department of Defense Civilian Harm Transparency Act expands civilian harm reporting and public transparency under section 1057 of the FY2018 NDAA, and includes the following provisions:
- Modifies the Annual Report on Civilian Casualties in Connection With United States Military Operation
- Designates a senior official within the Office of the Secretary of Defense to serve as the civilian harm investigation coordinator
- Requires the Secretary of Defense to submit an expanded annual report on civilian harm that includes a comprehensive list of new requirements
- Modifies existing reporting requirements by requiring more information about any incident of civilian harm
“Congress is doing now what successive US administrations should have done ages ago on civilian protection,” said Sarah Yager, Washington Director at Human Rights Watch. “If enacted, these bills will help correct fundamental flaws in how the Defense Department plans for and addresses civilian deaths and injuries during military operations. This legislation, alongside Defense Secretary Austin’s efforts, could finally give civilians harmed by conflict the attention, dignity, and redress they deserve.”
“These bills come at a critical moment of reckoning on civilian harm,” said Annie Shiel, Senior Advisor for the United States at the Center for Civilians in Conflict (CIVIC). “Over the last twenty years, the US government has repeatedly failed to prevent, meaningfully investigate, publicly acknowledge, and make amends for civilian harm. If passed, this legislation could address longstanding shortcomings in US policy, strengthen the Defense Department’s ongoing reform efforts, and provide much-needed transparency and recognition for civilian victims as well as the American public.”
The Protection of Civilians in Military Operations Act and the Department of Defense Civilian Harm Transparency Act are endorsed by 18 human rights groups, veteran’s organizations, and think tanks: Human Rights Watch, Center for Civilians in Conflict (CIVIC), Friends Coalition on National Legislation, Win Without War, ACLU, Just Foreign Policy, Demand Progress, Quincy Institute for Responsible Statecraft, American Friends Service Committee, Common Defense, Oxfam, Afghans for a Better Tomorrow, Interaction, Center for Victims of Torture, Human Rights First, Veterans for Peace, Amnesty International USA, and Reprieve.