[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4107 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 4107
To amend title 10, United States Code, to establish in the Department
of Defense a civilian harm investigation coordinator, to improve and
make permanent the requirement that the Secretary of Defense submit an
annual report on civilian harm in connection with United States
military operations, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 28, 2022
Ms. Warren (for herself, Mr. Durbin, Mr. Merkley, and Mr. Sanders)
introduced the following bill; which was read twice and referred to the
Committee on Armed Services
_______________________________________________________________________
A BILL
To amend title 10, United States Code, to establish in the Department
of Defense a civilian harm investigation coordinator, to improve and
make permanent the requirement that the Secretary of Defense submit an
annual report on civilian harm in connection with United States
military operations, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Department of Defense Civilian Harm
Transparency Act''.
SEC. 2. ANNUAL REPORT ON CIVILIAN HARM IN CONNECTION WITH UNITED STATES
MILITARY OPERATIONS.
(a) In General.--Chapter 23 of title 10, United States Code, is
amended by inserting after section 486 the following new section:
``Sec. 487. Civilian harm in connection with United States military
operations.
``(a) Coordinator.--The Secretary of Defense shall--
``(1) designate a senior official within the Office of the
Secretary of Defense to serve as the civilian harm
investigation coordinator; and
``(2) appoint a general counsel to assist the coordinator
in carrying out the responsibilities under subsection (b).
``(b) Responsibilities.-- The coordinator designated under
subsection (a) shall carry out the following responsibilities:
``(1) In the case of each investigation of civilian harm,
conducting a review of the investigation and an assessment of
whether applicable laws, policies, guidelines, and processes
were followed in conducting the investigations.
``(2) Certifying each annual report submitted under
subsection (c).
``(c) Annual Report Required.--(1) Not later than May 1 each year,
the Secretary of Defense shall submit to the congressional defense
committees a report on civilian harm resulting from United States
military operations during the preceding year.
``(2) Each report required under paragraph (1) shall set forth the
following:
``(A) A list of all the United States military operations
conducted during the year covered by the report as a result of
which--
``(i) an incident of civilian harm is confirmed or
reasonably suspected to have occurred; or
``(ii) an incident of civilian harm is alleged to
have occurred and for which an investigation into such
incident remains open as of the date of the submittal
of the report.
``(B) For each military operation listed under subparagraph
(A), each of the following:
``(i) The date and time.
``(ii) The location, including the precise
geographic coordinates of any strike occurring as a
result of the conduct of the operation.
``(iii) An identification of whether the operation
occurred inside or outside of a declared theater of
active armed conflict and a definition of the term
`theater of active armed conflict'.
``(iv) The type of operation, including for each
strike conducted as part of the operation--
``(I) a description of whether the strike
was deliberate or dynamic;
``(II) the Department's legal and policy
justification for the strike, including an
explanation of each such justification under
domestic law and applicable international law;
``(III) the relevant rules and procedures
in place to prevent civilian casualties or
significant damage to civilian objects, and
whether those rules and procedures were
followed; and
``(IV) a description of the type of weapons
and ordnance used, including whether there was
any weapon malfunction.
``(v) An assessment of the estimated number of
civilians, civilians directly participating in
hostilities, and belligerents killed and injured during
the operation, formulated as a range, if necessary, and
including--
``(I) details on the number of men, women,
and children involved and the estimated ages of
such civilians, civilians directly
participating in hostilities, and belligerents;
and
``(II) an explanation of--
``(aa) how the Department of
Defense determined whether targets were
civilians, civilians directly
participating in hostilities, and
belligerents;
``(bb) the Department's legal
criteria for considering a person to be
a civilian, civilian directly
participating in hostilities, or a
belligerent; and
``(cc) the level of epistemic
certainty required to make such
determination.
``(vi) For each strike carried out as part of the
operation--
``(I) an assessment of whether post-strike
civilian harm exceeded pre-strike assessments
of anticipated harm and, if so, the reasons for
this discrepancy;
``(II) an assessment of whether civilian
harm resulted from misidentification of a
military objective or the collateral effects of
engagement;
``(III) an assessment of damage to civilian
objects that would ordinarily be placed on a
no-strike list, and an explanation if any such
object was removed from the list; and
``(IV) a general assessment of reliability
of information provided and how such
reliability level was determined.
``(vii) A summary for all completed civilian harm
assessments and investigations.
``(viii) For any investigation into an incident
that has been open for more than 180 days, an update on
the status of the investigation in the report table.
``(ix) In the case of any incident where the
Secretary determines that credible civilian harm
occurred--
``(I) an assessment of whether the
Department has publicly acknowledged the
civilian harm or instituted any procedural
reforms;
``(II) a description of any other non-
monetary consequence management that has
occurred, including the provision of medical
care, visa assistance, private apologies or
explanations, or public affairs statements; and
``(III) an analysis on the effectiveness of
the Department of Defense response.
``(x) For each investigation into an incident of
civilian harm or alleged civilian harm--
``(I) whether witness interviews and site
visits occurred, and if not, an explanation for
why not;
``(II) whether civil society documentation
or investigations were taken into account in
making a final determination in the
investigation, and if not, an explanation for
why not; and
``(III) if an incident of alleged civilian
harm is deemed not credible, an explanation of
the standard and methodology for making that
determination.
``(C) A description of the process by which the Department
of Defense investigates allegations of civilian casualties
resulting from United States military operations, including all
standards and guidelines applicable to such investigations, the
procedures for conducting and reviewing such investigations,
the procedures for reviewing external sources of information,
the criteria for deeming information credible, and the entities
responsible for conducting and reviewing such investigations.
``(D) A description of steps taken to mitigate harm to
civilians in the course of conducting such operations,
including any new or updated civilian harm policies and
procedures implemented by the Department of Defense or the
combatant commands.
``(E) An assessment of how United States military
operations affected or exacerbated humanitarian needs of
civilian populations in each theater of military operations.
``(F) For each incident of civilian harm where at least
simple negligence was determined to play a contributory role--
``(i) a description of any remedial personnel
action taken, including administrative, disciplinary,
or punitive; or
``(ii) if no disciplinary action was taken, an
explanation of why not.
``(G) A description of any changes to policies, rules, or
procedures as a result of such an incident.
``(H) Any other matter the Secretary of Defense determines
is appropriate.
``(3) In preparing a report under this subsection, the Secretary of
Defense shall take into account relevant and credible all-source
reporting, with a special emphasis on information from public reports
and non-governmental sources.
``(4) Each report required under paragraph (1) shall be--
``(A) submitted in unclassified form, but may include a
classified annex; and
``(B) redacted only as necessary to protect legitimately
classified information and then made publicly available in a
databased and searchable format that includes a table with
hyperlinks to individual incidents.
``(d) Ex Gratia and Condolence Payments.--(1) Not less frequently
than once each calendar quarter, the Secretary of Defense shall make
publicly available in an electronic format--
``(A) a detailed list of all ex gratia payments and any
other payments in response to civilian harm paid by the United
States during that quarter, including for each payment, the
country where the payment was issued and the type of payment;
and
``(B) with respect to a calendar quarter in which no ex
gratia or other payments were made in response to civilian
harm, an explanation of whether any payments were refused along
with the reason for such refusal, and any other reason for
which no payments were made.
``(2) Information about specific payments required under paragraph
(1) that must be kept confidential to ensure the safety or privacy of
payment recipients, based on consultation with such recipients, may be
excluded from the publicly available list if the Secretary of Defense--
``(A) provides such information to the congressional
defense committees in a confidential annex;
``(B) submits to such committees a certification of the
need for confidentiality; and
``(C) makes such information publicly available in an
aggregated format.
``(3) The Secretary of Defense shall make available an easily
accessible electronic method by which individuals or others on their
behalf may request ex gratia or other condolence payments.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
486 the following new item:
``487. Annual report on civilian harm in connection with United States
military operations.''.
(c) Conforming Repeal.--Section 1057 of the National Defense
Authorization Act for Fiscal Year 2018 (Public Law 115-91) is repealed.
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