This week, Congress passed the FY 2023 National Defense Authorization Act, the NDAA, which President Biden is expected to sign into law. It’s a massive bill, thousands of pages long, that provides the Defense Department with an $858 billion dollar budget for next year. Buried in the law are some key reforms (or lack of reforms) for how the United States goes to war and how it responds when civilians are injured or killed.
To discuss what the NDAA says about war powers and civilian protection, and where the bill is silent, we have Brian Finucane, Heather Brandon-Smith, and Annie Shiel. Brian is a Senior Advisor at Crisis Group and a member of the Just Security editorial board. For a decade, he was a lawyer with the State Department where he advised the federal government on counterterrorism and use of force. Heather is a Legislative Director at the Friends Committee on National Legislation, a nonpartisan organization that lobbies to advance peace, justice, and protecting the environment. Annie is a Senior Advisor at the Center for Civilians in Conflict, CIVIC, which works to develop and implement solutions to prevent, mitigate, and respond to civilian harm.
Show Notes:
This week, Congress passed the FY 2023 National Defense Authorization Act, the NDAA, which President Biden is expected to sign into law. It’s a massive bill, thousands of pages long, that provides the Defense Department with an $858 billion dollar budget for next year. Buried in the law are some key reforms (or lack of reforms) for how the United States goes to war and how it responds when civilians are injured or killed.
To discuss what the NDAA says about war powers and civilian protection, and where the bill is silent, we have Brian Finucane, Heather Brandon-Smith, and Annie Shiel. Brian is a Senior Advisor at Crisis Group and a member of the Just Security editorial board. For a decade, he was a lawyer with the State Department where he advised the federal government on counterterrorism and use of force. Heather is a Legislative Director at the Friends Committee on National Legislation, a nonpartisan organization that lobbies to advance peace, justice, and protecting the environment. Annie is a Senior Advisor at the Center for Civilians in Conflict, CIVIC, which works to develop and implement solutions to prevent, mitigate, and respond to civilian harm.
Show Notes:
Paras Shah: Hello and welcome to the Just Security Podcast! I'm your host, Paras Shah.
This week, Congress passed the 2023 National Defense Authorization Act, the NDAA, and President Biden is expected to sign it into law. It’s a massive bill, thousands of pages long, that provides the Defense Department with an $858 billion dollar budget for next year. Buried in the law are some key reforms (or lack of reforms) for how the United States goes to war and how it responds when civilians are injured or killed.
To discuss what the NDAA says about war powers and civilian protection, and where the bill is silent, we have Brian Finucane, Heather Brandon-Smith, and Annie Shiel. Brian is a Senior Advisor at Crisis Group. For a decade, he was a lawyer with the State Department where he advised the federal government on counterterrorism and use of force. Heather is a Legislative Director at the Friends Committee on National Legislation, a nonpartisan organization that lobbies to advance peace, justice, and protecting the environment. Annie is a Senior Advisor at the Center for Civilians in Conflict, CIVIC, which works to develop and implement solutions to prevent, mitigate, and respond to civilian harm.
Heather, can you get us started with an overview of the NDAA? Why is this budget bill so important?
Heather Brandon-Smith: So, the NDAA is important for many reasons. Firstly, it does authorize these billions of dollars in funding, but it's also important because it's considered one of very few must pass pieces of legislation in Congress.
It is very difficult to get bills through Congress for a variety of reasons, and so, the NDAA has become a vehicle that lawmakers use to get other priorities signed into law. So, for example, the NDAA has actually been used to provide 12 weeks of paid parental leave for all federal workers, it's been used to implement measures in the military to respond to climate change, and it's also been used to require the President to provide information to Congress and to the public about US Wars and a whole host of other issues that are either very directly or sometimes quite a bit less directly related to military operations.
So, it's really this key piece of legislation that not only authorizes funding for national defense, but it's often this vehicle for a whole host of other priorities for lawmakers.
Paras: Okay, so the NDAA is trying to get a lot done in one bill. And part of what it's addressing is this idea of war powers, which define how the US uses military force. Brian, you saw these issues firsthand at the State Department, what does the NDAA say about war powers?
Brian Finucane: Well, unfortunately, as Heather and I discussed in a forthcoming piece in Just Security, this NDAA is more notable for what it does not include on war powers than for what it does include. In the first place, this NDAA does not repeal the 2002 Authorization for Use of Military Force against Iraq.
Paras: In 2002, Congress passed an Authorization for Use of Military Force. An AUMF Resolution to greenlight the US invasion of Iraq.
Brian: But since, then it's been repurposed by administrations of both parties to pursue new enemies. So, for example, successive administrations have used this Iraq war authorization to go after Shia militias, to go after Al-Qaeda in Iraq, ISIS, and Iran-backed militias and even in 2020, to attack Iran itself, with the Trump administration's strike on Iranian General Qasem Soleimani.
News clip: Breaking news, in a major escalation of tensions between the US and Iran, the top Iranian General has been killed in an airstrike while leaving the Baghdad airport. The Pentagon confirmed the US military carried out the attack.
Brian: That strike set off a tit-for-tat reaction, including Iranian ballistic missile strikes on US forces in northern Iraq, and almost led to a broader conflict with Iran.
Paras: It seems like there's broad support for AUMF reform.
Heather: The Biden administration supports repealing the 2002 Iraq AUMF. They issued a statement of administration policy last year confirming that this AUMF isn't needed for any current operations and that they support repeal. So, we had, you know, the Senate, the House, and the White House all coming together, in support of this repeal. And yet, the provision did not make it into the final NDAA, this was seen as the most likely vehicle for this repeal, although there are still other options. But you know, it was a real disappointment that it didn't make it in. This, this authorization is outdated, it's unnecessary, and it remains open to abuse.
Paras: Along with AUMF reform, what else is missing from the war powers side of the bill?
Brian: Also missing in this NDAA is a provision that was in the version of the legislation passed by the Senate Armed Services Committee that would reign in so-called collective self-defense.
Paras: Collective self-defense is the idea that the US can use military force to protect or defend its partners, but in practice, the US often uses it for offensive operations with partner forces.
Brian: My organization, Crisis Group, has described these in, some of our recent reports and publications, but they're particularly notable in Somalia where they contribute to the expansion of the US war in that country from targeted strikes on a few members of Al-Shabaab who belonged to Al-Qaeda to a full-scale conflict with Al-Shabaab as an entire organization. They were also used by the Trump administration against Iran-backed groups in Iraq and Syria. And so, the Senate Armed Services Committee tried to rein these in by restricting the ability of the Pentagon to designate partner forces. And so, under the provision passed by SASC only the Secretary of Defense could designate such partner forces and he couldn't delegate the authority. The Biden White House opposed that restriction, and so it was not ultimately included in the in the compromise legislation we have now.
Paras: Let's turn to the flip side of the coin on civilian protection. Annie, what does the NDAA have to say on that front?
Annie Shiel: So, the protective civilians was actually one area where we did see a lot of attention in the NDAA this year, in no small part because of significant public pressure on both the Department of Defense and Congress to overhaul how the US prevents and responds to civilian harm.
And that pressure came in the wake of high-profile reporting on several very concerning events, including the August, 2021 strike in Kabul, Afghanistan that killed 10 civilians, including aid worker, Zemerai Ahmadi, and seven children.
Paras: Here's what US General Frank McKenzie said about that strike.
General McKenzie: “I am now convinced that as many as 10 civilians, including up to 7 children, were tragically killed in that strike. Moreover, we now assess that it is unlikely that vehicle and those who died were associated with ISIS-K or were a direct threat to US forces.”
Paras: And that strike isn't the only incident. In 2019, a US strike in Baghuz, Syria, may have killed nearly 80 civilians.
News clip: In March 2019, the US military and its Syrian allies attacked the remnants of ISIS in a small corner of Syria called Baghuz. The US military says it launched an investigation, which initially determined that the bombs killed 4 civilians and injured 8, that they were in legitimate self-defense, and proportional. But the New York Times’ investigation found that regional commanders immediately knew that there were as many as 70 civilian casualties, and the Defense Department since then “concealed the strike.”
Annie: These tragedies were not unique cases, but rather illustrated systemic shortcomings in US policy and practice that organizations like mine, like CIVIC, have documented over the last two decades. So, on the Executive Branch side, this received high level attention from the Secretary of Defense himself and the release in August of a detailed action plan for overhauling US policies for preventing and responding to civilian harm, known as the Civilian Harm Mitigation and Response Action Plan, or the elegant acronym of CHMRAP.
And then on the side of Congress, we also saw increased oversight and attempts to legislate, including a number of provisions that did make it into this final version of the NDAA.
Paras: What are those provisions?
Annie: First, the creation of a civilian protection center of excellence to serve as a focal point for civilian harm issues to help develop and review guidance and training, and to capture lessons learned among other things.
The second is that it amends the annual report on civilian casualties that's due to Congress every year to add more information about the location of an incident, to disaggregate by age and gender, more information about the findings of US military assessments or investigations into a civilian harm incident, and also information about whether the military actually conducted witness interviews or site visits, or consulted with NGO information in the process of investigations, which has been a big shortcoming of investigations in the past.
The third is that it commissions a report from a federally funded research and development center to look at Department of Defense practices for distinguishing between civilians and combatants in US military operations, going all the way back to 2001.
Paras: Distinguishing between civilians and combatants is an essential requirement of the laws of war.
Annie: This study requirement because to date the US military has adopted very flawed and overly permissive interpretations of its legal obligations, including things like an overly broad definition of what constitutes directly participating in hostilities and repeated failure to presume someone's civilian status in cases of doubt. We've also seen, as identified by DODs own investigations, really persistent problems with things like confirmation bias and misidentification that have led to civilian harm, and which in part led to the civilian harm that occurred in the cases I mentioned, like Kabul and Baghuz. So that's number three.
Finally, number four is that the NDAA extends by 10 years, so through 2033, DOD’s authority to make what we call ex grata payments for civilian victims and survivors of harm from US and partnered operations, which is one of a number of really important tools for responding to devastating civilian harm when it happens.
Paras: That's a lot of effort to increase transparency and oversight, but as with any law, what matters is implementation. What can we expect when this bill becomes law, and DOD and other agencies have to make it work?
Brian: I'll take a stab. I'll be focused on the third item that Annie just discussed there. This independent study of DOD’s practices since 2001 on distinguishing between civilians and combatants. In order to understand, you know, how DOD has been operating. for the last two decades of the War on Terror, I think it's really going be important to have such an independent study, to understand how in practice, you know, the line is drawn between civilians and combatants. One of the problems with re reporting requirements, that ask for reports from departments of agencies is they often give them the opportunity to shape a narrative or provide the information they want to Congress.
But by asking for an independent third party to step in and conduct the research, go speak with, you know, service members who are involved in these operations, understand like how in the field, how in conducting operations they drew these lines, I think we're going have a much better baseline to understand what the US military practices have been, and I think that could potentially inform civilian casualty mitigation efforts going forward.
Heather: I'll also be looking for how these civilian protection provisions are implemented, in particular the center of excellence. I think another thing I've note is that $25 million was actually allocated for the Civilian Harm Action Plan. That's quite a substantial amount of funding and gives the DOD a lot of resources to really be able to, you know, take that and make real changes and hopefully improve the way that it both mitigates and then responds to incidents of civilian harm from US operations. So, I will be looking to see the real effects on the ground of this new center of excellence and, and how DOD goes forward with its efforts to both reduce and, and properly investigate civilian harm incidents.
Annie: I mean, I echo everything that Heather and Brian have said about these. Obviously, all of the civilian protection provisions are only as good as their implementation, and that's the same with the DOD Action Plan. So, one thing is we'll be working hard over the next year to support and monitor implementation of the Action Plan itself, including things like, you know, setting up the center of excellence, and those transparency measures.
The last thing I'll add to what Brian and Heather have said is around the ex gratia authorization. So one really important thing to note is that even though Congress has repeatedly authorized $3 million annually for DOD to make those ex gratia payments I mentioned, they have by and large failed to actually make use of that authority.
So, in 2020, the Department did not make a single payment, and in 2021, they made only one by their own reporting. And that's despite the large number of cases where the Department had confirmed themselves that civilian casualties occurred and also had the information necessary to contact survivors, including via, you know, organizations like mine and others who have represented civilians.
So while that extension that's in this bill is really, really critical to make sure that that tool continues to be available, Congressional oversight and continued pressure will also be really, really important to ensure that the Department actually utilizes those millions of dollars that are authorized annually that can make a significant difference in a civilian's life. You know, help express contrition and dignity to those civilians, but which DOD has really failed to use at all.
Paras: Just Security will be tracking all of this as the NDAA bill becomes law. Brian, Heather, Annie thanks so much.
The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! You can read Just Security’s coverage of this and past NDAAs on our website. Special thanks to Brian Finucane, Heather Brandon-Smith, and Annie Shiel.
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