II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Department of Defense 

5 Civilian Harm Transparency Act’’. 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 4107 IS

1 SEC. 2. ANNUAL REPORT ON CIVILIAN HARM IN CONNEC2 TION WITH UNITED STATES MILITARY OPER3 ATIONS. 

4 (a) IN GENERAL.—Chapter 23 of title 10, United 

5 States Code, is amended by inserting after section 486 the 

6 following new section: 

7 ‘‘§ 487. Civilian harm in connection with United 

8 States military operations. 

9 ‘‘(a) COORDINATOR.—The Secretary of Defense 

10 shall— 

11 ‘‘(1) designate a senior official within the Office 

12 of the Secretary of Defense to serve as the civilian 

13 harm investigation coordinator; and 

14 ‘‘(2) appoint a general counsel to assist the co15 ordinator in carrying out the responsibilities under 

16 subsection (b). 

17 ‘‘(b) RESPONSIBILITIES.— The coordinator des18 ignated under subsection (a) shall carry out the following 

19 responsibilities: 

20 ‘‘(1) In the case of each investigation of civilian 

21 harm, conducting a review of the investigation and 

22 an assessment of whether applicable laws, policies, 

23 guidelines, and processes were followed in con24 ducting the investigations. 

25 ‘‘(2) Certifying each annual report submitted 

26 under subsection (c). 


kjohnson on DSK79L0C42PROD with BILLS
3 

•S 4107 IS

1 ‘‘(c) ANNUAL REPORT REQUIRED.—(1) Not later 

2 than May 1 each year, the Secretary of Defense shall sub3 mit to the congressional defense committees a report on 

4 civilian harm resulting from United States military oper5 ations during the preceding year. 

6 ‘‘(2) Each report required under paragraph (1) shall 

7 set forth the following: 

8 ‘‘(A) A list of all the United States military op9 erations conducted during the year covered by the 

10 report as a result of which— 

11 ‘‘(i) an incident of civilian harm is con12 firmed or reasonably suspected to have oc13 curred; or 

14 ‘‘(ii) an incident of civilian harm is alleged 

15 to have occurred and for which an investigation 

16 into such incident remains open as of the date 

17 of the submittal of the report. 

18 ‘‘(B) For each military operation listed under 

19 subparagraph (A), each of the following: 

20 ‘‘(i) The date and time. 

21 ‘‘(ii) The location, including the precise ge22 ographic coordinates of any strike occurring as 

23 a result of the conduct of the operation. 

24 ‘‘(iii) An identification of whether the oper25 ation occurred inside or outside of a declared 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 4107 IS

1 theater of active armed conflict and a definition 

2 of the term ‘theater of active armed conflict’. 

3 ‘‘(iv) The type of operation, including for 

4 each strike conducted as part of the oper5 ation— 

6 ‘‘(I) a description of whether the 

7 strike was deliberate or dynamic; 

8 ‘‘(II) the Department’s legal and pol9 icy justification for the strike, including an 

10 explanation of each such justification 

11 under domestic law and applicable inter12 national law; 

13 ‘‘(III) the relevant rules and proce14 dures in place to prevent civilian casualties 

15 or significant damage to civilian objects, 

16 and whether those rules and procedures 

17 were followed; and 

18 ‘‘(IV) a description of the type of 

19 weapons and ordnance used, including 

20 whether there was any weapon malfunc21 tion. 

22 ‘‘(v) An assessment of the estimated num23 ber of civilians, civilians directly participating in 

24 hostilities, and belligerents killed and injured 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 4107 IS

1 during the operation, formulated as a range, if 

2 necessary, and including— 

3 ‘‘(I) details on the number of men, 

4 women, and children involved and the esti5 mated ages of such civilians, civilians di6 rectly participating in hostilities, and bel7 ligerents; and 

8 ‘‘(II) an explanation of— 

9 ‘‘(aa) how the Department of De10 fense determined whether targets were 

11 civilians, civilians directly partici12 pating in hostilities, and belligerents; 

13 ‘‘(bb) the Department’s legal cri14 teria for considering a person to be a 

15 civilian, civilian directly participating 

16 in hostilities, or a belligerent; and 

17 ‘‘(cc) the level of epistemic cer18 tainty required to make such deter19 mination. 

20 ‘‘(vi) For each strike carried out as part of 

21 the operation— 

22 ‘‘(I) an assessment of whether post23 strike civilian harm exceeded pre-strike as24 sessments of anticipated harm and, if so, 

25 the reasons for this discrepancy; 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 4107 IS

1 ‘‘(II) an assessment of whether civil2 ian harm resulted from misidentification of 

3 a military objective or the collateral effects 

4 of engagement; 

5 ‘‘(III) an assessment of damage to ci6 vilian objects that would ordinarily be 

7 placed on a no-strike list, and an expla8 nation if any such object was removed 

9 from the list; and 

10 ‘‘(IV) a general assessment of reli11 ability of information provided and how 

12 such reliability level was determined. 

13 ‘‘(vii) A summary for all completed civilian 

14 harm assessments and investigations. 

15 ‘‘(viii) For any investigation into an inci16 dent that has been open for more than 180 

17 days, an update on the status of the investiga18 tion in the report table. 

19 ‘‘(ix) In the case of any incident where the 

20 Secretary determines that credible civilian harm 

21 occurred— 

22 ‘‘(I) an assessment of whether the De23 partment has publicly acknowledged the ci24 vilian harm or instituted any procedural 

25 reforms; 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 4107 IS

1 ‘‘(II) a description of any other non2 monetary consequence management that 

3 has occurred, including the provision of 

4 medical care, visa assistance, private apolo5 gies or explanations, or public affairs 

6 statements; and 

7 ‘‘(III) an analysis on the effectiveness 

8 of the Department of Defense response. 

9 ‘‘(x) For each investigation into an inci10 dent of civilian harm or alleged civilian harm— 

11 ‘‘(I) whether witness interviews and 

12 site visits occurred, and if not, an expla13 nation for why not; 

14 ‘‘(II) whether civil society documenta15 tion or investigations were taken into ac16 count in making a final determination in 

17 the investigation, and if not, an expla18 nation for why not; and 

19 ‘‘(III) if an incident of alleged civilian 

20 harm is deemed not credible, an expla21 nation of the standard and methodology 

22 for making that determination. 

23 ‘‘(C) A description of the process by which the 

24 Department of Defense investigates allegations of ci25 vilian casualties resulting from United States miliVerDate Sep 11 2014 04:27 Apr 29, 2022 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4107.IS S4107

kjohnson on DSK79L0C42PROD with BILLS
8 

•S 4107 IS

1 tary operations, including all standards and guide2 lines applicable to such investigations, the proce3 dures for conducting and reviewing such investiga4 tions, the procedures for reviewing external sources 

5 of information, the criteria for deeming information 

6 credible, and the entities responsible for conducting 

7 and reviewing such investigations. 

8 ‘‘(D) A description of steps taken to mitigate 

9 harm to civilians in the course of conducting such 

10 operations, including any new or updated civilian 

11 harm policies and procedures implemented by the 

12 Department of Defense or the combatant commands. 

13 ‘‘(E) An assessment of how United States mili14 tary operations affected or exacerbated humani15 tarian needs of civilian populations in each theater 

16 of military operations. 

17 ‘‘(F) For each incident of civilian harm where 

18 at least simple negligence was determined to play a 

19 contributory role— 

20 ‘‘(i) a description of any remedial per21 sonnel action taken, including administrative, 

22 disciplinary, or punitive; or 

23 ‘‘(ii) if no disciplinary action was taken, an 

24 explanation of why not. 


kjohnson on DSK79L0C42PROD with BILLS
9 

•S 4107 IS

1 ‘‘(G) A description of any changes to policies, 

2 rules, or procedures as a result of such an incident. 

3 ‘‘(H) Any other matter the Secretary of De4 fense determines is appropriate. 

5 ‘‘(3) In preparing a report under this subsection, the 

6 Secretary of Defense shall take into account relevant and 

7 credible all-source reporting, with a special emphasis on 

8 information from public reports and non-governmental 

9 sources. 

10 ‘‘(4) Each report required under paragraph (1) shall 

11 be— 

12 ‘‘(A) submitted in unclassified form, but may 

13 include a classified annex; and 

14 ‘‘(B) redacted only as necessary to protect le15 gitimately classified information and then made pub16 licly available in a databased and searchable format 

17 that includes a table with hyperlinks to individual in18 cidents. 

19 ‘‘(d) EX GRATIA AND CONDOLENCE PAYMENTS.—(1) 

20 Not less frequently than once each calendar quarter, the 

21 Secretary of Defense shall make publicly available in an 

22 electronic format— 

23 ‘‘(A) a detailed list of all ex gratia payments 

24 and any other payments in response to civilian harm 

25 paid by the United States during that quarter, inVerDate Sep 11 2014 04:27 Apr 29, 2022 Jkt 029200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4107.IS S4107

kjohnson on DSK79L0C42PROD with BILLS
10 

•S 4107 IS

1 cluding for each payment, the country where the 

2 payment was issued and the type of payment; and 

3 ‘‘(B) with respect to a calendar quarter in 

4 which no ex gratia or other payments were made in 

5 response to civilian harm, an explanation of whether 

6 any payments were refused along with the reason for 

7 such refusal, and any other reason for which no pay8 ments were made. 

9 ‘‘(2) Information about specific payments required 

10 under paragraph (1) that must be kept confidential to en11 sure the safety or privacy of payment recipients, based on 

12 consultation with such recipients, may be excluded from 

13 the publicly available list if the Secretary of Defense— 

14 ‘‘(A) provides such information to the congres15 sional defense committees in a confidential annex; 

16 ‘‘(B) submits to such committees a certification 

17 of the need for confidentiality; and 

18 ‘‘(C) makes such information publicly available 

19 in an aggregated format. 

20 ‘‘(3) The Secretary of Defense shall make available 

21 an easily accessible electronic method by which individuals 

22 or others on their behalf may request ex gratia or other 

23 condolence payments.’’. 

24 (b) CLERICAL AMENDMENT.—The table of sections 

25 at the beginning of such chapter is amended by inserting 


kjohnson on DSK79L0C42PROD with BILLS
11 

•S 4107 IS

1 after the item relating to section 486 the following new 

2 item: 

‘‘487. Annual report on civilian harm in connection with United States military 

operations.’’. 

3 (c) CONFORMING REPEAL.—Section 1057 of the Na4 tional Defense Authorization Act for Fiscal Year 2018 

5 (Public Law 115–91) is repealed. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS