Department of Defense Civilian Harm Transparency Act
Bill: S.4107 | Sponsor: Sen. Warren, Elizabeth (D-MA)
Policy area: Armed Forces and National Security

Summary:
Department of Defense Civilian Harm Transparency Act
This bill requires the Department of Defense (DOD) to designate a senior official to serve as the civilian harm investigation coordinator to conduct a review of each investigation of civilian harm and assess whether applicable laws, policies, guidelines, and processes were followed during the investigations. DOD must also appoint a general counsel to assist the coordinator with such duties.
The coordinator must annually submit to Congress a report on civilian harm resulting from U.S. military operations during the preceding year.
DOD must make publicly available in an electronic format a detailed list of all ex gratia payments (i.e., payments that are not legally required) and other payments in response to civilian harm paid by the United States. Some information may be excluded to ensure safety or privacy of payment recipients. DOD must provide specified information to Congress to certify the need for confidentiality.
DOD must provide an easily accessible electronic method by which individuals may request ex gratia or other condolence payments.

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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