In Search of Answers: U.S. Military Investigations and Civilian Harm
On the early morning of June 15, 2008, Naiz Mohamed and his son went to work, digging an irrigation ditch along the side of a road in the Char Baran District of Paktika Province in eastern Afghanistan. At 8 a.m., a U.S. Army company commander authorized warning shots to be fired in the direction of the two. Neither reacted to the shots and they continued digging. At 8:02 a.m., the company commander ordered the squad to engage the father and son with lethal force. A 7.62 mm round fired from an M14 by a U.S. soldier hit Mohamed in the chest. He died at 8:03 a.m. His son was unharmed. The incident garnered no media attention. No local or international nongovernmental organization released a statement. No member of Congress made any inquiry. No criminal wrongdoing was suspected of the company commander, who thought Mohamed and his son were placing an improvised explosive device (IED). Yet the commander of the Combined Joint Task Force 101 in charge of U.S. military operations ordered an administrative investigation into the incident.
For the general public, the notion of a military investigation into a civilian death may conjure thoughts of investigations into high-profile incidents, such as the attack on the Médecins Sans Frontières hospital in Kunduz, Afghanistan, in 2015, or war crimes like the notorious murder and immolation of Afghan children by Staff Sgt. Robert Bales in 2012, which resulted in a criminal prosecution. Yet, over the last 18 years, the U.S. military has conducted many more assessments and administrative (i.e., non-criminal) investigations — in fact, thousands — into civilian casualties that occurred during or on the margins of combat and may not have constituted a violation of law.
Many, as with the investigation into the death of Naiz Mohamed, have not received any public attention or notice. The process has looked different at times. The degree of effort expended by the U.S. military officers conducting the investigations has also varied, along with the effectiveness of the investigations. But these low-profile, administrative inquiries into civilian casualties have been an important, yet little understood — and little told — part of the larger story of U.S. wars since 2001. We, and the organizations we represent (the Center for Civilians in Conflict and the Human Rights Institute at Columbia Law School), felt that it was important to understand and to tell that story. Last week, we released a research report that attempts to do just that.
We started the project two years ago because we wanted to understand — and to help explain for others — the arcane procedures and processes of U.S. military investigations, and to unearth the factors that affect when, why, and how military investigations into civilian harm are conducted. We wanted to see if we could find examples of good practice from the past 20 years of war worthy of highlighting and possibly replicating in current and future campaigns. And we wanted to better understand the source of divergence between those of us who regularly criticize military investigations and those who conduct them, in case there were opportunities to find common ground. To do so, we spent two years reviewing over 220 administrative investigations released by U.S. Central Command, most of them conducted under Army Regulation 15-6. (The Navy also has a service regulation — the Manual of the Judge Advocate General — and procedures governing administrative investigations, but the Army’s AR 15-6 investigative procedure has been most widely used across the services as the process of choice for investigations into reports or allegations of a civilian casualty involving U.S. forces.) We conducted dozens of interviews with current and former military officials, representatives of human rights organizations, and other experts, and read every relevant source of doctrine and regulation we could find. In our search for answers, we traveled to West Point and U.S. Africa Command to conduct workshops with servicemembers, sent requests for information to U.S. Central Command and NATO headquarters in Afghanistan, and spoke with human rights organizations in countries where the U.S. conducts military operations.
The final report underscores the art of the possible when the military sees value in accounting for civilian death, but also the predictable results when it does not. As the U.S. military begins to put counter-insurgency in its rearview mirror in favor of great-power competition, we believe that there are ethical and strategic benefits to conducting investigations into civilian harm and preserving the lessons learned in the last two decades. This article provides a few of the main observations that struck us most in our research.
Commanders Matter, but Command Climate Matters More
“This is a case of a failure to achieve PID [Positive Identification] of an enemy threat. The method chosen by the Company Commander [NAME REDACTED] to achieve PID was to employ warning shots to illicit a response. In this case the described response, which was no reaction, is not consistent with what we would expect from an enemy. Considering the [local nationals] did not flee or display a threatening posture, the commander should have continued to maneuver his forces in order to confirm PID. There is no indication that further development or maneuver would have put his forces at an unacceptable risk. Instead, the commander authorized lethal fires which resulted in the unnecessary death of an innocent civilian.”
– Commander of Task Force Currahee reviewing the findings of the investigation into the death of Naiz Mohamed
In public debates about civilian casualties, the value of military investigations for civilians who have themselves been harmed or who have lost loved ones in war is but too often neglected. Beyond improving public transparency, investigations can provide the acknowledgement of harm that families of civilians killed in war repeatedly tell human rights researchers they want. Investigations can lead to some form of remedy for those injured or left behind, in the form of material remuneration or even just an apology — regardless of whether the death or injury occurred as a result of otherwise lawful military action. Investigations can also help exculpate civilians from association with terrorist groups or armed insurgencies. Because a U.S military commander ordered an administrative investigation in 2008, we and others know that Naiz Mohamed once lived; that he had a son and a family; and that, despite his death in a U.S. military operation, he was not a member of the Taliban, but a man going to work.
But the reasons any U.S. military commander would choose to investigate their own may seem less immediately apparent. Short of requirements for investigating suspected war crimes, commanders are not necessarily obliged to investigate accidental civilian casualties. Commanders “have inherent authority to investigate any matter under their responsibility, unless otherwise prohibited or limited, if undertaken for the purpose of furthering the good order and discipline of their command.” Whether a given incident is investigated largely falls to the commander’s discretion, which they can communicate through a range of formal (e.g., directives or information requirements that “trigger” an inquiry) or informal means. But why would any commander want to conduct an investigation when doing so would attract scrutiny and allocate scarce resources away from other tasks, potentially increasing security risks? Somewhat surprisingly, the military personnel we interviewed and the written sources of doctrine we consulted were very clear about the strategic value of investigations into civilian harm. For example, they noted that seriously investigating civilian casualties can enhance public perceptions of U.S. legitimacy and accountability, even when an investigation yields inconclusive results and does not identify the individual harmed or the causes of the incident. For military commanders, an investigation can help to ensure unit and soldier discipline, and provide operational or tactical insights to prevent such incidents from recurring. Several military sources of guidance also emphasized the value of investigations in exonerating involved servicemembers of wrongdoing.
Even so, many of the same interview subjects described a common dilemma faced by commanders conducting inquiries into civilian harm: balancing the importance of investigations with the need to maintain cohesion and a culture of openness in their units. The mere mention of an “investigation” can have a chilling effect on many servicemembers for whom the term carries punitive connotations. Interview subjects also noted the resentment servicemembers may feel when their life or death operational decisions, often made under pressure over the course of a few minutes as in the case of Mohamed, are second-guessed in the calm of retrospection.
Ultimately, interviewees pointed to the importance of leadership in addressing these dilemmas. Whereas explicit directives that establish the expectation of an investigation into civilian harm incidents are important for consistency and clarity, our interviews and discussions surfaced how crucial it is that commanders create a command climate of self-inquiry, achieved by emphasizing the value of fact-finding for operational effectiveness, unit discipline, and even the moral well-being of servicemembers. These imperatives are timeless: Although the U.S. military may see less of a strategic “hearts and minds” rationale for conducting inquiries in a post-counter-insurgency era, it should not be in a hurry to forego the full range of other benefits offered by a leadership culture that values introspection and learning.
Truth, in the Eye of the Beholder
“Naiz Mohammed and his son were improving an irrigation trench. This process involved digging sediment out of the existing trench and filling it in with larger rocks to prevent water seeping into the ground. The trench, despite the use of multiple different scopes by four soldiers was unobservable from the observation post that engaged him. US forces misinterpreted the Afghan nationals’ actions, which resembled an IED emplacement profile, as hostile intent … Subsequent exploitation of the site determined that the individual was working on an irrigation ditch near Route Chargers and was not emplacing an IED.”
– Administrative investigation into the death of Naiz Mohamed
The U.S. military’s culture of self-reporting can be a strength when responding to civilian casualties. In fact, in Afghanistan from 2004 to 2014, and more recently in Iraq and Syria during the U.S.-led Operation Inherent Resolve, military personnel involved in air operations frequently self-reported civilian casualties they observed during or after airstrikes, often with the aid of full-motion video. Of the administrative investigation reports we analyzed covering the period up to 2014, 60.5 percent came from internal reports. During Operation Inherent Resolve from January 2015 to December 2017, internal reports were the source of 88 percent of the civilian casualty incidents that were deemed credible. The Mohamed case, and many more like it, provide a clear demonstration of how investigations triggered by internal reporting can yield important insights into what happened and why. Here, the squad conducted site exploitation and determined that Mohamed and his son had been working on an irrigation trench, not emplacing an IED, and notified its command post of the incident and the battle damage assessment. The commander of the Combined Joint Task Force appointed an officer to investigate the incident the very next day.
However, the confidence the military places in its own sources can also create vulnerabilities and blind spots. According to a 2013 survey of U.S. military personnel in Iraq, only 55 percent of soldiers and 40 percent of marines said they would report a unit member for injuring or killing a civilian. In some of the investigations we reviewed, the investigating officer found reason to suspect that an initial report (such as a spot report) had actually been falsified to conceal information about potential civilian harm. Under normal circumstances, gaps from incomplete initial reports can be overcome or supplemented through normal investigative practice, such as interviewing witnesses. In the Mohamed case, for example, the investigating officer followed direct instructions from the commander’s appointment order to interview witnesses from the victim’s community and family to verify his identity. But civilians were interviewed in only one out of five of the investigations we reviewed, even when the U.S. military had significant forces on the ground and could easily have deployed resources to consult civilians in the investigations.
In more recent air-centric campaigns in Iraq and Syria, the proportion of claims deriving from external sources has increased dramatically. However, despite increasing external reporting from nongovernmental organizations and civilian communities, the U.S. military’s often-exclusive reliance on internal records to verify these reports has become even stronger. The bias toward internal information in these air campaigns, reinforced by skepticism about external sources of information, creates critical blind spots regarding civilian harm. More broadly, it also obscures the overall effects of military operations. For example, video footage and drone or satellite imagery — the main sources of internal information in air campaigns — are ill-suited to identifying bodies hidden beneath layers of earth or rubble. Yet the cases in which the military will conduct an interview with a victim, a family member, or other civilian witnesses to corroborate harm after an airstrike are vanishingly small.
To be fair, there are sometimes good reasons not to conduct interviews, such as when doing so may place the subject at risk of retaliation for being seen to collaborate with U.S. forces, or where the subject simply has no desire to be interviewed. In some cases, interviews may also be unnecessary to confirm civilian harm: In 78 percent of the administrative investigations we reviewed from Afghanistan, the allegation of harm was substantiated without a site visit or interview. However, this proportion drops significantly in recent air-centric campaigns. Many of the military personnel we consulted conceded the possibility that individuals present beneath or within structures could go undetected after a strike. But many also held fast to the belief that the intelligence used to conduct airstrikes was simply too strong to mistakenly target the wrong individual or building. Yet the documented record of war provides many examples showing that this level of confidence is simply unwarranted.
Whether or not conducting interviews is always practical, our research suggests something more important: that the institutional bias against external information in air campaigns may aggravate existing vulnerabilities and challenges in accurately assessing — and learning from — civilian harm. Some military and even civilian personnel at the Department of Defense call attention to the risk that adversaries might fabricate claims by exaggerating numbers of civilians killed by the U.S. military, which may of course be true. But disinformation and internal biases can both lead to less-than-accurate renderings of fact.
Finding Efficiency Without Losing Effectiveness
“The Afghan nationals’ actions were inconsistent with [enemy tactics] aside from their digging and filling activities. The suspected IED was approximately 25 meters west of Route Chargers. This location was an unlikely location for any IED related material targeting vehicles. […] This tragic occurrence displays good lessons in establishing accurate PID, exercising tactical patience, understanding local patterns of life, understanding how escalation of force techniques can be interpreted in unintended ways.”
– Investigating officer’s findings, AR 15-6 investigation into death of Naiz Mohamed
Reports or allegations involving a potential violation of criminal law may trigger a mandatory criminal investigation by a Military Criminal Investigative Organization, (e.g., the Naval Criminal Investigative Service or Army Criminal Investigations Command). But the administrative investigation is the process of choice for investigating a range of incidents and for multiple purposes that either fall short of that threshold or when more information is needed to determine if a criminal investigation is warranted. Even so, conducting an administrative investigation can be a time- and labor-intensive process. An investigation involves assigning an investigative officer for whom the investigation will often be their only duty until the investigation is complete. The investigation into the death of Mohamed lasted 40 days and resulted in a final report of over 92 pages in length. But in circumstances with limited resources and a high operational tempo — such as Operation Inherent Resolve operations in Iraq and Syria — such a level of effort for cases that fall short of a suspected violation of law has proved unlikely. In 2014, to accommodate a higher volume of reports, the U.S. military shifted its practice by adopting an intermediate step between the initial report and an investigation known as a “Civilian Casualty Assessment Report.” In many ways, the report provides a number of advantages. It allows the military to make a basic assessment of any allegation of civilian harm routine, and is nearly automatic — reducing the likelihood that any report will be dismissed entirely. It also requires fewer resources and normalizes the means by which the military communicates its own basic estimates of civilian harm to the public. But as we pored over administrative investigations from the prior era, we also realized that much has been lost with the switch. For one thing, moving to an assessment-based process diminishes the human interaction between those who are harmed and those who committed the harm. The act of an investigation is not merely a fact-finding process, but a process that conveys concern, seriousness of intent, and accountability to victims: It is a channel of communication between the powerful and the powerless.
In reading over 200 investigations, we also saw how administrative investigations had been purposed to identify lessons learned and recommendations for change, to reduce the risk of harm in the future. Commanders often tasked investigating officers with identifying lessons to be learned from specific incidents. Changing to the more efficient process detailed in the civilian casualty report compromises this ability to draw meaningful lessons from these tragic occurrences in current and future campaigns. This finding does not necessarily suggest that the military must revert to conducting an administrative investigation in all cases, but may require some innovative thinking in terms of how best to compensate for the loss of this important capacity.
Overall, our report could be read as a technical assessment of the U.S. military’s approach to administrative investigations. But we also hope our research can be useful for those who have the ability to ensure that civilians killed in the wars of today and tomorrow, and the lessons learned from their irreversible loss, are never forgotten.
Dan Mahanty is the Director of the U.S. Program for the Center for Civilians in Conflict (CIVIC). He spent 16 years at the U.S. Department of State. He is an adjunct professor at Kansas University Center for Global and International Studies at Ft. Leavenworth, and a non-resident Senior Associate at the Center for Strategic and International Studies (CSIS).