In my first post in this series, I introduced the U.S. military drone strike in Kabul which mistakenly targeted NGO worker Zemari Ahmadi—killing him and nine other civilians, including seven children. After significant journalistic investigation and pushback, the United States acknowledged its mistake and promised to assess the incident and its strike protocols more generally. In the second and third posts, my co-author and I explained how ex gratia payments work and recommended instead that the military take a more robust approach to making amends for the victims of lawful harm imposed during drone strikes and other military uses of force. In this fourth and perhaps final post, I review whether the U.S. has now satisfactorily provided the recommended amends and what more ought to be done.
A. Harm Acknowledgement and Compensation
Did the U.S. government acknowledge harm and provide appropriate compensation and satisfy related needs? Though the government publicly admitted its tragic mistake and the innocence of the parties killed shortly after the New York Times investigation, it was much slower to provide compensation, though it did indicate such considerations were on the table. For over six weeks, the family of those killed by the drone strike as well as others repeatedly lamented the government’s failure to reach out. As noted in the amends literature, untimely responses can impose an additional harm as victims must wait in uncertainty—not knowing when, if at all, assistance will be forthcoming. But in mid-October, the government affirmed its commitment and offered an unspecified ex-gratia condolence payment. Without more information, it is impossible to know whether such payment is appropriate, though high-profile cases often get high payments such as the Yemenis who received over 1 million dollars for the well publicized U.S. drone strike that killed multiple family members at a wedding celebration. The Pentagon and the State Department are also assisting the family with relocation to the United States. Such offers were made to Zemari Ahmadi’s employer, Nutrition and Education International, and its lawyers, the ACLU and Cohen Milstein, who are assisting the family. But harms necessitating relocation may extend beyond the immediate family. The director of the ACLU’s National Security Project, Hina Shamsi, suggests that the relocation must be extended to Nutrition and Education International staff who are also at risk as a result of revelations about the drone strike.
B. Non-Recurrence and Accountability
Even as compensation was being negotiated, Ahmadi’s attorneys have asked “the Department of Defense to conduct a meaningful investigation into the strike.. . . We also hope that the investigation into the strike provides NEI and the Ahmadi family meaningful transparency and accountability.” As explained in an earlier post, these requests touch on two other components of amends—the acceptance of responsibility and a commitment to non-recurrence. How does the U.S. fare on these aspects?
The Department of Defense made some immediate initial changes. After the revelation of the “tragic mistake,” Secretary of Defense Lloyd Austin acknowledged the significantly increased difficultly in identifying and engaging threats in Afghanistan. Moving forward, Defense Secretary Lloyd Austin must personally sign off on any future strikes in Afghanistan. Having such a high level of review should, at least in theory, help reduce errors.
The Air Force Inspector General just concluded the investigation to determine, among other issues, who should be held accountable and “the degree to which strike authorities, procedures and processes need to be altered in the future.” The investigation which included 29 interviews and an independent reconstruction of the events remains classified because “the required detailed analysis included highly classified information,” but the Defense Department released a fact sheet summarizing the investigation’s findings and conclusions. Perhaps most startlingly, the Defense Department admitted that a child could be seen on surveillance video two minutes before launching the strike but concluded the failure to see said child was not actionable. It also concluded no violations of the laws of war occurred and recommended no criminal charges. Air Force Inspector General Said described his perspective on the strike as “It was an honest mistake. But it’s not criminal conduct, random conduct, negligence.” The investigation recommended using new measures to cut down the risk of confirmation bias, enhancing sharing of overall mission situation awareness during strike execution, and reviewing the pre-strike procedures used to assess the presence of civilians.
The investigation has left many unsatisfied. For instance, the ACLU decried the lack of meaningful transparency. Without including any of the interview material or detailed reasoning, outsiders cannot assess the quality of the decision-making, whether criminal proceedings are justified or whether any of the proposed recommendations would meaningfully reduce errors in the future. In a situation where the United States defended the strike as righteous until a New York Times investigation prompted them to do otherwise, the government ought not expect critics to simply trust its conclusions.
C. What Else is Needed
1. Congressional Review of the Incident Report
Democratic Congressman Adam Schiff, chairman of the House Permanent Select Committee on Intelligence called for “real accountability” and demanded that Congress receive the classified report for review. He also wanted the Department of Defense available for “additional questions about this horrible tragedy, the intelligence which led to it, and how the protocols and procedures in high pressure, complex environments will be improved.” While such a review would still lack the transparency of disclosing either the full review or a redacted review, it would at least allow for some external review and questioning. In a situation in which trust is justifiably lacking, review from another branch is at least a step towards an independent review and allows for additional input.
2. Chain of Command Accountability Decisions
Air Force Inspector General Said explicitly left open the possibility of the chain of command to make accountability determinations. He said, “I didn’t eliminate the possibility of accountability — that is commander business. They can decredential folks, they can retrain folks, they can fire folks, they can do a variety of different things…. The fact that I didn’t call any individual out with accountability, that doesn’t mean the command won’t.” And empirically speaking, there is at least some precedent for such punishment. For instance, after the Kunduz hospital bombing, the military found 16 individuals, including a two-star general, at fault. The chain of command suspended one officer from command, sent six to counseling, issued seven letters of reprimand, and ordered two to take retraining courses. Again, without knowing more of the classified details about the Kunduz strike, it is difficult to say whether such punishment was appropriately calibrated, but it does suggest at least some appetite for discipline.
3. A Broader Review of Drone Strikes
Lastly, rather than limiting themselves to a review of this particular strike, a broader review may be justified. The military has suggested that the problems with the Kabul strike were unique because they involved self-defense and a very limited time frame in which to make decisions as opposed to normal strikes which allegedly allow ample time for a pattern of life assessment. But some intelligence problems seem endemic to an “over the horizon” strategy or to strikes in general. Senators Leahy and Durbin have called for President Biden to publicly: (1) describe steps the administration is taking to ensure compliance with the laws of war and in particular to identify targets, reduce risks to civilians, and that any civilian casualties are “expeditiously and thoroughly investigated, and appropriate amends and redress are provided pursuant to established guidelines and procedures” and (2) to “comprehensively assess[] the impacts of the lethal force policies over the past two decades, including their toll on civilians [and] assessing how other tools and resources (e.g., diplomacy, development and peacebuilding, law enforcement, cooperation and extradition, and financial and other sanctions) can be better utilized.” Such a comprehensive review would truly give meaning to promises of non-repetition in a way that more limited investigations and reviews cannot.
