Jurisprudence

Why Won’t the Biden Administration Release Its Kabul Civilian Drone Strike Report?

Each coffin represents 2 victims of the August 29, 2021 erroneous U.S. drone strike that killed 10 family members in Kabul, Afghanistan.
Afghan American led grassroots coalition use Afghan flag-draped coffins as props to protest defense contractors they accuse of putting profits over the value of Afghan lives on October 07, 2021 in Arlington, Virginia. Paul Morigi/Getty Images

On Wednesday, Nov. 3, 2021, the Defense Department announced that it had completed its investigation into the Aug. 29, 2021 drone strike that killed 10 civilians, including seven children, in Kabul. The report itself remains classified. The official single-page fact sheet asserts that although there is no basis for criminal proceedings, authorities are continuing to explore the prospect of “accountability.” Within a day, Secretary of Defense Lloyd Austin endorsed the report. The bottom line, as far as the Pentagon is concerned, is that the drone strike, undertaken as a defensive measure, was an unfortunate “honest mistake”– an operational mishap – and that no criminal conduct, under either military law or the law of war, was involved. The United States is making financial payments to the affected families and is reportedly expediting visas to permit survivors and relatives to get out of Afghanistan and enter the United States.

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Meanwhile, conditions in Afghanistan continue to go from bad to worse, including the new (or renewed) Taliban regime getting a taste of its own medicine from ISIS-K, an insurgent group that, in many respects, now is to the Taliban as the Taliban was to the former Afghan government.

It is important that the flow of dramatic events not obscure the flawed process reflected in the Defense Department’s report. A few basic points need to be kept in mind.

First, keeping the investigative report classified is a good way to ensure that the facts are kept from the American people, the victims of the drone strike, the people of Afghanistan, and our military allies. Investigative transparency is central to public confidence in the results of any investigation. Given the astounding level of detail that private entities such as The New York Times and Washington Post were able to marshal in piecing together the details of the drone strike, it is simply not credible that the entire investigative report must be withheld in order to protect (as one imagines the claim) sources and methods of intelligence-gathering. Moreover, at this remove in time, and given the fact that thousands of our country’s trusted friends have long since been extracted from Afghanistan, surely far more could have been revealed.

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During the heat of the war, in mid-2016, the Defense Department released a somewhat redacted 120-page report (plus hundreds of pages of accompanying documents) of a detailed internal investigation into the U.S. airstrike that targeted a Médecins Sans Frontières hospital in Kunduz, Afghanistan. The stark contrast between that level of transparency and this week’s hiding the entire Kabul drone strike report is an embarrassment to the Department and the United States. (Disclosure: I was among those advising Médecins Sans Frontières in connection with the Kunduz incident.)

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Second, the government’s choice of a U.S. Air Force general to lead the investigation was a blunder. This is not to call into question Lieut. Gen. Sami D. Said’s skill (he’s the Air Force’s Inspector General) or his good faith. But was it smart to name as head investigator an officer from the service branch that plays a key role in drone warfare? The apparent lack of self-awareness was made more evident when Lieut. Gen. Said introduced himself at Wednesday’s press briefing by saying, “The whole point of it, in selecting me, is to make sure it’s independent — I’m nowhere close to this strike.”

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There were alternatives. And since the Kabul drone strike is almost certainly not the last mishap for which the United States will bear responsibility, it is worth considering them.

One was to designate as investigating officer a retired flag or general officer, since such an individual may have greater credibility for the very reason that she or he has less “skin in the game” than an active duty senior officer. But because senior retirees will have strong bonds to their former branch or, indeed, to the armed forces as a whole, perhaps a better approach would have been to designate a respected civilian.

Having a civilian investigating official may be a bridge too far, institutionally and culturally, for the Pentagon, but there was still another option that focuses not so much on who is conducting the investigation, but on the procedural framework. Thus, the Defense Department could have convened a multi-member Court of Inquiry under Article 135 of the Uniform Code of Military Justice (UCMJ). Such a body is not a court of law, but rather, the military’s most formal type of investigation. One was convened, for example, when the nuclear submarine USS Greeneville sank the Japanese fishery training vessel Ehime Maru off Oahu on Feb. 9, 2001, killing nine Japanese citizens. Greeneville, the record revealed, was engaged in a VIP Cruise, showing off some of its nifty capabilities. The investigation itself was largely conducted in public and went a long way to allaying the justifiable concerns of a major American ally. Given the loss of life in the Kabul drone strike, a case can be made that a Court of Inquiry should have been convened. While the still-classified Kabul report concluded that no criminal conduct occurred, it is worth noting that a Court of Inquiry can serve as the preliminary hearing that the UCMJ requires as a predicate for a general court-martial.

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A collegial body also has the benefit of robust exchanges among the voting members—even the possibility of dissenting voices can make for a better, more thorough investigation. Was there any dissent among those involved in the airstrike? Lieut. Gen. Said reported, based on his witness interviews, that no one involved in the incident had raised a concern. But was there any dissent within his investigative team?

It’s important to get the investigative forum right because the alternative may be really awful: a congressional hearing. If you liked the Benghazi hearings, you will love the hearing into the Kabul drone strike. It is difficult to overstate the likelihood that such a hearing would degenerate immediately into political gamesmanship and 5-minute sound-bites by legislators anxious to make the evening news.

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Third, the report apparently leaves the door open to “accountability” measures other than courts-martial or non-judicial punishment. Accountability is a highly overused and amorphous term (including but not limited to the military), and it is hard to see what it might entail in this context. Poor performance evaluations? Removal from command? Informal exhortations to be more careful next time? As Lieut. Gen. Said has said, the chain of command can decredential personnel, retrain them, and fire them. Will we even know what steps have been or will be taken in the name of accountability (and does retraining even count)? For that matter, without access to the legal analysis that surely was a part of his investigation, it is impossible to evaluate whether, for example, there may have been negligent dereliction of duty, which is a violation of Article 92(3), UCMJ. Lieut. Gen. Said reported that what happened was “not negligence.” Must we simply take his word for that?

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Indeed, it’s even more difficult to take his word for it in reflection of Wednesday’s press briefing. In prepared remarks, Lieut. Gen. Said stated:

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“When you do the analysis, you can see that there were opportunities to potentially conduct the assessment more carefully, given time. So therefore, it was inaccurate, given what was known at the time.”

What does that even mean? Something is accurate or inaccurate based on its relationship to the truth. What actors knew at the time, or how much time they had to make a decision, has no bearing on whether their assessment was accurate. Furthermore, only when prompted did Lieut. Gen. Said reveal that the official video feed showed a child present at the strike zone two minutes before the trigger pull. Compounding the problem, he then discussed the strike cell’s decision-making in terms that at least suggest there was some evidence of negligence. To see if there were children in this densely-populated urban residential area, he explained, “you have to be like no kidding looking for it” in a way that he said the operators were not.

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On Thursday, the Defense Department’s Press Secretary, retired Navy Rear Adm. John F. Kirby brushed off a reporter’s question, saying he knows of “no plans to release any additional imagery” of the video feed – by which Americans could judge for themselves.

Finally, something has to be done about premature rosy commentary that can so easily prove to be mistaken once anything approaching a proper investigation has been conducted. Examples include Joint Chiefs of Staff Chairman Gen. Mark A. Milley’s Sept. 1, 2021 description of the ill-fated mission as a “righteous strike.” Was the choice of words impromptu and simply an unfortunate slip of the tongue or was it from prepared talking points? The former seems likely, as the official transcript has the words “righteous strike” – followed by a question mark – in parentheses. If it was the latter, however, someone should be fired. For his part, Rear Adm. Kirby said on Aug. 30 that the Department was “certain” there were secondary explosions from the strike. Likewise, a day earlier, U.S. Central Command spokesman Capt. Bill Urban said, “We are confident we successfully hit the target. Significant secondary explosions from the vehicle indicated the presence of a substantial amount of explosive material.” Their stated certainty and confidence following the strike – including making such claims while the investigation was ongoing – was beyond regrettable. These are all self-inflicted wounds to the Pentagon’s credibility.

Let’s see the report – including the legal analysis.

More From Just Security:

Military Officers’ Handwritten Clemency Letter at Guantanamo – What It Says About Who We Are

Afghanistan: A Way Forward for Women and Girls

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