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US military should publish all investigations of civilian deaths

It's a logical step for a president who claims to want transparency

June 5, 2014 2:00AM ET

In his May 28 foreign policy address to the graduating Army cadets at West Point, President Barack Obama said the U.S. “must be more transparent about both the basis of our counterterrorism actions and the manner in which they are carried out.” He further promised to “turn to our military to take the lead and provide information to the public about our efforts.”

There is, in fact, an easy way for the Department of Defense to fulfill the president’s wishes. It could release redacted investigations of incidents in which civilians were killed during combat engagements involving the U.S. military. Although this is not well known, the DoD has conducted thousands of these investigations, generally in a thorough and professional manner. More important, most of them are already releasable by request under the Freedom of Information Act (FOIA).

Releasing the investigations promises several benefits. It would contradict the claims that the U.S. isn’t concerned about civilian casualties or holding its service members accountable. It would also counter terrorist propaganda. In the wake of a drone strike, if the military fails to provide its version of events — an accurate and thorough version that it takes great pains to obtain — those hostile to U.S. interests inevitably will. It’s past time for the U.S. to regain the reputation for accountability and transparency that it need not have lost in the first place.

For the U.S. military, conducting investigations while in an active combat zone is nothing new. Civilian colleagues are often surprised when they learn from me that I spent my time in Iraq as an Army JAG conducting investigations. In fact, about 40 percent (if not more) of my time was devoted to ensuring that investigations were properly initiated, conducted, reviewed and completed. 

What did our unit investigate? Per our commander’s directive, we investigated any incident that involved our unit and serious injury to or death of a civilian. It didn’t matter whether U.S. forces or insurgents caused the alleged injury or death. The primary purpose of the investigations was to document as fully and accurately as possible what happened, where, when, how and why and whether there were any lessons learned or other follow-on action warranted.

Conducting investigations during armed conflict is fraught with difficulties. Yet the military not only conducts them, but does so in a thorough and professional manner. The problem is that the public does not get the chance to see this for itself.

Although there was some initial resistance from our subordinates, over time they recognized the benefits of a timely, professional investigation conducted by a military officer with an understanding of the battlefield. These investigations provided important feedback to the military commander while documenting events likely to receive interest from the media and higher commands, or to be mischaracterized in insurgent propaganda. 

The investigations led to any number of outcomes, including modifying how units interacted with the local population and conducted convoys or checkpoints. Others led to soldiers being retrained. A small number led to the initiation of administrative or criminal action against U.S. service members. The investigations also documented the lack of U.S. involvement in alleged civilian casualties, as in one instance where insurgents waited for the presence of a bus full of schoolchildren to initiate an ambush of a unit convoy. Through cross-referenced interviews, sworn statements and visits to the scene and nearby hospitals, the investigation documented that no children were wounded.

To be sure, conducting investigations during armed conflict is fraught with difficulties. Yet the military not only conducts them, but does so in a thorough and professional manner. The problem is that the public does not get the chance to see this for itself.

This need not be the case. Although military investigations are largely releasable under FOIA, this requires someone going through the bureaucratic hassle of submitting a request. If the DoD is serious about transparency, why not automatically release all the investigations that are permitted?

The current status quo undermines the hard work and dedication of military units that conducted the investigations under trying circumstances.

It is also counterproductive for PR purposes. Individuals who request DoD investigations and then post portions online often do so on websites with hostile perspectives on government and the military. The administrative delays in obtaining investigations also feed into conspiracy narratives.

To be fair, the DoD has websites that are FOIA online “reading rooms,” with investigations and other releasable information. But these sites are poorly maintained and incomplete. Sure, when it comes to an investigation of crude, chauvinistic behavior by the Blue Angels — including cockpit porn, homophobic humor on maps and blue-and-gold penises drawn on roofs — DoD publishes it. But if you’re looking for Army investigations of civilian casualties, you will find far better information on the website of the American Civil Liberties Union, which, unlike the DoD, has collected a number of investigations in one place.

The DoD can and should do a better job of publishing already released investigations. Neither the public nor the military needs another speech about transparency. What they need is actual transparency into how the DoD operates. 

Chris Jenks is an assistant professor of law and director of the criminal justice clinic at Southern Methodist University Dedman School of Law. He previously served as chief of the U.S. Army's International Law Branch, where he was responsible for the Defense Department's foreign criminal jurisdiction program.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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