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December 12, 2017

President Trump Signs NDAA with Important Accountability Provisions

Today, President Trump signed into law two important new provisions that will strengthen congressional oversight, transparency, and accountability for the “War on Terror.”

The provisions, contained in the National Defense Authorization Act for the fiscal year 2018 (NDAA), require critical reporting on any changes the administration makes to the rules governing military force and related national security matters. They also require the administration to provide detailed information about civilian casualties caused by U.S. military operations worldwide, how those casualties are investigated, and efforts to mitigate civilian harm.

At Human Rights First, we worked hard to ensure that these measures made it to the president’s desk. Passed on a bipartisan basis, their importance cannot be overstated. Here are the details of the laws and how we got there:

Reporting on Rules Governing Military Force (Section 1264)

During his campaign, President Trump called for torturing detainees, killing suspected terrorists’ families, and declared an intention to “load up” the detention facility at Guantanamo Bay with “bad dudes.” What’s more, he spoke of carrying out his plans in secret, potentially bringing us back to the dark days of CIA black sites and other unlawful actions that have deeply harmed U.S. national security as well as the global reputation of the United States as a champion of human rights and the rule of law.

Seizing on the widespread concern that Trump would reverse the policy and transparency gains of the last decade and interpret the law in unprecedented and dangerous ways, we worked to ensure that this would not happen. We collaborated with key congressional offices to develop a legislative proposal that would require the Trump Administration to notify Congress of any changes to the existing framework governing the use of force and related national security matters and explain the basis for those changes.

Now, if President Trump wants to change any of the rules governing the use of military force, detention, detainee treatment and interrogation, drone strikes, and the military commissions at Guantanamo Bay, he must notify Congress within 30 days and provide the “legal, factual, and policy justification” for the new changes. This requires the careful interagency vetting of any changes, a critical safeguard that prevents haphazard or secret unilateral changes by the White House.

The administration must also provide, within 90 days of today, a comprehensive report updating the Obama Administration’s December 2016 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Force and Related National Security Matters with the changes made since Trump took office.

Reporting on Civilian Casualties (Section 1057)

In response to the troubling increase in civilian casualties since Trump took office, we intensified our efforts on the Hill to persuade Congress to require the administration to provide more information on this disturbing trend and efforts to mitigate civilian harm. We shared our concerns with dozens of offices, emphasizing the strategic benefits of minimizing civilian harm and providing detailed recommendations for strong reporting requirements that would increase transparency and accountability, and mitigate harm.

Our strategy worked. The final law requires annual reporting to Congress on all civilian and combatant casualties during the preceding year, including where U.S. operations were “reasonably suspected” to have caused civilian harm. The Department of Defense must also describe the process for investigating allegations of civilian casualties as well as the steps taken to mitigate harm to civilians. Further, to help address discrepancies between official government estimates of civilian casualties and reports from outside groups and journalists on the ground, the Defense Department must take into account “relevant and credible all-source reporting, including information from public reports and nongovernmental sources.”

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There is still a lot more work to do. Congressional disclosure of this information is extremely important, but public disclosure is needed for full, informed debate. To that end, we hope the Trump Administration will release as much of these reports as possible in unclassified form.

This fight is not over. But today, we have secured important new provisions that will help hold this administration—and future administrations—accountable.