[Congressional Record Volume 168, Number 157 (Wednesday, September 28, 2022)]
[Senate]
[Pages S5404-S5405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 5947. Mr. MURPHY (for himself and Ms. Warren) submitted an 
amendment intended to be proposed to amendment SA 5499 submitted by Mr. 
Reed (for himself and Mr. Inhofe) and intended to be proposed to the 
bill H.R. 7900, to authorize appropriations for fiscal year 2023 for 
military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

        At the end of subtitle G of title X, add the following:

     SEC. 1077. COMMISSION ON CIVILIAN HARM.

       (a) Establishment.--There is hereby established a 
     commission, to be known as the ``Commission on Civilian 
     Harm'' (in this section referred to as the ``Commission'').
       (b) Responsibilities.--
       (1) General responsibilities.--The Commission shall carry 
     out a study of the following:
       (A) Civilian harm resulting from, or incidental to, the use 
     of force by the United States Armed Forces that occurred 
     during the period of inquiry.
       (B) The policies, procedures, rules, and regulations of the 
     Department of Defense for the prevention of, mitigation of, 
     and response to civilian harm that were in effect during the 
     period of inquiry.
       (2) Particular duties.--In carrying out the general 
     responsibilities of the Commission under paragraph (1), the 
     Commission shall carry out the following:
       (A) Conduct an investigation into the record of the United 
     States with respect to civilian harm during the period of 
     inquiry, including by investigating a representative sample 
     of incidents of civilian harm that occurred where the United 
     States used military force (including incidents confirmed by 
     media and civil society organizations and dismissed by the 
     Department of Defense) by conducting hearings, witness 
     interviews, document and evidence review, and site visits, 
     when practicable.
       (B) Identify the recurring causes of civilian harm, as well 
     as the factors contributing to civilian harm, resulting from 
     the use of force by United States Armed Forces during the 
     period of inquiry and assess whether such causes and factors 
     could be addressed and, if so, whether they were resolved.
       (C) Assess the extent to which the United States Armed 
     Forces have implemented the recommendations of Congress, the 
     Department of Defense, other Government agencies, or civil 
     society organizations, or the recommendations contained in 
     studies sponsored or commissioned by the United States 
     Government, with respect to the protection of civilians and 
     efforts to minimize, investigate, and respond to civilian 
     harm resulting from, or incidental to, United States military 
     operations.
       (D) Assess the responsiveness of the Department of Defense 
     to incidents of civilian harm and the practices for 
     responding to such incidents, including--
       (i) assessments;
       (ii) investigations;
       (iii) acknowledgment; and
       (iv) the provision of compensation payments, including the 
     use of congressionally authorized ex gratia payments, 
     assistance, and other responses.
       (E) Assess the extent to which the United States Armed 
     Forces comply with the rules, procedures, policies, 
     memoranda, directives, and doctrine of the Department of 
     Defense for preventing, mitigating, and responding to 
     civilian harm.
       (F) Assess the extent to which the policies, protocols, 
     procedures, and practices of the Department of Defense for 
     preventing, mitigating, and responding to civilian harm 
     comply with applicable international humanitarian law, 
     applicable international human rights law, and United States 
     law, including the Uniform Code of Military Justice.
       (G) Assess incidents of civilian harm that occurred, or 
     allegedly occurred, during the period of inquiry, by--
       (i) determining whether any such incidents were concealed, 
     and if so by assessing the actions taken to conceal;
       (ii) assessing the policies and procedures for whistle-
     blowers to report such incidents;
       (iii) determining the extent of the responsiveness and 
     effectiveness of Inspector General oversight, as applicable, 
     regarding reports of incidents of civilian harm; and
       (iv) assessing the accuracy of the United States Government 
     public civilian casualty estimates.
       (H) Assess the short-, medium-, and long-term consequences 
     of incidents of civilian harm that occurred during the period 
     of inquiry on--
       (i) the affected communities, including humanitarian 
     consequences;
       (ii) the strategic interests of the United States; and
       (iii) the foreign policy goals and objectives of the United 
     States.
       (I) Assess the extent to which the Department of Defense 
     Instruction on Responding to Civilian Harm in Military 
     Operations, as required by section 936 of the John S. McCain 
     National Defense Authorization Act for Fiscal Year 2019 
     (Public Law 115-232; 10 U.S.C. 134 note), addresses issues 
     identified during the investigation of the Commission and 
     what further measures are needed to address issues that the 
     Commission identifies during its operations.
       (J) Assess the extent to which United States diplomatic 
     goals and objectives were affected by the incidents of 
     civilian harm during the period of inquiry.
       (c) Authorities.--
       (1) Security clearances.--The appropriate Federal 
     departments or agencies shall cooperate with the Commission 
     in expeditiously providing to the members and staff of the 
     Commission appropriate security clearances, to the extent 
     possible, pursuant to existing procedures and requirements. 
     No person shall be provided with access to classified 
     information under this section without the appropriate 
     security clearances.
       (2) Hearings and evidence.--The Commission or, on the 
     authority of the Commission, any portion thereof, may, for 
     the purpose of carrying out this section--
       (A) hold such hearings and sit and act at such times and 
     places, take such testimony, receive such evidence, and 
     administer such oaths as the Commission, or such portion 
     thereof, may determine advisable; and
       (B) provide for the attendance and testimony of such 
     witnesses and the production of such books, records, 
     correspondence, memoranda, papers, and documents as the 
     Commission, or such portion thereof, may determine advisable.
       (3) Inability to obtain documents or testimony.--In the 
     event that the Commission is unable to obtain testimony or 
     documents needed to conduct its work, the Commission shall 
     notify the congressional defense committees and appropriate 
     investigative authorities.
       (4) Access to information.--The Commission may secure 
     directly from the Department of Defense any information or 
     assistance that the Commission considers necessary to enable 
     the Commission to carry out the requirements of this section. 
     Upon receipt of a request of the Commission for information 
     or assistance, the Secretary of Defense shall furnish such 
     information or assistance expeditiously to the Commission. 
     Whenever information or assistance requested by the 
     Commission is unreasonably refused or not provided, the 
     Commission shall report the circumstances to Congress without 
     delay.
       (d) Composition.--
       (1) Number and appointment.--The Commission shall be 
     composed of 12 members who are civilian individuals not 
     employed by the Federal Government.
       (2) Membership.--The members shall be appointed as follows:
       (A) The Majority Leader and the Minority Leader of the 
     Senate shall each appoint one member.

[[Page S5405]]

       (B) The Speaker of the House of Representatives and the 
     Minority Leader shall each appoint one member.
       (C) The Chair and the Ranking Member of the Committee on 
     Armed Services of the Senate shall each appoint one member.
       (D) The Chair and the Ranking Member of the Committee on 
     Armed Services of the House of Representatives shall each 
     appoint one member.
       (E) The Chair and the Ranking Member of the Committee on 
     Appropriations of the Senate shall each appoint one member.
       (F) The Chair and Ranking Member of the Committee on 
     Appropriations of the House of Representatives shall each 
     appoint one member.
       (3) Chair and vice chair.--The Commission shall elect a 
     Chair and Vice Chair from among its members.
       (4) Deadline for appointment.--Members shall be appointed 
     to the Commission under paragraph (1) not later than 90 days 
     after the date of the enactment of this Act.
       (5) Nongovernmental appointees.--An individual appointed to 
     serve as a member of the Commission may not be an officer or 
     employee of the Federal Government or of any State or local 
     government or a member of the United States Armed Forces 
     serving on active duty.
       (e) Meetings.--
       (1) Initial meeting.--The Commission shall meet and begin 
     the operations of the Commission not later than 120 days 
     after the date of the enactment of this Act.
       (2) Quorum; vacancies.--After its initial meeting, the 
     Commission shall meet upon the call of the Chair or a 
     majority of its members. Five members of the Commission shall 
     constitute a quorum. Any vacancy in the Commission shall not 
     affect its powers, but shall be filled in the same manner in 
     which the original appointment was made.
       (f) Staffing.--
       (1) Appointment and compensation.--The Chair, in accordance 
     with rules agreed upon by the Commission, may appoint and fix 
     the compensation of a staff director and such other personnel 
     as may be necessary to enable the Commission to carry out its 
     functions, without regard to the provisions of title 5, 
     United States Code, governing appointments in the competitive 
     service, and without regard to the provisions of chapter 51 
     and subchapter III of chapter 53 of such title relating to 
     classification and General Schedule pay rates, except that no 
     rate of pay fixed under this paragraph may exceed the 
     equivalent of that payable for a position at level V of the 
     Executive Schedule under section 5316 of title 5, United 
     States Code.
       (2) Personnel.--The Commission shall have the authorities 
     provided in section 3161 of title 5, United States Code, and 
     shall be subject to the conditions set forth in such section, 
     except to the extent that such conditions would be 
     inconsistent with the requirements of this section.
       (3) Personnel as federal employees.--
       (A) In general.--The staff director and any personnel of 
     the Commission who are employees shall be employees under 
     section 2105 of title 5, United States Code, for purposes of 
     chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.
       (B) Members of commission.--Subparagraph (A) shall not be 
     construed to apply to members of the Commission.
       (4) Qualifications.--Commission personnel should have 
     experience and expertise in areas including--
       (A) international humanitarian law;
       (B) human rights law;
       (C) investigations;
       (D) humanitarian response;
       (E) United States military operations;
       (F) national security policy;
       (G) the languages, histories, and cultures of regions that 
     have experienced civilian harm during the period of inquiry; 
     and
       (H) other such areas the members of the Commission 
     determine necessary to carry out the responsibilities of the 
     Commission under subsection (b).
       (5) Contracting.--The Commission may, to such extent and in 
     such amounts as are provided in appropriation Acts, enter 
     into contracts to enable the Commission to discharge its 
     duties under this section.
       (6) Consultant services.--The Commission is authorized to 
     procure the services of experts and consultants in accordance 
     with section 3109 of title 5, United States Code, but at 
     rates not to exceed the daily rate paid a person occupying a 
     position at level IV of the Executive Schedule under section 
     5315 of title 5, United States Code.
       (g) Reports.--
       (1) Interim report.--Not later than June 1, 2024, the 
     Commission shall submit to the appropriate congressional 
     committees an interim report on the study referred to in 
     subsection (b)(1), including the results and findings of such 
     study as of that date.
       (2) Other reports.--The Commission may, from time to time, 
     submit to the appropriate congressional committees such other 
     reports on such study as the Commission considers 
     appropriate.
       (3) Final report.--Not later than two years after the date 
     of the appointment of all of the members of the Commission 
     under subsection (d), the Commission shall submit to the 
     appropriate congressional committees a final report on such 
     study. The report shall include--
       (A) the findings of the Commission; and
       (B) recommendations based on the findings of the Commission 
     to improve the prevention, mitigation, assessment, and 
     investigation of incidents of civilian harm.
       (4) Public availability.--The Commission shall make 
     publicly available on an appropriate internet website an 
     unclassified version of each report submitted by the 
     Commission under this subsection and shall ensure that such 
     versions are minimally redacted only for legitimately 
     classified information.
       (h) Definitions.--In this section:
       (1) The term ``appropriate congressional committees'' 
     means--
       (A) the congressional defense committees;
       (B) the Committee on Foreign Affairs, the Committee on 
     Oversight and Reform, the Committee on Transportation and 
     Infrastructure, and the Permanent Select Committee on 
     Intelligence of the House of Representatives; and
       (C) the Committee on Foreign Relations, the Committee on 
     Homeland Security and Governmental Affairs, the Committee on 
     Commerce, Science, and Transportation, and the Select 
     Committee on Intelligence of the Senate.
       (2) The term ``civilian harm'' means--
       (A) the death or injury of a civilian; or
       (B) destruction of civilian property.
       (3) The term ``period of inquiry'' means the period 
     beginning on the date of the enactment of the Authorization 
     for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 
     note) and ending on the date of the enactment of the National 
     Defense Authorization Act for Fiscal Year 2023.
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