[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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