S.Amdt. 5947

1. Adds SEC. 1077. COMMISSION ON CIVILIAN HARM at the end of subtitle G of title X

   Adds a section

   In S.Amdt. 5499 as proposed

   (2) as a recognition of Senator Inhofe's long history of engaging with, and advocating for, Africa, the Department of Defense Africa Center for Strategic Studies should be renamed the James M. Inhofe Center for Africa Strategic Studies.

   Inserted: SEC. 1077. COMMISSION ON CIVILIAN HARM.

   Inserted: (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").

   Inserted: (b) Responsibilities.--

   Inserted: (1) General responsibilities.--The Commission shall carry out a study of the following:

   Inserted: (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.

   Inserted: (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.

   Inserted: (2) Particular duties.--In carrying out the general responsibilities of the Commission under paragraph (1), the Commission shall carry out the following:

   Inserted: (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.

   Inserted: (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.

   Inserted: (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.

   Inserted: (D) Assess the responsiveness of the Department of Defense to incidents of civilian harm and the practices for responding to such incidents, including--

   Inserted: (i) assessments;

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   Inserted: (ii) investigations;

   Inserted: (iii) acknowledgment; and

   Inserted: (iv) the provision of compensation payments, including the use of congressionally authorized ex gratia payments, assistance, and other responses.

   Inserted: (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.

   Inserted: (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.

   Inserted: (G) Assess incidents of civilian harm that occurred, or allegedly occurred, during the period of inquiry, by--

   Inserted: (i) determining whether any such incidents were concealed, and if so by assessing the actions taken to conceal;

   Inserted: (ii) assessing the policies and procedures for whistle-blowers to report such incidents;

   Inserted: (iii) determining the extent of the responsiveness and effectiveness of Inspector General oversight, as applicable, regarding reports of incidents of civilian harm; and

   Inserted: (iv) assessing the accuracy of the United States Government public civilian casualty estimates.

   Inserted: (H) Assess the short-, medium-, and long-term consequences of incidents of civilian harm that occurred during the period of inquiry on--

   Inserted: (i) the affected communities, including humanitarian consequences;

   Inserted: (ii) the strategic interests of the United States; and

   Inserted: (iii) the foreign policy goals and objectives of the United States.

   Inserted: (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.

   Inserted: (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.

   Inserted: (c) Authorities.--

   Inserted: (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.

   Inserted: (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--

   Inserted: (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

   Inserted: (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.

   Inserted: (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.

   Inserted: (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.

   Inserted: (d) Composition.--

   Inserted: (1) Number and appointment.--The Commission shall be composed of 12 members who are civilian individuals not employed by the Federal Government.

   Inserted: (2) Membership.--The members shall be appointed as follows:

   Inserted: (A) The Majority Leader and the Minority Leader of the Senate shall each appoint one member.

   Inserted: (B) The Speaker of the House of Representatives and the Minority Leader shall each appoint one member.

   Inserted: (C) The Chair and the Ranking Member of the Committee on Armed Services of the Senate shall each appoint one member.

   Inserted: (D) The Chair and the Ranking Member of the Committee on Armed Services of the House of Representatives shall each appoint one member.

   Inserted: (E) The Chair and the Ranking Member of the Committee on Appropriations of the Senate shall each appoint one member.

   Inserted: (F) The Chair and Ranking Member of the Committee on Appropriations of the House of Representatives shall each appoint one member.

   Inserted: (3) Chair and vice chair.--The Commission shall elect a Chair and Vice Chair from among its members.

   Inserted: (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.

   Inserted: (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.

   Inserted: (e) Meetings.--

   Inserted: (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.

   Inserted: (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.

   Inserted: (f) Staffing.--

   Inserted: (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.

   Inserted: (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.

   Inserted: (3) Personnel as federal employees.--

   Inserted: (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.

   Inserted: (B) Members of commission.--Subparagraph (A) shall not be construed to apply to members of the Commission.

   Inserted: (4) Qualifications.--Commission personnel should have experience and expertise in areas including--

   Inserted: (A) international humanitarian law;

   Inserted: (B) human rights law;

   Inserted: (C) investigations;

   Inserted: (D) humanitarian response;

   Inserted: (E) United States military operations;

   Inserted: (F) national security policy;

   Inserted: (G) the languages, histories, and cultures of regions that have experienced civilian harm during the period of inquiry; and

   Inserted: (H) other such areas the members of the Commission determine necessary to carry out the responsibilities of the Commission under subsection (b).

   Inserted: (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.

   Inserted: (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.

   Inserted: (g) Reports.--

   Inserted: (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.

   Inserted: (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.

   Inserted: (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--

   Inserted: (A) the findings of the Commission; and

   Inserted: (B) recommendations based on the findings of the Commission to improve the prevention, mitigation, assessment, and investigation of incidents of civilian harm.

   Inserted: (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.

   Inserted: (h) Definitions.--In this section:

   Inserted: (1) The term "appropriate congressional committees" means--

   Inserted: (A) the congressional defense committees;

   Inserted: (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

   Inserted: (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.

   Inserted: (2) The term "civilian harm" means--

   Inserted: (A) the death or injury of a civilian; or

   Inserted: (B) destruction of civilian property.

   Inserted: (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.

   Original wording

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

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As printed