For the public record, in the public interest

Iraqi civilian deaths revealed in US military compensation records

1 Oct 2010

The American Civil Liberties Union (ACLU) has made several releases of internal US government documents on civilian casualties in Iraq and Afghanistan, obtained through a Freedom of Information Act request. The first batch of these documents was released in April 2007, followed by several subsequent releases, the most recent being in March 2010. IBC has been working to integrate the ACLU records on Iraqi civilian deaths into its database since the first release in 2007. These detailed documents have added substantial information to existing IBC entries as well as forming the basis for the addition of a large number of previously unknown incidents and Iraqi civilian deaths, nearly all of them caused directly by US forces.1

Below follows a discussion of the release, significance and impact of the ACLU documents between IBC researcher Josh Dougherty and Nasrina Bargzie, cooperating attorney with the ACLU and attorney at Boies, Schiller & Flexner LLP.

Josh Dougherty: There are such a large number of these documents now available from the ACLU that it may be difficult for readers to get a sense of what they contain and what they ultimately mean. So I’d like to pose a number of questions that might allow people to get a better sense of this material. To begin, what records did the ACLU request in its Freedom of Information Act Request?

Nasrina Bargzie: Our request was broadly phrased in that the ACLU sought all records relating to the deaths of civilians in Iraq and Afghanistan post January 1, 2005. As a result the ACLU has received many documents of different types. The ACLU has helpfully been summarising these records as they have been coming in and has been posting summaries with links to the documents at our website, The Human Cost - Civilian Casualties in Iraq & Afghanistan.

JD: You say that the ACLU requested all records relating to civilian deaths ‘post January 1, 2005,’ but the invasion of Iraq started in 2003. Why was that date chosen?

NB: The initial FOIA request was prompted not only by the broader lack of information in relation to the wars in Iraq and Afghanistan, but also by the particularly notorious incident in Haditha, Iraq, where 24 civilians were killed by US forces.2 That incident occurred in 2005, and so in order to have a manageable set of documents we asked for documents including that incident and then beyond that incident. Though our FOIA request sought only records post-2005, we did receive a number of records before that date, with some dated as early as 2003.

JD: Another question would go to the motivation behind this. Why did the ACLU feel it important or necessary to file a Request for these records?

“ACLU filed a Freedom of Information Act request to pull back the veil of secrecy on the issue of civilian casualties”

NB: Several years into the wars in Iraq and Afghanistan, and as evidenced by the incident in Haditha, Iraq, when 24 civilians were killed, the ACLU noticed a troubling pattern. The government was going out of its way to hide the human cost of the wars. It refused to release statistics about the number of civilian casualties, it would embed journalists with military units and require that those journalists submit reports for prepublication review, it would pay Iraqi journalists to write positive accounts of the war, and in Afghanistan it destroyed the footage of an incident where US soldiers shot indiscriminately at the civilian population. The ACLU filed a Freedom of Information Act request to seek to pull back the veil of secrecy on the issue of civilian casualties and to try to bring some transparency and accountability to this realm.

JD: How long did it take to actually obtain all these documents, from the time of your initial request until receipt?

NB: The Freedom of Information Act request was filed in June 2006. We started to receive records around September 2006, on to September 2007. Then the government stopped producing any more responsive records, so the ACLU filed a lawsuit in the District of Columbia District Court. After months of negotiations we were able to come up with a settlement where the ACLU would get additional records. We've now gotten records through 2010.

JD: There have been several different releases of these documents by the ACLU over the last several years, containing several different types of US government documents. Could you describe the different kinds of records the ACLU received?

NB: The ACLU received a variety of records, including:

Army 15-6 documents. These records are the first level investigations conducted by the Army when a civilian death is reported. The investigation itself usually lasts only a matter of hours and at the end of that process a determination is made as to whether to conduct a more in depth investigation.

Foreign Claims Act documents. The FCA is a federal statute under which civilians can file claims for compensation for the death or injury of a loved one, or harm to property. We received a number of FCA claims, many of which were denied because any death which occurred incident to combat is non-compensable. Given the nature of the counterinsurgency wars in Iraq and Afghanistan, many deaths were ruled incident to combat, and therefore, non-compensable.

Commander’s Emergency Response Program documents. This program is another mechanism pursuant to which civilians can seek compensation for the death or injury of a loved one or harm to property. Where a claim is denied for combat exemption or is otherwise non-compensable under the FCA, the military may pay the claim under CERP. The CERP payment amount is discretionary and often of a lower amount than that which could have been obtained under the FCA.

Criminal Investigative Demand documents. These are also investigations of civilian casualties. The investigation is more intense than that of an Army 15-6.

Courts Martial documents. These are the military equivalent of prosecutions and trials for the deaths of civilians in Iraq and Afghanistan.

Naval Criminal Investigative Demand files. These are Navy investigations of civilian casualties in Iraq and Afghanistan and are also more intense than that of an Army 15-6 investigation.

JD: What have you been doing with these records?

NB: Because the ACLU’s goal is to get these records to the American public the ACLU has created a website that captures summaries and links to the documents themselves.

JD: How many total records are there now, given that there have been several different releases?

NB: We have summarised and released over 35,000 pages of records. We currently have one more set of documents we are working to summarise.

JD: What is your sense of how many more records there might be like this that are still unreleased by the US government?

NB: It’s unclear. We know that we have only received some and not all of the documents that the government possesses. For example if you look at the Foreign Claims Act documents and Commanders Emergency Response Program documents you will see that many of the claims come from only a handful of the various provinces of Iraq and Afghanistan. Yet we know there is troop presence in other parts. Thus, there must be records missing. The scope of what is missing is unclear. Also, our FOIA request only sought records from January, 2005, onwards. While we received some records before that date, it is highly likely that there are a number of pre-2005 documents that were not produced to the ACLU based on the limit we had placed in our FOIA.

JD: Were you able to publish this material as found, or if not, what was required to prepare it for release?

NB: Where to start! As for the documents themselves, we did not alter them. After we received the documents, we would have to go through a pretty complicated and time consuming process to get these documents into a form ready for the public. We basically got these documents as stacks of paper (initially), and then later on CDs. In relation to the different productions we would have some sense of the types of records that would be produced – but that by no means actually held to be true. For each distinct record – and part of the challenge was figuring out what was a distinct record – we had to PDF each record, date stamp, have our reviewers summarise, group similar (meaning type of claim or investigation) summaries together and then publish the summaries with links to the PDFs on our website at.

In addition to the summaries, we created a search engine that could search the text of the documents themselves. Finally, we worked with human rights and military experts to analyse the records for broader insights, which we would publish through our various press releases, and which they published themselves in various news articles, scholarly pieces, and policy recommendations. This is an ongoing process, that we repeat each time we receive a set of documents. We are currently working on our final set.

JD: So what kind of feedback have you had? Who has used this data and for what?

NB: We have a lot of positive feedback about the documents, and the documents have been put to a number of uses, including numerous news articles about the records, from the New York Times 3 to the Associated Press 4; numerous scholarly pieces, including John Fabian Witt (Feb 2008)5 and Jonathan Tracy (Nov 2008)6; numerous policy pieces, including CIVIC (Apr 2007 and May 2010)7 8; and has been used by organisations, like yours – Iraq Body Count, to help document additional deaths.

JD: The documents expose a range of new information on civilian deaths, including how the US government and military treat or respond to these cases. What have you found most surprising in the documents?

NB: Americans understand that treating civilians fairly and with empathy is not only the right thing to do, but also very much in America’s interest. Yet, some of the documents show a disregard for basic sensitivities. For example, one document has the death of an Afghan civilian document on an invoice – the invoice reads as follows “Services: Death of Wife/ Qty: 1/ Unit Price $2,500.” Another series of documents deny claims for the deaths of loved ones in Iraq and then states “I am sorry for your loss, and I wish you well in a Free Iraq.”

JD: What do you think of the monetary amounts paid to families of victims?

NB: One thing we have been trying to get is the methodology that goes into the financial numbers that the military pays. The military has not released this to us, but it appears that at different points they have valued a life under the Foreign Claims Act at between $3,000 to over $6,000, and under the Commander Emergency Response Program $2,500. Putting a value on any human life is an excruciating exercise.9

JD: What purpose do you see the release of this material serving?

“the conduct of our wars is a matter of the public’s right to know”

NB: From the ACLU’s perspective the conduct of our wars is a matter of the public’s right to know. Where there is a purposeful lack of information on a subject this important we must pull back the veil of secrecy and let shine the light of transparency, and through that, accountability. War is the most serious decision a country can make, and its people should know what that actually means. These documents try to provide some information in the information gap that has been created in order to give all Americans an insight into what is being done in our names.

JD: Thank you for sharing these thoughts with us and for your hard work in getting all of this material into the light of day. You say above that you are still working on another set of these documents, so we look forward to seeing more of this important material in the future.

Some closing remarks from IBC

While the majority of this new material has now been successfully integrated into the IBC database, due to the large volume of documents involved (amounting to some 35,000 pages) completing it remains an ongoing, and crucial, task. At the time of writing (September 2010) IBC has been able to add 393 incidents to its database based entirely on the ACLU releases. These new database entries describe 477 civilian deaths that were previously unrecorded anywhere else in the public domain. Thus these documents have not only contributed new information to previously existing IBC entries, but have revealed a great number of incidents and deaths that were previously unknown.

Nearly all of these deaths were caused directly by US forces, and share the key feature of occurring in small-scale incidents typically involving the death of a single individual. Most of these incidents by far (322, containing 381 deaths) were caused by US forces' gunfire, common examples being shootings at checkpoints, or civilians caught in crossfire. The next largest proportion (56 incidents containing 75 deaths) were due to collisions with US armoured vehicles or convoys running over civilian cars. The remainder were caused mainly by US mortar fire or air strikes.

As we have argued before, it is precisely such small-scale, but frequently-occurring incidents that can most easily be missed by other sources such as day-to-day media reports.10

In addition to bringing into view incidents and deaths unreported via any non-official sources, these documents frequently contain important details about the victims themselves: while their names have usually been redacted, there are nonetheless demographic descriptions - of their professions, their age and sex, and their familial relationships - that provide a fleeting record of the lives that were lost.

Seeing these documents in full offers another crucial insight. This is that there is no obvious reason why this material should ever have been kept secret in the first place. Why was it necessary to use Freedom of Information Act requests, or lengthy lawsuits, to bring these records into public view? In demonstrating that these documents not only can be brought into the public domain, but that they belong there, the ACLU releases provide a powerful argument in support of the case for greater transparency on the part of governments regarding the subject of civilian casualties, including those directly caused by their militaries.