Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].

Secretary Hegseth replaced the military services’ top lawyers last Friday, and this move will help accomplish his goal of freeing America’s servicemembers from overly aggressive legal restrictions. But in addition to such legal restrictions, the Biden administration pushed much more systemic, but nominally non-legal, guidance intended to protect foreign civilians from supposedly unrestrained and callous American warriors. Most notably, former Secretary of Defense Lloyd Austin instituted the Civilian Harm Mitigation and Response Action Plan (CHMR-AP) and its accompanying Instruction (DoDI 3000.17) on Civilian Harm Mitigation and Response. To free America’s warfighters to defend our nation, the Trump administration should eliminate these policies.

Civilians are harmed in war because our enemies unlawfully (1) start wars, (2) target civilians, and (3) use human shields. But Austin’s DoD viewed America’s military, not our adversaries, as the greatest threat to civilians. President Trump has started to reverse the Biden administration’s posture on protecting civilians from harm during military conflict. Biden held up munitions to Israel because Israel had not refrained from attacking Hamas when it committed the war crime of using human shields; Trump released those munitions. Biden allowed humanitarian aid to be used to fund our enemies; Trump’s actions at USAID reject that possibility. The guiding principle underlying these course-corrections is to hold accountable the offending parties, instead of reflexively blaming and constraining America and its allies.

On August 25, 2022, Austin issued the CHMR-AP, which creates new institutions and processes within the military to address civilian harm. This includes new Civilian Harm Mitigation and Response Officers and Civilian Harm Mitigation and Response Working Groups across a wide range of commands within the military. The focus on civilian harm is all-encompassing, drawing in virtually every civilian office and military command. DoD explicitly recognized the new constraints go beyond international law, but it nonetheless used them to tie the hands of our soldiers. Even though the new guidance is not legal, our servicemembers understand that the intention is to hold them responsible for enemy civilian deaths, no matter the circumstances. The CHMR-AP also attempts to similarly handcuff America’s allies, including with civilian harm baseline assessments of allies and partners (CBAPs), and it requires the Defense Security Cooperation Agency to incorporate the new guidance in working with our allies. Austin’s DoD argued these constraints serve U.S. strategic interests by demonstrating America’s “moral leadership.” But global doubts about America’s morality are not the source of threats to our security. 

Austin’s guidance effectively overrides the military commander’s decision-making calculus. Civilian harm mitigation has always been part of military planning and decision-making, but it has been weighed in the commander’s discretion, not taken out of his hands through high-level pseudo-legal policy. Philip Howard argues in The Death of Common Sense: How Law is Suffocating America that “law is supposed to be a framework for humans to make choices, not the replacement for free choice.” He argues that “By exiling human judgment in the last few decades, modern law changed role from useful tool to brainless tyrant.” This guidance supports Howard’s thesis: it isolates and overemphasizes civilian harm, effectively tying the military’s hands on some options that would be best at accomplishing the mission.

The Gazan invasion of Israel on October 7, 2023, demonstrated the danger of Austin’s myopic focus. Hamas based its strategy on using human shields, confident that the Biden administration and Israel’s legal bureaucracy would pressure Israel to limit its response. Captured correspondence from Yahiya Sinwar showed that he specifically aimed to increase Gazan casualties for this purpose. 

Instead of reversing course in response to this manipulative tactic, the Biden administration doubled down, issuing DoDI 3000.17 on December 21, 2023, which created yet new constraints on our warfighters. DoD claimed, without support, that focusing on civilian harm would enhance the effectiveness of military operations. This might be true for some militaries. For example, instead of training to fight Israel’s military, Hamas prepared to torture, rape, slaughter, kidnap and mutilate civilians. But America’s servicemembers do not suffer from this flaw. 

DoDI 3000.17 directs commanders to “[c]onsider[] other possible alternatives to an attack against a military objective that poses risks of civilian harm, even when the attack would be lawful.” It also effectively overrides the DoD’s Law of War Manual to expand the definition of civilian harm to include non-immediate impacts of destroying military infrastructure on civilians who also use such infrastructure. (This helps explain President Biden’s refusal—for more than a year—to protect American shipping from piracy and missiles by attacking Yemeni infrastructure used by the Houthis.) Austin also changed DoD’s Law of War Manual to presume that individuals in combat areas are civilians, which compounds the dangers of the guidance. 

The guidance completely ignores the reality that civilians are harmed in U.S. military operations primarily because our enemies use human shields—a term that does not even appear in the guidance. The myopic focus on preventing civilian harm by America’s warfighters will likely lead to greater civilian harm in the long run because it encourages our enemies to increase use of human shields. 

The new DoD has asked Congress to eliminate the statutory Civilian Protection Center of Excellence, which highlights harms to civilians caused by America’s military instead of actions by our enemies that place civilians in harm’s way. If Congress won’t shut down the Civilian Protection Center of Excellence, Hegseth should dedicate the Center to highlighting and combating enemy war crimes—the primary driver of civilian harm. This is a good start, but it is only a start. Reversing Austin’s approach to civilian harm is essential to restoring America’s military effectiveness and safeguarding civilians in the face of adversaries who exploit the constraints our own leaders place on our warfighters.