Reporters Committee FOIA litigation fuels Pulitzer Prize-winning New York Times investigation

Update: On May 9, 2022, Azmat Khan and The New York Times were awarded the 2022 Pulitzer Prize for International Reporting for “The Civilian Casualty Files.”

In December, journalist Azmat Khan published a groundbreaking investigation into civilian deaths resulting from U.S. airstrikes in the Middle East since 2014. The front-page investigation for The New York Times analyzed more than 5,400 pages of Defense Department records obtained in an ongoing Freedom of Information Act case Reporters Committee attorneys are litigating on Khan’s behalf.

Marrying in-depth public records analysis with extensive on-the-ground reporting, “The Civilian Casualty Files” is a remarkable feat of investigative journalism. Khan’s reporting shatters the myth that the Pentagon’s widely heralded air campaign, using drones and precision bombs, spared American casualties in Iraq, Syria and Afghanistan with few consequences for innocent civilians.

As Khan wrote, “what the hidden documents show is that civilians have become the regular collateral casualties of a way of war gone badly wrong.”

Key findings

Khan’s two-part, nearly 20,000-word investigation draws many startling conclusions about U.S. military airstrikes in the Middle East and their devastating toll on the innocent civilians — many of them women and children — who have been unable to evade them. Here are some of the most notable findings from Khan’s reporting:

• While it’s impossible to determine the exact civilian death toll from U.S. airstrikes in the Middle East, it is far higher than what Pentagon officials have acknowledged.
• Children were killed or injured in 62 percent of airstrikes visited on the ground — much higher than the 27 percent of strikes in which the military documents identified children as casualties.
• U.S. military airstrikes were repeatedly based on flawed intelligence and inadequate surveillance, frequently resulting in the misidentification of civilians as enemies.
• Pentagon officials often summarily dismissed reports of civilian casualties. And when military officials did acknowledge civilian deaths and injuries, they significantly undercounted them.
• Even when Pentagon officials concluded that airstrikes killed or injured innocent civilians, military personnel who carried out the attacks were rarely held accountable.
• In the wake of airstrikes that harmed civilians, military officials rarely investigated the incidents in order to learn from missteps and inform future airstrikes.
• When the military did conduct investigations, they were often plagued by conflicts of interest, with units sometimes investigating their own erroneous airstrikes.

In a follow-up to her original two-part series, Khan worked with the members of the Times’ Visual Investigations unit to examine flaws in the Pentagon’s dismissals of civilian casualties claims.

This latest story, again using records Reporters Committee attorneys helped Khan obtain, revealed the U.S. military’s many failures in assessing allegations that civilians were killed or injured as a result of airstrikes. As the Times’ reporting concluded, “this examination raises further questions about the capability, or willingness, of the U.S. military to accurately count civilian casualties from its air war.”

How RCFP attorneys helped

Khan has been reporting on U.S. military airstrikes and their civilian casualties for years. In 2017, the New York Times Magazine published her first in-depth investigation into the issue. “The Uncounted,” co-reported with journalist Anand Gopal, focused specifically on civilian casualties related to American-led coalition strikes as part of the fight against the Islamic State.

The story drew widespread attention to the issue in the news media and on Capitol Hill.

Before and after that investigation was published, Khan began filing Freedom of Information Act requests with the U.S. Department of Defense seeking internal reports and assessments on allegations of civilian casualties stemming from airstrikes to help expand the scope of her reporting. But, as is often the case when journalists request records from the federal government, Khan got stonewalled. Federal officials refused to speed up the processing of her FOIA requests, which journalists and news organizations frequently ask for when reporting on timely and newsworthy issues in the public interest.

That’s when attorneys for the Reporters Committee for Freedom of the Press stepped in. Reporters Committee attorneys, led by Legal Director Katie Townsend and Senior Staff Attorney Adam Marshall, helped Khan file administrative appeals in an effort to force the government to quickly process the journalist’s requests.

And in June 2018, after the government continued to drag its feet, Reporters Committee attorneys filed a lawsuit against the Defense Department and U.S. Central Command on Khan’s behalf. The 21-page complaint claimed that the government violated FOIA by failing to grant Khan’s request for expedited processing; failing to comply with statutory deadlines; and by improperly withholding agency records.

As Marshall explained, the lawsuit got Khan’s case in front of a judge and prompted government officials to act. After the complaint was filed, the government began processing her request and turning over responsive records, which it is still doing more than three years later.

“You have to file a lawsuit to get the agency to take its obligations under FOIA seriously,” Marshall said. “That’s not how the system is supposed to work. Lawsuits are supposed to be a last resort. If Ms. Khan had not filed this lawsuit, she could still be in the queue at the Department of Defense, and it’s possible she may not have any records.”

Khan has been outspoken about how grateful she is for the support she’s received from Reporters Committee attorneys.

“They’ve been so incredible in dealing with hundreds of pages of FOIAs and administrative appeals and really pushing for what’s at the heart of what I’ve been working on,” Khan said in an interview conducted roughly one year after the Reporters Committee attorneys began representing her in this public records case. “It’s incredible to see people who are as committed to this and understand it journalistically as well. It’s just unique.”

Marshall, for his part, heaped tons of praise on Khan as a journalist and as a client. He specifically applauded her persistence and organization in pursuing the Pentagon records, noting that the precision of her reporting process makes it possible for her to produce such phenomenal journalism. Seeing Khan’s investigation in print, he said, meant a lot to him as an attorney who has devoted his career to helping journalists fight for access to public records under the Freedom of Information Act.

“It was incredibly emotional for me to see her reporting because it is the manifestation of an abstract motivation that underlies why I decided to get into this work — to promote an informed democratic society in the United States,” Marshall said. “When we talk about the rationale for FOIA’s existence, this is what it is: getting the public information about what the government is doing so that they can then analyze it and, if necessary, make demands upon their elected officials and other government representatives to fix whatever has gone awry.

“What Ms. Khan has done here is fulfilled the quintessential purpose of FOIA, notwithstanding a complicated and often times broken legal process. She made it work. So many journalists stay away from federal FOIA because the law is so convoluted and the delays seem so insurmountable. But Ms. Khan persisted through the worst of all of that and produced something that is unique and remarkable in its breadth and its depth, and raised really important questions about the way in which our government is functioning or, more accurately, not functioning. It’s incredibly impressive.”

Dig deeper

In addition to reading Khan’s investigation, you can listen to the journalist discuss her reporting on the New York Times’s “The Daily” podcast, NPR’s “Weekend Edition” and Slate’s “Political Gabfest” podcast.

And if you’re interested in learning more about the previously hidden trove of Pentagon records, you can read the documents yourself.

We also encourage you to keep an eye on Khan’s reporting on this important issue, as she continues to obtain and analyze government records with the legal support of Reporters Committee attorneys in two separate FOIA lawsuits.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.