On Wednesday, the House Armed Services Committee sits down to markup the FY2020 National Defense Authorization Act (NDAA)—the must-pass legislation that determines defense policies and budget. In the markup process, the Committee will consider, debate, and vote on amendments to the draft bill, which was prepared by Chairman Adam Smith (D-WA). The baseline draft bill, which is also called the chairman’s mark, touches on key issues ranging from the militarization of the southern border to deterring Russia and reemphasizing the nation’s commitment to protecting human rights.
Certain provisions in the chairman’s mark will likely be the target of amendments in committee and on the floor, especially changes to policies on Guantanamo Bay and on military construction and troop deployment on the U.S.-Mexico border. Other provisions are less contentious but will have a critical effect on the administration of national security policy going forward. For example, the chairman’s mark requires the president to submit an updated Legal and Policy Frameworks report by March 1 annually—facilitating transparency across counterterrorism operations and other U.S. military activities around the world.
The chairman’s mark is far from the last word on next year’s defense programming. Many of the most contentious issues—including overall spending, restrictions on arms sales, and clear demands that any military action in places like Iran and Venezuela be expressly authorized by Congress—are likely to be put forward later this year on the House floor. And then there’s still the Senate. Here we focus on the House Armed Services Committee chairman’s mark as it sets the baseline for the legislative debates and discussions to come.
The Military and the Southern Border
The chairman’s mark imposes onerous restrictions and requirements on the use of Department of Defense (DoD) resources to secure the southern border. The mark outright prohibits the use of national defense funds (Section 1046) or military construction funds authorized in any Military Construction Authorization Act from FY2015-19 (Section 2801) to construct a wall, fence, or other physical barrier along the southern border.
The mark further modifies and clarifies the construction authority in the event of a declaration of war or national emergency (Section 2802). Military construction projects authorized under a national emergency declaration cannot exceed $500 million. For domestic military construction projects, the limit is only $100 million. In the event of a national emergency declaration, construction can begin only five days after the appropriate congressional committees receive a report explaining why the armed forces are needed to respond and how each construction project directly supports the immediate needs of the armed forces. A cost estimate of projects undertaken would also need to be reported, along with any determinations to waive or disregard other laws, a list of the military construction projects canceled or deferred in order to provide for emergency construction projects, and the potential effects of any such cancelation or deferment on military readiness. Section 2804 additionally requires consultation with tribal governments when a military construction project might adversely affect tribal lands or lands otherwise culturally connected to a Native American tribe.
In addition to military construction projects, the chairman’s mark includes certification, notification, and reporting requirements if the Secretary of Defense aids U.S. Customs and Border Patrol (CBP) in securing the southern border. First, the Defense Secretary must submit written certification to the armed services committees no later than thirty days before DoD provides assistance at the border. The Secretary would need to certify that: (1) DoD assistance will not negatively affect military readiness, (2) the support provided aligns with the mission or occupational specialty of any armed forces or units deployed, and (3) any task associated with the support constitutes an inherently governmental function and cannot be performed by a contractor.
After DoD resources are deployed to the border, there are additional reporting requirements under Section 1044. Thirty days after deployment and every ninety days thereafter, the Secretary of Defense has to submit a report to the armed services and homeland services committees that includes the following information (for the period since the previous report and the total period of deployment): each unit deployed including location assigned, unit designation, and size; training exercises planned before deployment that would have included deployed units and taken place after deployment; readiness rating of each unit deployed before and after deployment; rules and additional guidance applicable to deployment; a map of where units are deployed and housed; an assessment of efficacy and cost-effectiveness of assistance; and CBP’s justification for each determination that DoD support was necessary and any actions taken by DHS to complete missions or tasks before requesting DoD support.
These requirements are highly detailed and are likely an attempt on the part of Chairman Smith to curtail the Trump administration’s increasing reliance on DoD resources along the southern border.
The chairman’s mark rescinds restrictions on the President’s authority to transfer prisoners from Guantanamo Bay, bans bringing new detainees to Guantanamo for detention or trial by military commission, requires the Attorney General to submit a plan—other than continued law of war detention—for the remaining detainees, and expresses concern about the ability of the United States Government to provide adequate medical care for the aging detainee population.
The mark largely omits controversial restrictions on the President’s authority to transfer detainees from Guantanamo to third countries or to the United States. During the Bush administration, the president was able to transfer detainees both abroad and to the United States without Congressional restrictions and indeed transferred hundreds of detainees. During the Obama administration, however, Congress passed restrictions on transfers that infringed on the president’s authority to determine the appropriate disposition for law of war detainees by requiring an onerous certification process for foreign transfers and an outright ban on any transfers to the United States, even for a criminal prosecution or emergency medical treatment. Additionally, past defense authorizations have prevented the building or modification of facilities for housing detainees in the United States.
By contrast, Section 1032 of the Chairman’s mark largely reverts to the Bush-era policy of leaving maximum flexibility for the Commander in Chief by imposing no restrictions on transfers to the United States or on foreign country transfers other than a ban on transferring detainees to Libya, Somalia, Syria, and Yemen.
Reflecting the strong consensus among national security leaders that Guantanamo is harmful to U.S. national security interests, Section 1033 prohibits transferring any additional detainees to Guantanamo for law of war detention or military commission proceedings who were not already detained at Guantanamo in law of war detention or military commission proceedings on or after May 2, 2018.
Section 1033 also requires the Attorney General, in consultation with the Secretary of Defense, to submit a disposition plan to the defense committees within 60 days of enactment identifying a disposition for each individual still detained at Guantanamo Bay as of the date of enactment other than simply continuing to hold the individuals in continued law of war detention indefinitely.
The Chairman’s mark (Section 1034) also contains a set of Findings and a Sense of Congress concerning the ability of the United States Government to meet its obligation to provide adequate medical care to detainees at Guantanamo given the limited medical facilities at the isolated military base, the logistics challenges of providing care on base, and the increased costs of providing care there—all of which will be exacerbated as the detainee population ages.
The Chairman’s mark also directs the Comptroller General to provide an independent study to the defense committees no later than September 1, 2020 on the quality of detainee medical care at Guantanamo. The report must address several specific areas of concern, including the current state of health services, the medical needs of the detainee population, and any impediments to detainees receiving proper care at the facility. Notably absent from the Chairman’s mark is an authorization for the construction of an $88.5 million wheelchair accessible facility the Pentagon requested from Congress.
Furthermore, the Chairman’s mark expresses concerns over the stalled repatriation process for detainees who have been cleared for transfer by either the Periodic Review Board or the Guantanamo Review Task Force. The mark notes that no detainees have been transferred since January 20, 2017, despite at least five detainees having previously been approved for transfer.
The bill orders an unclassified report to explain why none of the cleared detainees have been transferred and why the process has stalled. The mark also notes that the lack of transfers is not only problematic from a policy and human rights perspective but that it is also having a negative effect on the functioning of the ongoing periodic review board (PRB) process.
The civilian casualty provisions in the chairman’s mark are a sharp rebuke of DoD General Counsel Ney’s recent remarks on the subject. (Just Security published a critique of Ney’s remarks here). Whereas Ney expressed skepticism about the role that NGOs play in civilian casualty reporting, the chairman’s mark recognizes the legitimacy of NGO involvement and adds new DoD reporting requirements.
Section 1063 of the Chairman’s mark strengthens existing civilian casualties reporting requirements (Section 1057 of the FY2018 NDAA as amended by Section 1062 of the FY 2019 NDAA) in four important ways. First, while prior reporting only included a listing of civilian casualties that the Defense Department confirmed or reasonably suspected it had caused, the mark requires that the annual report include a description of any allegations of civilian casualties made by public or non-governmental sources that were investigated by the Defense Department. This additional information is critical for Congress and the public given the number of credible reports of civilian casualties that are not included in the “confirmed or reasonably suspected” category.
Second, the mark requires the Defense Department to include in its annual civilian casualties report an evaluation of the general reasons for discrepancies between U.S. assessments and NGO reporting on non-combatant deaths resulting from U.S. strikes and operations. This critical explanation of any discrepancies was previously required under Section 3 of the 2016 Executive Order on Civilian Casualties that President Trump revoked in March.
Third, the mark requires the Secretary of Defense to define the terms “combatant” and “non-combatant” for the purposes of the report’s preparation. This definition should be consistent with the laws of war. Furthermore, males of military age cannot be deemed combatants “solely on the basis of proximity to a strike or nonstrike kinetic operation, or the intended target of such an operation.”.
Lastly, the mark extends the annual civilian casualties reporting requirement from five to ten years.
Section 1086 of the chairman’s mark further requires the Secretary of Defense to contract with a federally funded research and development center to independently assess the sufficiency of DoD “standards, processes, procedures, and policy” relating to civilian casualties. The independent assessment should evaluate, inter alia, how DoD assesses and responds to NGO and other public reports on civilian casualties. NGOs will have the chance to give their views of the assessment once completed, and the results will also be reported to the congressional defense committees.
Section 1215 of Chairman Smith’s mark also addresses ex gratia payments to civilians for damage, injury, or death incident to U.S. combat operations in Afghanistan, Iraq, Libya, Somalia, Syria, and Yemen. These payments are condolences and do not admit legal wrongdoing. Section 1215 of the chairman’s mark allocates up to $5,000,000 for ex gratia payments through the end of 2020 and requires the Defense Secretary to submit a report to the congressional defense committees “upon each exercise of the authority in this subsection.” . In the past, DoD has failed to make use of funding for condolence payments and has therefore concluded they are exempt from NDAA reporting requirements on such payments.
Updating the Report on Legal and Policy Frameworks for the Use of Military Force
Section 1262 of the chairman’s mark requires the president to submit by March 1 an annual unclassified report on the legal and policy frameworks for the use of military force, including any changes over the previous calendar year. The annual reporting requirement builds on prior annual reports and on an existing requirement to report to Congress throughout the year within 30 days of any future changes to the prior reports.
The Obama administration published the first such report in late 2016 as part of a larger effort to offer the public as much information as possible about U.S. use of military force and national security operations. The Trump administration issued one report in 2018 to update the Obama-era document in accordance with Section 1264 of the FY18 NDAA. However, it is unclear whether the administration has complied with the ongoing requirement in Section 1264 to report on any subsequent changes within 30 days and, without an annual deadline, it is difficult to assess compliance and easily keep track of legal and policy changes. Section 1262 in the chairman’s mark would routinize updates to this document, which serves as the public’s main source of information on the U.S. government’s use of military force. The annual report would act as a forcing function and focal point for both Congress and the public to stay abreast of any changes. The information includes the legal framework for using military force in different countries and against different groups, and how that framework has been applied in practice. This annual report, which must be unclassified by may contain a classified annex, is a critical step toward greater transparency in U.S. national security policy.
While HASC members have reached a consensus on language to create a Space Force, the agreement was not made in time to be included in the chairman’s mark. Instead, the plan will be offered in an amendment during committee markup on Wednesday.
Several provisions in the chairman’s mark reflect Congress’ continuing concern with the conventional, cyber, nuclear, and intelligence threat posed by Russia to the United States and its allies. New this year, the chairman’s mark requires, under threat of withholding DoD travel funding, an assessment within 120 days of the strategic implications of withdrawal from the INF Treaty and expiration of the New START Treaty (Section 1235). Additionally, the mark calls for the establishment of a working group to engage in dialogue with Russia, China, and North Korea “as appropriate,” to reduce the risk of accidents that could precipitate a nuclear war and to report on its deliberations to Congress.
The chairman’s mark also renews the limitation on the use of funds “for bilateral military-to-military cooperation” between the United States and Russia until Moscow’s compliance with the Minsk Protocols and the cessation of its occupation and aggression in Ukraine are certified (Section 1232). In keeping with past NDAAs, this provision is not intended to prohibit military-to-military contacts aimed at deconfliction (e.g., avoiding accidents). Additionally, the prohibition on using funds to “implement any activity that recognizing the sovereignty of Russia over Crimea,” was extended along with an unmodified waiver provision (Section 1233).
Security assistance and intelligence support under the Ukraine Security Assistance Initiative was continued for another year with an allocation of $250 million and modified to require the Secretary of State’s concurrence, rather than coordination, in the DoD provision of the aid (Section 1234). Additionally, Russia’s growing military cooperation with Turkey was addressed with a proposed bar on transferring F-35 aircraft unless the Secretaries of Defense and State jointly certify that Turkey has abandoned or credibly promises not to accept Russian S-400 anti-aircraft systems (Section 1255).
In response to continued Russian aggression against its neighbors and, perhaps, concern that the President’s support for NATO is less than absolute, Section 1254 calls for an increased military presence in Europe and affirms NATO’s “founding values and commitments.” The section also calls for U.S. “investment and prioritization of efforts … to counter … Russia’s global campaign to interfere in and undermine democratic systems of government, elections, values, and institutions, and disrupt United States alliances and partnerships” through greater cooperation and “sufficient cyber, counter-messaging, and intelligence resources.” Section 1261 expresses, more generally, the sense of Congress that partnerships and allies are central to U.S. national security.
Finally, the chairman’s mark calls for discretionary reports: