Lawfare Daily: The U.S. Strike on Venezuela and Capture of Nicolás Maduro

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Scott R. Anderson: What this does do, the thing that's gotten the most attention is that when poses a restriction on the travel funds available to the Secretary of Defense, basically saying you can't spend more than 75% of the funds made available to you for travel unless you provide unedited video of the strikes that have been conducted against quote, quoting here against designated terrorist organizations in the area of responsibility of the United States Southern Command.

Ariane Tabatabai: It's the Lawfare Podcast. I'm Arianne Tabatabai, Public Service Fellow here at Lawfare with my colleagues, Loren Voss, my fellow public service fellow, and Scott Anderson, senior editor.

Loren Voss: I think there are more concerns on a bipartisan basis of how the military might be used abroad and how the terms of, of especially the 2002 AUMF might be stretched more so than it already has been. And so I see this as though the example of Congress trying to reassert that role and at least take these two AUMFS off the table going forward.

Ariane Tabatabai: Today we're talking about the Fiscal Year 2026, National Defense Authorization Act, or NDAA.

[Main Podcast]

The president signed the NDAA for FY26 into law on December the 18th after it passed the Senate. The NDAA supports roughly 900 billion for the national defense. And so today we're going to talk about the bill, the provisions that we liked, what's in there, what's not in there. And I'm going to start by talking a little big picture here, scene setting a little bit and talking a little bit about two provisions or two sets of provisions that stood out to me in, in very broad brush.

The first one is this tension that exists between the administration's desire to continue to shrink the bureaucracy across the national security workforce and departments and agencies that are relevant, including the Department of Defense, State Department, and elsewhere, and this congressional desire to perpetually add to said bureaucracy.

You know, one thing we haven't talked about too much as we've discussed over the past year. The administration's efforts to downsize is that yes, some of these department agencies have been have organically grown over time, but that Congress has actually played a huge role in adding to them. And so Loren and I are familiar with the offices of the Assistant Secretaries of Defense that oversee maybe one, one and a half offices. And that is largely a byproduct of the, the demands and requirements by Congress to continue adding positions and offices and requirements for the agency. And again, there is a real tension here, I think.

So a couple of these items to highlight quickly is that what is an NDAA without a new ASD? A new Assistant Secretary of Defense we get a new one here for International Armaments Cooperation. We get a new data czar for FMS information and a new program to conduct defense industrial base integration with allies and partners in the Indo-Pacific.

The other piece that the administration has been trying to kind of get rid of and the Congress here asserts itself and, and says we are going to maintain these things, is the Rangel, Payne, Pickering, and Veterans Innovations Fellowships, really important pipelines for talent acquisition, the national security workforce. And from my perspective, a really great thing that Congress is maintaining these things.

And then the second thing I'm gonna kind of broadly talk about before I turn to you guys for your initial kind of reactions is that this NDAA to me reads as a little disjointed from where the administration is going in terms of how it sees national security, where it wants to be focusing.

It almost reads like it is kind of aligned, more aligned with the Biden National Security Strategy, or even Trump 1.0s, a national security strategy, not this one particularly. And again, it, it seems to be Congress really trying to take back some ownership and try to reframe how we are dealing with the, with national defense and national security more, more generally.

It talks in the executive summary about the fact that we are in what it describes as the most dangerous threat environment we've been in since the end of World War II. And it largely talks about this, the driver for this being the alignment between the four key adversaries, Russia, China, the DPRK, and, and Iran. This is a framing that the, the administration has shifted away from the previous administration. The Biden administration was really focusing more and more on this at the end of its its term.

But you know, as we've talked about over the past few weeks in various podcasts, Loren has a great piece on this in, in Lawfare this month as well. This administration is not thinking about strategic competition or major power competi, great power competition as much. It doesn't see Russia in the same light as previous administrations. It sees China as more of a regional and economic rival versus the kind of strategic competitor of the past.

I'm not frankly sure what it thinks of the DPRK and its views incorrectly. I think Iran as a diminished threat given that, you know, the president I think views himself as having taken care of the Iranian nuclear threat. So here Congress is trying to reframe this and is trying to kind of conceive of the national defense and what's needed for it within that framework. So let me turn to you, Loren first and see if you have any kind of broad observations before we dive into more specifics.

Loren Voss: Yeah, I mean, I think the first thing is, I, I agree with you. This NDAA does not align with the national security strategy, but, you know, think about the, how the NDAA is written and the timeline in which this was developed, right? This has been going on for quite a while.

The NSS just came out. It does show a disconnect between senior DOD leaders and Congress, but we've already seen that happening. Right. We've already seen that, especially on the policy side of the house. You do see this as very much Congress asserting what they think is important from a defense standpoint.

Right? And so it's not the western hemisphere, it's more focused on Europe and Ukraine. It's a reference to Korea. In numerous ways in the NSS, like when they talk about Korea, it's all about economics or telling South Korea that they should do more defense spending and do their own type of deterrence. Right? And that's what you see.

So, you know, I, but I'm not surprised, this is what I expected the NDAA to have is we've been tracking the various, you know, versions. And I think when we think about threats and our adversaries, this is where we wanna be focused in spending money.

The other thing I would say is, you know, some people say Congress is reasserting itself here and, you know, maybe it is in a couple ways didn't agree to the change to Department of War, right? That's not in there. It's still the Department of Defense, but they could have gone a lot farther in oversight than they did, as you can see by a lot of the controversial provisions that didn't make it in. So I, you know, there's, there's some, some good stuff there, but I don't think, you know, I'm quite as optimistic as other people that this is really a congressional reassertion of power.

Ariane Tabatabai: Great, and we'll come back to the oversight issues you're, you're talking about in a, in a minute, Scott, turning to you, any broad kind of observations here?

Scott R. Anderson: Generally agree. The one thing I would say about the workforce side, while you're right, I think adding layers of bureaucracy new offices is, is something that's a common output of these congressional acts.

A lot of congressional legislation, particularly in the defense space or in the Defense Department, I should say, you know, there are other nods towards kind of workforce quote unquote efficiency. You know, there's steps in here to different hiring authorities kind of watering down certain times of time and grade requirements in certain capacities, things like that. So there are little nods to it.

There is a pretty substantial effort to start moving towards changes in the foreign military sales systems and certain defense acquisitions programs make it much more market based, less driven by kind of, you know, I think milspec is the often phrase like the idea that defense department developed sort of technology and systems and so, so those are real nods here.

And, and look, those aren't ideas that originated with the Trump administration, all the Trump administration, I think has kind of embraced them as part of its broader criticism of the government generally. Those are ideas that a lot of people have been adv advocating for for a long time. There were steps in that direction made in certain elements in certain ways, by the Biden administration and by the first Trump administration.

But they are here and, and to some extent, so, you know, really the, my biggest critique of the Trump administration's approach to government reform is that it is thinking along it strictly in terms of one, one variable, which is the sheer number of personnel 'cause if you change that, that's gonna give you better or worse outcomes, it can definitely give you worse outcomes.

It doesn't mean you're gonna get better outcomes if you cut it without giving much thoughts what they're actually doing and how they're doing it. I think you can make the same critique the other way. I wouldn't, I wouldn't look good, too focused on creating new offices because in the end it depends on the size and the scaling of those and what they actually do.

Same with reporting requirements, and there's lots of ways the defense department kind of can, the executive branch can push back on those, to extent it really wants to or needs to. On the broader strategic level. I think what you and Loren said is absolutely right. Look, this is clearly not the national security strategy.

It should not be surprising anyone that this is down line with the National Security Strategy 'cause the National Security Strategy was an eccentric and odd document that reflects an eccentric and odd worldview that is uniquely harbored within a corner of the Republican party that supports President Trump and is among his core supporters not shared broadly even within the broader Republican party.

There's a very, very strong contingent people who disagree with it really, really seriously. And a lot of them are represented on the Armed Services Committees, which tends to be, I think, represent a contingent that is a slight, a more slightly hawkish oriented, conventional national security conservative, even on the Democratic side.

That's why when you see these bills come out every year, they both have to go through the Armed Services Committees. The Armed Services Committees are gatekeepers, essentially their own jurisdiction. So they end up being a little more small-c conservative bills than some people might like, including in some of the ways to reign in the executive branch you might see under this administration, in part because they're committees that don't necessarily always have strong contingencies, even on a part, even if you were to see votes along a partisan line, they tend to have Democrats more on board that tend to be a little bit more friendly to strong visions of defense and hesitant to really encroach too much on that 'cause that's who's drawn to service on their armed services committees.

That said, the thing I would note about this, which I think is interesting, is a, it really does reinforce a conventional view of priorities and particularly geographic scope does not discuss the Western Hemisphere at all, and specifically identifies the Middle East, Europe and Asia as the three big spheres of concern. And then it spends a good amount of time laying out specific provisions for that.

That's a sign that even though, yeah, this was written, you know, started being negotiated, I think the first vote votes in the Senate happened in July. And we know the drafts national security strategy didn't drop internally until September, supposedly when Michael Anton finished writing the first draft at the State Department before he left that I-.

This alignment, I don't think explains the whole thing because if you really thought there was any sort of, you know, proximity between the two different views there, you would've seen the committees probably spend more time saying, well, what do we need for we Western Hemisphere and how should we be supporting these operations?

My suspicion is that the, this administration probably didn't communicate well with Congress and its Western Hemisphere policy, even though it's become a center of its policy really was pretty nascent. Remember, its military campaign only started in September, so that really wasn't really even in play at the time this got kicked off.

It has been a, as it often is with this administration, a kind of rapidly evolving, narrowly contained perspective until the president and the White House have bid into it and then started to steer policy and their preferred direction without really coordinating with people beforehand. And you end up with things like this where now you have, even if you were able to get Congress on board, think is a big question.

Now you have a year leg with the authorities. You may want to actually back up your operation here. So, it's a problem. It's not just about like, oh, they don't necessarily agree. They might agree, but because of coordination problems, this administration is losing out on a year of authorities that could have bolstered if it thought it could get them.

And if it just doesn't agree, well then that's another problem. 'cause it means you're, you're never gonna get those authorities if you actually need them. So, long and short, it's, it's emblematic I think of a lot of our trends we're seeing with this administration and it's again, somewhat idiosyncratic and kind of worldview in the way it tends to approach these policy questions, which is a narrow cloistered view of senior advisors without broad consultation with even its own co partisans in the Congress.

And that causes is gonna cause problems down the, on the end. And this NDAA may be kind of the, the first big symptom we see of that.

Ariane Tabatabai: So we haven't even fully digested this NDAA and we're already looking forward to FY27 is what I'm hearing you say, basically okay. So with this, let's quickly turn to the three areas of responsibility that you highlighted, and then we're gonna go back to the questions of oversight that we that Loren flagged the beginning.

So, you know, as, as Scott you mentioned there are a number of key provisions in this NDAA that aim to strengthen allies and partnerships that try to bring back and enhance multilateral cooperation. And they're mostly focused on the Indo-Pacific command on the European command and on CENTCOM so the Middle East, essentially. Just to highlight a few of these things, and I'd be really interested in what you guys, kind of what jumped at you as you were reading through this, this beast of a document.

One thing that has been very much in the news is that there is this prohibition of the reduction of U.S. force posture in Europe, number one. And number two, relinquishing U.S. command of the Supreme Allied Commander for Europe. So SACEUR, which is a leadership position in NATO. And normally this position is dual hatted within the Commander for U.S. EUCOM. So, you know, this is again, the Congress essentially coming back and telling the administration.

We understand you wanna do less with and in Europe, but we're not going to let you quite do that. The other piece of it is focused on Ukraine. There is an extension for Ukraine security, the Ukraine Security Assistance Initiative through 2028. And then continued intelligence, cooperation and intelligence support for Ukraine, really important pieces.

We have similar provisions, some overdue in the Indo-Pacific. It's really, you know, broadly looking to increase the breadth and depth of defense partnerships across this area of responsibility, including in terms of exercises. There's one provision that encourages the Secretary of Defense to invite Taiwan to the rim of the Pacific exercise.

It's a large international maritime exercise that happens every two years. There is enhanced defense cooperation with the Philippines. One that was really interesting to me was a program to co-develop and co produce crude and on crude capabilities with Taiwan. And then something that I kind of mentioned at the, at the outset, which is this initiative to strengthen security cooperation across the defense industrial bases with allies and partners in the Indo-Pacific.

And then to kind of round it up with CENTCOM. There are two that I'm particularly interested in relatively low key, but really important initiatives. The continuation of the integrated air and missile defense architecture, which has been really significant for our force protection in the Middle East, especially in the past couple of years.

And also support and cooperation with partners in, in the region. And then the second is increased funding to capture lessons learned from the counter ISIS cooperation with with Israel. So, Scott, let me turn to you first here. What of these or other provisions kind of caught your attention? What's significant here?

Scott R. Anderson: You know, again, I, I think the main themes here are a high degree of continuity. The most notable provisions are provisions that. Purport as you've described. I think it's worth getting into exactly what they do. But they could have the function of deterring or limiting the ability to lower troop U.S. troop levels below certain levels.

Some one provision relates to South Korea, another provision relating to Europe in addition to getting rid of the SACEUR command position and other sorts of shifts in the U.S. posture there. Notably, these provisions don't bar it outright. What they say is that, well, you have to give us 60 days notice and you have to provide a requirements and certification to Congress beforehand.

You have to do that, and then you get to then there 60 days after those notices are required, and that includes a certification by a career military official on the logic that a career military official is unlikely to just roll, or less likely at least to just roll over to whatever the administration wants and certify something they don't think is true.

Their own credibility on the line and the certifications require certain specific findings about, we've consulted with, for example, the Europe case, NATO allies. We've determined this isn't gonna compromise the security of Europe, et cetera, et cetera, et cetera. Those are, you know, not lock boxes, right? Those aren't strict prohibitions.

And there would be constitutional questions as to the extent to which Congress can install a strict prohibition. It's not clear to me, it can't necessarily but it certainly would raise constitutional questions. The executive branch would almost certainly assert it can't. And then I'm not sure how you really get that to a court to get a court to resolve it. But maybe there's some way to do it. I'd have to, I'd have to think about that. This presents the same problem, but really this is trying to leverage political costs.

It's trying to say, hey, we're gonna make this too embarrassing you for you to really do this, Mr. President because if you do this, you're gonna have to publish all these public reports for us. And then you know you are gonna be on the hook for making these sort of embarrassing certifications. This has not always stopped. The Trump administration before the first Trump administration made several such certifications in a variety of contexts, some of which were pretty bald faced and being inaccurate and nonetheless proceeded along the lines of that, I think of a few State Department reports regarding, I think, use of child soldiers was one report and a few other cases way back in 2019 or so. You know, it's, it's not necessarily guaranteeing, neither is delegating to a career official because the president gets to a point who that career official is and can change who that is.

As, as this president and this Secretary of Defense have shown a willingness to do it, but it's certainly gonna make it more painful for them if they were decide to want to drop below those thresholds. Other than that, I think you see a lot of continuity in points of consistency here. That's not necessarily super new.

You do see an emphasis on different types of cooperation around unmanned systems, both in Taiwan and in Israel and in a few other contexts actually throughout this NDAA obviously that's something at the front of mind, I think 'cause of the experiences in the conflict in Ukraine in Gaza, to a lesser extent, unexpected role uncrewed, particularly uncrewed maritime vessels are expected to play in a potential various Taiwan scenarios that have been kind of documented in the last few years.

So you're seeing that become a real focus of sort of efforts throughout this document as not surprising that pops up in the key, two key contexts, Israel and Taiwan, right? There's also a variety of other sorts of very specific cooperation, but I think a part that needs to be paid attention to in the Ukraine context is, is what this doesn't do. It doesn't actually provide that much money for Ukraine security assistance, right?

We're talking about $400 million. That's much less than prior bills that provided, that's not necessarily surprising 'cause of this administration and this congress and their posture towards Ukraine. But it is a potential point of concern for Ukraine. Now that's, you know, security assistance. That's money being paid or transfers in kind, things like that.

There still are other avenues Ukraine can use to get assistance and including. We're paid for by Europe, which is a clear priority here. There's also a lot of conditionality that's a little new that's built into various elements here. You know, there's a few provisions where Congress expressly endorses, look, support for NATO should be tied to commitments to meet the 5% defense spending target set by NATO.

Again, that's not entirely new, but it's, it is being emphasized and Congress is buying into that here. There's a lot of talk about partner support including for U.S. deployments in Eastern Europe kind of on the eastern edge of NATO and looking, setting up a mechanism by which partners, NATO partners could pay for that U.S. deployment.

Notably, the joint explanatory statement that was released in relation to this legislation kind of walks that back a little bit, says, hey, before we use this, or, or essentially we wanna report on how you intend to use this, we're gonna give it to you. But that doesn't mean we should just start all of a sudden, you know, charging, refusing to deploy unless we charge these things.

That's, it's more hesitant than that, but none, nonetheless they are, did ultimately kind of give that sort of authorization. So there are signs of that effort to, to, to put a little more scrutiny on U.S., security commitments, particularly were uncompensated, unpaid, we at on the kind of us dime. That's kind of a signature move of the Trump administration.

But as a whole, this looks a lot like NDAAs we've had for the past in these three big areas, including the focus on these three big areas. I think that's actually the biggest takeaway is the effort to maintain continuity here between the NDAA, the Congress enacted under the Biden administration, under the first Trump administration.

Ariane Tabatabai: Loren, turn to you.

Loren Voss: Yeah, I have a couple quick thoughts. I mean, the first one just on, on s you're, and just how important that actually is from like a technical perspective, that that be a, a U.S. person, you know, if we gave up that role, like our coordination with NATO would be extremely limited, right? If that belonged to a European country instead.

And so I think that Congress recognizes that, and that's why this focus is there. So I, I personally was, was happy to see that specific to INDOPACOM, you know, I think you see the, the sense of congress section that they have in there where they really talk about, and you know, this is what we were talking about before, like you, you, it goes back to how we previously thought about things.

It's right. It's all about strengthening defense alliances and partnerships. It's all about, you know, furthering the comparative advantage. It's mentioned strategic competition with China. It's the old frameworks that everyone's used to, but it does have some additional specifics in, in a couple of the sections around there that I thought were more directive than some of the NDAA provisions I've seen before.

Right? So the one that says you need a strategy to strengthen multilateral defense and Indo-Pacific doesn't just say, come up with a strategy and it has to talk about these kinds of things. It specifically says, and it needs to do these types of things, right? Like expand engagements in this way, do acquisition prioritization in this way, do command and control with allies and partners, more frequent combined operations.

And so it gets, it gets quite tactical. I think you also see that in the provision that you mentioned 1266 talking about uncrewed systems encountered uncrewed systems. It's not like, look into working with Taiwan. It's like, no, engage with Taiwanese officials for a joint program. That includes co-development and co-production.

And so I, I found that some of the language, especially for the Indo-Pacific, was a little bit more like tactical and directive than, than we've seen before. Granted, there's been examples that are similar, but those ones stuck out at me as, as them being very specific in what they wanted the administration to do and trying to like keep there from being loopholes where, you know, they might go in a different direction than what, than what Congress wanted.

Ariane Tabatabai: Okay. Would this let us move to the second bucket of things I wanted to highlight, which is all things oversight and that are, there's a lot to unpack here. At the beginning, we talked a little bit about what language we wanna use with regard to Congress, kind of whether it's reasserting itself, whether it's trying to kind of, you know, whatever language you wanna use.

But there is definitely some stricter recording requirements that are peppered in throughout the document. I wanna pause on four oversight issues here, and I wanna start Loren with you and talk about this kind of, you know, over the past year we've seen a number of general and flag officers removed from their positions. Very contentious series of events. JAGs being removed.

Another cup of notable ones being the former Chairman of the Joint Chiefs of Staff General CQ Brown, and the Chief of Naval Operations Admiral Lisa Franchetti. A lot of this has been kind of, you know, in the context of politics, it's been contentious because women have been removed JAGs, black general and flag officers, and then folks who've been involved in implementing the previous administration's DEI policies.

So now there is this requirement that is established for notification, justification in some key cases, for the chairman, for example, for the command commanders. What do you make of all of this?

Loren Voss: Yeah, I mean, I think that there is really just this desire for transparency in these cases. A lot of these removals came with no official statement on why they were removed. So you get, you get a lot of contentious news stories, taking guesses, but I think there's a role for Congress in trying to make sure that these, these removals are appropriate. And obviously the president has this power but it makes sense that Congress would want to understand why and what's happening, right?

And so we were all tracking the service JAGs removals back in February, a number of SASC members wrote letters to Secretary Hegseth asking what happened, why I'm assuming they did not get a response or not get a sufficient response. So what we have, you know, from that is that no, there's, now there's a couple provisions, right?

So there's 1506, which is the removal of Army, Navy, or Air Force judge advocate generals. And so if they're removed before the end of their term, SECDEF has five days to provide notice to has and has on the removal and the reason for removal. And so this is about transparency. There's not really, like Congress can't then come in and say, no, you can't do that.

Right? But they do wanna know what is happening and why. And then we have a similar section 911 or 911 APIN number for it. That's for removal of members of the joint chiefs of staff and combatant commanders. And in that case if they are removed or transferred to another position before the end of the term, the president has five days to notify Congress and provide the reason for removal.

So, you know, you kind of see some concern at the senior levels. My guess is that Congress hasn't been getting the answers that they were hoping to get on these removals and that they're, they have just as many questions as the public does right now. And so this is a way for them to try and get those answers. I would be surprised, though, if they, this actually gets them the answers they want. Right. So, it's a good step, but I mean, we often see what these notices have in them, and it's not the details that people are really looking for.

Ariane Tabatabai: Moving on, Loren, I'll, I'll stay with you here because you know, apparently this year you've spent a lot of time thinking about very controversial issues domestic deployments this time. There are, you know, as our domestic deployments guru can you break down what the NDAA does and doesn't do on, on this front? This is something that people have been waiting for.

Loren Voss: Yeah, I mean, it doesn't do a whole lot. Let me just clarify that upfront. So we have a couple interesting provisions, and I'll talk about domestic deployments, but also like, military support to immigration, right?

And that's all kind of like wrapped up together here now. So you have 1043, which modifies Title 10, section 723 which currently requires military or federal law enforcement that's supporting civil authorities for specifically civil disturbances. They have to wear markings. And those markings have to be an individual identifier in some way.

It can be a name, it can be a number, right? Some way to refer to them and the name of the armed force or federal entity in which they're employed, right? So, you know, for military people, that's frequently last name, right? And then it has service. But there's different ways you can do that. What you see in D.C. is frequently people have black and white national guard right on their back.

So you can tell so what this section does is it adds a whenever military is providing support to civil authorities, which is a much broader group of actions, then they must visibly display the name of the armed force in which they operate, right? So that is I think, one way to identify as we frequently see now federal law enforcement in camouflage confusing people on the streets, on if, are these military, are these federal law enforcement? What branch, you know, what, where are they coming from? What are their authorities?

This change will specifically say now, anytime military is on the ground supporting civil authorities, not just for civil disturbances, any kind of support to civil authorities, they must mark their military branch. And so that is a much smaller change than some of the other provisions and suggestions that were made earlier in the year and some other independent bills. But it is, it is one thing that may help with that confusion. And so then we also have a couple other things that I just wanna quickly flag.

There's some more mandatory training on government ethics and national security law. So they have to do training on ethics and standards of conduct for the government, unclear exactly what that'll look like and mean. But there's also a requirement now, 90 days prior to deployment, there's training on not just law of armed conflict and rules of engagement, but also defense support to civil authorities.

The standing rules for the use of force, which is what you use in peace time, right? And the code of conduct. There was a controversy back in like April, where Army got rid of mandatory training on law of armed conflict and code of conduct, right? And so this is while they removed it from annual training, it was still part of pre-deployment training.

But this is putting in law that now all of these things are part of pre-deployment training. Granted, it says as applicable, right? So there might still be some domestic training that doesn't happen before some of these domestic deployments occur, but it does look like they're trying to get those topics that usually military is not trained on so that they have that training before they do their domestic deployments.

There's not a reporting requirement as part of this, so we won't know exactly what that training looks like, and if everyone gets it. It could be, you know, an online computer-based 15 minute click through. So we, we will see, but at least it's trying to get people to understand what those rules are and how different they are in peace time on American soil than they are from what we're, what the military's used to going abroad. So, you know, excited for that.

There's also an extension of authority. For joint task forces to support law enforcement agencies conducting counter-terrorism activities. That's just an extension from FY27 to FY32, but just the idea that there will be more military support for those types of JTFs specifically for immigration.

I just wanna flag a couple things that I thought were interesting here. 10 53 talks about using DOD aircraft for alien removal operations by DHS, which has been a controversial topic and in the courts, right? So if DOD aircraft are used for alien removal, the SECDEF has to inform, HASC and SASC, and runs through a whole bunch of details, right?

Like, what are the aircraft, what's the cost of doing this? And you know, who is on the plane? That's not DOD. And then, you know, are, are you using DOD personnel as part of Joint Task Force Gitmo or another DOD entity and reassigning them to do removal operation? It also requests additional reports. This one's really interesting to me.

The, the total number of aliens held at installations of the Department of Defense, disaggregated by location and the period covered in a report. So trying to track if we actually do have aliens being controlled by DOD entities at certain DOD locations. And then the cost that, that is associated with that for the DOD and then a final report on any time the Department of Defense approves a request for assistance for immigration enforcement operations, they have to report that to HASC and SASC and then, you know, say like what they're going to do.

And which personnel will be assigned to it in those types of things. So like really trying to do some more oversight in that space. When it refers to DOD support to immigration. I will say though, what's almost more interesting to me here is some of the stuff that was not included, right? So you see quite a few things.

There was a Duckworth and Durbin amendment to Title 32 to make it explicit that Posse Comitatus applies to Title 32 activities. So all the 502(f) stuff, all the stuff that you would be seeing in Washington D.C. right now, right? And, you know, that's the stuff that, so remember that's the hybrid status. So it's a federal mission, but command and control retained with the governors except here in D.C. where the president is the commander in chief, even when in malicious status. So that, that didn't happen.

And there was a couple other types of, of provisions like that, that I think were a little bit more forward-leaning that didn't make it in.

Ariane Tabatabai: Okay, Scott, I'm going to turn to you now to talk about boat strikes. So, you know, continuing on politically fraught challenges, the bill has been moving and got signed against the backdrop of ongoing debates about the legality of these actions in the Caribbean. The challenges that the Congress has been facing in terms of getting answers from the departments and then separately, but not unrelatedly mounting concern on the hill about a potential conflict with with Venezuela. So, can you talk a little bit about what the NDAA does and doesn't do on boat strikes?

Scott R. Anderson: Sure. Well, the NDAA really only addresses one small aspect of the boat, strikes question, at least as far as I can tell. There were debates about efforts to put in more bold, restrictive legislation. Also, some recent votes in the closing days of Congress about measures, including some that came very close in the house that would've been imposed certain restrictions on the president's ability to use military force either against Venezuela or to continue these boat strikes.

Neither of those measures ended up passing. What this does do, the thing that's gotten the most attention is that it imposes a restriction on the travel funds available to the Secretary of Defense, basically saying you can't spend more than 75% of the funds made available to you for travel unless you provide unedited video of the strikes that have been conducted against quote, quoting here against designated terrorist organizations in the area of responsibility of the United States Southern Command that is parroting the language that is often included in the reports of these strikes by the Defense Department.

So it makes it hard them hard for them to say, no, these strikes were not, are not the ones you're talking about. So that's a notable disclosure requirement. But actually the, the media discussion of this con disclosure requirement actually and the effort to, to tie it to funds, which is a more assertive, aggressive move that the Congress does do and it does with a number of other contexts, including in the NDAA has done in passed NDAas usually saves until the executive branch is particularly egregious, or if it's something that there is a higher priority for them.

But there's a number of other sort of disclosures. This also gets at, it ties the same requirement also to disclosure of execute orders under a provision of the 2020 NDAA. This was a provision that had said essentially, look, when the, there are execute orders that float around to orders, kind of, initiating large scale military operations. You need to disclose these to Congress.

Evidently that's not happening or hasn't been happening with the full scope that Congress wants to see. So now they're saying you're gonna lose your travel funds unless you actually give us these things. Notably, they also do this for a report. It's very close to my heart.

That's the quote report originally required by Section 1264 of the 2018 NDAA. It's codified now at 50 U.S.C. 1549. This is the illegal and policy frameworks report. There's a report that's supposed to be an annual report that provides an update to the comprehensive report the Obama administration released at the very end of its time in office that basically lays out the executive branch's views of the legal frameworks governing the use of force and when they change, executive branch is supposed to notify Congress within 60 days or 90 days, I can't remember off the top of my head.

And then publish an annual update report. The unclassified version of which gets released to the public. Ben Wittes and I were plaintiffs in a lawsuit that sued to get that report in 2020 and did ultimately succeed in getting it when the Trump administration after publishing it the prior two years, chose not to publish it that last year until we sued over it and eventually they did several months late.

Trump administration has once again decided not to publish this report this past year. It's usually due March 1st. Still haven't seen it. In this case, this past report would actually cover the last year of the Biden administration, the way it's interpreted as it covers the prior calendar year. We haven't seen it yet and we'll have to see if we get another one on March 1st this year or not, or else. Obviously further litigation may be an order either by us or by somebody else.

Regardless, it looks like Congress is at least trying to. Call the executive branch on its failure to actually provide this report because they're essentially saying, look, we haven't gotten, it's not actually clear from this, whether they're worried about the 60 to 90 day reports or the annual report, but some obligation under 50 U.S.C. 1549 is not being met with.

And they're saying, well, unless you start complying with this, you're not gonna get all your travel funds. Now maybe there's more brinkmanship to be had here and what is compliance? And perhaps the administration has an argument as to why it doesn't have to file any of these reports, even though certainly the vote strikes strongly suggest a substantial shift in the legal and policy framework as it was prior, under previously understood. We'll have to wait and see.

But for the time being, at least Congress is, is staying on top of these issues. And it's not just about the votes strike videos that we've heard in the media. It's actually about a whole universe of other reports that this administration does not seem to be providing.

Ariane Tabatabai: Before we move on from all things oversight, are there any kind of burning provisions that we haven't talked about so far that you'd like to underscore Scott?

Scott R. Anderson: Yeah, there's two that jumped out to me that I think are really interesting worth looking at. One is at Section 1622, and this is a added provision that's added onto the disclosure obligations around sensitive military operations.

These are, you know, operations usually pursued, kind of like covert action, but they're it can be coordination with intelligence community, a kind of different scope of activities. Notifications supposed to be provided to congressional committees in this case. It interestingly adds this provision or it essentially reiterates, you do have to disclose these to Congress and in particular you have to tell us if they fail or something goes wrong.

And the joint explanatory statement, the report that the committees issued in regard to this technically not a technically joint explanatory statement 'cause this was not, NDAAs do not go through a conventional conference process like other legislation does. But regardless, they have, they usually produce one, they've produced one for this that's, that's incorporated into it through section five of the NDAA itself as, as having the same weight as a trave conventional JES in this case, they say essentially, look, this applies even when they're doing it for intelligence operations.

We really should be knowing and getting noticed about this. It doesn't say it expressly. I am almost sure here they are talking about the media reports that came out a few months ago about a failed sensitive military operation that took place during the first Trump administration in North Korea.

Or there's an effort to implant a surveillance device at least as reported by, I believe it was a SEAL team that ended up resulting the death of several Korean civilians and a failed of that Operation Troops and withdrew. That was a pretty big sensation when that report was reported on initially, I believe, by the New York Times, if I recall correctly. And a notable part of that report is that it was not disclosed to Congress at the time.

 I read this reporting obligation as pretty significantly saying, hey, we should be getting notice of these things and we're putting you on notice. Doesn't tie it to any specific sanction like it does with the legal and policy framework report and the maritime strike videos. But nonetheless is calling people out saying, hey, we do need to get these things which is notable and significant.

Another one that I think is kind of interesting here which is more significant operational is Section 1061. This is a provision regarding autonomous weapons systems that essentially requires that the relevant congressional committees get a notification if any waivers are issued to existing Defense Department guidelines or any circuit successor guidelines regarding the development and use of autonomous weapon systems.

Those guidelines essentially pose a number of requirements, checks a number, which are basically designed to ensure that you basically, basically to ensure that they're safe, they're effectively implemented, and in most cases aren't actually fully autonomous. They're still at least substantial input from human beings or opportunities for input from human beings.

And this says essentially, if you're going to waive these, which is a possibility set out in that instruction, that's DOD directive 3000.09. You have to notify Congress before you do that. Or I'm sorry, yeah, within 30 days of that happening, I should say, not before you do that. So, and not only that, but provide a ratification explanation of them.

And this is kind of one of a couple of different provisions that deal some of these emerging technologies, other things about artificial intelligence that are kind of scattered throughout. But this one really jumped out at me as, as an indicator of concern that some of these waivers might actually be used in a way without full transparency.

Notably, they also include in here requirement disclosure of legal reviews. So essentially saying, hey, you need to give us a full disclosure, not just of the waiver and the explanation but also reports regarding the development of these systems and the deployment of these systems that are supposed to include legal reviews.

Those now to be, need to be disclosed to Congress too. Which would be, I think, indicative of concerns about particularly compliance with the law of armed conflict which features very prominently in that directive, obviously is implicated by autonomous weapon systems and has been a friction point with this Congress and this secretary of defense in this Defense Department because the secretary has been focused on lethality and has been openly critical of civilian protections and other things that stem from the law of armed conflict or often implicate them. And so, there seems to be an effort here to, to draw a little bit of a line protecting some of those equities.

Ariane Tabatabai: Loren, do you have any oversight things that we didn't talk about so far?

Loren Voss: No, but I, I just, I agree that this piece on DOD directive 3000.09 is, is crucially important. I think it's gonna be really interesting to see what that looks like. I mean, this this directive is all of the design, development, testing, employment of autonomous and semi-autonomous systems.

Like it's incredibly important. People don't track it that well, but it's also really complicated when you start talking about semi-autonomous and autonomous systems and like how frequently you need to do that oversight. Like every time the algorithm changes is what it says right now, well substantially changes, but that's a heavy burden and a heavy lift.

And so I think that there's growing concern that like. If we apply these frameworks, which are similar to our old frameworks for weapons design, the standards are very difficult and we will probably end up trying to like wave them in certain cases. And so I think this is what is coming out of this, but I was trying to find like, you know, where did this come from?

What are the concerns? And there just isn't much out on, on this specific provision. But I think this is something that everyone should be paying more attention to and what kind of waivers we might see in the future. I'm a little nervous about the timeframe, which is like, okay, after tell us within 30 days, which then it's a question of, okay, well then what can you do with that information?

But you know, this is just, to me, this is the one that I would flag to have everyone look at more going forward.

Ariane Tabatabai: All right, let's turn our attention to another notable thing, which is the AUMF. And Scott, I'll start with you here, Loren. I'm sure you'll have thoughts too. The NDAA includes the bipartisan legislation to repeal the 1991 and 2002 authorizations for the use of military force and formally ends the Iraq wars. So this is big. Scott, you've done a lot of work here. Tell us what people should know.

Scott R. Anderson: Yeah, I mean, this is a pretty notable development. We've seen a proposal to do this appear in NDAA is dating back to at least, I wanna say, 2019 or 2020 occasionally in other legislation as well. It has gotten multiple times by both the House and the Senate, but not never through both fully in the version going in.

And when it wasn't in both going in, it often got pulled out in conference again, because somebody had reservations about this particular legislation. Mike McCaul, who's previously chairman of the House Foreign Affairs Committee, I know had been outspoken about having some reservations about this.

Some other folks might have as well, but those appear to have faded finally. And this proposal, which has always had a fair amount of bipartisan support has been kind of spearheaded by Senator Kaine and Senator Young on bipartisan basis in the Senate kind of finally come forward.

I've argued in writing for a number of years, dating back to at least 2022, I think is the, the, the main pieces I published on this with Lawfare. Earlier than that in podcasts and some smaller parts of larger pieces. This is a good general step. This authorization, 2002, AUMF regarding Iraq in particular, broadly worded and framed in a way that its scope has gradually expanded pretty substantially to encompass a lot more than just combating the Hussein regime.

Essentially was used to tackle all sorts of threats with any sort of nexus to Iraq. And that is tricky in the Middle East because lots of things have a nexus to Iraq, not least Iran. And my concern for many years has been, well, this really seems to provide an available statutory vehicle. If you had an administration that wanted to escalate dramatically against Iran and didn't want to, you know, wanted to, to hedge its bets legally and not just rely on Article Two authority to do so, meaning they wouldn't be subjective or powers resolutions, other things, they, they could lean on this legislation.

And the first Trump administration did do that. This authorization was cited alongside Article Two authority. That's a legal basis for the Soleimani strike that took place in January 2020. You know, that's always been a possibility that's out there removing this and is also as well as the 1990 AUMF regarding the first Gulf War.

It's a good general housekeeping measure, but I think it goes beyond housekeeping 'cause I think it actually does shut down a peripheral authority authority that wasn't immediately gonna be invoked in the near future. But I think that had actual meaningful and substantial risk profile simply 'cause of the way this AUMF had come to be interpreted.

And shutting that down means that's not available anymore. If the executive branch wants to pursue a major campaign to an extent that pushes past what Article Two authority would permit, it's gonna have to come back to Congress now to make that case and that that is how it's supposed to be designed with these things.

So, you know, it's a good housekeeping measure. It's a good general hygiene measure and underscores that you do need to think about the ends of these things. And of course, this all feeds into the much larger, much harder debate over the 2001, post 9/11 AUMF, which people have made similar arguments about.

But that is much more actively relied upon for a wide variety of military operations, most of which have substantial bipartisan support. So a much harder complication about what do you do with that AUMF, do you replace it? How do you modify it and how do you rescind it? But nonetheless, it shows that there's at least still interest in engaging on this broader issue set on a bipartisan based citizen on Capitol Hill. And I think that's, that's a good thing,

Ariane Tabatabai: Loren.

Loren Voss: Yeah, I think that this is probably, to me, one of the best examples in the NDAA of, of Congress trying to reassert its role in a good way. As Scott said, this has come up numerous times and there just wasn't enough support. So for it to finally happen, now people can think, okay, well what's going on now? What concerns are there now?

And I think there are more concerns on a bipartisan basis of how the military might be used abroad and how the terms of, of especially the 2002 AUMF might be stretched more so than it already has been. And so I see this as though the example of Congress trying to reassert that role and at least take these two AUMFs off the table going forward.

Ariane Tabatabai: All right. There's so much more we can talk about here from shipbuilding to nuclear modernization pay healthcare, housing for service members and their families. I'm sure we will spend the next year talking about different things here and highlighting them and, and having conversations. But for now, I wanna ask each of you to highlight any major provisions, authorities we haven't talked about so far. Loren, what do you, what do you have?

Loren Voss: Yeah, I don't think I have anything else right now. I think we talked about some of the central ones, but it being 3000 pages, I think we're all trying to find some of the, the hidden provisions in there right now.

Ariane Tabatabai: Scott, do you have anything?

Scott R. Anderson: Yeah. Three things I think are worth flagging, just 'cause I think they're notable legal authorities that are, indicate bigger programs and are gonna see a lot more use moving forward. And these things often end up in the NDAA.

We have to remember, for folks who don't follow this every year, the NDAA is one of the kind of, in a lot of ways the last, or one of two last omnibus legislation that has to pass every year. And therefore they become very popular vehicles for moving legislation that maybe arguably should be freestanding legislation. But the easiest way to get passed is by combining with the NDAA.

And so these are all examples of that in terms of they do three different things that aren't necessarily clearly related to the military defense, but are important from a U.S. foreign policy perspective.

First is repeal of the Caesar Act sanctions. These are statutory sanctions imposed on state of Syria that because they're worded still applied to Syria even after the end of the Asad regime just over a year ago now, they were substantially waived by the Trump administration, but there are limits to how far the Trump administration could do that.

And they were worried correctly in my view and view of many other people, that leaving these in places going to be big barrier to Syria, being able to build itself back up economically in the post Assad era, because companies would always be worried these sanctions are gonna snap back at a certain point rescind them is a big move, a big step in the right direction.

It's got bipartisan support. Trump administration has been very good to its credit on serious sanctions, aggressively moving to try and lift and, and remove them along with allies, and they seem to be effective in doing that. I think this is the last big statutory barrier they're, you're really wrestling with at this point that you couldn't get away with still lots of challenges on the Syria front, including regard to sanctions and other measures. But nonetheless, this is an important one.

A second item is Golden Dome. This is the idea of a new missile defense policy. You can tell from the name it's a Trump idea 'cause he called it golden, not iron. And it terms of his preferred muscle missile system is preferred. Metal, metal, like, I guess I should say, regardless. It's notable, it's got full hearted endorsement by bipartisan, you know, Congress through this legislation people are saying we are gonna lean into this. It's a pretty complicated system, expensive potential system, raises a lot, a variety of legal questions via a variety of policy questions. But nonetheless, people are moving forward with it. Now we are seeing, we saw the money, a good chunk of the money get you know, set aside for it originally with the One Big Beautiful Bill earlier this year by President Trump and his Republican allies in Congress.

But now we're seeing a bureaucracy set up around it, a statement of U.S. policy that shows Congress endorsement of this strategy. So this is gonna be a real initiative. We're gonna see the system get developed and deployed hopefully, effectively in the next several years at very big costs to the Americans, but hopefully in a way that improves national security. We'll have to wait and see to know for sure. But nonetheless, it's a pretty notable initiative there.

The third thing I'll note, just because I'm an economic statecraft nerd it's always worth floating these things. We saw the statute authorization maybe picking that word up, but the, the shift of the outbound investment restrictions that the Biden administration established towards the end of its time in office, which are actually quite notable and raise a lot of tricky legal questions were put into statute.

The Biden administration issued them strictly on the basis of regulations under the International Words Economic Powers Act, the very broad statute used for sanctions and currently the tariffs by the Trump administration and a variety of other purposes. They were focused specifically on China and specifically investments related to ai, quantum computing and semiconductors and things kind of, they're kind of contributing technologies to particularly ai but really both.

This statute puts it in statutory authority, puts it on stronger grounds. These outbound investment restrictions that restrict Americans from in investing overseas for the first time in these sorts of technologies. It expands the scope of the sensitive countries. It's no longer just China. Now, it's also Russia, Cuba, Iran, a lot of that. Countries you would expect to show up on these sorts of lists.

Venezuela under the Maduro regime specifically. So I guess when mad if Maduro gets removed, then we can immediately jump into their quantum sector. But regardless very specifically laid out, and really interestingly in my view, it lays out a statutory authority by which it's saying the Treasury Department I think is implementing agency if I recall correctly, can actually unwind these investments saying, we're gonna force you to divest from these if you don't check properly, they're acting within bounds.

That's notable 'cause that's actually something that, while that's been done in regards to the Committee on Foreign Investment in the United States to foreign investors in the United States, it's never been done to an outbound investor who's an American before. And Americans, among other things, have taking clause protections to their property that almost certainly would be devalued substantially. They were forced to unwind. So I'm not sure how exactly this gets around and fits within our constitutional system. It raises a lot of novel legal questions in my mind.

Something I, I'm actually interested in looking at this next year, but now it's on statutory basis. So, the court's ability to avoid reaching those issues, if they were to get litigated by, for example, interpreting the IEEPA narrowly or otherwise getting around it, they can't do that anymore. Now, Congress has enacted this, and in theory, that puts on a much stronger grounds basically, you know, if, if it really faces a constitutional problem, it looks like the court's gonna have to address it unless there's some ambiguity in the statute, I'm not aware of if it gets challenged.

So regardless, the the overall outbound investment regime, it's a big U.S. policy initiative. It's gonna have big ramifications moving forward, particularly in those strategic sectors. Which it also expands, I should note to a couple other, like cybersecurity related applications and slightly broader scope of strategic sectors, potentially significant there.

And then raise a lot of interesting legal questions that could shape the contour of U.S. constitutional law and how it might restrict other outbound investment restrictions or other outbound restrictions moving forward. So something to keep an eye on if you are interested in these issues as I am

Ariane Tabatabai: Okay with this, we're gonna spend our last minute talking about what was not in the NDAA. And Loren, let me start with you. Is there anything that you wish was in, in the NDAA or is there something that is just flagrantly missing from it?

Loren Voss: Well, I mean, I think you can guess what I would say being the domestic deployment person is, I would've loved to see more focus on that. And there's been obviously a lot of proposals for reform just because a lot of the domestic deployment law is so old and vague and has huge holes.

So there's, you know, I would've loved to see something on domestic use of the military, whether that be 12406, and clarity on that, which is all over the courts now on posse com. As we talked about before, you know, amending the Insurrection Act like there's so many areas where legislation gets thrown out there, but it's so controversial the changes never make it in the document.

And so we're gonna see more domestic deployments, more support to law enforcement, to immigration, to all of these things. And there's just huge legal ambiguities that we have yet to close. So I would've loved to see something in that space, but I'm a pragmatist. I wasn't expecting it.

Ariane Tabatabai: So, Scott.

Scott R. Anderson: Yeah, I'm trying to think if there's anything in particular I would've liked to see that wasn't in here.

I can't think of anything in particular. Maybe that's, 'cause I was never that ambitious for what was actually gonna be found in here. I mean, there's lots of things I would, I would perhaps do differently in a perfect universe. Certainly. You know, the, if you look at the joint explanatory statement that was released with the, the pseudo conference version of this bill, it has a list like most of these things do, of all the provisions that were in one version or the other and didn't make it into the final version.

As worth reading through that, 'cause it's interesting, it's a lot of very specific provision about types of security cooperation with Israel. In some cases with Taiwan and other cases with a few allies. In other cases, sometimes you'll see those get kind of rolled into other provisions. Or in the joint explanatory statement the committees will say who are involved in crafting it will say, well, we didn't include this provision, but in another related provision they'll say and give them consideration to this issue set precisely 'cause they struck this specific statute or provision about it.

But they still wanna signal, hey administration, we want you to take it seriously. People do care about this in Congress. A lot of stuff regarding space development, there was actually like less on Space force stuff in here than I might've expected. And it looks like some of that didn't make it in for reasons that I'm not a hundred percent sure why, but it's something I need to look into a little bit and understand a little bit better.

It's interesting to see where exactly this comes out. So I don't know what exactly I would've liked to see here a little more. I mean, the, the thing I would've liked to see if anything I think would be Congress take a much bigger fight on its appropriations power and on fight against agency efforts to restructure federal agencies, which the Trump administration has undertaken.

You actually did see some of the latter. One thing that's actually is really interesting, not in the, technically the NDAA part of this bill, but was enacted alongside the state authorization bill and a couple of other bills that were kind of rolled in the same legislation. The state authorization bill, it actually codifies a good structure of the State Department.

Interestingly, they basically say, hey, you have to have a bureau of different regional affairs and an assistant secretary in charge of it, which is kind of notable and to me seems to indicate folks in the Foreign Affairs Committees who probably drafted this and then before it got rolled into the, the NDAA together are worried about further restructuring of the State Department in a way. That's gonna be a big problem.

And not, not without reason because that's something that we've seen happen, although frankly the State Department has, has gotten away more unscathed than certain other agencies. But regardless, it would've been good to see more of that, and particularly on the kind of appropriations authorization side because it is a big issue.

And does administration as drawing a line in the sand, that would've huge implications if its current posture were allowed to stand. And it's not clear the courts are gonna do anything about that in the near term, but regardless, that's something we may see in next round of appropriations legislation, which is gonna be fought over early in the next year.

There will be other bites of the apple. I'm not terribly shocked it didn't find its way in here, but that is in my mind, one of the big looming issues hanging over this Congress that it still hasn't squarely addressed. And again, this is one of a, just a handful of opportunities to really do that in a way the administration has to ultimately bite on the legislation getting enacted cause it can't veto this legislation very easily. And so it's a missed opportunity.

Ariane Tabatabai: And other positive things here. One thing that is not entirely missing is climate change. It has been reframed quite a bit, deprioritize certainly a little bit as well. It's much more focused on installation, resilience and disaster response, but, you know, pragmatic all around and, and continue some of the important work that was previously done.

All right. Well thanks guys for this first attempt at unpacking the NDAA. Again, I'm sure we'll have many more conversations on it in the year 2026.

Loren Voss: Thank you.

Scott R. Anderson: Thanks. Thank you.

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