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President Donald Trump signed the John S. McCain National Defense Authorization Act (NDAA) for fiscal year 2019 into law on Monday afternoon, at an event at Fort Drum military base in upstate New York. Speaking before a crowd of soldiers, Trump described the legislation he was about to sign as follows:
The [NDAA] is the most significant investment in our military and our warfighters in modern history, and I am very proud to be a big, big part of it. It was not very hard. You know, I went to Congress; I said, “Let’s do it. We got to do it. We’re going to strengthen our military like never, ever before.” And that’s what we did. . . . After years of devastating cuts, we’re rebuilding our military like we never have before, ever.
Amidst banter with the audience and references to his administration’s purported policy successes, Trump then proceeded to highlight some of the authorizations that the NDAA provides, including a pay raise for U.S. service-members and up to $716 billion in funding for new military hardware and activities. All the while, he carefully avoided any mention of the act’s namesake—Sen. John McCain (R-Az.), the chair of the Senate Armed Services Committee that manages annual NDAA negotiations in the Senate—who has frequently opposed Trump administration policies.
Trump is correct that the NDAA authorizes a number of substantial changes to the U.S. military as well as a significant increase in funding. Yet it is not necessarily the one-sided victory that his comments imply. Like most prior NDAAs, this year’s authorization is the product of a relatively bipartisan legislative process and received overwhelming bipartisan support in both the House and Senate. And while it authorizes spending levels on various activities and materiel, this does not mean that the Defense Department will have enough funding to actually pursue it. Instead, Congress will need to decide this through a separate appropriations process later in the fall, the results of which are not easy to foresee.
Further, this year’s NDAA contains several provisions that the Trump administration actively opposed. Indeed, recent NDAAs have become popular vehicles for such provisions, as they are often politically difficult (though not impossible) for presidents to veto. Most of these provisions seek to constrain the Trump administration’s actions in certain areas of concern to Congress—such as engagement with Russia—by setting preconditions on certain actions or delegating relevant authority to specific executive branch officials other than the president. Others seek to strengthen and reinforce congressional oversight by requiring certain reporting and disclosures. For its part, the Trump administration—like its predecessors—has pushed back on several of these provisions by arguing that they exceed Congress’s constitutional authority and intrude on the president’s own. And in the signing statement that he issued in conjunction with the NDAA, Trump indicated that he intends to interpret and apply its provisions in a manner consistent with those constitutional limits.
Beyond the substance, one of the most notable aspects of this year’s NDAA is its timing. Since Republicans took control of the House of Representatives in 2010, the NDAA has primarily been a year-end phenomenon, with Congress holding off on a final vote well into the fall. This year, however, both the House and Senate approved the final version of the NDAA by Aug. 1, less than two weeks after it emerged from conference. This is only the fifth time since 2006 that Congress has sent the president an NDAA to sign before the start of the new fiscal year—and the first time that Congress has done so before its August recess since 1988.
Several factors may have contributed to this speedy work. Congress reached a deal in February to set the overall amount of federal spending on both defense and non-defense matters for fiscal year 2019, which may have smoothed the process for negotiating this year’s NDAA—though similar agreements in 2013 and 2015 did not have the same effect. Congressional Republicans have also pursued a relatively light agenda in the lead-up to the November midterm elections, which meant that fewer legislative items competed for time over the course of the summer. In effect, however, finalizing the NDAA early has allowed the Republican leadership in Congress to preserve floor time later in the year for other priorities it shares with the Trump administration—such as consideration of Supreme Court nominee Brett Kavanaugh, whose Senate hearings are scheduled to begin on Sept. 4.
Regardless of where it belongs on the political tally sheet, the new NDAA contains a number of provisions with major implications for U.S. national security policy. In this post, we identify several such provisions that are likely to be of particular interest to Lawfare readers (though we do not discuss provisions relating to research and development or the procurement of new military equipment). To place these provisions in context, we have also reviewed the Joint Explanatory Statement that the House and Senate conferees prepared alongside the final text of the NDAA to explain their choices and identify provisions from the House and Senate versions that they omitted. Finally, we’ve also identified those provisions whose constitutionality President Trump takes issue with in his signing statement—a step that may give clues as to how those they are likely to be interpreted and applied in practice.
A stated objective of the House and Senate armed services committees in drafting the 2019 NDAA was to update U.S. military forces in order to ensure that they are prepared to address modern national security challenges. These include the possibility of a war with another major power like China or Russia, which was the major focus of the National Defense Strategy (NDS) released earlier this year. The NDAA takes several steps toward reforming the structure of the military and civilian components of the Defense Department to facilitate such preparedness.
The Undersecretary of Defense for Policy is the official most directly affected by these changes. Section 902 of the NDAA expands his statutory responsibilities to include implementation of the NDS throughout the department. Other components are tasked with reevaluating their internal processes and structures in part to refocus priorities in line with the NDA. Section 914, for example, requires the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict to coordinate with the commander of U.S. Special Operations Command to assess the adequacy of special forces doctrine and processes in addressing the needs of geographic combatant commanders. And Section 901 directs the Secretary of the Navy to conduct a “comprehensive review” of its operational and administrative chains-of-command to clarify responsibilities, ensure readiness, and eliminate redundancies. The secretary is then tasked with communicating the results of this review and any resulting policy changes to relevant congressional committees within 180 days of enactment.
Other provisions lay the groundwork for more drastic future reforms. Specifically, Section 1075 of the NDAA instructs the Secretary of Defense to provide Congress with a comprehensive report reevaluating the highest priority missions of the Defense Department and individual armed services. The report will focus specifically on implementing the NDS and ensuring that it informs programmatic and budgetary priorities moving forward. The report will also include a comprehensive review of the roles of each armed service, as well as detailed projections regarding how future size and composition will allow each service to accomplish its highest priority missions under the NDS. This report is due to Congress in classified form with an unclassified summary a year from enactment.
Military Personnel Reform
As part of its efforts to promote military readiness, the NDAA authorizes a range of reforms to different aspects of U.S. military personnel policy. (War on the Rocks has published a detailed analysis of these provisions.)
Several provisions are aimed at enabling the military to better recruit and retain individuals with highly specialized skills. Sections 503 through 507 of the NDAA install a number of reforms intended to facilitate more merit-based promotions among military officers and avoid concerns that specialization will hinder promotion opportunities. Other provisions increase the military’s ability to recruit specialized mid-career civilians by repealing certain age restrictions (Section 501) and providing constructive service credit for relevant civilian training or experience (Section 502).
Other provisions work to strengthen military effectiveness by supporting military families through enhanced child care support (Sections 572 and 576) and spousal employment opportunities and support (Sections 573, 574 and 579). Relatedly, Section 575 directs the Secretary of Defense to provide a report to Congress no later than Feb. 1, 2019, on the impact that frequent changes in station have on unemployment among military spouses, and how this in turn affects military families.
The NDAA also contains a number of provisions addressing domestic violence and sexual assault within the military. The most notable such provision is Section 532, which makes domestic violence an offense under the Uniform Code of Military Justice. Another provision (Section 536) requires the Secretary of Defense to establish standard procedures for expedited transfer for service-members who are victims of sexual assault or physical domestic violence. Others require the creation of sexual assault resource guides for service academies (Section 545) and assessments of how often sexual assault victims face accusations of misconduct or adverse career actions (Section 547).
War Powers and the Use of Military Force
Unsurprisingly given its focus on national defense, the NDAA contains a number of provisions relating to the use of military force.
Perhaps the most notable change to existing operational authorities is an expansion of reporting requirements related to “sensitive military operations.” Section 1031 of the NDAA amends existing statutory provisions that obligate the Defense Department to report “sensitive military operations” to congressional committees by redefining that term to encompass any lethal or capture operations targeting specific individuals—whether conducted by U.S. armed forces or by foreign armed forces in coordination with U.S. armed forces—as well as operations conducted by U.S. armed forces in self-defense or in defense of foreign partners, except where such operations occur in Afghanistan, Iraq or Syria. In addition, within 30 days of enactment, it requires that the secretary of defense provide Congress with a list of all the instances that would have qualified for such reporting under this new definition dating to 2013, when the reporting requirement was first enacted, effectively rendering this amendment retroactive.
Separately, Section 1031 also installs new reporting requirements for military action taken in defense of foreign partner forces. Such “collective self-defense” has occurred with non-state actors in Somalia and Syria in recent years and has been criticized for inadequate reporting. The NDAA addresses this by requiring that the secretary of defense provide a report that identifies all foreign partner forces that qualify for collective self-defense within 30 days of enactment and requiring that the secretary inform Congress within 48 hours whenever he determines that additional foreign partner forces are eligible. Once again, these requirements do not apply to partner forces in Afghanistan, Iraq and Syria.
Other provisions in the NDAA address civilian casualties resulting from U.S. military operations, which has been an issue of ongoing concern. (Rita Siemion has a useful discussion of these provisions at Just Security.) Section 936 directs the secretary of defense to make a senior civilian official at the assistant secretary level or higher responsible for developing uniform processes and standards for calculating, acknowledging and accepting responsibility for civilian casualties throughout the armed services, including through coordination with private individuals and nongovernmental organizations. It requires that the designated official report on the development and implementation of these policies within 180 days of enactment. Notably, in his signing statement, Trump objected that this provision “purport[s] to restrict the President’s authority to control the personnel and materiel the President believes to be necessary or advisable for the successful conduct of military missions” and would be interpreted consistent with “the President’s authority as Commander in Chief.” Section 1062, meanwhile, amends an annual reporting requirement from the 2018 NDAA to require the public disclosure of more incident-specific and detailed information on civilian casualties, a criticism of this past year’s report.
Like several recent NDAAs, this year’s authorization contains several restrictions on how the executive branch may manage the detention and military commission facilities and operations at Guantanamo Bay. Specific provisions prohibit the use of any funds for closing the Guantanamo Bay facility (Section 1032); transferring Khalid Sheikh Mohammed or any other detainees who are not U.S. citizens or members of the U.S. military held at Guantanamo Bay to the United States (Section 1033); constructing or modifying facilities in the United States to house any transferred detainees (Section 1034); or transferring any detainees to Libya, Somalia, Syria or Yemen (Section 1035). Notably, in his signing statement, President Trump has followed President Obama’s lead in objecting to the constitutionality of several of these restrictions, even though he indicates that he “fully intend[s] to keep open th[e] detention facility and to use it for detention operations.” Also notable, the final version omitted a provision that had been included in the Senate version of the NDAA that would have allowed for the temporary transfer of detainees to the United States for emergency or critical medical treatment.
This NDAA also includes a rule of construction regarding the use of force. Specifically, Section 1295 states that “[n]othing in this Act may be construed to authorize the use of force against Iran or North Korea,” reflecting some apparent anxiety among lawmakers that the Trump administration might try to cite the NDAA as legal authorization for such action. While this provision was included in the final version, several related provisions from the House version of the NDAA were omitted, including one that would have expressed the sense of Congress that neither the NDAA nor any other enacted legislation provides statutory authorization for the use of military force against Iran. That said, the Joint Explanatory Statement approved by Congress includes a statement that “the conferees are not aware of any information that would justify the use of military force against Iran under any other statutory authority.”
Finally, while the statutory text of the NDAA does not contain any new reporting requirements regarding the use of military force, the Joint Explanatory Statement does. Specifically, it directs the secretary of defense to provide Congress with a report that identifies the nations, organizations and persons against which the United States has taken military action under the 2001 Authorization for Use of Military Force. The executive branch generally complies with such directives as a matter of policy, though they are not considered legally binding.
Security Assistance and Cooperation
Continuing a trend across recent NDAAs, this year’s authorization tweaks a number of broad authorizations that allow the secretary of defense—often in coordination with the secretary of state—to exercise substantial discretion in pursuing security assistance and cooperation activities, including efforts to build the capacity of partner forces (Section 1201), to embed Defense Department personnel within their military bureaucracies (Section 1202) and to support their conduct of operations (Section 1203). Section 1211 also provides funds for the monitoring and evaluation of security cooperation activities, though it withholds half until a related report is provided to Congress. And Section 1213 expands a program that provides assistance to certain allied countries’ border security efforts to include Egypt, Jordan, Lebanon, Oman, Pakistan and Tunisia; it also installs new reporting requirements.
Other provisions, however, impose new restrictions or disclosure requirements on existing security assistance and cooperation authorities, likely reflecting concerns in Congress about how such authorities are being used.
Section 1205 directs the secretaries of defense and state to review the processes used to implement existing requirements that no assistance be provided to units that have committed gross human rights violations (one of two provisions commonly referred to as “Leahy laws”) and to update Congress within 180 days of enactment. Among other items, this report is intended to assess the efficacy of those procedures, what negative impact they may have on security assistance and cooperation efforts, and any reform proposals.
Section 1212 similarly directs a thorough audit of advise, assist and accompany missions—the type of mission that U.S. special forces were conducting in Niger in October 2017 when several members came under fire and were killed. Specifically, Section 1212 directs Defense Department personnel to provide the secretary of defense with a review of the legal and policy frameworks for such missions within 120 days of enactment. The secretary is then obligated to provide this report—which is supposed to be unclassified, though it may include a classified appendix—to relevant congressional committees alongside any comments or related proposals within 30 days.
Section 1271, meanwhile, revises existing authorities for the use of acquisition and cross-servicing agreements (ACSAs), a type of international agreement that the Defense Department uses to share certain equipment and supplies with select allied militaries. Section 1271 installs a new limitation barring the secretary of defense from using an ACSA with an ally to transfer equipment or supplies through that ally to a third party that does not meet the legal requirements for its own ACSA. In addition, it establishes an annual reporting requirement obligating the Defense Department to disclose how it has used each agreement over the prior year. This likely reflects concerns with how ACSAs are being used to provide support to members of the Saudi-led coalition in Yemen. Trump’s signing statement, however, raises constitutional concerns with this provision and indicates that the executive branch will apply it consistent with the president’s constitutional authority over diplomacy.
Cyber Operations and Artificial Intelligence
Several provisions of the NDAA address military cyber operations, which Bobby Chesney previously analyzed for Lawfare. Most serve to clarify or organize existing authorities, but a few install substantial changes. Perhaps most notably, Section 1642 authorizes relevant components of the Defense Department to respond to identified cyber attacks by China, Iran, North Korea and Russia with proportional cyber operations in order to disrupt, defeat and deter future such attacks.
The NDAA also addresses the development of artificial intelligence technology as it relates to national security. Section 238 directs the Secretary of Defense to develop a plan for and pursue a number of activities related to artificial intelligence, including research and development and analysis of potential regulation. Section 1051, meanwhile, establishes a National Security Commission on Artificial Intelligence as an independent establishment within the federal government for approximately two years, until Oct. 1, 2020. The Commission—which is to consist of fifteen members, twelve of whom are appointed by Congress and three of whom are appointed by the executive branch—is tasked with reviewing the full range of national security issues raised by artificial intelligence and machine learning, as well as ways that the United States can best harness it. The Commission must then report back to Congress on these findings on an annual basis, as well as in an interim report 180 days after the NDAA's enactment.
Foreign Investment and Trade Restrictions
Several provisions of the NDAA address U.S. legal restrictions on various forms of foreign commerce that may impact national security, including foreign investment in the United States and exports of strategic significance.
The most notable of these provisions is arguably the Foreign Investment Risk Review Modernization Act (FIRRMA) of 2018, which begins at Section 1701. As Stephanie Zable wrote in her detailed analysis for Lawfare, FIRRMA introduces major reforms to the Committee on Foreign Investment in the United States process used to review and, if necessary, restrict foreign investments for national security concerns.
The NDAA also contains the Export Controls Reform Act (ECRA) of 2018, which begins at Section 1751 and consists of two parts: the Export Controls Act of 2018 and the Anti-Boycott Act of 2018. As explained in the NDAA’s Joint Explanatory Statement, the ECRA replaces the defunct Export Administration Act, which lapsed in 1994. Since that time, successive presidents have operated the U.S. system of export controls (as well as related anti-boycott policies) through the Commerce Department under a series of executive orders pursuant to the International Emergency Economic Powers Act. The ECRA maintains the status quo by providing new statutory authority for the Commerce Department’s existing activities. The most substantial change of note is in Section 1758, which directs the establishment of new export controls for “emerging and foundational technologies” identified as essential to U.S. national security by an interagency committee.
Section 889 of the NDAA would also prohibit executive-branch agencies from procuring or contracting for certain covered telecommunications equipment or services from companies that are associated with or believed to be owned or controlled by the People’s Republic of China. This includes ZTE and Huawei, two companies whose activities in the United States have been the subject of great scrutiny in recent months. This prohibition would begin for executive-branch agencies one year after enactment of the NDAA and would extend to the beneficiaries of any grants, loans or subsidies from such agencies two years after enactment. Under this provision, the head of any federal agency may issue a onetime waiver for up to two years, while only the director of national intelligence may issue subsequent waivers. Notably, however, the NDAA does not include a provision from the Senate version of the NDAA that would have reimposed the penalties against ZTE that the Commerce Department controversially revoked earlier this year.
Addressing Foreign Influence Operations
In an apparent response to Russian interference in the 2016 presidential election and related measures, the NDAA contains several provisions that direct the executive branch to take steps to counter foreign influence operations.
Section 1043 formally amends the statutory functions of the National Security Council to include coordinating the U.S. government response to malign foreign influence operations and campaigns. It also directs the president to designate an NSC official who will be responsible for these efforts within 180 days of enactment. This individual is responsible for testifying before Congress on these issues at least twice a year. In addition, Section 1043 directs the NSC to provide relevant congressional committees with a strategy for achieving this objective within nine months of enactment.
Relatedly, Section 1085 amends existing rules governing foreign media outlets that operate in the United States, imposing registration requirements on them that resemble those required of foreign agents under the Foreign Agents Registration Act (FARA). Specifically, within 60 days of enactment and every six months thereafter, any foreign media outlet operating in the United States—defined as any producer of video content that would qualify as the “agent of a foreign principal” under FARA if not for the exception for press organizations—must file a report with the Federal Communications Commission (FCC) identifying itself and describing its relationship to its foreign principal, which may be a foreign government, organization or individual. The FCC is required to make these reports publicly available and to report on them to Congress every six months.
Nuclear Weapons and Missile Defense
Consistent with the recent Nuclear Posture Review (NPR) that the Trump administration released earlier this year—whose conclusions the NDAA endorses in a sense of Congress provision (Section 1673)—the NDAA authorizes several actions that would fortify or expand upon the U.S. nuclear arsenal. Arguably the most significant (and controversial) of these provisions is Section 3111, which authorizes the Secretary of Energy to develop low-yield nuclear weapons capable of more tactical use and deterrence, as called for by the NPR. Section 1663 similarly seeks to accelerate programs to develop both a ground-based strategic deterrent and long-range standoff weapons. And Section 1665 prohibits the Defense Department from reducing the number of intercontinental ballistic missiles the United States has deployed below 400 or related responsiveness or alertness levels, except where necessary for maintenance or safety reasons. Significantly, President Trump objected to this latter restriction in his signing statement as interfering with his constitutional authority as commander-in-chief.
Other provisions address potential weaknesses in the current command-and-control system used to govern the use of nuclear weapons. Section 1668 directs the Secretary of Defense to develop a plan for better training service members in nuclear command and control in order to develop “a mature cadre of officers with nuclear command, control, and communications expertise” within 180 days of enactment, and to implement that plan within 18 months. Relatedly, Section 1669 directs the Secretary of Defense to procure an independent study on the potential benefits and risks associated with different options for increasing the amount of time that the president has to decide whether to use nuclear weapons in response to a given incident. This report is to be due to the Defense Department within 270 days of enactment and communicated to Congress alongside any comments or recommendations from the Secretary of Defense 30 days later.
Finally, Section 3122 specifically prohibits any use of funds to enter into a contract with or provide assistance to Russia relating to atomic energy defense activities. This restriction may be waived by the Secretary of Energy, with concurrence from the Secretary of Defense and Secretary of State, if the secretaries determine such action would be in the U.S. national security interest and explains this reasoning to relevant congressional committees at least seven days before initiating the program. That said, this restriction does not apply to up to $3 million that the Secretary of Energy may make available for the Department of Energy’s Russian Health Studies Program.
Other provisions deal with the related topic of missile defense, the further development of which the NDAA endorses as a matter of policy. Section 1675 amends existing authorities to direct the Defense Department to begin development of a missile defense system. That said, it withholds a portion of associated funds until the Defense Department provides Congress with a previously-requested report on how it intends to develop and deploy such a system. Sections 1676 and 1680, meanwhile, do much the same with existing authorities related to boost phase intercept capabilities and a space-based ballistic missile intercept layer, authorizing the development of both subject to appropriations.
As President Trump noted in his remarks at Fort Drum, the NDAA includes a number of provisions intended to expand U.S. warfighting capabilities in outer space—though they fall far short of the controversial “space force” proposal his administration has put forward.
The most notable of these space-related provisions is Section 1601, which amends existing authorities to establish a subordinate unified command under the auspices of U.S. Strategic Command. This command is responsible for coordinating and directing military activities in relation to outer space across the different military services, in the same manner as the geographic commands.
Section 1607 in turn directs the Secretary of Defense to develop a “space warfighting policy” that will assess U.S. capabilities and identify potential threats over the next ten years in outer space. This report is due to Congress in unclassified form (with a classified annex) by March 29, 2019. The Secretary of Defense is also required to brief relevant congressional committees at that point on request. Afterwards, the secretary is to develop and begin implementing a plan to improve U.S. space warfighting readiness, including by identifying necessary additional authorities and considering possible contributions by strategic partners. Trump once again objected to this provision on constitutional grounds in his signing statement, contending that it treads on his constitutional authority over U.S. foreign policy.
Specific Geographic Theaters
As with prior NDAAs, this year’s authorization contains several provisions related to specific foreign countries or geographical areas. Below are a few that are particularly notable.
Iraq and Syria
The NDAA extends several existing assistance authorities related to Iraq and Syria, including those for the train-and-equip program for “vetted Syrian opposition” (Section 1231), assistance for Iraq to counter the Islamic State (Section 1233), and the Office of Security Cooperation in Iraq (Section 1235). In several cases, it makes these funds contingent on the provision of reports regarding the U.S. strategy in Iraq and Syria that were requested in prior NDAAs and never provided. In addition, several of these provisions require additional or supplemental reports to Congress, including quarterly progress reports. Trump questions the constitutionality of several of these restrictions in his signing statement.
The NDAA also addresses the question of accountability for war crimes in Syria. Section 1232 directs the secretary of state to prepare a report describing possible occurrences of war crimes, crimes against humanity and genocide committed by the Assad regime, forces fighting on its behalf, or nongovernmental forces, as well as an assessment of steps the United States has taken to ensure that evidence and other relevant information is available for future transitional justice processes. Further, it requires the secretary of state to submit another such report within 180 days of determining that “the violence in Syria has ceased,” thereby capturing incidents over the whole course of the conflict. Once again, Trump raises constitutional concerns with this provision in his signing statement, and indicates that he will apply it in line with his constitutional authority over foreign affairs.
Other NDAA provisions are intended to shape the U.S. relationship with Russia. Some impose or threaten sanctions for certain Russian actions. Others restrict the Trump administration’s ability to engage with Russia, reflecting some congressional anxiety about President Trump’s relationship with Russian President Vladimir Putin.
Section 1241 prohibits the Defense Department from using funds for any activity that recognizes the sovereignty of the Russian Federation over Crimea. To overcome this prohibition, the secretary of defense and secretary of state must issue a waiver determining that doing so is in the U.S. national security interest and must provide relevant congressional committees with their justification.
Section 1242 prohibits the Air Force from using certain funds intended to bring the United States into compliance with the Treaty on Open Skies—a multilateral treaty that authorizes reciprocal overflights to verify progress on counterproliferation objectives—until the president or the secretary of state certifies that the United States has responded to perceived Russian violations and informs Congress. It also prohibits the United States from using any funds to implement any multilateral decision to use certain types of surveillance technology unless and until relevant U.S. officials certify at least 90 days in advance that the Russian Federation is in full compliance with that treaty. The latter requirement, however, may be waived provided that the president reports to Congress at least 30 days in advance that doing so is in the U.S. national security interest and that the Russian Federation has taken “clear and verifiable action” to return to compliance.
Two other provisions of the NDAA similarly address Russia’s alleged violation of the Intermediate-Range Nuclear Forces (INF) Treaty. Section 1243 requires the president to provide relevant congressional committees with a determination as to whether Russia is in material breach of its treaty obligations and, as a result, whether related treaty prohibitions on the production and testing of shorter- and intermediate-range missiles remain binding on the United States. Section 1244 then expresses the sense of Congress that Russia’s violations of the INF Treaty entitle the United States to suspend its operation and requires that the president inform Congress whether he has implemented certain sanctions and related measures authorized by last year’s NDAA against individuals and entities who have contributed to Russia’s treaty violations by Nov. 1, 2018. In his signing statement, however, Trump objects to this provision on constitutional grounds and indicates that he will limit his interpretation of it accordingly.
Section 1245 requires the president to report to relevant congressional committees whether he has engaged the Russian government on whether it considers certain weapons systems to be “strategic offensive arms” subject to limitations under the New START Treaty and whether their position impacts the viability of that treaty or requires additional U.S. responses. Again, this provision earns Trump’s ire in his signing statement, specifically interfering with his “constitutional authority to identify breaches of international agreements by counterparties.”.
Section 1246 further extends security assistance for Ukraine originally provided in the 2016 NDAA. Perhaps most notably, it provides $250 million in assistance, of which $50 million is designated specifically for lethal assistance.
Finally, Section 1247 extends a much-discussed prohibition imposed in the fiscal 2018 NDAA that prohibits the use of funds for any military cooperation with Russia. However, it installs a new rule indicating that this prohibition is not meant to limit military-to-military dialogue aimed at reducing the risk of conflict. This effectively codifies an interpretation that the Trump administration adopted following the last NDAA that, among other activities, allows U.S. and Russian forces to deconflict their operations in Syria. Trump’s signing statement indicates that this limit may be constitutionally suspect in certain circumstances, and indicates that he intends to apply this provision consistent with his “exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.”
As a corollary to provisions relating to Russia, the NDAA also addresses the U.S. relationship with NATO, which President Trump’s open skepticism has recently brought into question. Through a strongly worded “statement of policy,” Section 1248 expresses support for the United States’ “ironclad commitment” to fulfilling its obligations under NATO and using “all element of United States national power to deter and, if necessary, defeat Russian aggression.” It then expresses the sense of Congress that the United States should continue to pursue and even expand upon an array of measures intended to ensure effective coordination and interoperability. Perhaps most notably, it also expresses support for NATO’s “open door” policy, including the eventual membership of Georgia in NATO—a step that Russian officials have said could have “extremely grave consequences.”
Unsurprisingly, the NDAA contains several provisions relating to the United States’ other major strategic rival: the People’s Republic of China. While it requires reports on Chinese military and security developments (Section 1260) and the U.S. strategy toward China (Section 1261), U.S. relations with Hong Kong (Section 1256), and strategies for improving Taiwan’s military readiness (Section 1257), the NDAA’s primary focus is on Beijing’s controversial activities in the South China Sea. Section 1259 prohibits the secretary of defense from involving China in any Rim of the Pacific (RIMPAC) naval exercises until he is able to certify to relevant congressional committees that China has ceased its land reclamation and related military activities for at least a four-year period. (Notably, however, Trump’s signing statement objects to this limitation on constitutional grounds.) Similarly, Section 1262 requires the secretaries of defense and state to name-and-shame China by reporting any significant Chinese reclamation activity, territorial claims, or militarization in the South China Sea to relevant congressional committees and releasing the unclassified core of that report to the public. That said, both of these requirements may be waived so long as relevant U.S. officials determine that doing so is in the U.S. national interest and provide a justification to Congress.
Several provisions in the NDAA address North Korea. They seem primarily intended to set constraints on—and verify the results of—the Trump administration’s ongoing negotiations with the Kim Jong Un regime.
Section 1264 prohibits the Defense Department from using any funds to reduce the number of active-duty members of the U.S. armed forces in South Korea below 22,000—an apparent response to rumors that the Trump administration has considered reducing U.S. force levels in South Korea, either as a result of negotiations with North Korea or to pressure South Korea in ongoing trade negotiations. Section 1264 provides that this limitation may be waived only if the secretary of defense certifies to Congress that this reduction is in the U.S. national security interest; that it would not significantly undermine the security of U.S. allies in the region; and that it has been appropriately consulted with those allies, including South Korea and Japan. The Joint Explanatory Statement elaborates on Congress’s reasoning, stating that the conferees “support diplomatic efforts to achieve the complete, verifiable, and irreversible denuclearization” of North Korea but believe that “the significant removal of [U.S.] military forces from the Korean Peninsula is a non-negotiable item in such negotiations.” Trump’s signing statement, however, objects that this provision may intrude upon his constitutional authority over the military and foreign affairs in some circumstances, and that he intends to interpret it accordingly.
In addition, Section 1265 establishes certain reporting requirements that would allow Congress to verify any Trump administration claims that the Kim Jong Un regime is making progress toward denuclearization. To “establish a baseline of progress for negotiations,” it requires the secretary of defense, in coordination with select other Cabinet officials, to submit a detailed report to Congress on the status of North Korea’s weapons of mass destruction and ballistic missile programs within 60 days of enactment. The report must then be updated every 180 days. Alternatively, if a formal agreement is reached with North Korea, then an update is instead due within 60 days of that agreement and every 90 days thereafter, allowing Congress to verify compliance.
In light of recent tensions with Turkey, Section 1282 instructs the secretaries of defense and state to submit a report on U.S.-Turkish relations to Congress within 90 days of enactment. This is to include an analysis of Turkey's purchase of Russian military equipment and potential alternatives it could procure from NATO member states. Until this report is completed, Section 1282 prohibits the Defense Department from delivering any F-35 aircraft to Turkey, a number of which Turkey was already in the process of procuring.
Finally, several provisions address the ongoing conflict in Yemen. U.S. support for the Saudi-led coalition perpetrating that conflict has proven increasingly controversial and been the subject of repeated activity in Congress. The NDAA reflects and attempts to address some of those concerns.
Section 1274 directs the secretary of defense to conduct a review to determine whether U.S. armed forces or coalition partners have violated U.S. federal law, the laws of armed conflict or Defense Department policy while conducting operations in Yemen. Among other topics, it specifically seeks findings on whether U.S. armed forces have participated in interrogations in Yemen—including by providing questions to interlocutors—or whether any foreign military groups have received assistance in violation of (or required a waiver from) existing laws barring the Defense Department from providing assistance to any perpetrators of gross human rights violations. After this review—and within 120 days of the NDAA’s enactment—the defense secretary must then submit a report to relevant congressional committees describing the results, analyzing the extent of U.S. responsibility for detainee abuses under domestic and international law, and assessing the adequacy of relevant policies.
Section 1290, meanwhile, requires the secretary of state to certify, within 30 days of the NDAA’s enactment and biannually thereafter, that the United Arab Emirates and Saudi Arabia are undertaking “urgent and good faith” efforts to support a diplomatic end to the civil war in Yemen; pursuing appropriate measures to alleviate humanitarian conditions there; reducing the risk of harm to civilians from military operations; and—in the case of Saudi Arabia—taking appropriate actions to reduce delays in shipments related to secondary inspect and clearance processes beyond those implemented by the United Nations. If the secretary cannot make this certification, then Section 1290 prohibits the use of funds for in-flight refueling services for the Saudi-led coalition in Yemen for purposes other than targeting al-Qaeda and the Islamic State, countering ballistic missile programs in Yemen, helping coalition aircraft return safely to base in emergency situations, providing force protection for U.S. forces, or ensuring freedom of navigation. This prohibition may be waived, however, if the secretary of state certifies that it is in the U.S. national security interest and submits an unclassified written report describing why he could not issue the required certification. Once again, Trump objects to this provision’s constitutionality in his signing statement, arguing that it may interfere with his constitutional authority over foreign affairs and the military in at least some circumstances.
Finally, the NDAA omits a provision that may have been of particular interest to rank-and-file personnel at the Defense Department: a mandatory sunset of three years for reporting requirements of indefinite duration. Countless reporting requirements such as these have accumulated through recent NDAAs and other legislation. Many often go unfulfilled, in part because of the burden doing so would place on existing personnel and resources. While the final NDAA does not contain this sunset, the Joint Explanatory Statement does direct the Secretary of Defense to provide a report to Congress identifying those reporting requirements he believes are over-burdensome or redundant by April 1, 2019. This in turn may be a step towards streamlining and rationalizing these reporting requirements.