This afternoon, the House will debate and vote on floor amendments to the FY 2015 National Defense Authorization Act (NDAA). The NDAA has so far been riddled with problematic provisions in terms of both Pentagon budget and policy issues. But a number of the offered amendments can improve the House version of the bill. In terms of policy, Congress has the opportunity to approve measures that would clear the way for closing the Guantanamo Bay detention facility and allow the trial of detainees in the U.S. federal court system. There is also a measure that would sunset the 2001 Authorization for Use of Military Force (AUMF), something consistent with avoiding the risk of perpetual war and capitalizing on gains made in degrading core al Qaeda. In terms of the Pentagon’s budget, Congress will consider a measure that would improve the Navy’s ability to adapt how it projects power by undoing a provision that would ultimately force the Navy to spend billions on aircraft carriers beyond what they have requested. Also in terms of Pentagon spending, amendments will be considered that would prevent wasting money on ground-based missile defense unless it is proven to work and a measure that would help prevent continued use of accounting tricks used by the Pentagon to skirt its budget caps by filtering money from Overseas Contingency Operations to its base budget.
Amendments on Guantanamo would support American national security interests by clearing the way for closing the facility and granting detainees trial by U.S. civilian courts. An amendment offered by Representatives Adam Smith (D-WA), James Moran (D-VA) and Jarrold Nadler (D-NY) would provide a framework for closing the Guantanamo detention facility and an amendment offered by Representatives Smith and Paul Broun (R-GA) would clear the way for trial of detainees in civilian courts. These moves are consistent with U.S. national security interests. In a letter, over two dozen retired generals explain, “Guantanamo imperils our nation’s ability to secure cooperation and intelligence from our allies abroad. Both the military and the intelligence community are only as effective as the information we collect from partners on the ground, who remain less likely to cooperate so long as the United States turns a blind eye to the rule of law. There remains a clear path to closing Guantanamo. The 2010 Guantanamo Review Task Force, which included all the relevant security and intelligence agencies, provided a comprehensive framework for moving forward. That work should continue unimpeded by statutory transfer restrictions that impede the work of our Defense, State and intelligence agencies.”
Regarding the appropriateness of civilian courts to try detainees, Attorney General Eric Holder has explained,“Without civilian law enforcement and Article III courts, our ability to disrupt, dismantle, and defeat terror plots; to secure actionable intelligence; to enlist international cooperation; and to punish those who have – and who intend to – harm Americans would be seriously damaged.” [Letter, 7/24/13. Eric Holder, 6/16/11]
Amendment on aircraft carriers would help the Navy adapt to future threats by preventing Congress from forcing the Pentagon to spend unrequested billions on aircraft carriers. An amendment by Representatives Jared Polis (D-CO) and Earl Blumenauer (D-OR) would prevent Congress from forcing the Navy to refuel and overhaul the USS George Washington – something not requested by the Navy. Previously, Congress had added hundreds of millions of dollars to the NDAA as a down payment on a multi-year overall process that could cost up to $6 billion. This is despite the growing vulnerability of carriers to asymmetric weapon systems and the changing dynamics of naval warfare. The Congressional Budget Office (CBO) has warned that, “the large aircraft carrier may no longer be an effective weapon system for defending U.S. interests overseas as new technologies designed to threaten and destroy surface ships are developed and spread to many countries.” Moreover, the conclusion of reducing Navy reliance on vulnerable carriers is supported by bipartisan experts. In a budgeting exercise conducted by the Center for Strategic and Budgetary Assessments (CSBA), all four teams from CSIS, AEI, CNAS and CSBA reduced the number of carriers in the Navy in both full-sequester and half-sequester scenarios. Even the conservative think tank AEI reduced the fleet from 11 to 7 carriers in a half-sequester scenario. [CBO, 11/13. CSBA, 3/14/14]
Amendment on Overseas Contingency Operations (OCO) funding would help prevent using OCO as a slush fund to funnel money back into the Pentagon’s base budget – something opposed by bipartisan leaders. An amendment by Representatives Rick Mulvaney (R-SC) and Patrick Murphy (D-FL) would legislate clearer guidelines on what should be funded in the OCO budget, thereby helping to prevent further abuse. Todd Harrison of the Center for Strategic and Budgetary Assessments explains the problem, “Since the enactment of the BCA, which does not count war-related funding against DoD’s budget cap, Congress and DoD have moved items that had been funded in the base budget to the OCO budget. In FY 2014, this practice appeared to expand. DoD transferred some $20 billion in operations and maintenance funding from the base budget to OCO in the budget request (author’s estimate), and Congress moved an additional $9.6 billion from base to OCO in the appropriations bill.” Even Buck McKeon’s (R-CA) mark of the NDAA expressed concern, saying “The committee believes the Department of Defense is accepting high levels of risk in continuing to fund non-contingency related activities through the OCO budget…” [Todd Harrison, 3/14. Chairman’s Mark, Sec. 332]
Amendment to sunset the 2001 AUMF would begin winding down the armed conflict against al Qaeda – consistent with the gains made in the conflict. An amendment by Representatives Adam Schiff (D-CA) and John Garamendi (D-CA) “sunsets the 2001 AUMF effective 12 months from the date of the enactment of the [NDAA],” effectively winding down the war on terrorism as it has been fought for the past decade. Jeh Johnson, former General Council to the Department of Defense and current Secretary of Homeland Security, suggested in 2012 that U.S. counterterrorism efforts were approaching “a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.” Legal scholars Jennifer Daskal and Stephen Vladeck argued earlier this year that the al Qaeda forces subject to the 2001 legislation “have been effectively eviscerated,” and that the development of better law enforcement capabilities makes the expansive and now-antiquated 2001 AUMF unnecessary. In its Worldwide Threat Assessment, the intelligence community added that U.S.-led operations have “degraded the group’s [core al Qaeda’s] ability to carry out a catastrophic attack against the US Homeland and eroded its position as leader of the global violent extremist movement.” [Jeh Johnson, 3/30/12. Jennifer Daskal and Stephen Vladeck, 1/14. James Clapper, 1/29/14]
Amendment to urge successful, realistic testing before purchasing missile defense systems would reduce wasteful spending and encourage better performance standards. An amendment by Representatives Jared Polis (D-CO) and Jarrold Nadler (D-NY) would encourage the Pentagon to test ground-based interceptor missiles more rigorously before purchasing these expensive and flawed defense systems. An April 2014 report by the Government Accountability Office (GAO) found that the Defense Department’s current approach to simultaneously testing and purchasing ground-based missile defenses has caused the cost of the Ground-based Midcourse Defense system’s upgraded interceptor to increase “from about $236 million to $1.309 billion.” A 2013 GAO report noted, “Further cost growth is possible if the remaining corrections, including flight tests, lead to any discoveries [of design problems], as has occurred in all GMD flight tests to date.” Undersecretary of Defense for Procurement Frank Kendall stressed the lack of adequate testing in a speech in February. “As we go back and understand the failures we’re having and why we’re having them, we’re seeing a lot of bad engineering, frankly,” Kendall said. “It’s because there was a rush … to get something out.” [GAO 4/30/14. GAO 3/13. Kendall 2/25/14]