Some Highlights from the (Likely) NDAA for FY 2018

Last Thursday, the conference committee for the National Defense Authorization Act (NDAA) for fiscal year 2018 filed its report reconciling the differences between the House and Senate versions of the legislation adopted earlier this year, completing one of the final steps in the NDAA process. The House agreed to the conference report yesterday evening, and the Senate is expected to consider it in the next few days. If the Senate follows suit, the reconciled legislative text will then be presented to the president for signature. Hence, barring a presidential veto or other major change in circumstance, the conference report reflects what is likely to be enacted into law as the 2018 NDAA.

An annual exercise for more than fifty years, NDAAs provide the legal authorization for many of the Department of Defense’s core activities, as well as select activities by other federal agencies. The rare subject of bipartisan cooperation, NDAAs are also occasionally used as vehicles for legislation that might incur fatal opposition or a presidential veto if pursued independently. As a result, NDAAs are often sprawling documents that contain provisions on a diverse range of subjects, any of which can have a substantial bearing on U.S. national security.

The proposed 2018 NDAA is no exception. Clocking in at more than 700 individual statutory provisions, it provides for up to $708 billion in discretionary and mandatory spending. The provisions themselves address topics ranging from limitations on the retirement of the U-2 aircraft (section 136) to the sense of Congress regarding World War I (section 1095). Many seek to drive policy by requiring the executive branch to report or brief relevant congressional committees on particular issues or to develop plans and strategies to address matters of concern. Others authorize the Department of Defense or other executive branch officials to pursue new activities or set restrictions on how they may use their existing authorities.

Below are several provisions of the proposed 2018 NDAA that may be of interest to Lawfare readers, based on my quick review of the proposed statutory language. That said, these are just the tip of the iceberg. I’ve also started a Twitter thread where readers can identify other parts of the proposed 2018 NDAA they find to be of interest.

The Detention Facility at Guantanamo Bay

Like several recent NDAAs, the proposed 2018 NDAA would impose various restrictions on matters relating to the Guantanamo Bay detention facility. Most notably, section 1033 would continue to prohibit the executive branch from using any Department of Defense funds to transfer detainees held at Guantanamo to the United States, continuing a controversial restriction intended to prevent the executive branch from bringing detainees to U.S. federal courts for criminal prosecution. Other provisions would similarly prohibit the use of funds for: building U.S. facilities to hold transferred detainees (section 1034); transferring detainees to Libya, Somalia, Syria, or Yemen (section 1035); or closing or relinquishing control of the Guantanamo Bay facility to Cuba (section 1036). All of these restrictions would last through December 31, 2018.

The Obama administration—which actively sought to close the Guantanamo Bay facility—objected to many of these restrictions as unwise and in some cases unconstitutional. The Trump administration, however, raised neither legal nor policy concerns with similar provisions in its prior comments on earlier House and Senate versions of the bill. This likely reflects the Trump administration’s more bullish stance on the facility at Guantanamo Bay, and its stated intent to continue—if not expand—its operations.

Cyber Policy Development and Oversight

By far the most dramatic changes that the proposed 2018 NDAA would introduce are in the area of cyber policy and operations. Bobby Chesney walked Lawfare readers through these provisions in detail yesterday, though a few warrant specific mention here as well.

As Chesney has previously discussed, the Senate version of the NDAA originally set out a fairly detailed U.S. cyber policy, which drew objections from Secretary of Defense James Mattis. The conferees appear to have removed this provision per Mattis’s request but replaced it with section 1633, which would direct the president to develop “a national policy . . . relating to cyberspace, cybersecurity, and cyber warfare” containing certain specified elements and report it to relevant congressional committees. Further, the joint explanatory statement included in the conference report makes clear that, in the conferees’ view, similar directives in prior NDAAs “were not adequately addressed by the executive branch.” To prevent this from happening again, section 1633 would limit the funds that relevant Department of Defense agencies can spend supporting certain key White House functions until the policy has been reported, providing the executive branch with a strong incentive to make progress on the required policy.

Section 1631, meanwhile, would install several reporting requirements that specifically relate to U.S. cyber capabilities as part of Title 10 of the U.S. Code in an apparent effort to ensure effective congressional oversight of what the conferees’ joint explanatory statement describes as “cyber capabilities . . . being developed across the Department of Defense.” Once parsed, these (somewhat convoluted) reporting requirements would appear to require the secretary of defense to notify relevant congressional committees no more than 48 hours after:

• Any “sensitive military cyber operation” conducted under Title 10 authorities, which it defines as an offensive action or defensive action outside the Department of Defense’s information networks intended to “cause cyber effects” in a geographic area where U.S. armed forces are not currently involved in hostilities;
• The “use as a weapon of any cyber capability that has been approved for such use under international law” unless that use occurs as part of a training exercise “conducted with the consent of all nations where the intended effects of the exercise will occur” or a covert action; or
• Any “unauthorized disclosure” of a sensitive military cyber operation or cyber capability as described above.

Section 1631 would also require the secretary of defense to provide relevant congressional committees with quarterly notice of “the aggregated results” of any reviews of “the legality under international law” of any cyber capability intended for use as a weapon, something that the conferees’ joint explanatory statement describes as being intended to help Congress in “understanding how rapidly evolving international law applies to the pace of cyber operations.” Developed and added during conference, this provision may compensate for the removal of certain international law-related restrictions on cyber operations that had been included in the earlier Senate version.

Finally, section 1634 would also prohibit the federal government from using any hardware, software, or services provided in whole or in part by Kaspersky Lab or any entity that controls, is controlled by, or is majority owned by Kaspersky Lab. Effective October 1, 2018, this provision would expand on current efforts by the Department of Homeland Security to ban U.S. government use of products by Kaspersky Lab, on the grounds that it is widely believed to have been compromised by Russian intelligence.

Russia

The proposed 2018 NDAA contains other provisions relating to Russia as well, including an extension of existing limitations on security cooperation with Russian forces (section 1231) and authorities for providing security assistance to Ukraine (section 1234). A few new provisions also appear to directly respond to—or, in some cases, tie the Trump administration’s hands regarding—certain actions by Russian officials.

Section 1232 would bar the executive branch from using any Department of Defense funds to “implement any activity that recognizes the sovereignty of the Russian Federation over Crimea” absent a waiver by the secretary of defense, in concurrence with the Secretary of State, that doing so is in the national interest. Notably, the Trump administration strongly objected to similar provisions in the earlier House and Senate versions on the grounds that they would interfere with “the President’s exclusive authority to recognize foreign nations[.]”

Sections 1241 to 1246, meanwhile, would constitute what the conferees’ have called the “Intermediate-Range Nuclear Forces (INF) Treaty Preservation Act of 2017[,]” which is intended to address perceived Russian violations of the INF Treaty. Section 1243 would express the sense of Congress that “the United States is legally entitled to suspend the operation of the INF Treaty in whole or in part for so long as the Russian Federation continues to be in material breach” and, pursuant to this view, would direct the secretary of defense to initiate a “program of record” for the development of INF-related countermeasures as well as a separate U.S. INF capability. The Trump administration had previously objected to similar provisions in the House version of the bill on the grounds that it could “raise concerns among NATO allies and . . . deprive the Administration of the flexibility to make judgments about the timing and nature of invoking our legal remedies under the treaty.” In response, the conferees noted the following in the joint explanatory statement:

[T]he INF Treaty prohibits testing and deployment of ground-launched intermediate-range missile systems, but it does not prohibit research and development. The conferees do not intend for the United States to enter into a violation of the INF Treaty so long as the treaty remains in force, and nothing in this provision should be construed to force the United States into a violation of the treaty.

By contrast, section 1244 would attempt to push Russia back toward compliance by requiring the executive branch to notify Congress of any Russian INF Treaty violations and withholding certain funds until the president certifies that a previously-enacted sanctions regime (codified at 22 U.S.C. 2593e) is fully implemented and outlines further possible sanctions measures in a report. Finally, section 1255 would also require the executive branch to undertake an analysis as to whether Russia’s development and testing of its RS-26 ballistic missile is in violation of the INF Treaty or other relevant treaty obligations.

The Middle East

For the most part, the proposed 2018 NDAA would stay the course in the broader Middle East, as it would largely extend (with some minor modifications) existing authorities for security assistance and cooperation efforts in Afghanistan (sections 1201, 1211, and 1212) and Iraq (sections 1201, 1222, and 1224). That said, a few provisions point toward possible policy changes on the horizon, particularly in Syria and Yemen.

The proposed 2018 NDAA would not further extend authorities for the “train and equip” program providing assistance to the vetted Syrian opposition, which are currently set to expire on December 31, 2018. Of course, the program could still be extended through future legislation (such as next year’s NDAA). Section 1223 would also install additional reporting requirements regarding any material use of assistance by the vetted Syrian opposition for purposes other than those authorized by law, namely: combating the Islamic State; protecting U.S., Syrian, or allied persons from terrorism; and “[p]romoting the conditions for a negotiated settlement to end the conflict in Syria.” This again may be a sign of growing congressional skepticism as to the utility and effectiveness of this program, particularly in light of the changing conditions in Syria.

Two provisions of the proposed 2018 NDAA would also impose tailored reporting requirements relating to U.S. participation in the conflict in Yemen. Section 1265 would require an annual report on the activities of Saudi Arabia and coalition states in Yemen, including the extent to which they are “reduc[ing] the risk of harm to civilians[,]” “compl[ying] with obligations under international humanitarian law,” and “facilitat[ing] the flow of humanitarian aid and commercial goods into Yemen,” alongside other factors. Section 1275, meanwhile, would require the Trump administration to submit a report explaining “the military and diplomatic strategy for Yemen,” including “the legal authorities supporting the strategy[.]” The conferees did omit a provision from the House version that would have prohibited the use of Department of Defense funds for certain military operations in Yemen, but noted the following in their joint explanatory statement:

[T]he United States military should have flexibility to respond to the range of threats emanating from Yemen but should continue to refrain from entering into the Yemeni civil war as a co-belligerent. The conferees note with concern the severe humanitarian impact of the civil war in Yemen upon its citizens and call on all sides to work toward a sustainable political solution.

Together, these provisions may indicate increased skepticism regarding the current level of U.S. participation in the conflict in Yemen and concerns regarding its humanitarian consequences, sentiments evident in other recent congressional actions.

Asia

Other provisions of the proposed 2018 NDAA would take steps toward promoting new security cooperation relationships Asia.

Section 1251 would authorize the secretary of defense to establish an “Indo-Asia-Pacific Stability Initiative” that would be concurrent with U.S. Pacific Command’s geographic scope. Within this scope, the secretary of defense would be directed to pursue activities aimed at improving the presence and capability of U.S. armed forces in the area, bilateral and multilateral training exercises, and efforts to build the defense and security capacity of regional allies using existing Department of Defense authorities.

Section 1258, meanwhile, would follow up on several provisions from the 2017 NDAA (codified at 22 U.S.C. 2751 note) intended to improve security cooperation with India. Specifically, it would: expand the scope of cooperation provided for in earlier legislation; direct relevant federal agencies to develop a definition of “Major Defense Partner” that includes India for the purposes of facilitating security cooperation; and mandate the designation within 90 days of an individual within the executive branch responsible for facilitating the security cooperation relationship with India.

Outer Space

While it does not go as far as the House originally proposed, the proposed 2018 NDAA does introduce some substantial changes into how defense-related U.S. space policy is managed.

Among other measures, section 1601 would change the institutional structure around defense-related space activities within the Department of the Air Force. Most notably, it would establish a Commander of the Air Force Space Command and make this individual responsible for overseeing the Department of the Air Force’s space activities as well as certain other activities for the entire Department of Defense. Further, section 1601 would task officials in the Department of Defense with developing a report on the organizational structure that should be used to manage space-related Department of Defense activities. In addition, it would direct the Department of Defense to contract for independent researchers to develop a plan for establishing a separate military department for space operations, separate from the Department of the Air Force.

In addition, the conferees’ joint explanatory statement states the following in relation to this provision:

The conferees note that space has been designated as a warfighting domain. Recognizing the joint nature of this new domain, the conferees believe that United States Strategic Command should develop a concept of operations (CONOPs) on how to conduct warfighting in space. That CONOPs should be used to guide the Services’ space capabilities development and acquisition programs. The conferees expect such CONOPs to be provided to them not later than 180 days after the date of the enactment of this Act.

While this request is not included in the proposed statutory text, the Department of Defense is nonetheless likely to respond. The development of this CONOPS may in turn raise novel questions of both domestic and international law.

Security Assistance and Cooperation

One of the major objectives of last year’s NDAA was to reform U.S. security cooperation authorities by consolidating various issue- and region-specific authorities into broader authorities appropriate for more general application. The 2018 NDAA continued to build upon this effort in small ways by expanding on certain existing programs.

Section 1202 would give the secretary of defense a new, non-delegable authority to “provide support” of up to $10 million annually to “foreign forces, irregular forces, groups, or individuals” that are acting in support of authorized U.S. special operations activities. This authority is very similar to existing counter-terrorism authorities (codified at 10 U.S.C. 127e), but can be used in relation to any special operations activities, not just combating terrorism. As with the existing authorities, any provision of support under section 1202 will have to have the concurrence of the relevant chief of mission and be notified to relevant congressional committees at least 15 days in advance. What “support” may entail is left open-ended, but section 1202 makes clear that it cannot be used to support covert actions, activities that U.S. special operations forces would lack the legal authority to pursue themselves, or violations of the laws of armed conflict.

Section 1204 would also expand existing authorities (codified at 10 U.S.C. 332) relating to capacity-building for foreign ministries of defense and other related defense institutions. Whereas current authorities only allow civilian Department of Defense employees to be assigned as trainers and advisors to these institutions, the proposed 2018 NDAA would allow members of the armed forces to fill these roles as well.

Climate Change

While the Trump administration has been skeptical as to the existence of climate change and its relevance to national security, Congress appears less uncertain. Section 335 of the proposed 2018 NDAA would express the sense of Congress that “climate change is a direct threat to the national security of the United States” and direct the secretary of defense to prepare a report identifying the military installations most vulnerable to the possible consequences of climate change—listed to include “rising sea tides, increased flooding, drought, desertification, wildfires, thawing, [and] permafrost”—as well as mitigation measures that may be required to ensure their continued operational viability.

Report on the Legal Framework for the Use of Force

Finally, one of the proposed 2018 NDAA’s free-standing reporting requirements warrants special attention. Section 1264 would require the President to provide relevant congressional committees with “a report on the legal and policy frameworks for the United States’ use of military force and related national security operations” within 90 days of the 2018 NDAA’s enactment. Further, it would require that any subsequent changes to this report be notified to the same committees within 30 days.

As made clear in the conferees’ joint explanatory statement, this provision is intended to institutionalize the similarly-titled report that the Obama administration issued in December 2017, which provided a thorough description of the domestic and international legal basis for various U.S. activities related to the use of force. And while President Obama issued a memorandum encouraging future administrations to maintain and update this report at least annually, Congress appears to have gone one step further in requiring that it be kept current within 30 days. Benjamin Wittes welcomed the release of the original report in Lawfare, stating:

The basic idea is simple transparency. There's a lot the administration cannot say about aspects of its positions, and more significantly, the facts that underlie those positions. But there's no good reason for ambiguity or obscurity about those positions which can be elaborated. And there should be a single place of reference for those positions, a place where scholars, activists, journalists, and interested citizens can go to understand what the administration is and is not arguing and can see how—if at all—those positions change with time. It should be possible easily to look up what the administration has said about when it uses force and what legal authorities it invokes and then see directly how that position interacts with, say, its view of the scope of its detention authority and the law and policy surrounding enemy targeting in various locales around the world.

The inclusion of this provision in the proposed 2018 NDAA appears to indicate that Congress wholeheartedly agrees.