U.S. House and Senate negotiators are nearing completion of their work to reconcile differences and settle on a FY2021 National Defense Authorization Act (NDAA), reportedly with the goal of having a final version ready by early December. Unfortunately, several important human rights measures did not make it into either the House or Senate versions of the bill. Nevertheless, members of Congress have several opportunities to come together to make meaningful progress on human rights issues in the final NDAA. While President Donald Trump has threatened to veto the NDAA if some of these provisions are included in the final bill, Congress must insist on their inclusion, and there are good reasons to think they would prevail.
After clearing the Senate and House Armed Services Committees over the summer, each chamber passed its respective bill in late July with veto-proof majorities. Now, as the legislation advances through the conference committee, several critical, commonsense provisions in the following areas merit attention:
- Militarization of Domestic Law Enforcement Functions
- Use of Force and Civilian Casualties Transparency and Oversight
- Protecting Human Rights Abroad
- Restricting Arms Transfers to and Support of the Saudi-led Coalition in Yemen
- Discrimination Against Protected Persons
- Special Immigrant Visa Program
This post briefly examines a few of the key provisions within each category.
Militarization of Domestic Law Enforcement Functions
The House and Senate NDAAs both attempt to curtail the militarization of law enforcement. The House bill contains separate provisions requiring notification to and consultation with Congress prior to a president’s use of the Insurrection Act, and obliging any federal law enforcement officer deployed pursuant to the Insurrection Act under 10 U.S.C. § 253 to display their name and the agency for which they work. The aim of these provisions is to safeguard against the potential deployment of active-duty troops to respond to protests and to prevent repeats of what occurred during racial justice protests this summer, when officers deployed to the scenes sometimes had little or no identifying insignia and refused to identify themselves.
The House bill also contains a provision that requires the approval of the governor of a target state for any deployment of another state’s National Guard into that target state. Meanwhile, the Senate bill would ensure that no funds made available by the NDAA could be used to infringe upon the rights to peaceably assemble or petition.
Lawmakers also are negotiating new terms for the so-called 1033 program, under which the Defense Department (DoD) transfers certain excess military-grade equipment to law enforcement agencies. More than 90 non-governmental organizations have called for reforming the 1033 program, and public polling shows that a majority of Americans support scaling back the program.
The Senate NDAA contains a provision that, while insufficient for achieving comprehensive reforms to the 1033 program, would ban the transfer of bayonets, grenades (other than stun and flash-bang grenades), weaponized tracked combat vehicles, and weaponized drones from the Department of Defense for law enforcement activities. When introduced as an amendment to the NDAA, this provision passed in a strong, bipartisan vote of 90-10.
A separate Senate amendment proposing stronger restrictions on these weapons transfers garnered the support of a bipartisan majority, though less than the 60 votes needed to pass, and secured endorsements from the Law Enforcement Action Partnership; veterans groups such as Veterans for American Ideals, VoteVets, and Concerned Veterans of America; and conservative organizations such as the American Conservative Union, FreedomWorks, Campaign for Liberty, and R Street.
In the House, more comprehensive reforms of the 1033 program were incorporated in the standalone George Floyd Justice in Policing Act.
Use of Force and Civilian Casualties Transparency and Oversight
One measure in the House version of the NDAA would amend Section 127e of the U.S. Code — Support of Special Operations to Combat Terrorism — to include reporting on the entities with which foreign forces receiving U.S. support are in hostilities, whether those entities are covered under an existing authorization for the use of military force (AUMF), and steps taken to ensure that such support is consistent with U.S. objectives. It would also require a description of the steps taken to ensure that recipients of this support have not engaged in human rights violations or violations of the Geneva Conventions.
Another key House provision calls for the Government Accountability Office (GAO) to deliver a report to Congress on Defense Department processes for responding to existing congressional reporting requirements. Critically, the report would include steps necessary to improve the effectiveness, efficiency, and transparency of DoD’s compliance with these requirements.
The House version of the NDAA also includes several provisions that would help minimize and respond to civilian harm in conflict. Some of these measures refine requirements established by Congress on a bipartisan basis in previous NDAAs, while others outline new measures. One provision allocates resources, including personnel and funding for training and software, for the implementation of DoD’s policy on reducing and responding to civilian casualties.
This department policy, required by Section 936 of the FY2019 NDAA, called for, among other things, uniform processes and standards for preventing and reducing civilian harm and responding when it occurs. This policy has been under development by DoD for the past two years and is reportedly nearing completion. The House NDAA also includes reporting requirements that call on DoD to evaluate and proactively mitigate risks to civilians and to human rights in relation to the department’s support to partner forces in specific places, such as Somalia, the Sahel, and Afghanistan.
Protecting Human Rights Abroad
Authoritarian and authoritarian-leaning governments have used the COVID-19 pandemic as an opportunity to grab power through emergency measures, to unnecessarily restrict individual freedoms, and to undermine the rule of law. To counteract these developments, the House NDAA includes the comprehensive, bipartisan Protecting Human Rights During Pandemic Act (PHRDPA), which would require the U.S. government to document, assess, and respond to these types of human rights violations and abuses. Given the strong bipartisan support for PHRDPA, including it in the final NDAA would demonstrate that both parties are dedicated to U.S. global leadership on human rights when it matters most.
The House and Senate bills each also seek to address China’s repressive behavior against the pro-democracy movement in Hong Kong and Muslim Uighurs in the country’s Xinjiang province. Both bills would prohibit the commercial export of certain types of munitions to the Hong Kong Police Force, and the House bill would require the president to add to the Commerce Control List any items that provide a critical capability to the Chinese government to suppress basic human rights. The House version would also help address and mitigate the surveillance methods that the Chinese government uses to persecute Uighurs.
Both bills contain additional measures designed to bolster U.S. sanctions and anti-corruption policy. The Corporate Transparency Act, included in the House NDAA, would curtail the misuse of anonymous shell companies for illicit purposes, including everything from corruption and money laundering to transnational organized crime, sanctions evasion, and terrorism. It also would enact key reforms to U.S. anti-money laundering laws. This provision, which passed the House as a standalone bill in October 2019, has garnered the support of dozens of labor, human rights, and anti-corruption organizations; banking associations; national security experts; the National Sheriffs’ Association and the more than 3,000 elected sheriffs nation-wide; and the Small Business Majority, among many other groups.
On the Senate side, the legislation contains a key provision establishing an Office of Sanctions Coordination at the State Department, which would help centralize the department’s activities related to sanctions and improve coordination with global allies on the development and implementation of sanctions.
Restricting Arms Transfers to and Support of the Saudi-led coalition in Yemen
The House version of the NDAA includes a provision that would ban the use of DoD funds to provide logistical support for the war against the Houthis in Yemen. It also would prohibit DoD civilian, military, or contractor personnel from participating in hostilities against the Houthis without authorization from Congress. A similar provision made it into the House version of the FY2020 NDAA last year before it was stripped out in conference.
There are also two relevant reporting requirements related to Yemen in the House NDAA. One would require an annual report from the Government Accountability Office describing the logistical support, military equipment, military training, and services the U.S. has provided to the Saudi-led coalition. Another would require the State Department to submit a report to Congress on U.S. policy in Yemen related to, among other things, humanitarian assistance and civilian protection.
Discrimination Against Protected Persons
After intense debate in Congress over how to handle Confederate symbols in the military, the House-side NDAA requires the Defense Department to rename military installations and other defense property named after Confederate figures within one year. It also prohibits the public display of the Confederate flag on DoD property.
For its part, the Senate bill establishes a commission tasked with developing a plan to rename or remove military installations, monuments, and other symbols commemorating Confederate figures within three years. President Donald Trump has threatened to veto the NDAA if it includes a provision on renaming Confederate-dubbed military bases, but Congress should call his bluff. Given the historical significance of this moment and the variety of alternatives for commemorating real heroism, Congress has a moral obligation to take assertive action on this issue.
Several provisions in the House and Senate versions of the NDAA also attempt to address discrimination against women, LGBTQI individuals, and other minorities in the military services. One House provision directs the Secretary of Defense to ensure emerging technologies procured and used by the military are tested for algorithmic bias and discriminatory outcomes. This is a particularly important provision, given that the advent of artificial intelligence raises the potential for discrimination against servicemembers and civilians alike.
Another House provision requires the Secretaries of Defense and Veterans Affairs to publish a report on discharge-upgrade applications related to the DoD’s sexual orientation and gender identity policies. From 1993 to 2009, 13,194 servicemembers were discharged under the Don’t Ask, Don’t Tell policy, yet as of 2016 fewer than 8 percent of those affected had applied for a discharge upgrade or to have their sexuality removed from their discharge form. Discharge status impacts access to a multitude of veterans benefits – health care, education, and disability benefits, for example — and impacts a variety of matters in servicemembers’ return to civilian life, such as job applications and state voting registration.
Special Immigrant Visa Program
The Afghan Special Immigrant Visa (SIV) program provides special immigrant visas (SIVs) to Afghans who have worked for at least one year as translators or interpreters, or who were employed by, or on behalf of, the U.S. government in Afghanistan, and whose lives were threatened because of their work in support of the U.S. mission.
The House bill would extend the Afghan SIV program, while the Senate bill only contains a sense of Congress in support of the program. It is absolutely essential that the final bill include a full extension. This program represents a promise that the United States made to its wartime allies. Following through on that promise is vital to maintaining the support of the Afghan people, and it is vital to the completion of America’s mission there. Further, its renewal would reinforce the message that the U.S. never leaves anyone behind.
Notably, neither version of the NDAA contains a repeal of the 2001 or 2002 AUMF, nor a reversal of the Trump administration’s ban on transgender military service, nor a prohibition on the diversion of military construction funds towards the construction of the wall along the border with Mexico. Yet, if the provisions outlined above make it through conference negotiations, there will be some silver lining to the disappointing omissions in both bills.
Regarding President Trump’s veto threat, the NDAA has passed Congress and been signed into law despite such warnings every year for over a half century, and there is no reason to believe this year will be different. Every administration threatens to veto the NDAA on dozens if not hundreds of issues, but the president has always signed the bill into law with provisions he doesn’t agree with given that the NDAA overall advances the president’s defense policy agenda. Even in years in which the NDAA was vetoed, Congress and the president have found ways to compromise on a final bill that both branches find acceptable. Congress should not negotiate against itself by failing to include these important rights-related provisions in the final bill.