Editor’s note: This article is the third in a new series on the National Defense Authorization Act (NDAA) for Fiscal Year 2023.
The year 2022 saw arms sales and security assistance feature prominently in news and public discourse, provoking questions on U.S. relations with many of its security partners. Unprecedented levels of military aid to Ukraine sparked debate about oversight for security assistance and end-use monitoring of U.S. defense articles. President Joe Biden promised consequences for Saudi Arabia after the Kingdom’s pre-midterms oil production hike, reenergizing debates about U.S. arms sales to the Kingdom. A Reuters investigation documented massacres of children, violence against women, and a program of forced abortion by the Nigerian military, which the Biden administration this year approved to receive nearly a billion dollars worth of attack helicopters and associated assistance.
Despite the well-documented risk of U.S. security assistance fueling civilian harm, corruption, and weapons diversion, and despite the bill’s provisions on civilian harm in the United States’ own operations, the NDAA did little to address the civilian harm linked to U.S. security assistance and cooperation. Indeed, much of the promising language on security sector assistance (SSA) in the House-passed version of the bill was lost during the Senate process – and for the second year in a row, the Senate did not have a floor process to pass its own version of the NDAA, so how and why these provisions were cut is opaque.
Incremental Progress on Transparency
Where the NDAA did make progress on SSA was improving transparency around the transfer of U.S. defense articles and services by mandating the publication of previously unavailable information or clarifying reporting requirements.
One such victory for congressional oversight was Section 1071. After tireless efforts from Sen. Brian Schatz’s (D-HI) office, the provision mandates an annual report on the articles and end-users for sales under 10 U.S. Code § 281, including the catalog of equipment available for purchase, the type and cost of equipment sold, the specific recipient unit, and associated administrative costs. Watchdogs for government openness and police reform have long called for greater transparency for programs authorized under 10 U.S. Code § 281, which allows state and local governments to purchase defense articles and services from the Department of Defense (DoD). This statutory authority codified the 1122 program, after the section number in the FY1994 that established the authority. Previous efforts to assess the efficacy and risks of the program were hindered by the absence of central records or any audit process, making it impossible to know the program’s costs to the taxpayer and where defense articles were sold.
Limited Efforts to Improve Oversight of Special Operations Authorities
Other measures grappled with the increasingly difficult question of where and with whom the United States is at war, attempting to better define and understand the security cooperation authorities that undercut congressional war powers and raise human rights risks. Two related special operations authorities, commonly referred to as the 127e and 1202 programs, for support to foreign and irregular forces, were particularly implicated in earlier versions of the bill. The 127e program authorizes U.S. troops to “provide support” for militaries, paramilitaries, and individuals to advance counterterrorism objectives. Its twin, 1202 – a provisional authority that authorizes U.S. support for partner forces engaged in irregular warfare against either “near-peers competitors,” (Russia and China) or “rogue states” (Iran and the Democratic People’s Republic of Korea) – was initially introduced as Section 1202 of the FY18 NDAA.
Earlier versions of this year’s NDAA attempted to codify Section 1202 of the FY18, permanently entrenching the risk that the United States will engage in operations targeting nuclear-armed states – potentially without congressional consent or knowledge. In the final bill, Congress wisely chose not to codify this provisional authority, but declined to mandate stronger human rights vetting for the already codified 127e program.
Although 10 U.S. Code § 362, the DoD Leahy Law, bars DoD-appropriated funds’ use in training, equipment, or other assistance for foreign units credibly accused of “a gross violation of human rights,” at present DoD does not apply Leahy human rights vetting to the 127e or 1202 programs. A section of the House-passed bill led by Rep. Sara Jacobs (D-CA) that would have implemented stronger human rights vetting to 127e special operations authorities was stripped in conference from the NDAA.
Though the provision was omitted from the final bill, the conference committee’s explanatory statement released to accompany the NDAA did express concern that the Department’s formal guidance on 127e has not been updated as the authority evolved. Consequently, committees directed the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict (ASD SO/LIC) and the Commander of U.S. Special Operations Command (USSOCOM) to review and update written guidance for the 127e authority, including processes for Chief of Mission concurrence, reporting to appropriate congressional committees, existing vetting processes, and best practices for human rights, counterintelligence, and force protection.
If ASD SO/LIC and USSOCOM comply with the directive, congressional defense committees will be briefed on the review and updated guidance for 127e within 90 days after the NDAA’s enactment, offering a valuable opportunity for members to better understand the authority and author any needed legislative reforms.
Further requirements to brief Congress on where the United States may be directly or indirectly involved in hostilities are instituted in Section 1202 of the FY23 NDAA. Not to be confused with the section of the same name in the FY18 NDAA, this year’s Section 1202 modifies reporting requirements for authorities under which DoD “provides support” to other states and acts “by, with, and through” proxy forces. Among other things, the provision requires assistance provided through 10 § U.S. Code 331 to “friendly foreign countries” to identify the adversary against which this support will be used and whether that entity is covered by an existing authorization for use of military force. This is a welcome change, particularly in light of Congress’ failure to repeal the 2002 Authorization for Use of Military Force Against Iraq, although it falls far short of broader war powers reform.
The remainder of the NDAA contains little to address the waste, fraud, or human rights abuses that plague U.S. security assistance and cooperation programs worldwide, with some minor concessions on transparency.
In Latin America, Section 1011 doubles down on Plan Colombia, the U.S. policies for countering political and drug-related violence initiated in the Clinton administration, which many criticize as an overly militarized framing with devastating human costs. Section 1201 authorizes funding for Colombian forces to train U.S. partners, despite the Colombian military’s patterns of human rights abuses. Less concerning from a civilian harm perspective is Title LV, Subtitle A, authorizing the transfer of Coast Guard vessels to Ecuador. Another reporting requirement, Section 1070, requires DoD to brief Congress every financial quarter on its activities on the U.S. border with Mexico, strengthening congressional oversight of the military’s increased role on the southwest border.
Despite the reporting mentioned above revealing the Nigerian armed forces’ murders of children and controversies about U.S. security assistance to Rwanda, the NDAA contains minimal provisions on security assistance to African states. Section 5597 mandates a report on U.S policy towards Niger, the preferred U.S. security partner in the Sahel. Likely because of increased U.S. troop deployments, drone strikes, and special operations activities in the Horn of Africa, Sections 1210 and 1257 require similar reports regarding Somalia and Somaliland, respectively.
Unsurprisingly, several provisions address Russia’s ongoing invasion of Ukraine and seek greater accountability for the unprecedented amount of U.S. security assistance funneled to the Baltics. Section 1241 extends the Ukraine Security Assistance Initiative, while Section 1247 directs the (finally confirmed) DoD Inspector General to investigate the diversion of arms transferred to Ukraine. In a welcome act of support outside of weapons transfers, Section 5703 makes it official U.S. policy to lobby for debt relief for Ukraine at international financial fora.
The NDAA’s provisions on West Asia and the Gulf are most notable for the absence of any congressional action on the crisis in Yemen. Beyond this failure, Section 1658 directs the Secretaries of State and Defense to coordinate with partners in the Middle East to establish an integrated air and missile defense, likely presaging a flurry of security assistance to the region.
Among NDAA provisions dealing with South Asia is Section 1222, which adds requirements to assess the current U.S. strategy for Afghanistan. Another provision, Section 1260, emphasizes the importance of the U.S. “major defense partnership” with India, a likely signal that, despite U.S. frustrations with India’s continuing arms dependence on Russia, Congress may seek to waive sanctions from the Countering America’s Adversaries Through Sanctions Act in the new year. In another nod to the stated U.S. strategic priority of competition with China, Title LV, Subtitle A the “Taiwan Enhanced Resilience Act” will facilitate swifter arms transfers to Taiwan, and Section 5589 will extend the prohibition on the transfer of U.S. munitions to the Hong Kong police.
If the Biden administration releases its Conventional Arms Transfer (CAT) policy in 2023, that too will drive engagement on Capitol Hill, possibly sparking FY2024 provisions related to civilian harm and human rights issues in U.S. arms transfers. Early signals from the Biden administration indicated the policy would “elevate human rights” and “consider our partners’ security sector governance.” But the release of the CAT policy has stalled. With Republicans poised to take control of the House in 2023, greater oversight of Biden’s planned security assistance and arms transfers may be in store. Some Republican legislators have U.S. security assistance to Ukraine in their crosshairs, calling for an audit of Ukraine aid. Whether that oversight will be productive remains to be seen.
Meanwhile, congressional gridlock has decreased the amount of legislation moving successfully through both chambers each year. For must-pass bills like the NDAA itself, even for high-profile amendments, floor votes have become rare. As frustrations with this opaque process mount, advocates, lobbyists, and members of Congress will likely seek other avenues for reform, including the annual appropriations bills. The State Department Authorization Act just passed as part of the NDAA for the second year, for example, offers a more appropriate vehicle for reforming the security assistance authorities and programs that fall under the State Department’s purview. Finally, Congress would do well to move beyond the NDAA and exercise latent oversight authorities to assess or alter the transfer of U.S. defense articles or services, particularly Section 502(B) of the Foreign Assistance Act.