Packing the NDAA gives the Pentagon a greater role in foreign policy

On Dec. 23, President Biden signed a massive bill that is supposed to be for defense but, in fact, also contains major legislation for the departments of State, Energy and Homeland Security, as well as the intelligence community, the Coast Guard, Veterans Affairs, and the National Oceanic and Atmospheric Administration. No wonder it was so popular, passing the Senate by a vote of 83-11 and the House, 350-80. It has something for almost everybody.                               

The James M. Inhofe National Defense Authorization Act (NDAA) for fiscal year 2023, named for the retiring ranking member of the Senate Armed Services Committee, a Republican from Oklahoma, fills 4,408 pages of legislative text and 214 pages of three-column small type in the Congressional Record. It marks the 62nd year in a row that Congress has passed a defense authorization bill, an amazing record.

The good news is that lawmakers care enough about defense that they debate and vote and compromise on differences to achieve a strong bipartisan consensus on military policy and administrative issues. The congressional leadership considers the NDAA a “must-pass” measure and carves out time to act on the bill. This year, House members submitted hundreds of amendments before voting on 32 of them in four days of debate. Senators offered 912 amendments to their version of the bill.

The bad news is that “must-pass” bills become Christmas trees that every member wants to decorate with their shiny ornaments. Especially with the 117^th Congress expiring on Jan. 3, 2023, this was the last chance for good ideas to make it into law before new people and new political concerns take over — also the last chance for bad ideas to be stuck deep in the text where few will notice them.

The latest version has 1,865 pages of provisions directly related to the Department of Defense (DOD), micromanaging its operations, requiring reports and offering policy guidance. I suspect that the Pentagon has a division’s worth of lawyers trying to keep it in compliance with all the laws Congress passes. The DOD has about a third of the 40,400 lawyers working for the executive branch.

Another problem with the NDAA is that it furthers the militarization of U.S. foreign policy. There has been no Foreign Aid Authorization bill enacted since 1986. Instead, new foreign aid programs have been added in the NDAA, but there has been no rewrite of the old law. There has been no comprehensive State Department authorization bill since 2002, although lawmakers did pass a 43-page mini-bill with that name in 2016. Finally, this year there is a 200-page State Authorization section in Division I of the NDAA.

In addition, there are 124 pages of laws “Relating to Foreign Nations” in Title XII of the defense section of the NDAA and 136 pages of “Foreign Affairs Matters,” including new laws on Taiwan, China, Burma, North Korea, Ecuador, human rights and fentanyl trafficking in Tile LV of the bill.

The trouble with putting so many foreign policy measures in the defense policy bill is that it gives the Pentagon a greater role in America’s foreign policy. Programs get assigned to the DOD, are run by DOD, traded off with DOD activities, and judged in military terms.

This year’s NDAA reached the president’s desk by a circuitous process. Bill HR 7776 passed the House in June originally as the Water Resources Development Act of 2022 from the House Transportation and Infrastructure Committee. The House passed a separate NDAA in July. The Senate passed the water resources bill in July, sending it back to the House with an amendment.  In early December, the House and Senate Armed Services members worked out a compromise defense bill, took additional measures approved by the congressional leadership, and filed the package as a House amendment to the original water resources bill. Once that passed the House, the Senate completed action by approving the compromise after voting down some additional amendments.

The Senate never debated and voted on its own NDAA. For the second year in a row, senators had to accept what the Armed Services leaders worked out because the Senate couldn’t reach a time-limiting agreement for its own debate.

The regular order has broken down. The House has fewer and fewer bills open for amendments — only about 5 percent in recent years. The Senate has been stymied by frequent filibusters and leadership restrictions on which amendments are offered. The NDAA used to be a welcome exception to that trend, but no longer.

The NDAA also serves as the train that carries a lot of baggage for the rest of the federal government. This year’s bill contains the Intelligence Authorization Act, a Coast Guard Authorization Act, and a major Homeland Security section, and the original water projects.  

Congress is too dysfunctional to do away with huge end-of-year packages like this year’s NDAA. But we should acknowledge the consequences and divide the work among the regular committees.

Charles A. Stevenson, Ph.D., worked on the National Defense Authorization Act for 22 years as a Senate staffer. He teaches at Johns Hopkins School of Advanced International Studies and is the author, among other works, of “America’s Foreign Policy Toolkit,” “Warriors & Politicians, and “Congress at War.”