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C
Hey there Lawfare listeners. Editor in Chief Benjamin Whittis here. It's the end of the year. You know, you got your holidays, you got your little break from whatever it is you do, school or work or whatever. And you've had your presence, you've had your stuff, you've had your Christmas or Hanukkah. And now we are here to ask for your support. Lawfare is a 501c3, nonpartisan nonprofit organization. We cover a broad range of issues on national security, law and policy to keep you informed, but we can't do it without your support. This year nearly a third of Lawfare's revenue has come from people like you. If you are not already contributing to Lawfare, please change that. Go to lawfare media.org support. You can be a monthly supporter on Patreon or Substack, or you can make a donation on Give Butter on a one time basis. If you are already giving as much as you can or want to get involved in other ways, Please go to lawfaremedia.org getinvolved Facebook. Thank you for listening and thank you for supporting Lawfare.
- [02:31]
A
What this does do the thing that's gotten the most attention is that it poses a restriction on the travel funds available to the Secretary of Defense. Basically saying you can't spend more than 75% of the funds made available to you for travel unless you provide unedited video of the strikes that have been conducted against, quote quoting here, against designated terrorist organizations in the area of responsibility of the United States Southern Command.
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B
It's the Lawfare Podcast. I'm Ariane Tabatabhai, public Service fellow here at Lawfare with my colleagues Lauren Boss, my fellow public service fellow, and Scott Anderson, senior editor.
- [03:05]
D
I think there are more concerns on a bipartisan basis of how the military might be used abroad and how the terms of especially the 2002 AUMF might be stretched more so than it already has been. And so I see this as though the example of Congress trying to reassert that role and at least take these two AMFs off the table going forward.
- [03:29]
B
Today we're talking about the fiscal year 2026 National Defense Authorization act, or NDIA. The President signed the NDAA for FY26 into law on December 18th after it passed the Senate. The NDIA supports roughly 900 billion for the national defense. And so today we're going to talk about the bill, the provisions that we liked, what's in there, what's not in there? And I'm going to start by talking a little big picture here, scene setting a little bit and talking a little bit about two provisions or two sets of provisions that stood out to me in very broad brush. The first one is this tension that exists between the administration's desire to continue to shrink the bureaucracy across the national security workforce and departments and agencies that are relevant, including the Department of Defense, State Department and elsewhere, and this congressional desire to perpetually add to said bureaucracy. You know, one thing we haven't talked about too much, as we've discussed over the past year, the administration's efforts to downsize is that, yes, some of these department agencies have been have organically grown over time, but that Congress has actually played a huge role in adding to them. And so Lauren and I are familiar with the offices of the assistant Secretaries of Defense that oversee maybe one, one and a half offices. And that is largely a byproduct of the demands and requirements by Congress to continue adding positions and offices and requirements for the agency. And again, there is real tension here, I think. So a couple of these items to highlight quickly is that what is an NDIA without a new asd, a new assistant secretary of def. We get a new one here for international armaments cooperation. We get a new DADA czar for FMS information and a new program to conduct defense industrial base integration with allies and partners in the Indo Pacific. The other piece that the administration has been trying to kind of get rid of and the Congress here asserts itself and says we are going to maintain these things, is the Wrangell Pain Pickering and Veterans Innovations Fellowships, really important pipelines for talent acquisition the national security workforce. And from my perspective, a really great thing that Congress is maintaining these things. And then the second thing I want to kind of broadly talk about before I turn to you guys for your initial kind of reactions, is that this NDIA to me reads as a little disjointed from where the administration is going in terms of how it sees national security, where it wants to be focusing. It almost reads like it is kind of more aligned with the Biden national security strategy or even Trump 1.0's a national security strategy, not this one particularly. And again, it seems to be Congress really trying to take back some ownership and try to reframe how we are dealing with national defense and national security more generally. It talks in the executive summary about the fact that we are in what it describes as the most dangerous threat environment we've been in since the end of World War II. And it largely talks about the driver for this being the alignment between the four key adversaries, Russia, China, the DPRK and Iran. This is a framing that the administration has shifted away from the previous administration. The Biden administration was really focusing more and more on this at the end of its its term. But, you know, as we've talked about over the past few weeks in various podcasts, Lauren has a great piece on this in Lawfare this month as well. This administration is not thinking about strategic competition or major power competition, great power competition as much. It doesn't see Russia in the same light as previous administrations. It sees China as more of a regional and economic rival versus the kind of strategic competitor of the past. I'm not frankly, sure what it thinks of the DPRK and its views incorrectly. I think Iran as a diminished threat, given that the President, I think, views himself as having taken care of the Iranian nuclear threat. So here Congress is trying to reframe this and is trying to kind of conceive of the national defense and what's needed for it within that framework. So let me turn to you, Lauren, first, and see if you have any kind of broad observations before we dive into more specifics.
- [08:10]
D
Yeah, I mean, I think the first thing is I agree with you this NDAA does not align with the national security strategy. But, you know, think about the how the NDAA is written and the timeline in which this was developed. Right. This has been going on for quite a while. The NSS just came out. It does show a disconnect between senior DoD leaders and Congress. But we've already seen that happening. Right. We've already seen that, especially on the policy side of the House, you do see this as very much Congress asserting what they think is important from a defense standpoint. Right. And so it's not the Western Hemisphere. It's more focused on Europe and Ukraine. It's a reference to Korea in numerous ways. And the nss, like, when they talk about Korea, it's all about economics or telling South Korea that they should do more defense spending and do their own type of deterrence. Right. And that's what you see. So, you know, I, but I'm not surprised. This is what I expected the NDA to have as we've been tracking the various, you know, versions. And I think when we think about threats and our adversaries, this is where we want to be focused in spending money. The other thing I would say is, you know, some people say Congress is reasserting itself here and you know, maybe it is in a couple ways. Didn't agree to the change to Department of War. Right. That's not in there. It's still the Department of Defense, but they could have gone a lot farther in oversight than they did, as you can see, by a lot of the controversial provisions that didn't make it in. So there's some good stuff there. But I don't think I'm quite as optimistic as other people that this is really a congressional reassertion of power.
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A
Great.
- [09:54]
B
And we'll come back to the oversight issues you're talking about in a minute. Scott, turning to you, any broad observations here?
- [10:02]
A
I generally agree. The one thing I would say about the workforce side, while you're right, I think adding layers of bureaucracy, new offices is something that's a common output of these congressional actions. A lot of congressional legislation, particularly in the Defense base or in the Defense Department, I should say there are other nods towards workforce efficiency. There's steps in here to different hiring authorities, watering down certain times of time and grade requirements in certain capacities, things like that. So there are little nods to it. There is a pretty substantial effort to start moving towards changes in the foreign military sales systems and certain defense acquisitions programs make them much more market based, less driven by kind of, I think mil spec is often phrased, like the idea that Defense Department develops sort of technology and systems. And so those are real nods here. And look, those aren't ideas that originated with the Trump administration, although the Trump administration, I think, has kind of embraced them as part of its broader criticism of the government generally. Those are ideas that a lot of people have been advocating for for a long time. There were steps in that direction, made in certain elements in certain ways by the Biden administration and by the first Trump administration. But they are here to some extent. So really, my biggest critique of the Trump administration's approach to government reform is that it is thinking along it strictly in terms of one variable, which is the sheer number of personnel is if you change that, that's going to give you better or worse outcomes. It can definitely give you worse outcomes. It doesn't mean you're going to get better outcomes if you cut it without giving much thought to what they're actually doing and how they're doing it. I think you can make the same critique the other way. I wouldn't get too focused on creating new offices because in the end, it depends on the size and the scaling of the office and what they actually do. Same with reporting requirements. And there's lots of ways the Defense Department, the executive branch, can push back on those, to extend it really wants or needs to, on the broader strategic level. I think what you and Lauren said is absolutely right. Look, this is clearly not the National Security Strategy. It should not be surprising when this is done in line with the National Security Strategy, because the National Security Strategy was an eccentric and odd document that reflects an eccentric and odd worldview that is uniquely harbored within a corner of the Republican Party that supports President Trump and is among his core supporters, not shared broadly. Even within the broader Republican Party, there's a very, very strong contingent, people who disagree with it really, really seriously. And a lot of them are represented on the Armed Services Committees, which tends to be, I think, represent a contingent that is a more slightly hawkish, oriented conventional national security conservative, even on the Democratic side. That's why when you see these bills come out every year, they both have to go through the Armed Services Committees. Armed Services Committees are gatekeepers, essentially their own jurisdiction. So they end up being a little more small c conservative bills than some people might like, including in some of the ways to rein in the executive branch you might see under this administration, in part because they're committees that don't necessarily always have strong contingencies. Even if you were to see votes along a partisan line, they tend to have Democrats more on board that tend to be a little bit more friendly to strong visions of defense and hesitant to really encroach too much on that because that's who's drawn to service on the Armed Services Committees. That said, the thing I would note about this, which I think is interesting, is a it really does reinforce a conventional view of priorities and particularly geographic scope, does not discuss the Western Hemisphere at all and specifically identifies the Middle East, Europe and Asia as the three big spheres of concern. And then it spends a good amount of time laying out specific provisions for that. That's a sign that even though, yeah, this was written, started being negotiated. I think the first votes in the Senate happened in July. And we know the draft National Security Strategy didn't drop internally until September, supposedly when Michael Anton finished writing the first draft at the State Department before he left. This alignment I don't think explains the whole thing because if you really thought there was any sort of proximity between the two different views there, you would have seen the committees probably spend more time saying, well, what do we need for Western Hemisphere and how should we be supporting these operations? My suspicion is that this administration probably didn't communicate well with Congress and its Western Hemisphere policy, even though it's become a center of its policy really was pretty nascent. Remember, its military campaign only started in September, so that really wasn't really even in play at the time this got kicked off. It has been, as it often is with this administration, a kind of rapidly evolving, narrowly contained perspective until the president and the White House have bit into it and then started to steer policy in their preferred direction without really coordinating with people beforehand. And you end up with things like this where now you have even if you were able to get Congress on board, the good question, now you have a year leg with the authorities, you may want to actually back up your operation here. So it's a problem. It's not just about like, oh, they don't necessarily agree. They might agree, but because of coordination problems, this administration is losing out on a year of authorities that could have bolstered if it thought it could get them. And if it just doesn't agree, well, then that's another problem because it means you're never going to get those authorities if you actually need them. So long and short, it's emblematic, I think, of a lot of our trends we're seeing with this administration. And it's again somewhat idiosyncratic and kind of worldview. And the way it tends to approach these policy questions, which is a narrow cloistered view of senior advisors without broad consultation with even its own co partisans in the Congress. And that's going to cause problems in the end. And this NDA may be kind of the first big symptom we see of that.
- [15:18]
B
Okay, so we haven't even fully digested this NDIA and we're already looking forward to FY27 is what I'm hearing you say, basically. Okay, so with this let's quickly turn to the three areas of responsibility that you highlighted and then we're going to go back to the questions of oversight that we, that Lauren flagged at the beginning. So you know, as Scott, you mentioned, there are a number of key provisions in this NDIA that aim to strengthen allies and partnerships that try to bring back and enhance multilateral cooperation. And they're mostly focused on the Indo Pacific Command, on the European Command and on centcom. So the Middle east essentially just to highlight a few of these things. And I'd be really interested in what you guys kind of what jumped at you as you were reading through this beast of a document. One thing that has been very much in the news is that there is this prohibition of the reduction of US Force posture in Europe, number one and number two, relinquishing US command of the Supreme Allied Commander for Europe. So saceur, which is a leadership position in NATO and normally this position is dual hatted within the commander for US eucom. So you know, this is again the Congress essentially coming back and telling the administration, we understand you want to do less with and in Europe, but we're not going to let you quite do that. The other piece of it is focused on Ukraine. There is an extension for Ukraine security, the Ukraine Security assistance initiative through 2028 and then continued intelligence cooperation and intelligence support for Ukraine. Really important pieces. We have similar provisions, some overdue in the Indo Pacific. It's really broadly looking to increase the breadth and depth of defense partnerships across this area of responsibility, including in terms of exercises. There's one provision that encourages the Secretary of Defense to invite Taiwan to the rim of the Pacific exercise. It's a international maritime exercise that happens every two years. There is enhanced defense cooperation with the Philippines. One that was really interesting to me was a program to co develop and co produce crude and uncrewed capabilities with Taiwan. And then something that I kind of mentioned at the at the outset, which is this initiative to strengthen security cooperation across the defense industrial bases with allies and partners in the Indo Pacific and then to kind of round it up with centcom. There are two that I'm particularly interested in, relatively low key but really important initiatives. The continuation of the integrated air and missile defense architecture, which has been really significant for our force protection in the Middle east, especially in the past couple of years and also support and cooperation with partners in the region. And then the second is increased funding to capture lessons learned from the Counter UAS cooperation with with Israel. So, Scott, let me turn to you first here. What of these or other provisions caught your attention? What's significant here?
- [18:28]
A
Again, I think the main themes here are a high degree of continuity. The most notable provisions are provisions that purport, as you've described. Well, I think it's worth getting into exactly what they do, but they could have the function of deterring or limiting the ability to lower US Troop levels below certain levels. One provision relates to South Korea, another provision relating to Europe, in addition to getting rid of the Sakura command position and other sorts of shifts in the US Posture there. Notably, these provisions don't bar it outright. What they say is that, well, you have to give us 60 days notice and you have to provide a requirements and certification to Congress beforehand. You have to do that and then you get to then there's 60 days after those notices are acquired. And that includes a certification by a career military official. On the logic that a career military official is unlikely to just or less likely at least to just roll over to whatever the administration want and certify something they don't think is true. Their own credibility is on the line and the certifications require certain specific findings about we've consulted with, for example in the Europe case, NATO allies, we've determined this isn't going to compromise the security of Europe, et cetera, et cetera, et cetera. Those are not lockboxes. Right. Those aren't strict prohibitions. And there would be constitutional questions as to the extent to which Congress can install a strict prohibition. It's not clear to me. It can't necessarily, but it certainly would raise constitutional questions. The executive branch would almost certainly assert it can't and then not sure how you really get that to a court to get a court to resolve it, but maybe there's some way to do it. I'd have to think about that. This presents the same problem, but really this is trying to leverage political costs. It's trying to say, hey, we're going to make this too embarrassing for you to really do this, Mr. President. Because if you do this, you're going to have to publish all these public reports for us and then you're going to be on the hook for making these sort of embarrassing certifications. This has not always stopped the Trump administration before the first Trump administration made several such certifications in a variety of contexts, some of which were pretty bald faced and being inaccurate and nonetheless proceeded along the lines of that I think of a few State Department reports regarding I think use of child soldiers was one report and a few other cases way back in 2019 or so. It's not necessarily a guarantee. Neither is delegating to a career official because the President gets to appoint who that career official is and can change who that is, as this president and the Secretary of Defense have shown a willingness to do it. But it is certainly going to make it more painful for them if they were decided to want to drop below those thresholds. Aside from that, I think you see a lot of continuity and points of consistency here. That's not necessarily super new. You do see emphasis on different types of cooperation around unmanned systems, both in Taiwan and in Israel and in a few other contexts actually throughout this ndaa. Obviously that's something at the front of mind, I think because of the experiences in the conflict in Ukraine and Gaza to a lesser extent, an expected role uncrewed, particularly uncrewed maritime vessels are expected to play in various Taiwan scenarios that have been kind of documented over the last few years. So you're seeing that become a real focus of efforts throughout this document. It's not surprising it pops up in the two key contexts, Israel and Taiwan. There's also a variety of other sorts of very specific cooperation. But I think a part that needs to be paid attention to in the Ukraine context is what this doesn't do. This doesn't actually provide that much money for Ukraine security assistance. We're talking about $400 million. That's much less than prior bills have provided. That's not necessarily surprising because of this administration and this Congress and their posture towards Ukraine. But it is a potential point of concern for Ukraine. Now, that's security assistance. That's money being paid or transfers in kind, things like that. There still are other avenues Ukraine can use to get assistance, including where paid for by Europe, which is a clear priority here. There's also a lot of conditionality that's a little new that's built into various elements here. There's a few provisions where Congress expressly endorses. Look, support for NATO should be tied to commitments to meet the 5% defense spending target set by NATO. Again, that's not entirely new, but it is being emphasized size and Congress is buying into that here. There's a lot of talk about partner support, including for US Deployments in Eastern Europe, kind of on the eastern edge of NATO, and setting up a mechanism by which partners, NATO partners could pay for that US Deployment. Notably, the joint explanatory statement that was released in relation to this legislation kind of walks that back a little bit, says, hey, before we use this or essentially we want to report on how you intend to use this. We're going to give it to you. But that doesn't mean we should just start all of a sudden refusing to deploy unless we charge these things. It's more hesitant in that. But nonetheless they are did ultimately kind of give that sort of authorization. So there are signs of that effort to put a little more scrutiny on US Security commitments, particularly where uncompensated, unpaid on the kind of US dime that's kind of a signature move of the Trump administration. But as a whole, this looks a lot like NDAs we've had for the past in these three big areas, including the focus on these three big areas. I think that's actually the biggest takeaway is the effort to maintain continuity here between the NDA that Congress enacted under the Biden administration, under the first Trump administration.
- [23:27]
B
Lauren, turn to you.
- [23:29]
D
Yeah. I have a couple of quick thoughts. I mean, the first one just on, on SAC your and just how important that actually is from like a technical perspective that that be a U.S. person. You know, if we gave up that role, like our coordination with NATO would be extremely limited. Right. If that belonged to a European country instead of and so I think that Congress recognizes that and that's why this focus is there. So I personally was was happy to see that specific to Indo paycom. You know, I think you see the, the sense of Congress section that they have in there where they really talk about and you know, this is what we were talking about before, like you, it goes back to how we previously thought about things. It's right. It's all about strengthening defense alliances and partnerships. It's all about, you know, furthering the comparative advantage. It's mentioned strategic competition with China. It's the old frameworks that everyone's used to. But it does have some additional specifics in a couple of the sections around there that I thought were more directive than some of the NDA provisions I've seen before. Right. So the one that says you need a strategy to strengthen multilateral defense in Indo Pacific doesn't just say come up with a strategy and it has to talk about these kinds of things. It specifically says it needs to do these types of things. Right. Like expand engagements in this way, do acquisition prioritization in this way, do command and control with allies and partners, more frequent combined operations. And so it gets quite tactical. I think you also see that in the provision that you mentioned, 1266, talking about uncrewed systems encountered uncrewed systems. It's not like look into working with Taiwan. It's like no engage with Taiwanese officials for a joint program that includes co development and co production. And so I found that some of the language, especially for the Indo Pacific, was a little bit more tactical and directive than we've seen before. Granted there's been examples that are similar, but those ones stuck out at me as them being very specific in what they wanted the administration to do and trying to keep there from being loopholes where they might go in a different direction than what Congress wanted.
- [25:37]
B
Okay with this, let us move to the second bucket of things I wanted to highlight, which is all things oversight. There's a lot to unpack here. You know, at the beginning we talked a little bit about what language we want to use with regard to Congress, kind of whether it's reasserting itself, whether it's trying to kind of, you know, whatever language you want to use. But there is definitely some stricter recording requirements that are peppered in throughout the document. I want to pause on four oversight issues here and I want to start, Lauren with you and talk about this kind of, you know, over the past year we've seen a number of general and flag officers removed from their positions. Very contentious series of events, jags being removed. Another couple of notable ones being the former chairman of the Joint Chiefs of Staff, General C.Q. brown, and the Chief of Naval Operations, Admiral Lisa Franchetti. A lot of this has been kind of, you know, in the context of politics, it's been contentious because women have been removed, jags, black general and flag officers, and then folks who've been involved in implementing the previous administration's DEI policies. So now there is this requirement that is established for notification justification in some key cases for the chairman, for example, for the combatant commanders. What do you make of all of this?
- [27:00]
D
Yeah, I mean, I think that there is really just this desire for transparency in these cases. A lot of these removals came with no official statement on why they were removed. And so you get a lot of contentious news stories, taking guesses. But I think there's a role for Congress in trying to make sure that these removals are appropriate. And obviously the President has this power, but it makes sense that Congress would want to understand why and what's happening. Right. And so we were all tracking the service jags removals. Back in February, a number of SASK members wrote letters to Secretary Hegseth asking what happened, why I'm assuming they did not get a response or not get a sufficient response. So what we have, you know, from that is that there's now there's a couple provisions, right? So there's 1,506, which is the removal of Army, Navy or Air Force Judge Advocate Generals. And so if they're removed before the end of their term, SecDef has five days to provide notice to HASC and SASK on the removal and the reason for removal. And so this is about transparency. There's not really like Congress can't then come in and say no, you can't do that. Right. But they do want to know what is happening and why. And then we have a similar section 911 or 911APT, the number for it, that's for removal of members of the Joint Chiefs of Staff and Combatant Commanders. And in that case, if they are removed or transferred to another position before the end of their term, the President has five days to notify Congress and provide the reason for removal. So you kind of see some concern at the senior levels. My guess is that Congress hasn't been getting the answers that they were hoping to get on these removals and that they have just as many questions as the public does right now. And so this is a way for them to try and get those answers. I would be surprised though if this actually gets them the answers they want. Right. So it's a good step, but I mean we often see what these notices have in them and it's not the details that people are really looking for.
- [29:13]
E
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D
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E
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A
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- [31:01]
B
Moving on. Lauren, I'll stay with you here because, you know, apparently this year you've spent a lot of time thinking about very controversial issues, domestic deployments. This time there are, you know, as our domestic deployments guru, can you break down what the NDA does and doesn't do on this front? This is. Is something that people have been waiting for.
- [31:20]
D
Yeah, I mean, it doesn't do a whole lot. Let me just clarify that up front. So we have a couple interesting provisions and also about domestic deployments, but also like military support to immigration. Right. And that's all kind of like wrapped up together here now. So you have 1043, which modifies Title 10, Section 723, which currently requires military or federal law enforcement that's supporting civil authorities for specifically civil disturbances. They have to wear markings. And those markings have to be an individual identifier in some way. It can be a name, it can be a number, some way to refer to them, and the name of the armed force or federal entity in which they're employed. So for military people, that's frequently last name, and then it has service. But there's different ways you can do that. What you see in D.C. is frequently people have black and white National Guard on their back. So you can tell. So what this section does is it adds a. Whenever a military is providing support to civil authorities, which is a much broader group of actions, then they must visibly display the name of the armed force in which they operate. That is, I think, one way to identify, as we frequently see now, federal law enforcement in camouflage, confusing people on the streets on, are these military? Are these federal law enforcement? What branch? You know, where are they coming from? What are their authorities? This change will specifically say now, anytime military is on the ground supporting civil authorities, not just for civil disturbances, any kind of support to civil authorities, they must mark their military branch. And so that is a much smaller change than some of the other Provisions and suggestions that were made earlier in the year and some other independent bills. But it is one thing that may help with that confusion. And so then we also have a couple other things that I just want to quickly flag. There's some more mandatory training on government ethics and national security law. So they have to do training on ethics and standards of conduct for the government. Unclear exactly what that'll look like and mean. But there's also a requirement now, 90 days prior to deployment. There's training on not just law of armed conflict and rules of engagement, but also defense support to civil authorities, the standing rules for the use of force, which is what you use in peacetime, and the code of conduct. There was a controversy back in April where Army got rid of mandatory training on law of armed conflict and code of conduct. And so this is while they removed it from annual training, it was still part of pre deployment training. But this is putting in law that now all of these things are part of pre deployment training. Granted, it says as applicable. So there might still be some domestic training that doesn't happen before some of these domestic deployments occur. But it does look like they're trying to get those topics that usually military is not trained on so that they have that training before they do their domestic deployments. There's not a reporting requirement as part of this. So we won't know exactly what that training looks like. And if everyone gets it, it could be an online computer based 15 minute click through. So we will see. But at least it's trying to get people to understand what those rules are and how different they are in peacetime on American soil than they are from what the military is used to going abroad. So, you know, excited for that. There's also an extension of authority for joint task forces to support law enforcement agencies conducting counterterrorism activities. That's just an extension from FY27 to FY32. But just the idea that there will be more military support for those types of JTFs, specifically for immigration. I just wanted to flag a couple of things that I thought were interesting here. 10:53 talks about using DoD aircraft for alien removal operations by DHS, which has been a controversial topic and in the courts. So if DoD aircraft are used for alien removal, the SecDef has to inform HASC and SASK and runs through a whole bunch of details, right? Like what are the aircraft, what's the cost of doing this? And you know, who was on the plane that's not dod. And then, you know, are you using DOD personnel as part of Joint Task Force gitmo or another DoD entity and reassigning them to do removal operations. It also requests additional reports. This one's really interesting to me. The total number of aliens held at installations of the Department of Defense disaggregated by location and the period covered in the report. So trying to track if we actually do have aliens being controlled by DoD entities at certain DoD locations and then the cost that that is associated with that for the dod. And then a final report on any time the Department of Defense approves a request for assistance for immigration enforcement operations, they have to report that to HASC and SASC and then say what they're going to do and which personnel will be assigned to it and those types of things. So really trying to do some more oversight in that space when it refers to DoD support to immigration. I will say, though, what's almost more interesting to me here is some of the stuff that was not included. You see quite a few things. There was a Duckworth and Durbin amendment to amend Title 32 to make it explicit that Posse Comitatus applies to Title 32 activities. All the 502F stuff, all the stuff that you would be seen in Washington, D.C. right now. And that's the stuff that, remember, that's the hybrid status. So it's a federal mission, but command and control retained with the governors, except here in D.C. where the President is the commander in chief even when in militia status. So that didn't happen. And there was a couple other types of provisions like that that I think were a little bit more forward leaning that didn't make it in.
- [37:15]
B
Okay, Scott, I'm going to turn to you now to talk about boat strikes. So continuing on politically fraugh challenges. The bill has been moving and got signed against the backdrop of ongoing debates about the legality of these actions in the Caribbean. The challenges that the Congress has been facing in terms of getting answers from the departments and then separately, but not unrelatedly, mounting concern on the Hill about a potential conflict with Venezuela. So can you talk a little bit about what the NDAA does and doesn't do on boat strikes?
- [37:50]
A
Sure. Well, the NDA really only addresses one small aspect of the boat strikes question, at least as far as I can tell. There were debates about efforts to put in more bolder restrictive legislation. Also some recent votes in the closing days of Congress about measures, including some that came very close in the House, that would have imposed certain restrictions on the president's ability to use military force either against Venezuela or to continue These boat strikes, neither of those measures ended up passing. What this does do, the thing that's gotten the most attention is that it imposes a restriction on the travel funds available to the Secretary of Defense, basically saying you can't spend more than 75% of the funds made available to you for travel unless you provide unedited video of the strikes that have been conducted against, quote quoting here, against designated terrorist organizations in the area of responsibility of the United States Southern Command. That is parroting the language that is often included in the reports of these strikes by the Defense Department. So it makes it hard for them to say, no, these strikes were not, are not the ones you're talking about. So that's a notable disclosure requirement. But actually the media discussion of this disclosure requirement, actually, and the effort to tie it to funds, which is a more assertive, aggressive move that the Congress does do, and it does with a number of other contexts, including in this NDAA has done in past NDAs, usually saves until the Executive Branch is particularly egregious or if it's something that there is a higher priority for them. But there's a number of other sort of disclosures. This also gets at it ties the same requirement also to disclosure of execute orders under a provision in the 2020 NDAA. This was a provision that had said, essentially, look, when there are execute orders that float around, which are orders kind of initiating large scale military operations, you need to disclose these to Congress. Evidently that's not happening or has been happening with the full scope that Congress wants to see. So now they're saying you're going to lose your travel funds unless you actually give us these things. Notably, they also do this for a report. It's very close to my heart. That's the report originally required by section 1264 of the 2018 NDAA is codified now at 50 USC 1549. This is the Legal and Policy Frameworks report. This is a report that's supposed to be an annual report that provides an update to the comprehensive report the Obama administration released at the very end of its time in office that basically lays out the Executive branch's views of the legal frameworks governing the use of force. And when they change, Executive Branch is supposed to notify Congress within 60 days or 90 days. Days, I can't remember off the top of my head, and then publish an annual update report, the unclassified version of which gets released to the public. Ben Wittes and I were plaintiffs in a lawsuit that sued to get that report in 2020 and did ultimately succeed in getting it when the Trump administration, after publishing it the prior two years, chose not to publish it that last year until we sued over it and eventually they did, several months late. The Trump administration has once again decided not to publish this report this past year. It's usually due March 1st. Still haven't seen it in this case. This past report would actually cover the last year of the Biden administration. The way it's interpreted as it covers the prior calendar year. We haven't seen it and we'll have to see if we get Another one on March 1st this year or not, or else, obviously further litigation may be in order, either by us or by somebody else. Regardless, it looks like Congress is at least trying to call the executive branch on its failure to actually provide this report because they're essentially saying, look, we haven't gotten it's not actually clear from this whether they're worried about the 60 to 90 day reports or the annual report, but some obligation under 50 USC 1549 is not being met with and they're saying, well, unless you start complying with this, you're not going to get all your travel funds. Now, maybe there's more brinkmanship to be had here and what is compliance? And perhaps the administration has an argument as to why it doesn't have to file any of these reports, even though certainly the vote strikes strongly suggest a substantial shift in the legal and policy framework as was prior previously understood. We'll have to wait and see. But for the time being, at least, Congress is staying on top of these issues. And it's not just about the boat strike videos that we've heard in the media. It's actually about a whole universe of other reports that this administration and does not seem to be providing.
- [41:39]
B
Before we move on from all things oversight, are there any kind of burning provisions that we haven't talked about so far that you'd like to underscore?
- [41:47]
A
SCOTT yeah, there's two that jumped out to me that I think are really interesting, worth looking at. One is at section 1622, and this is a added provision that's added onto the disclosure obligations around sensitive military operations. These are operations usually pursued, kind of like covert action, but it can be in coordination with intelligence community, a kind of different scope of activities, notifications supposed to be provided to congressional committees. In this case, it interestingly adds this provision where it essentially reiterates you do have to disclose these to Congress and in particular you have to tell us if they fail or something goes wrong and the joint explanatory statement. The report that the committees issued in regard to this technically not a technically joint explanatory statement, because this was not. NDAs do not go through a conventional conference process like other legislation does. But regardless, they usually produce one. They've produced one for this that's incorporated into it through Section 5 of the NDA itself as having the same weight as a conventional JES. In this case, they say essentially, look, this applies even when they're doing it for intelligence operations. We really should be knowing and getting notice about this. Doesn't say it expressly. I am almost sure here they are talking about the media reports that came out a few months ago about a failed sensitive military operation that took place during the first Trump administration in North Korea. There's an effort to implant a surveillance device, at least as reported by, I believe it was a SEAL team. That ended up resulting in the death of several Korean civilians and failed of that operation. Troops eventually withdrew. That was a pretty big sensation when that report was reported on initially, I believe, by the New York Times, if I recall correctly. And a notable part of that report is that it was not disclosed to Congress at the time. I read this reporting obligation as pretty significantly saying, hey, we should be getting notice of these things, and we're putting you on notice. Doesn't tie it to any specific sanction like it does with the Legal and Policy Framework report and the maritime strike videos, but nonetheless is calling people out saying, hey, we do need to get these things, which is notable and significant. Another one that I think is kind of interesting here, which is more significant operational, is section 1061. This is a provision regarding autonomous weapons systems that essentially requires that the relevant congressional committees get a notification if any waivers are issued to existing Defense Department guidelines or any circuit successor guidelines regarding the development and use of autonomous weapon systems. Those guidelines essentially pose a number of requirements checks, a number of which are basically designed to ensure that you basically ensure that they're safe, they're effectively implemented, and in most cases aren't actually fully autonomous, there's still at least substantial input from human beings or opportunities for input from human beings. And this says essentially if you're going to waive these, which is a possibility set out in that instruction, that's DoD Directive 3000.09. You have to notify Congress before you do that, or, I'm sorry, within 30 days of that happening. I should say not before you do that. And not only that, but provide a ratification explanation of them. And this is kind of one of a couple of different provisions that deal at some of these emerging technologies, other things about artificial intelligence that are kind of scattered throughout. But this one really jumped out at me as an indicator of concern that some of these waivers might actually be used in a way without full transparency. Notably, they also include in here requirement of disclosure of legal reviews. So essentially saying, hey, you need to give us a full disclosure, not just of the waiver and the explanation, but also reports regarding the development of these systems and the deployment of these systems that are supposed to include legal reviews. Those now need to be disclosed to Congress, too, which would be, I think, indicative of concerns about particularly compliance with the law of armed conflict, which features very prominently in that directive. Obviously, it's implicated by autonomous weapons systems and has been a friction point with this Congress and this Secretary of Defense and this Defense Department, because the Secretary has been focused on lethality and has been openly critical of civilian protections and other things that stem from the law of armed conflict or often implicate them. And so there seems to be an effort here to draw a little bit of a line protecting some of those equities.
- [45:48]
B
Lauren, do you have any oversight things that we didn't talk about so far?
- [45:52]
D
No, but I agree that this piece on DoD Directive 3000.09 is. Is crucially important. I think it's going to be really interesting to see what that looks like. I mean, this, this directive is all of the design, development, testing, employment of autonomous and semi autonomous systems. Like, it's incredibly important. People don't track it that well. But it's also really complicated when you start talking about semi autonomous and autonomous systems and, like, how frequently you need to do that oversight. Like, every time the algorithm. Algorithm changes is what it says right now. Well, substantially changes. But that's a heavy burden and a heavy lift. And so I think that there's growing concern that, like, if we apply these frameworks, which are similar to our old frameworks for weapons design, the standards are very difficult and we will probably end up trying to, like, waive them in certain cases. And so I think this is what is coming out of this. But I was trying to find, like, you know, where did this come from? What are the concerns? And there just isn't much out on this specific provision. But I think this is something that everyone should be paying more attention to and what kind of waivers we might see in the future. I'm a little nervous about the time frame, which is like, okay, after tell us within 30 days, which, then it's a question of, okay, well, then what can you do with that information? But this is just to me, this is the one that I would flag to have everyone look at more going forward.
- [47:19]
B
All right, let's turn our attention to another notable thing, which is the aumf. And Scott, I'll start with you here. Lauren, I'm sure you'll have thoughts, too. The NDAA includes the bipartisan legislation to repeal the 1991 and 2002 authorizations for the use of military force and formally ends the Iraq wars. So this is big. Scott, you've done a lot of work here. Tell us what people should know.
- [47:44]
A
Yeah, I mean, this is a pretty notable development. We've seen a proposal to do this appear in NDAA is dating back to at least, I want to say, 2019 or 2020. Occasionally in other legislation as well, it has gotten multiple times by both the House and the Senate, but never through both fully in the version going in and when it wasn't in both going in, it often got pulled out in conference again because somebody had reservations about this particular legislation. Mike McFaul, who was previously chairman of the House Foreign Affairs Committee, I know, had been outspoken about having some reservations about this. Some other folks might have as well, but those appear to have faded. Finally, this proposal, which has always had a fair amount of bipartisan support, has been kind of spearheaded by Senator Kaine and Senator Young on bipartisan basis in the Senate, has finally come forward. I've argued in writing for a number of years, dating back to at least 2022, I think, is the main pieces I published on this at the Law Fair. But earlier than that in podcasts and some smaller parts of larger pieces. This is a good general step. This authorization 2002, AUMF regarding Iraq in particular, broadly worded and framed in a way that its scope has gradually expanded pretty substantially to encompass a lot more than just combating the Hussein regime. Essentially was used to tackle all sorts of threats with any sort of nexus to Iraq. And that is tricky in the Middle east because lots of things have a nexus to Iraq now, least Iran. And my concern for many years has been, well, this really seems to provide an available statutory vehicle. If you had an administration that wanted to escalate dramatically against Iran and didn't want to hedge its bets legally and not just rely on Article 2 authority to do so, meaning they wouldn't be subject to war powers resolutions, other things, they could lean on this legislation. And the first Trump administration did do that. This authorization was cited alongside Article 2 with the word as the legal basis for The Soleimani strike that took place in January 2020, that's always been a possibility that's out there, removing this. And as well as the 1990 AUMF regarding the first Gulf War, it's a good general housekeeping measure. But I think it goes beyond housekeeping, because I think it actually does shut down a peripheral authority, authority that wasn't immediately going to be invoked in the near future, but I think that had actual meaningful and substantial risk profile simply because of the way this AUMF had come to be interpreted. And shutting that down means that's not available anymore. If Executive branch wants to pursue a major campaign to an extent that pushes past what Article 230 would permit, it's going to have to come back to Congress now to make that case. And that is how it's supposed to be designed with these things. It's a good housekeeping measure, it's a good general hygiene measure, and underscores that you do need to think about the ends of these things. And of course, this all feeds into the much larger, much harder debate over the 2001 post 911 AUMF, which people have made similar arguments about. But that is much more actively relied upon for a wide variety of military operations, most of which have substantial bipartisan support. So a much harder complication about what do you do with that aumf? Do you replace it? How do you modify it, how do you rescind it? But nonetheless, it shows that there's at least still interest in engaging on this broader issue set on a bipartisan based citizen on Capitol Hill. And I think that's a good thing.
- [50:56]
B
Lauren?
- [50:57]
D
Yeah, I think that this is probably, to me, one of the best examples in the NDAA of Congress trying to, to reassert its role in a good way. As Scott said, this has come up numerous times and there just wasn't enough support. So for it to finally happen now people can think, okay, well, what's going on now? What concerns are there now? And I think there are more concerns on a bipartisan basis of how the military might be used abroad and how the terms of especially the 2002 AUMF might be stretched more so than it already has been. And so I see this as though the example of Congress trying to reassert that role and at least take these two AMFs off the table going forward.
- [51:42]
B
All right, there's so much more we can talk about here. From shipbuilding to nuclear modernization, pay healthcare, housing for service members and their families. I'm sure we will spend the next year talking about different things here and highlighting them and having conversations. But for now, I want to ask each of you to highlight any major provisions authorities we haven't talked about so far. Lauren, what do you have?
- [52:07]
D
Yeah, I don't think I have anything else right now. I think we talked about some of the central ones, but it being 3,000 pages, I think we're all trying to find some of the hidden provisions in there right now.
- [52:19]
B
Scott, do you have anything?
- [52:20]
A
Yeah. Three things I think are worth flagging just because I think they're notable legal authorities that are indicate bigger programs and are going to see a lot more use moving forward. And these things often end up in the NDA. We have to remember, for folks who don't follow this every year, the NDAA is one of the kind of, in a lot of ways, the last or one of two last omnibus legislation that has to pass every year. And therefore they become very popular vehicles for moving legislation that maybe arguably should be freestanding legislation. But the easiest way to get passed is by combining with the ndaa. And so these are all examples of that in terms of they do three different things that aren't necessarily clearly related to the military defense but are important from a US Foreign policy policy perspective. First is the repeal of the Caesar act sanctions. These are statutory sanctions imposed on the state of Syria that because they are worded still applied to Syria even after the end of the Assad regime just over a year ago now, they were substantially waived by the Trump administration. But there are limits to how far the Trump administration could do that. And they were worried, correctly, in my view and the view of many other people, that leaving these in place was going to be a big barrier to Syria being able to build itself back up economically in the post Assad era because companies would always be worried these sanctions were going to snap back at a certain point. Rescinding them is a big move, a big step in the right direction. It's got bipartisan support. The Trump administration has been very good to its credit, on Syria sanctions, aggressively moving to try and lift and remove them along with allies. And they seem to be effective in doing that. I think this is the last big statutory barrier you're really wrestling with at this point that you couldn't get away with. Still lots of challenges on the Syria front, including regard to sanctions and other measures, but nonetheless, this is an important one. A second item is Golden Dome. This is the idea of a new missile defense policy. You can tell from the name it's a Trump idea because he Called it gold and not iron. And in terms of his preferred missile system or metal, I guess I should say. Regardless, it's notable. It's got full hearted endorsement by bipartisan Congress through this legislation. People are saying we are going to lean into this. It's a pretty complicated system, expensive potential system, raises a variety of legal questions, a variety of policy questions, but nonetheless, people are moving forward with it. Now we are seeing, we saw the money, a good chunk of the money gets, you know, set aside for it originally with the one big beautiful bill earlier this year by President Trump and his Republican allies in Congress. But now we're seeing a bureaucracy set up around it, a statement of US Policy that shows Congress endorsement of this strategy. So this is going to be a real initiative. We're going to see the system get developed and deployed hopefully effectively in the next several years at very big cost to the Americans, but hopefully in a way that improves national security. We'll have to wait and see to know for sure. But nonetheless, pretty notable initiative there. The third thing I'll note, just because I am an economic statecraft nerd, it's always worth floating these things. Things we saw the statutory ization, maybe making that word up, but the shift of the outbound investment restrictions that the Biden administration established towards the end of its time in office, which are actually quite notable and raise a lot of tricky legal questions, were put into statute. The Biden administration issued them strictly on the basis of regulations under the International Emergency Economic Powers Act, a very broad statute used for sanctions and currently the tariffs by the Trump administration, a variety of other purposes. They're focused specifically on China, specifically investments related to AI, quantum computing and semiconductors and things that are contributing technologies to particularly AI. But really both this statute puts it in statutory authority, puts it on stronger grounds. These outbound investment restrictions that restrict Americans from investing overseas for the first time in these sorts of technologies. It expands the scope of the sensitive countries. It's no longer just China now it's also Russia, Cuba, Iran, a lot of them. The countries you would expect to show up on these sorts of lists, Venezuela under the Maduro regime specifically. So I guess if Maduro gets removed, then we can immediately jump into their quantum sector. But regardless, very specifically laid out and really interestingly in my view, it lays out a statutory authority by which it's saying the Treasury Department, I think is the implementing agency, if I recall correctly, can actually unwind these investments, saying we're going to force you to divest from these if you don't check properly they're acting within bounds. That's notable because that's actually something that while that's been done in regards to the Committee on Foreign Investment in the United States to foreign investors in the United States, it's never been done to an outbound investor who's an American before. And Americans, among other things, have taking clause protections to their property that almost certainly would be devalued substantially if they were forced to unwind. I'm not sure how exactly this gets around and fits within our constitutional system. It raises a lot of novel legal questions in my mind. Something I'm actually interested in looking at this next year. But now it's on a statutory basis the court's ability to avoid reaching those issues if they were to get litigated by, for example, interpreting the IPA narrowly or otherwise getting around it. They can't do that anymore. Now Congress has enacted this and in theory that puts it on much stronger grounds. Basically, if it really faces a constitutional problem, it looks like the court's going to have to address it. Unless there's some ambiguity in the statute I'm not aware of. If it gets challenged regardless, the overall outbound investment regime, it's a big US Policy initiative. It's going to have big ramifications moving forward, particularly in those strategic sectors which it also expands, I should note, to a couple other cybersecurity related applications and slightly broader, broader scope of strategic sectors potentially significant there. And then raises a lot of interesting legal questions that could shape the contour of U.S. constitutional law and how it might restrict other outbound investment restrictions or other outbound restrictions moving forward. So something to keep an eye on if you are interested in these issues.
- [57:43]
B
As I am okay with this. We're going to spend our last minute talking about what was not in the ndia. And Lauren, let me start with you. Is there anything that you want wish was in the NDAA or is there something that is just flagrantly missing from it?
- [57:57]
D
Well, I mean I think you can guess what I would say being the domestic deployment person is. I would have loved to see more focus on that. And there's been obviously a lot of proposals for reform just because a lot of the domestic deployment law is so old and vague and has huge holes. So there's, you know, I would have loved to see something on Dominican domestic use of the military, whether that be 12406 and clarity on that which is all over the courts now on Posse Comitatus as we talked about before, you know, amending the Insurrection act like there's so many areas where legislation gets thrown out there, but it's so controversial, the changes never make it in the document. And so we're going to see more domestic deployments, more support to law enforcement, to immigration, to all of these things. And there's just huge legal ambiguities that we have yet to close. So I would have loved to see something in that space, but I'm a pragmatist. I wasn't expecting it.
- [58:53]
B
So Scott yeah, I'm trying to think.
- [58:56]
A
If there's anything in particular I would have liked to see that wasn't in here. I can't think of anything in particular. Maybe that's because I was never that ambitious for what was actually going to be found in here. I mean, there's lots of things I would perhaps do differently in a perfect universe. Certain. But if you look at the joint explanatory statement that was released with the pseudo conference version of this bill, it has a list like most of these things do, of all the provisions that were in one version or the other and didn't make it into the final version. It's worth reading through that because it's interesting. It's a lot of very specific provisions about types of security cooperation with Israel, in some cases with Taiwan, in other cases with a few allies in other cases. Sometimes you'll see those get kind of rolled into other provisions. Or in the joint explanatory states statement, the committees will say who are involved in crafting it will say, well, we didn't include this provision, but in another related provision they'll say and give them consideration to this issue set precisely because they struck the specific statutory provision about it. But they still want to signal, hey administration, we want you to take it seriously. People do care about this in Congress. A lot of stuff regarding space development, there was actually less on space force stuff in here than I might have expected. And it looks like some of that didn't make it in for reasons that I'm not 100% sure why. But it's something I need to look into a little bit and understand a little bit better. But it's interesting to see where exactly this comes out. So I don't know what exactly I would have liked to see here, Lamar. The thing I would have liked to see, if anything I think would be Congress take a much bigger fight on its appropriations power and on fight against agency efforts to restructure federal agencies, which the Trump administration has undertaken. You actually did see some of the latter. One thing that actually is really interesting not in the technically the NDAA part of this bill, but was enacted alongside the state authorization bill and a couple of other bills that were kind of rolled in the same legislation, the state authorization bill, it actually codifies a good structure of the State Department. Interestingly, they basically say, hey, you have to have a bureau of different Regional affairs and an assistant secretary in charge of it, which is kind of notable and to me seems to indicate folks in the Foreign affairs committees who probably drafted this and then before it got rolled into the NDAA together are worried about further restructuring at the State Department. In a way that's going to be a big problem and not without reason because that's something that we've seen happen. Although frankly, the State Department has gotten way more unscathed than certain other agencies. But regardless, it would have been good to see more of that and particularly on the kind of appropriations authorization side because it is a big issue. The administration has drawn a line in a sand that would have huge implications if its current posture were allowed to stand. And it's not clear the courts are going to do anything about that in the near term. But regardless, that's something we may see in next round of appropriations legislation, which is going to be fought over early in the next year. There will other bites of the apple. I'm not terribly shocked it didn't find its way in here, but that is in my mind, one of the big looming issues hanging over this Congress that it still hasn't squarely addressed. And again, this is one of just a handful of opportunities to really do that. In a way, the administration has to ultimately bite on the legislation getting enacted because it can't veto this legislation very easily. And so it's a missed opportunity and.
- [61:55]
B
Other positive things here. One thing that is not entirely missing is climate change. It has been reframed quite a bit. The priority prioritize certainly a little bit as well. It's much more focused on installation, resilience and disaster response, but, you know, pragmatic all around and continue some of the important work that was previously done. All right. Well, thanks guys, for this first attempt at unpacking the NDAA again. I'm sure we'll have many more conversations on it in the year 2026. Thank you.
- [62:28]
A
Thank you.
- [62:31]
B
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- [63:28]
E
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