Why The NDAA Bill is Even Scarier Than You Thought


The National Defense Authorization Act of 2013 passed the Senate with a 98-0 vote. The NDAA is a huge federal law that among other things specifies the budget and expenditures for the Department of Defense. The authorization bill determines the agencies responsible for defense, establishes funding levels, and sets the policies under which money will be spent.  Policies that are defined under the authorization act include salary and benefit guidelines for all service members, including health care, plus foreign policy items like the economic sanctions against Iran, embassy security and "options for establishing a no-fly zone over civil war-plagued Syria."

The NDAA is a wide-ranging bill that has many controversial sections. For example one section of the act allows governors to request assistance of military reservists to act as first-responders in the event of a hurricane, earthquake, flood, terrorist attack or other disasters. On the service this doesn't appear too controversial, until you think about the subjective definition of "terrorist attack." The NDAA is also an example of where budget needs to be temporarily divorced from policy. No executive worth his MBA would suggest such an action (there is some red meat for you) but there are a number of policy issues contained in the NDAA that need further debate and discussion without impacting the DOD budget and the subsequent appropriations bill.

Given the urgent need to marry national security with responsible fiscal policy, we need to slow down this process so we can fully vet the most controversial elements of the far-reaching bill.

The top 3 are:

1. The Indefinite Detention Clause: The NDAA has become the most controversial element of President Obama's foreign policy. Section 1021 of the NDAA bill of 2012 allowed for the "indefinite detention of American citizens without due process at the discretion of the President." Section 1021 has been challenged as a violation of constitutional principles and the United States Bill of Rights. The indefinite detention clause has been broadly denounced nationally and internationally. It may very well be the only thing that has true bi-partisan support. The Act was strongly opposed by the ACLU, Amnesty International, Human Rights First, Human Rights Watch, and The Center for Constitutional Rights, the Cato Institute, Reason Magazine and The Council on American-Islamic Relations. It was criticized in editorials published in The New York Times, Al-Jazeera, and The Guardian. The ACLU said, "The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield." This year's bill contains amendments introduced in the Senate and the House to remove the indefinite detention clause. The House included sections 1031 through 1033, which affirms the right of habeas corpus and the Constitutional right of due process for American citizens. Senator Rand Paul (R–Ky.) a leading opponent of the clause pointed out, "the bill this year contained the amendment I supported which sharply limited the detention power, and eliminated it entirely for American citizens in the US."

2. Intrusion Detection and Network Penetration for Defense Contractors: Senator Carl Levin (D-Mich.) has introduced an amendment to require defense contractors to disclose incidents of cyber intrusion. The amendment seeks to turn what is now a voluntary program of disclosure into a mandatory requirement. Politico quoted Levin, "it's so obvious that if a defense contractor with classified information has their networks penetrated and attacked, then the government has to know about that." Mark Jaycox, a policy analyst at the Electronic Frontier Foundation told Mother Jones. DoD has been adamant about inserting a clause in contracts that mandates reporting of security breaches. The government can use this information to defend against threats. Cyber intrusion detection and reporting is a legitimate concern. In 2009, Chinese spies hacked the Pentagon's $300 billion F-35 fighter jet project.  The Diplomat noted that in 2012 China introduced a stealth fighter that was "essentially an American stealth fighter with Chinese paintwork."

In a complementary measure the Senate is also requesting that vendors submit the source code for their software for security testing and verification or follow a specific set of security verification guidelines. Writing for LawfareBlog.com, Paul Rosenzweig, an expert in homeland security, explained that, according to section 936 of the NDAA, "upon request, contractors would be required to give DoD access to 'equipment or information' to determine if any classified 'information created by or for' the DoD had been 'successfully exfiltrated.'"

3. The Continuing Buildup of the Military-Industrial Complex Vis-à-Vis the Fiscal Cliff: Marine Corps Times reports the $650 billion bill contains "$88.5 billion more for ongoing wars" and "would add $60 billion to the Navy's plans for the F-18 fighter program." The newsletter said, "the bill supports the Pentagon’s plans for the Air Force to spend $3.7 billion on the F-35 fighter program and the Navy to spend $3.2 billion, on what is the biggest weapon program in history." Three billion was approved for the Army to enhance its ground services capabilities and to purchase Blackhawk helicopters. The Navy was approved for an additional $778 million for the "advance procurement for attack submarines." The Marine Corps Times said, "the Armed Services Committee's proposals on major weapon programs were left unscathed." How’s that for the fiscal cliff, the sequestration process and tightening our belts?