National Defense Authorization Act (NDAA), Public Law 105-261 [H.R. 3616], enacted October 17, 1998

Department of Defense Appropriations Act, Public Law 105-262 [H.R. 4103], enacted October 17, 1998

Contents:

Overview

• Operation and Maintenance funding
• Center for Hemispheric Defense Studies
• Department of Defense Support to Other Agencies for Counter-Drug Activities
• Department of Defense Counter-Drug Activities in Transit Zone
• Training of Special Operations Forces With Friendly Foreign Forces
• Transfers of Naval Vessels To Certain Foreign Countries
• Training and Other Programs (Human Rights)

Other Sites

Overview

The National Defense Authorization Act (NDAA) is a yearly bill with which Congress establishes, continues or modifies programs carried out by the Defense Department. The NDAA describes these programs’ purpose, often adding limitations on their use, notification and reporting requirements, or maximum spending limits.

Once the NDAA "authorizes" a program’s existence, a separate piece of legislation - the Department of Defense Appropriations Act - determines how much money the program will be able to spend in the upcoming year.

The House and Senate enact separate versions of the NDAA and Defense Appropriations Act each year. The NDAA is drafted by the House and Senate Armed Services Committees, and the Defense Appropriations Act is drafted by the Defense Subcommittees of the House and Senate Appropriations Committees. The House and Senate versions of each bill are normally reconciled by House-Senate "Conference Committees," which then submit identical compromise legislation for each house's final approval.

The following will describe the contents of both funding laws for fiscal year 1999. Using the framework of the 1999 NDAA, each section will reference relevant appropriations law and committee reports on the topic addressed.

I. NDAA section 301: Operation and Maintenance Funding

"Operation and Maintenance," or "O&M," makes up just over one-third of the entire defense budget. The term refers to funding that is used to support the armed forces' day-to-day activities and to maintain their state of readiness. Section 301 of the NDAA lists the maximum level that can be appropriated to the Defense Department’s twenty-four O&M accounts in 1999.

Several of these O&M accounts (such as those for the Army, Navy, Air Force and Marines) pay for operations, deployments, exercises and other activities carried out in Latin America. Two in particular, however, devote a large percentage of their expenditures to activities in the region:

Overseas Humanitarian, Disaster and Civic Aid programs: $50,000,000 worldwide authorized and appropriated for 1999. This account funds the Defense Department’s Humanitarian and Civic Assistance program, which is quite active in the Western Hemisphere.

Drug Interdiction and Counter-drug Activities, Defense-wide: $735,582,000 worldwide authorized and appropriated for 1999. This account pays for the military’s drug interdiction operations both within and outside the United States. It also funds counter-drug police and military assistance programs originally authorized by section 1004 of the 1991 NDAA and section 1033 of the 1998 NDAA.

This figure represents only a portion of the Defense Department's total expenditure on counter-drug activities, according to the House-Senate Conference Committee’s September 22, 1998 report on the NDAA. "For example," the report reads,

these numbers do not include a proportionate share of the costs of procuring military systems that are used to support the war on drugs. They also do not capture the personnel costs for the thousands of active duty service members who are engaged in counter-narcotics activities over the course of the fiscal year. Furthermore, the budget does not include all maintenance costs for assets used in counter-drug activities, or a proportionate share of base operation support costs for those units performing counter-drug activities. Together, these costs exceed several hundred million dollars each year.

The committee also criticized what it regarded as the executive's overuse of the emergency drawdown authority granted by section 506 of the Foreign Assistance Act. This authority allows the President to "draw down," or grant from existing U.S. defense stocks, up to $75 million per year of weapons, training and other assistance for other countries, if justified by a "counternarcotics emergency." The Conference Committee for the NDAA worried that drawdowns are in effect augmenting the State Department's existing counternarcotics budget, and that they are harming the Defense Department's own readiness because "non-excess" equipment is being transferred. The committee directed the Defense Department to divulge the contents of its emergency counternarcotics drawdowns to the House and Senate armed services committees, detailing its plans for replacing non-excess equipment that is drawn down.

II. NDAA section 905: Center for Hemispheric Defense Studies

The NDAA amends section 2165 of Title 10, U.S. Code to allow Latin American Cooperation funds to be used to support the Center for Hemispheric Defense Studies at the National Defense University. (Title 10 is the part of U.S. law dealing with the military, while section 2165 applies to the National Defense University.)

Latin American Cooperation funds, authorized by section 1050 of Title 10, allow the secretary of defense or the secretary of a military department to "pay the travel, subsistence, and special compensation of officers and students of Latin American countries and other expenses that the Secretary considers necessary for Latin American cooperation."

III. NDAA section 1021: Department of Defense Support to Other Agencies for Counter-Drug Activities

The Defense Department’s counter-drug support for foreign security forces includes training, equipment upgrades and several other forms of assistance. This support was originally authorized by Section 1004 of the 1991 NDAA, a short-term provision which was to expire in 1995. The 1995 NDAA renewed Section 1004 through 1999. Whiel the section of law dealing with this funding has changed with each authorization, it is still referred to as "Section 1004" funding.

Section 1021 of the 1999 NDAA extends the Pentagon’s authority to provide counter-drug assistance for another three years, through 2002. The re-authorization also adds a requirement that the congressional defense committees be notified twenty-one days in advance if $500,000 or more in Defense Department counter-drug funds are to be used to renovate or modify a Defense Department facility being used for counter-narcotics purposes.

The NDAA Conference Committee report notes that the Defense Department expects to increase expenditures on training for Mexico's armed forces:

The budget request included $16.0 million for the counter-narcotics training of the Armed Forces of Mexico; a significant increase from previous years. The conferees recommend $12.0 for this program; a decrease of $4.0 million.

In the same section of its report, the Conference Committee clarifies that only non-lethal equipment is to be provided to Colombia and Peru through the defense-budget riverine counternarcotics assistance program authorized by section 1033 of the 1998 NDAA.

Section 1033 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105 85) authorized the Secretary of Defense to provide support for the counter-drug activities of the Governments of Peru and Colombia. The conferees wish to clarify that the intent of Congress was to provide nonlethal assistance, including unarmed riverine patrol boats, to establish a riverine interdiction program in Peru and Colombia. The conferees note that other programs exist in which the Government of Peru can acquire the weaponry necessary to arm these vessels.

IV. NDAA section 1023: Department of Defense Counter-Drug Activities in Transit Zone

Subsection (a) of section 1023 calls on the Defense Department to ensure that its counter-drug activities are given a high enough priority to guarantee sufficient funding. The Conference Committee report on the NDAA notes, however, that the Pentagon should avoid spending too much on activities that can be carried out by other agencies' similar programs.

[T]he conferees are concerned that in some cases the Department of Defense may be pressured into dedicating scarce resources within its budget recommendation to the President for the counter-narcotics missions that are the primary responsibility of the Department of State or other Federal agencies. This practice could be detrimental to other high priority military missions, including counter-terrorism and counter-proliferation, in today's resource constrained environment.

Meanwhile a May 1998 House committee report on the NDAA warns against counter-drug activities that go beyond the Pentagon's "traditional authority:"

The committee remains deeply concerned that the President's request for Department of Defense counter-drug activities once again contains funding for programs beyond its traditional authority, even though the DOD Counter-Drug Program does not adequately support its primary role as the lead agency for detection and monitoring of aerial and maritime transit of illegal drugs into the United States. The committee continues to support the Department's core counter-drug mission, but is concerned by the continuing pattern of expansion into additional missions that jeopardize the critical task assigned to the Department of Defense.

Committee reports also note a decrease in funding for drug interdiction in the "transit zone" (Mexico, Central America, the Caribbean and the Eastern Pacific), the area through which drugs are smuggled from South America to the United States. This decrease owed to a 1993 shift in priorities to the "source zone" (chiefly the Andean countries) where drug crops are cultivated and processed.

V. NDAA section 1062: Training of Special Operations Forces With Friendly Foreign Forces

Section 1062 amends section 2011 of Title 10, U.S. Code, the section of the law governing Special Forces' overseas joint training activities, such as the Joint Combined Exchange Training (JCET) program. Section 2011 U.S.C. authorizes such activities only if the U.S. personnel themselves are considered the "primary beneficiaries" of the training. The revision of the law requires that the Secretary of Defense approve these activities beforehand.

The Conference Committee report for the NDAA directs the Defense Secretary not to delegate this approval below the level of assistant secretary, specifically the Assistant Secretaries for International Security Affairs and for Special Operations and Low Intensity Conflict.

In the same report, the Conference Committee emphasizes that, as the law requires, the Special Forces themselves must clearly be the primary beneficiaries of all training activities authorized by section 2011:

The conferees emphasize that, while improved interoperability and relations with the friendly foreign forces may be an ancillary benefit, the training of U.S. special operations forces under the authority of this section must clearly be the primary purpose of the training.

The conference committee also emphasizes that training with non-military security forces, such as police or gendarme units, "should be a rare exception."

Section 2011, U.S.C. requires the Defense Department to submit an annual report listing the Special Forces' joint exercises with other countries' militaries. Section 1062 of the NDAA modifies this report, requiring the Defense Department to include a summary of expenditures for these activities and a discussion of the "unique military training benefit" that Special Forces units gain from the joint exercises.

VI. NDAA section 1235 / Defense Appropriations section 8110: Transfers of Naval Vessels To Certain Foreign Countries

Sections 1235 and 8110 authorize the transfer, through the Excess Defense Articles program (section 516 of the Foreign Assistance Act) of naval vessels to several countries worldwide.

These sections authorize the Defense Department to grant Argentina the Newport-class tank landing ship Newport. This grant, the law indicates, need not be counted in the State Department's annual notification of aggregate grants of Excess Defense Articles to Argentina.

Sections 1235 and 8110 also authorize the following sales to Latin American countries:

• To Brazil, the Newport-class tank landing ships Cayuga and Peoria;
• To Chile, the Newport-class tank landing ship San Bernardino and the auxiliary repair dry dock Waterford;
• To Mexico, the auxiliary repair dock San Onofre and the Knox-class frigate Pharris; and
• To Venezuela, a medium auxiliary floating dry dock.

Sections 1235 and 8110 also authorize the transfer of the Cimarron-class oiler Merrimack to Brazil on a combined lease-sale basis. Section 8110 creates a special account, to be known as the "Defense Vessels Transfer Program Account," to cover the costs of lease-sale transfers.

In the June 1998 House Appropriations Committee report accompanying the Defense Appropriations bill, Rep. David Obey, the ranking Democrat on the committee, registered the following dissenting view about these ship transfers:

SHIP SALE WINDFALL

This bill also invents a brand new legislative sleight of hand shifting the accounting for the sale of $637 million worth of surplus Navy ships so that proceeds can be spent again instead of being applied to pay down the national debt. Under traditional budget accounting, proceeds from the sale of an asset are not allowed to be spent again by an agency. They are instead credited to the General Fund of the Treasury to buy down the national debt.

But Section 8102 of this bill [section 8110 in the enacted version] changes this long held practice. It mandates the sale, grant, or lease of 48 Navy ships to 11 countries and then spending the proceeds on other military spending items. ...

This new spending gimmick is cause for concern not only from the budget perspective of allowing more backdoor spending, but from the global national security perspective as well.

It is unsettling to create a very large fiscal incentive for the Pentagon to spread its lethal technology around the world. Under this approach, the more sophisticated weapons the Pentagon can sell to other countries, the more it can spend on its own weaponry. This is a highly counterproductive policy in this post-cold war world in which most policy makers consider arms proliferation as the number one threat to world peace and stability.

VII. Defense Appropriations section 8130: Training and Other Programs (Human Rights)

Section 8130 is similar to the "Leahy Amendment" included in past years' Foreign Operations Appropriations bills ("Limitation on Assistance to Security Forces," section 568 of the 1999 bill), though it applies exclusively to training and not equipment transfers. This section prohibits the use of defense-budget funds to train foreign military units whose members have committed gross violations of human rights, unless "all necessary corrective steps" have been taken. The State Department is to provide the Defense Department with information about abusive foreign units.

Other sites:

• Public Law 105-261, the National Defense Authorization Act, enacted October 17, 1998. [Web page (.html) format / Plain Text / Adobe Acrobat (.pdf) format]
  • House Committee Report 105-532 on the National Defense Authorization Act, May 12, 1998. [Web page (.html) format / Plain Text / Adobe Acrobat (.pdf) format]
  • House Committee Report 105-736 on the National Defense Authorization Act, September 22, 1998. [Web page (.html) format / Plain Text / Adobe Acrobat (.pdf) format]

• Public Law 105-262, the Department of Defense Appropriations Act, enacted October 17, 1998. [Web page (.html) format / Plain Text / Adobe Acrobat (.pdf) format]
  • House Committee Report 105-591 on the Department of Defense Appropriations Act, June 22, 1998. [Web page (.html) format / Plain Text / Adobe Acrobat (.pdf) format]