Compromise Defense Bill Unveiled with Big Increase in Authorized Spending

WASHINGTON — The House and Senate Armed Services committees released a compromise version of the annual defense policy bill Tuesday that would authorize $768.1 billion in defense spending.

After the Senate was unable to pass its own version of the fiscal 2022 National Defense Authorization Act last week, lawmakers scrambled to forge a version that could pass both chambers without going through the normal conference committee process.

The compromise bill incorporates elements of the version that passed the House in September and the legislation approved by the Senate Armed Services Committee in July.

And as happens every year when the bill’s managers release the version that is likely to become law, the question is: What made it into the bill, and what didn’t?

For starters, a $25 billion increase to the Defense Department’s budget request is included in the compromise bill, which comes as no surprise, as both chambers wanted to boost the Pentagon’s budget by roughly the same amount. The bill would authorize a $740 billion base budget for the Defense Department, $27.8 billion for nuclear weapons programs under the Department of Energy and $368 million for defense-related activities in other departments. Appropriators will need to decide whether to provide the budget authority to pay for it all.

Deterring potential adversaries

The bill also would prod the Pentagon to bulk up its posture toward both China and Russia.

The bill would authorize $7.1 billion for the Pacific Deterrence Initiative, a Pentagon plan created by last year’s NDAA that would bolster the military’s ability to deter Chinese aggression in the Pacific region. The new authorization level would be roughly $2 billion more than what was requested by the Biden administration.

The PDI is meant to mirror the European Deterrence Initiative, which was created in 2014 to respond to rising threats from Russia. In the new version of the Pentagon bill, the European Deterrence Initiative would receive $4 billion, an increase of just under $570 million above the president’s request.

Those funds would accompany $300 million for the Ukraine Security Assistance Initiative, which provides support for the Ukrainian armed forces, and $150 million for Baltic security cooperation.

The bill’s release comes as President Joe Biden held a virtual meeting with his Russian counterpart President Vladimir Putin Tuesday amid a buildup of tens of thousands of Russian troops along the Ukrainian border and warnings from U.S. intelligence agencies that Moscow may be preparing to invade its post-Soviet neighbor.

On Russia, the NDAA would require biennial reporting on Russian influence operations targeting U.S. military alliances, and express a sense of Congress on U.S. support for NATO and opposition to Russian aggression in Eastern Europe.

Notably absent from the measure, though, is a provision pushed by top Senate Foreign Relations Committee Republican Jim Risch of Idaho, that would have imposed sanctions on those involved with building or financing Nord Stream 2, the controversial Baltic Sea pipeline that will transport Russian natural gas to Germany and circumvent Ukraine’s pipelines, potentially depriving the country of billions of dollars a year in transit fees.

Military justice revised

The NDAA that the House passed in September would have empowered special prosecutors in the services to make decisions now reserved for military commanders on whether or not to prosecute sexual and related offenses. The House version drew flak from some experts who said it should have covered more crimes beyond sexual ones and that it left too much power in the hands of commanders, whose record of fighting sexual and other crimes has drawn criticism.

The Senate bill, by contrast, contained a provision by New York Democrat Kirsten Gillibrand that would take a broader approach. It would give the new prosecutors the power now held by commanders to press charges and hold courts martial for not just sexual and related crimes but for most major offenses. The Senate bill also contained a competing provision by North Carolina Republican Thom Tillis that largely mirrored the House language.

The final measure would expand on the House provision. It would cover more crimes, such as murder and kidnapping, in addition to sexual crimes, and it would make sexual harassment a crime in the military.

Moreover, under the final bill’s terms, the special prosecutors would be more independent of the chain of command than in the original House bill — though not nearly as independent as Gillibrand and others would like.

Under the final measure, commanders would have the power to convene courts martial, but the new prosecutors’ offices would be the ones to decide whether or not to bring charges and whether to actually go to trial.

Commanders retained other key powers, too, according to Don Christensen, a former top prosecutor in the Air Force who is president of Protect Our Defenders, a human rights group that specializes in military issues. For example, he said, the final NDAA would allow commanders to select the court members (or, as civilians call them, the jury) and commanders would also still be able to give immunity to witnesses or the accused.

Christensen called the final NDAA “the most significant military justice reform in our nation’s history,” but also “a missed opportunity to create a truly independent prosecution system free from command influence.”

House Armed Services Chairman Adam Smith, D-Wash., told the Rules Committee Tuesday that the military justice provision is “the most transformational thing that has been done in this committee in my 25 years of serving.”

But Gillibrand issued a statement calling the outcome “a major setback on behalf of service members, women and survivors in particular.”

She pledged to continue to press for a floor vote on her standalone bill, which was essentially inserted in full in the Senate’s NDAA. Both of Congress’ top Democrats — Senate Majority Leader Charles E. Schumer of New York and House Speaker Nancy Pelosi of California — have previously committed to permitting a floor vote on Gillibrand’s measure. Such a vote would be unlikely to occur until next year.

Civilian control

The compromise NDAA includes a provision, authored by Wisconsin Republican Mike Gallagher, a member of the House Armed Services Committee and former Marine Corps captain, that would extend the “cooling-off period” for former military officers to serve as Defense secretary from seven years to 10.

Defense Secretary Lloyd J. Austin III came under fire from lawmakers during his confirmation process for falling three years short of the seven-year requirement. The members worried that approving the nominee would do further damage to civilian control of the military and set a precedent of ignoring a law that keeps recently retired officers from serving at the helm of the Pentagon.

Austin was ultimately granted a waiver from Congress, the same waiver that was given to former President Donald Trump’s first Defense secretary, James Mattis, a retired Marine Corps four-star general.

The bill also would extend the cooling-off period for former military officers to serve as a service secretary from five years to seven.

Afghanistan commission

The bill also includes a proposal, spearheaded by Sen. Tammy Duckworth, D-Ill., to create an independent Afghanistan War Commission to look at the complete history of U.S. government failures over two decades of conflict. Anyone who was in a decision-making or policymaking role relating to Afghanistan would be ineligible to serve on the 16-member panel, so it would not include any former generals, anyone who served in Congress at any time during the war or any former senior administration officials whose portfolios included Afghanistan.

Reps. Elise Stefanik, R-N.Y., and Rob Wittman, R-Va., who pushed for a hard look at the withdrawal of U.S. troops culminating in last summer’s chaotic scenes at Hamid Karzai International Airport in Kabul, issued a joint statement praising the inclusion of some of their provisions.

“It is absolutely essential that we have an objective and thorough examination of America’s longest war to ensure the United States never again makes the same mistakes that were made in Afghanistan,” said Stefanik. “Through the creation of this commission, the American people will be provided with critical oversight for the sake of our national security.”

Procurement levels

The bill would support the procurement of 85 F-35 fighter jets for the Air Force, Navy and Marine Corps, just as the Pentagon requested, and boost funding for maintenance. The measure also would require a number of reports to Congress on the F-35, including from the secretary of Defense that detail the sustainment costs of the aircraft and what his plan is to reduce those costs.

The legislation would prohibit the use of funds for the retirement of the A-10 Thunderbolt fighter jet, known as the Warthog, for one year. It also would prohibit reductions to the operational capability of any B-1 bomber aircraft squadrons until the Air Force starts fielding the stealth B-21 bomber.

The bill would restore funding for two additional Arleigh Burke-class destroyers and fund the procurement of 13 battle force ships, including two Virginia-class submarines.

Choices made

The Senate appeared ready to vote on its bill last week, but a deal between Democrats and Republicans on how many amendments would receive votes fell apart after Marco Rubio, R-Fla., insisted on a vote on his proposal to ban importing goods from China produced using the forced labor of Uyghurs and others. Consequently, two dozen amendments on a variety of issues did not receive the attention that comes with recorded votes.

Nonetheless, the intent behind some of the amendments that did not receive votes is reflected in the compromise bill. For example, Republican Sens. Josh Hawley of Missouri and James M. Inhofe of Oklahoma — the top Republican on the Armed Services Committee — succeeded in stripping out a provision that would have required women to register for the draft, even though the provision had been present in both chambers’ versions of the bill.

Other issues, like Virginia Democratic Sen. Tim Kaine’s effort to repeal the 2002 authorization to use military force in Iraq, did not make it into the compromise bill. His argument in favor of inclusion would have been bolstered by a majority in the Senate who likely would have voted for it, but for now at least, the idea will have to wait.

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