by Laicie Heeley and Kingston Reif
The conference report on the National Defense Authorization Act for Fiscal Year 2012 provides $530 billion for the Pentagon’s base budget, as well as $116 billion for the wars in Iraq and Afghanistan and $17 billion for nuclear weapons-related spending at the Department of Energy. The total bill, at $662 billion, provides $26.6 billion less than the President’s requested amount in accordance with limits set by the debt deal in August 2011.
For the Center’s previous analysis on the Defense bill, see:
• A Review of the House Armed Services Committee Version of the Fiscal Year 2012 Defense Authorization Bill
• A Review of the Senate Armed Services Committee Version of the Fiscal Year 2012 Defense Authorization Bill
• Additional Cuts to the Senate Armed Services Committee Version of the Fiscal Year 2012 Defense Authorization Bill
• Defense Authorization Bill Passes Senate, Conference Looms
Some of the important provisions in the final agreement are listed below.
Congress is pressing ahead with a provision that would require military custody for terrorist suspects linked to al-Qaida, including those captured within the U.S., hoping that a last-minute revision will address the President’s concerns. The White House said last month that it would veto “any bill that challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the nation.”
The conference report contains “additional assurances” and a new title, changing “Requirement for Military Custody” to “Military Custody for Foreign al-Qaeda Terrorists.” Assurances include language stating that “nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person.” In addition, the waiver provision has been changed to grant such authority to the president rather than the secretary of defense.
Critics maintain that the changes in the language do not sufficiently deal with White House and civil libertarians’ concerns, stating that the provision would “authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil. Due process would be a thing of the past.”
The measure would apply sanctions against any entity dealing with the Central Bank of Iran (CBI) in an effort to pressure Iran to abandon its nuclear program. Small changes to the provision in conference would give the president slightly more flexibility in waiving some of the sanctions on national security grounds, but the provision adopted initially by the Senate emerged from conference largely intact.
In addition, the conference agreement would add the secretary of state and the director of national intelligence as consultants for a report on the sanctions’ impact on world oil markets. Despite objections from the administration, all 100 senators voted for the original Menendez (D-NJ)-Kirk (R-IL) amendment.
The bill allocates approximately $116 billion for overseas contingency operations, including the wars in Afghanistan and Iraq. While the agreement contains provisions mandating specific benchmarks for progress in Afghanistan, conferees did not include the Senate’s call for an accelerated drawdown of US troops from Afghanistan.
F-35 Joint Strike Fighter
The bill would require fixed-price contracts beginning with the sixth low-rate production batch of F-35 Joint Strike Fighter aircraft. Under this provision, the contractor would assume all responsibility for cost increases above the target cost specified in the contract.
Believing that current contracts have enabled the cost of the F-35 program to balloon out of control, lawmakers inserted this new language after learning that negotiations had gone forward on a new Lockheed Martin contract without waiting for the result of Congress’ consideration.
“We take umbrage at the idea that they would proceed on Lot 5 while we are negotiating whether or not there should be a prohibition on a cost-plus contract on Lot 5. So what we did is we said no cost-plus starting on Lot 6,” said Senator Carl Levin.
Another provision requires a report on plans for implementing provisions of the Weapon Systems Acquisition Reform Act of 2009 for the F-35 Joint Strike Fighter program. Another report on the development of the short take-off, vertical landing variant (the troubled F-35B) will be required no later than 45 days after the enactment of the Authorization Act. The report should include a plan for how the Secretary of Defense plans to resolve the technical issues facing the program.
U.S. Presence Overseas
The measure would require an independent study to assess the U.S. military’s posture in the United States Pacific Command area of responsibility. The report should include, “options for the realignment of United States forces in the region to respond to new opportunities presented by allies and partners.”
The measure would also require an independent assessment of the overseas basing presence of United States forces. The report should include the location and number of forces, condition of facilities, and costs of their continued sustainment. It should also include “an assessment of the advisability of the retention, closure, or realignment of military facilities of the United States overseas, or of the establishment of new military facilities of the United States overseas” in light of fiscal constraints and national security requirements.
A provision that would have required the Pentagon to complete a full financial audit by 2014, three years ahead of schedule, has been removed. The final bill requires that the DoD submit a plan by May 2012 on how it will complete an audit by September 30, 2014. While Secretary Leon Panetta has stated that he has set 2014 as a goal for the completion of an audit, the pressure to strip the deadline from the final bill reportedly came from the Pentagon. The new language instead calls 2014 a “goal” set by Panetta.
Nuclear Policy and Missile Defense Provisions
The original House version of the defense bill (H.R. 1540) included many objectionable limitations on nuclear and missile defense policy matters that would 1) constrain the Pentagon’s ability to implement the New START treaty and 2) undercut the Constitutional authority of the President and senior military leaders to determine U.S. nuclear force structure and engage in discussions with the Russians on missile defense cooperation.
In contrast the Senate bill (S. 1253) contained a number of reporting requirements on nuclear policy issues, but it does not impose policy or funding limitations.
The Conference Committee report largely follows in the footsteps of the Senate bill. It requires a number of reports and includes several Sense of Congress provisions, but it eliminates or significantly scales back the objectionable House provisions without compromising Congress’ important oversight responsibilities over U.S. nuclear policy.
New START Implementation and Further Nuclear Weapons Reductions
Section 1042 calls for a report on the Pentagon’s plan for implementing the New START treaty. The plan would include a description of the feasibility and potential cost savings of accelerating New START implementation. Section 1044 expresses the Sense of Congress that reductions in U.S. nuclear forces should be supported by a thorough assessment of the strategic environment and be guided by specific criteria.
Section 1045 includes a Sense of Congress that the U.S. should maintain a safe, secure, reliable, and credible nuclear stockpile and that the U.S. should provide the necessary resources to meet these goals. In the event appropriations to sustain and modernize U.S. nuclear forces are insufficient, the President must issue a report on the impact of the resource shortfall. The provision also directs the Secretary of Defense to submit an annual report setting forth an accounting of the nuclear weapons in the stockpile, including the number of weapons in the deployed and non-deployed stockpiles and each category of non-deployed weapons. Finally, the provision requires the President to submit a net assessment to the congressional defense committees to support any proposal to reduce the number of nuclear weapons in the active or inactive stockpile to a level that is lower than the level on the date of the enactment of the defense bill.
Nuclear Targeting Strategy
Section 1046 directs the President to submit a report describing any new Nuclear Employment Strategy (i.e. targeting strategy) if and when such a strategy is issued. It also establishes a Sense of Congress that any changes to nuclear targeting strategy should support U.S. deterrence and related goals.
The Conference report fully funds the FY 2012 request of $1.16 billion for the ground based midcourse defense system, a reduction of $100 million below the House approved level. Section 234 establishes a Sense of Congress concerning the approach the Missile Defense Agency should take in correcting the problem encountered in the December 2010 flight-test failure of the ground-based midcourse defense system, and requires the Secretary of Defense to submit two reports on the plans and progress for achieving that correction. Section 232 requires GAO to review and assess the Missile Defense Agency’s annual acquisition baseline reports mandated in last year’s defense bill. Section 232 calls on the Secretary of Defense to submit a report on a missile defense hedging strategy for the protection of the U.S. homeland, including the feasibility of deploying a missile defense site on the East coast of the U.S.
Despite calls to cancel the program, the Conference report provides $390 million for the Medium Extended Air Defense System (MEADS), a slight decrease from the administration’s request of $407 million. The system, which was slated to replace the Patriot missile defenses for the United States, Germany and Italy, has faced years of delays and cost overruns prompting the Army to state that it would abandon plans to deploy the new system once its design was finished. The House cut the Pentagon request by $150 million and the Senate Armed Services Committee opted to cancel the program altogether.
In the end, largely because a full cancellation would have resulted in contract penalties of $800 million, the conference committee agreed to cut the Pentagon request by just $17 million. No more than 25 percent of the funds can be spent, however, until Defense Secretary Leon Panetta “submits a detailed plan to use such funds as final obligations for the program, either for implementing a smaller restructured program, or for paying contract termination costs.”
Additionally, the bill provides full funding for the AEGIS Ballistic Missile Defense (BMD) system and $709 million for the Terminal High Altitude Area Defense (THAAD) system, $124 million below the President’s request.
Missile Defense Cooperation with Russia
Section 1244 requires that no classified United States ballistic missile defense information may be provided to the Russian Federation unless, 60 days prior to any instance in which the United States Government plans to provide such information to the Russian Federation, the President provides notification to the appropriate congressional committees.
Non-Strategic Nuclear Weapons Reductions and Extended Deterrence
Section 1237 expresses the Sense of Congress that if the United States pursues arms control negotiations with the Russian Federation, such negotiations should be aimed at the reduction of Russian deployed and non-deployed non-strategic nuclear weapons and increased transparency of such weapons. It also states that geographical relocation and consolidated or centralized storage of nonstrategic nuclear weapons by Russia should not be considered a reduction or elimination of such weapons.
Regarding extended deterrence, the provision states that it is the sense of Congress that the nuclear forces of the United States are a key component of the NATO nuclear alliance and that the presence of United States nuclear weapons in Europe—combined with NATO‘s unique nuclear sharing arrangements under which non-nuclear members participate in nuclear planning and possess specially configured aircraft capable of delivering nuclear weapons—provides reassurance to NATO allies who feel exposed to regional threats.
Russian Nuclear Forces
Section 1240 requires the Secretary of Defense to prepare an assessment of Russia’s strategic nuclear forces as it implements the New START treaty.
Reports on U.S. Nuclear Delivery Systems and an Accounting of the Nuclear Weapons Stockpile
Section 1041 requires a biennial assessment and report on the delivery platforms for nuclear weapons and the nuclear command and control system. Section 1043 calls for a similar annual report on the plan for the nuclear weapons stockpile, nuclear weapons complex, nuclear weapons delivery systems, and nuclear weapons command and control system. Section requires a Comptroller General report on nuclear weapon capabilities and force structure requirements. Finally, Section 1048 calls for a report on feasibility of joint life extension program for Air Force and Navy nuclear warheads.
Ohio Class Replacement Program
Section 242 requires the Secretary of the Navy and Commander of STRATCOM to prepare a report and cost assessment of options for Ohio-class replacement ballistic missile submarine. The report is to assess several options for the number of submarines and the number of missile tubes per submarine for the Ohio-class replacement program, ranging from a fleet of twelve submarines with 16 missile tubes each (the current plan) to a fleet of 8 submarines with 20 missile tubes each. The report would be required to assess the procurement cost and total life cycle cost of each option, the ability for each option to meet Strategic Command‘s at-sea requirements that are in place as of the date of enactment of this Act and any expected changes to such requirements, and the ability for each option to meet nuclear employment and planning guidance in place as of the date of enactment of this Act and any expected changes to such guidance.
Nuclear Material Security
The Conference report authorizes $2.3 billion for the National Nuclear Security Administration’s Defense Nuclear Nonproliferation account, a decrease of $216 million below the FY 2012 budget request. Nearly all of the reduction came from the Mixed Oxide Fuel (MOX) fuel program. The Conference report fully funded the International Nuclear Materials Protection and Cooperation program and authorized $500 million for the Global Threat Reduction Initiative, a reduction of $8 million below the FY 2012 request.
Funding for Nuclear Modernization
The Conference report authorizes $7.3 billion for the National Nuclear Security Administration’s weapons activities account, a reduction of $355 million below the FY 2012 request. The bill also approved the Defense Department’s research and development requests of $1.07 billion for the Ohio-class submarine replacement program, $197 million for a new long-range, nuclear-capable bomber, and $9.93 million for a new air launched nuclear cruise missile.
According the Conference report language, the final authorized amounts for weapons activities “reflect the amount provided for these activities by the conference report for H.R. 2354 of the Energy and Water Development and Related Agencies Appropriations Act, 2012 of the Subcommittee on Energy and Water Development of the Committee on Appropriations of the Senate and the Subcommittee on Energy and Water Development, and Related Agencies of the House of Representatives.”
Other Weapons Systems
The bill provides a plan to retire six B-1 Bombers, but will require a modernization plan and cost estimate to sustain the remaining aircraft through 2022. The B-1 was built for the Cold War, but has found new life in Afghanistan, causing many to argue for its sustainment. The Air Force expects the decision to trim the fleet by six aircraft save approximately $357 million over the next five years.
The measure provides $152.2 million in funding for the Joint Light Tactical Vehicle, a program the Senate had voted to scrap. Following the Senate vote, the Army and Marine Corps returned with a strategy to reduce unit cost, proposing new estimated unit costs ranging between $230,000 and $270,000 for base vehicle configurations, as opposed to the original $350,000.
Further, the bill provides $449.4 million for the Ground Combat Vehicle and $479.9 million for the C-27J Spartan cargo aircraft. It “adds $255.0 million to upgrade 49 additional M1A2 tanks allowing the Army to upgrade a total of 70 tanks and preserve minimum industrial capability through FY 2012,” effectively keeping the Abrams tank facility alive.
The measure provides approximately $995 million for E/A-18G Growler aircraft, just below the administration’s request of $1 billion, $2.2 billion for F/A-18E and F Super Hornets, $2 million below the administration’s request; and $2.43 for the V-22 Osprey.
The bill includes $5.1 billion for Army and Marine Corps tactical wheeled vehicle programs, $2.7 of which will go toward modernizing the services’ fleet of Mine Resistant Ambush Protected (MRAP) Vehicles.