Finalizing the FY 2015 National Defense Authorization (NDAA): Key Issues for Congress

For the third year in a row, the United States Senate is unlikely to approve its own version of the critically important Fiscal Year 2015 National Defense Authorization Act (NDAA). So much for being “the world’s greatest deliberative body.”

After voting on September 18 on a bill to keep the government running through mid-December and authorize the training and equipping of so-called moderate Syrian rebels, Congress skipped town until after the November elections.

The NDAA is a sweeping measure that gives the Department of Defense and the national security programs of the Department of Energy the legal authority to fund and operate their activities. The NDAA also includes policy views and directives on defense-related matters. The NDAA is the single largest authorization bill that Congress considers, and one of the few bills passed every year, making the stakes for taxpayers very high. Congress has passed a defense authorization bill for 52 consecutive years.

On May 22, the House of Representatives approved its version of the bill by a vote of 325-98—after debating and voting on dozens of amendments. The Senate Armed Services Committee approved its version on May 23, but the bill was never brought up on the Senate floor. Few think it likely that the Senate will pass its own bill during the lame duck session. As both the Senate and House versions were considered earlier in the year, these versions of the NDAA do not address the current U.S. military operations in Iraq and Syria.

In light of the Senate’s failure to take up the bill, members of the House and Senate Armed Services Committees and their staff have begun meeting behind closed doors to discuss reconciling differences between the two bills – with the goal of paving the way for Congress to take up a pared down, final version of the bill when lawmakers return in November.

As the House and Senate work behind the scenes to write a final bill, it should take the following seven steps to protect U.S. national security. These recommendations, echoed in a bipartisan letter signed by our sister organization, Council for a Livable World, will remain relevant even in the unlikely event that the Senate takes up the Senate Armed Services Committee version of the NDAA later this year:

1. Restore funding for nuclear and radiological material security programs and refrain from placing legislative constraints on nuclear security work with Russia;
2. Allow the Pentagon to determine the most cost-effective method for maintaining Minuteman III ICBM silos;
3. Fully fund implementation of the New START treaty;
4. Require an annual report from the Congressional Budget Office (CBO) on the cost of modernizing the U.S. nuclear stockpile and complex;
5. Allow U.S. negotiators the freedom to negotiate a tough and verifiable nuclear agreement with Iran;
6. Prohibit the use of the Overseas Contingency Operations (OCO) account as a slush fund; and
7. Reduce excess funding for the Littoral Combat Ship (LCS).

Funding for Nuclear Security Programs and Nuclear Security Cooperation with Russia

The Obama administration’s budget requests have not reflected the rhetorical emphasis it has rightly placed on combatting nuclear terrorism. The FY 2015 budget request for the National Nuclear Security Administration (NNSA) slashes funding to secure and protect dangerous nuclear and radiological materials, signaling a major retreat in the Obama administration’s effort to secure nuclear and radiological materials at an accelerated rate. Specifically, the budget reduces funding for the Global Threat Reduction Initiative (GTRI) and the International Nuclear Materials Protection Program (IMPC) by 25% and 27%, respectively. The proposed cuts to these programs are difficult to understand since the danger of nuclear and radiological materials falling into the hands of terrorists remains a serious threat.

In August, a bipartisan group of 26 Senators sent a letter to the Director of the Office of Management and Budget (OMB) expressing concern that cutting nuclear security funds would slow what has been a successful process of elimination and reduction of highly enriched uranium (HEU) and separated plutonium in the international community.

Both the House and Senate versions of the NDAA significantly increase funding for GTRI above the budget request. However, the House cut an additional $176 million from the budget request for the IMPC program, including all proposed funding for nuclear security cooperation with Russia in light of Moscow’s aggression in Ukraine. In addition, the House bill includes onerous legislative constraints (Sections 1303, 3120, and 3121) on nuclear security cooperation with and in Russia.

In contrast, the Senate bill increases funding for IMPC by $70 million above the budget request and does not constrain nuclear security cooperation with Russia.

NNSA Defense Nuclear Non-Proliferation

Congress should adopt the higher Senate level for the IMPC program in the final version of the NDAA. In addition, lawmakers should not attempt to cut off nuclear security work with Russia by striking or substantially revising Sections 1303, 3120, and 3121 of the House bill. As Harvard’s Nick Roth, Matt Bunn, and Will Tobey note, this cooperation “is not a favor to Russia or to the other countries where nuclear security cooperation is underway. Continued cooperation advances U.S. national security by protecting the substantial investment the United States has already made in Russian nuclear security.”

Maintaining ICBM silos

Section 1634 of the House NDAA requires the Pentagon to preserve 450 Minuteman III ICBM silos in a warm status that enables such silo to remain fully functional even if it does not contain a deployed missile. The provision does not include a sunset clause that would terminate the requirement after a certain number of years.

The Senate bill does not include a similar constraint.

Requiring the Pentagon to maintain 450 ICBM silos in perpetuity, regardless of the future need for or affordability of so many silos, is foolish. While the Obama administration has determined that 50 of the current 450 Minuteman III silos will remain in a non-deployed – warm – status, this provision would tie the hands of all presidents with respect to force structure. Moreover, the provision as drafted could prevent the Pentagon from conducting necessary testing and maintenance of our ICBM silos. Finally, the expense of maintaining excess silos would draw funds from other Air Force priorities and could require undesired cuts to the other two legs of the triad.

The final version of the NDAA should not include Section 1634.

New START Implementation

Section 1230A of the House bill would block the use of funds for implementing the New START treaty until certification that the Russian Federation is respecting Ukrainian sovereignty and is no longer violating the Intermediate Range Nuclear Forces or Conventional Forces in Europe treaties.

The Senate bill does not include a similar prohibition.

New START continues to strengthen US security. The limits in the treaty and its verification and monitoring provisions put a cap on Russia’s nuclear forces and provide us with information about these forces that we wouldn’t otherwise have. Steps to block implementation of the treaty could prevent the United States from verifying the size and composition of the Russian nuclear stockpile. The crisis in Ukraine is not a good reason to undermine New START, which makes the U.S. safer. In fact, the treaty is now more valuable than ever. The Republican majority in the House has sought to stymie implementation of New START since it entered into force in 2011.

Congress should strike Section 1230A in the final version of the bill.

CBO Nuclear Costs Study

Rep. Earl Blumenauer (D-OR) successfully amended the House bill to include Section 1640, which requires an annual update to the Congressional Budget Office study required by the FY 2013 NDAA on the cost of maintaining and modernizing nuclear weapons over 10 years.

The CBO study found that current plans to maintain and upgrade the U.S. nuclear weapons arsenal will cost $355 billion from 2014 to 2023, and $570 billion when including associated costs such as environmental cleanup and missile defense. The report, a goal of the Center for Arms Control and Non-Proliferation, would be an important step in providing Congress the information it needs to consider future requests for modernizing nuclear weapons and launchers. The total costs of updating our nuclear weapons stockpile over the next three decades is estimated by other studies to be up to $1 trillion.

The Senate Armed Services Committee approved a provision requiring a CBO study every two years.

Congress should adopt Section 1640 in the final version of the bill.

Iran Nuclear Negotiations

Section 1264 of the House bill expresses the Sense of Congress that a comprehensive nuclear agreement with Iran should be agreed to by the United States only if Iran ceases the enrichment of uranium; Iran has ceased the pursuit, acquisition, and development of, and has verifiably dismantled its nuclear, biological, and chemical weapons and ballistic missiles and ballistic missile launch technology; and Iran has ceased providing support for acts of international terrorism.

The Senate bill does not include such a provision.

Over the course of the past year the United States has made genuine gains in its diplomatic efforts to prevent a nuclear-armed Iran. The first step agreement reached last November and extended in July has put the first meaningful constraints on Iran’s nuclear program in a decade and includes strong transparency and monitoring provisions to verify that Iran is complying with the deal. The International Atomic Energy Agency has repeatedly confirmed that Iran is complying with the terms of the agreement and its extension.

Negotiators are working now to turn this initial progress into a sustainable, comprehensive solution that further rolls back Iran’s nuclear program and ensures that it can’t develop nuclear weapons. At this key juncture, it’s crucial that members of Congress let the diplomats do their job rather than seeking to impose further constraints on what is already an incredibly technically complex and politically sensitive negotiating process.

Insisting that Iran cease all enrichment, ballistic missile development, and support for terrorism is a worthwhile objective, but it is unrealistic in the current talks and would scuttle hopes for a final agreement to verifiably limit Iran’s nuclear program so that it can’t develop nuclear weapons. Without a nuclear deal, Iran’s nuclear program would be unconstrained, thereby increasing the chances of a nuclear-armed Iran, a war with Iran, or both. Unrealistic stipulations have doomed nuclear talks in the past, and the good deal U.S. negotiators are looking for can be reached without imposing unnecessarily difficult conditions.

Congress should strike the unrealistic conditions contained in Section 1246 in the final version of the bill.

Overseas Contingency Operations (OCO) Funding

Section 1524 of the House bill codifies metrics developed by the Office of Management and Budget (OMB) to determine what should and should not be funded through the Overseas Contingency Operations (OCO) account.

The Senate bill does not include such a provision.

The OCO account was created, beginning with the 2010 budget request, to replace emergency supplemental appropriations previously used to fund the wars in Iraq and Afghanistan, ostensibly to streamline the budgeting process and provide for more accountability. As those wars draw to a close, however, the Pentagon and Congress increasingly have used the account to fund unrelated programs. This is largely because OCO is not subject to current budget caps put in place by the Budget Control Act. The OCO account has thus become subject to abuse as a kind of slush fund whereby the Pentagon and Congress circumvent the budget caps by transferring regular funding to OCO so that additional items can be funded in the base budget. In 2014, for example, funds were provided for the National Guard and general Pentagon Operations and Maintenance, both of which are unrelated to our past or current wars. Section 1524, a bipartisan amendment offered by Reps. Mick Mulvaney (SC) and Patrick Murphy (FL), is a step in the right direction toward limiting the use of OCO as a slush fund and preventing the evasion of fiscal responsibility.

Congress should adopt Section 1524 as part of the final version of the bill.

In addition, Congress should not increase funding for OCO above the FY 2015 budget request of $58.6 billion. The administration had yet to submit a formal budget request for OCO when the House and Senate Armed Services Committee completed action on the NDAA, so both bills include a $79.4 billion placeholder for OCO. $58.6 billion is more than sufficient to meet unexpected or “contingency” operations—even ongoing military operations against Islamic State of Iraq and the Levant (ISIL) militants. Still, Congress should debate and vote on any specific emergency appropriations needed for the current and future military engagement, and the real costs of our defense should be included in an affordable, transparent, and accountable defense budget.

The Littoral Combat Ship (LCS)

Section 4101 of the House bill decreases the procurement of Littoral Combat Ships by one, resulting in savings of $450 million. The House offsets this savings with $100 million in additional advance procurement funding for the program, resulting in net savings of $350 million.

Section 125 of the House bill limits funds for LCS mission modules until the Navy submits milestone goals for cost, schedule, and performance.

The Senate bill does not include these funding cuts.

The LCS is a surface combatant ship designed to counter mines, small boats, and diesel-electric submarines, particularly in near-shore waters. A total of 20 ships had been procured through FY 2014.

The LCS program has been beset by numerous testing problems and cost overruns. In FY 2006, the program was estimated to cost $220 million per ship. In 2010 that cost rose to more than $480 million. Among other issues, the ship is too lightly armored to survive a direct hit from a cruise missile, making it difficult to imagine the ship’s use in a combat environment. Further, a recent GAO report found the LCS to be significantly overweight, limiting the possibilities for future upgrades. Earlier this year, Secretary of Defense Hagel announced that the Navy would only procure 32 ships instead of 52 as originally planned. In addition, Hagel directed the Navy to consider alternatives to the LCS.

Congress should adopt Section 4101 and Section 125 as part of the final version of the bill.

****************************Keeping nuclear and radiological materials out of the hands of terrorists, arms control efforts to reduce the number and prevent the spread of nuclear weapons, and ensuring budget discipline at the Pentagon are vital steps toward protecting national security and responsibly stewarding taxpayer dollars. As the House and Senate Armed Services Committees begin to finalize the FY 2015 NDAA, they should protect these common sense priorities.