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December 16, 2021

The FY2022 National Defense Authorization Act

After weeks of delay, the United States Congress passed the long-awaited $770 billion National Defense Authorization Act (NDAA)—setting the nation’s defense expenditures and priorities for the next fiscal year.

CNAS experts dove into the legislation and have identified many of the key elements of this year's NDAA. Below please find short pieces of analysis from the Center’s various experts and programs.

To arrange an interview, email ssimon@cnas.org.

Overview

Becca Wasser (Fellow, Defense)

The tag line for the FY22 NDAA is that it is notable for trying to make useful changes, but more needs to be done.

For years, the U.S. Air Force has called on Congress to allow the divestment of legacy airframes and it appears that they have finally made some progress, with the exception of the A-10. But such retirements do not fix other issues, like ballooning cost of the F-35, as Congress has blocked Air Force, Navy, and Marine Corps procurement until costs of sustaining the aircraft come down. The NDAA also funds naval capabilities critical to countering China in a potential future conflict, including submarines and surface vessels that have long construction timelines. Shipbuilding is an area where the expansion of the industrial base is sorely needed in order to produce the naval capabilities needed to project power into the Indo-Pacific to deter China.

Congress has also significantly invested the Pacific Deterrence Initiative, to include several force posture enhancements that aim to improve the survivability of U.S. assets and warfighting advantages after the Department of Defense’s Global Force Posture Review failed to make significant changes. Lastly, Congress has funded several defense innovation initiatives intended to accelerate capability development required for the United States to deter and defeat, if needed, advanced adversaries like China. While most of the defense initiatives in the NDAA are trending in the right direction, the Department of Defense needs to keep its foot on the accelerator to ensure that it retains its military-technological advantage.


Evaluating the PPBE Process

Stacie Pettyjohn (Director, Defense)

The NDAA calls for an independent commission to evaluate the planning, programming, budget and execution (PPBE) process. PPBE is an anachronistic process that has hindered the U.S. Department of Defense’s ability to field new capabilities on a reasonable timeline—which is essential for maintaining military superiority over competitors like China. PPBE needs to be made more in line with the recent overhauls of the acquisition process, and become more of a flexible, agile process while still making the difficult tradeoffs in program funding and enabling oversight of how the funds are spent.


Afghanistan + Pacific Deterrence Initiative

Lisa Curtis (Director, Indo-Pacific Security)

Afghanistan
The inclusion in the 2022 NDAA of a provision to establish an independent commission on the war in Afghanistan is welcome. It is crucial that this commission perform an in-depth evaluation of the 20-year mission in Afghanistan to determine how the United States could have failed to prevent the return of Taliban rule after the expenditure of so much blood and treasure. The commission should evaluate how effectively the United States combined all tools at its disposal toward the objective and whether the mission was appropriately coordinated among the different U.S. government agencies. Unfortunately, the commission will likely find that inter-agency squabbles and personal power plays were not properly mediated through an objective NSC-led policy process that is so crucial to U.S. foreign policymaking. The commission must lay out new processes and methods for avoiding the kind of mistakes made on Afghanistan policy in future U.S. national security decision-making.

Pacific Deterrence Initiative
As a sign of robust U.S. commitment to maintaining its presence and influence in the Indo-Pacific, Congress funded the Pacific Deterrence Initiative (PDI) at $2 billion over what the Administration requested, enabling the Department of Defense to spend $7.1 billion on programs to enhance U.S. posture and deter China in the region. In Defense Secretary Lloyd Austin’s speech at the Reagan Defense Forum last week, he made clear that China is seeking to usurp the U.S. leadership role in the Indo-Pacific and that China’s military is on pace to become a peer competitor to the United States in the Indo-Pacific and beyond.

The full funding of the PDI is long overdue and the United States has its work cut out to reassure the region of its commitment to maintaining the free and open rules-based order and defending the sovereignty and territorial integrity of the nations of the region. It is critical that the United States work closely with allies and partners as it expands its defense capabilities and forward posture in the region. As part of the Biden Administration’s plans for “integrated deterrence,” the U.S. military must increasingly incorporate partners and allies into its force deployment strategies, operational planning, exercises, and naval maneuvers and deployments.


Military Justice Reform

Katherine Kuzminski (Director, Military, Veterans, and Society)

Included in the FY 2022 NDAA are historic provisions for military justice reform with respect to the handling of military sexual assault. The NDAA removes commanders from decisions to prosecute sexual assault case and provides for an independent prosecutor and criminalizes sexual harassment under the Uniformed Code of Military Justice for the first time. The laws further provides requirements for improved tracking of cases and increased victim support resources. The passage of the law marks not only a legislative shift, but a cultural shift in the defense community. It reflects the findings and recommendations of DoD’s July 2021 Independent Review Commission on Sexual Assault in the Military and aligns with the increased prioritization of ending sexual assault in the military from the White House and DoD leadership.


National Guard

Nathalie Grogan (Research Associate, Military, Veterans, and Society)

The inclusion of a ban on private funding for National Guard deployments beyond state borders- unless activated for a major disaster- demonstrates how seriously Congress is taking increased politicization of the National Guard in recent years. This legislation comes in response to South Dakota Governor Kristi Noem’s use of a private political donor’s funds to deploy the SD National Guard to the U.S.-Mexico border. While this is an important step towards depoliticizing the Guard, it does not completely solve the issue. As the National Guard serves a unique dual mission, state governors who politicize the Guard for partisan gain threaten the confidence in the National Guard to respond to state and federal orders. The battle between state and federal authority over mandatory COVID-19 vaccinations for service members that is playing out in the Oklahoma National Guard is an example of the tensions of this relationship and the risk for extreme politicization.


European Security

Andrea Kendall-Taylor (Director, Transatlantic Security) and Nick Lokker (Joseph S. Nye, Jr. Intern, Transatlantic Security)

The NDAA has important implications for U.S. force posture in Europe. In addition to declaring strong bipartisan support for NATO and explicitly calling out the continued belligerence of Russia toward Ukraine, the bipartisan bill allocates $300 million in lethal aid to Ukraine, $150 million for Baltic security cooperation, and $4 billion for the European Deterrence Initiative. It is notable, though, that funding for EDI has declined every year since 2019 and the new Pacific Deterrence Initiative, by comparison, received $7.1 billion in funding, reflecting U.S. prioritization of China over Russia.

The agreement also requires biennial reporting on Russian influence operations targeting U.S. alliances and partnerships, including an element on ally and partner capacities to counter these operations. However, it does not go as far as some had hoped in addressing threats to democracy, as earlier provisions designed to hold autocrats and kleptocrats responsible for human rights violations were excluded from the final version.


National Security Commission on Emerging Biotechnology

Martijn Rasser (Director, Technology and National Security)

The 2022 NDAA has many important provisions for tech policy, addressing near-term tactical needs and long-term visions. I see the most consequential one being the establishment of a National Security Commission on Emerging Biotechnology. The commission’s duties mirror those of the successful National Security Commission on Artificial Intelligence, of which many recommendations are now law. The remit includes identifying means and mechanisms for how to maintain U.S. technological advantages in biotechnologies, promote U.S. competitiveness, expand public and private sector R&D spending, bolster the workforce, and formulate ethical frameworks. Given the potential of biotechnologies such as synthetic biology to transform manufacturing, medicine, and agriculture, the work of this commission could impact not just the missions and activities of the Department of Defense but profoundly shape the U.S. bioeconomy and American competitiveness in biotechnologies for decades.


Cybersecurity

Laura G. Brent (Senior Fellow, National Security and Technology)

The NDAA takes important steps on cybersecurity, particularly to promote strengthened public-private sector partnerships across the government. CyberSentry—which allows DHS’ Cybersecurity and Infrastructure Security Agency to monitor critical infrastructure networks on a voluntary, by-request basis—has been upgraded from a pilot to an established program. Cyber Command has also been directed to explore how to work with the private sector to address international cyber threats.

Given the scale of the cyber challenge, however, the NDAA lacks the necessary sustained urgency. Most significantly, requirements for even some industry reporting of cyber incidents and ransomware payments to the government were not included—despite being key for the government to get better insight into cyber threats. Other timelines are too long. While Congress calls for an assessment of the progress of the United States and China to implement modernized military technology, the report regarding cyberspace capabilities is not due until the end of 2024—a year after the report on hypersonics and directed energy systems is due. While this assessment is a significant undertaking, 3 years for a report risks slowing efforts that must begin sooner.


Supply Chains + Human Rights

Ainikki Riikonen (Research Assistant, National Security and Technology)

The NDAA reflects the expansion of policymakers’ attention to supply chains from beyond security and product availability issues to include human rights. The bill prohibits the Department of Defense from knowingly procuring goods that are mined, produced, or manufactured using forced labor from the Xinjiang Uyghur Autonomous Region (XUAR). Forced labor from XUAR is implicated in such a wide range of products—from clothes to remote controls—that this requirement will sweep a vast number of industries into the remit of supply chain risk assessments. The NDAA, however, puts the onus on suppliers to certify sourcing “in good faith.” Given the business incentives not to find problems, a comprehensive capability in the Department to account for all steps in product supply chains—and the resources to apply it—would be necessary for this provision to have true impact.


AI Competitiveness

Megan Lamberth (Associate Fellow, National Security and Technology)

I was excited to see several of the recommendations from the National Security Commission on Artificial Intelligence (NSCAI) make it into the 2022 NDAA. The NSCAI’s final report, which was released earlier this year, provided a number of recommendations aimed at shaping U.S. strategy on AI – tackling such themes as talent, R&D investments, and institutional processes. The NDAA addresses exactly these themes by authorizing new investments in AI, creating pathways for “digital career fields,” and setting up a pilot program aimed at the “agile acquisition of technologies for warfighters.”

I would have liked to see more of the NSCAI’s recommendations included in the NDAA, such as more robust measures for talent recruitment and increased investment in AI research infrastructure. The NDAA does represent, however, a solid first step in executing the Commission’s roadmap for AI competitiveness.


Russia and Nord Stream 2

Daniel Silverberg (Adjunct Senior Fellow, Energy, Economics, and Security)

What was omitted from the final NDAA is as important, if not more so, than what made it into the final text, particularly in light of Russia’s potential invasion of Ukraine and the absence of Russia sanctions in the bill. Generally, the House and Senate Armed Services Committee leadership abhor sanctions bills riding on the NDAA unless such measures garner votes for the underlying bill. Further, there has been traditional hostility to congressionally legislated sanctions on sovereign debt. In the case of the Menendez package, Republicans want a stand-alone vote on a Risch-offered measure to sanction the Nordstream2 pipeline, which Democratic leadership rejected. In turn, Republicans rejected the Menendez provision because they view it as a fig leaf for Democrats to avoid a tough vote on the Risch amendment. Practically, despite bipartisan hostility to Nordstream2 and support for sanctions against Russia, the political dynamics underlying the NDAA foreswear any action on these issues. Should Russia invade Ukraine prior to Senate passage, all bets are off. Congress would likely advance stand-alone legislation to punish Russia and could push an emergency appropriations measure to support Ukraine. Likewise, the Administration could levy sovereign debt sanctions and shut off US currency flows to Russia, but ultimately any Russia-focused sanctions would require European cooperation, which remains uncertain.



U.S.-China Economic Competition

Emily Kilcrease (Director, Energy, Economics, and Security)

In contrast to prior years, the 2022 NDAA does not include any major efforts to address the strategic economic competition with China. In 2018, the NDAA included generational reforms to the U.S. investment screening and export control regimes. In 2021, the NDAA authorized funding for the CHIPS Act. This year, we see important efforts related to securing the integrity of military supply chains, including prohibitions on procuring goods made with the use of forced labor from Xinjiang. But these are targeted provisions, not an overarching framework for to guide U.S. policymaking on the economic competition with China. The NDAA does not take up some of the more contentious areas of debate on U.S.-China economic competition, such as the establishment of an outbound investment screening mechanism or stronger Congressional mandates to Commerce to populate the emerging and foundational technology lists authorized in the 2018 NDAA. It remains unclear whether Congress will seek to establish policy on these issues in the broader suite of China bills under consideration or if they intend to defer to the Executive Branch for action.


Sanctions

Rachel Ziemba (Adjunct Senior Fellow, Energy, Economics, and Security)

The final NDAA compromise eliminated measures which would strip the president’s authority to impose national interest waiver on sanctions and which would impose new sanctions on Russian interests - on net a win for presidential flexibility on sanctions and foreign policy. Overall, the 2022 NDAA was relatively light on Congressionally mandated sanctions compared to recent years. While it mandated many different reports on the risks posed by Chinese and Iranian policies, there were no meaningful coercive measures. Instead, there was more focus on investing in cooperation with allies to meet these challenges and bolstering US resilience at home. Despite the elimination of these Russia sanctions from the bill, the Biden administration faces increasing pressure to enforce not only sanctions on Russia, but on Iran’s smuggled oil, which are likely to increase Congressional scrutiny on sanctions and impact the confirmation of needed economic and foreign policy personnel. Broad bipartisan support for increased sanctions on Russia is now focused on deterring invasion of Ukraine. Congress, like other actors, has latched on to the use of sanctions to do “something” and is unlikely to cede this authority quickly and will expect increased oversight, potentially increasing the incentive for formal review of any Iran deal should Vienna talks proceed.


All CNAS experts are available for interviews. To arrange one, contact Sydney Simon at ssimon@cnas.org or comms@cnas.org.