Updated below

The Department of Defense is quietly asking Congress to rescind the requirement to produce an unclassified version of the Future Years Defense Program (FYDP) database.

Preparation of the unclassified FYDP, which provides estimates of defense spending for the next five years, has been required by law since 1989 (10 USC 221) and has become an integral part of the defense budget process.

But the Pentagon said that it should no longer have to offer such information in an unclassified format, according to a DoD legislative proposal for the pending FY 2021 national defense authorization act.

“The Department is concerned that attempting publication of unclassified FYDP data might inadvertently reveal sensitive information,” the Pentagon said in its March 6, 2020 proposal.

“With the ready availability of data mining tools and techniques, and the large volume of data on the Department’s operations and resources already available in the public domain, additional unclassified FYDP data, if it were released, potentially allows adversaries to derive sensitive information by compilation about the Department’s weapons development, force structure, and strategic plans.”

Therefore, DoD said, “This proposal would remove the statutory requirement to submit an Unclassified Future Years Defense Program (FYDP) to the Congress, the Congressional Budget Office, the Comptroller General of the United States, and the Congressional Research Service.” It follows that FYDP data would also not be included in the published DoD budget request, as it typically has been in the past.

The DoD proposal would preserve a classified FYDP for Congress but it would repeal the requirement that DoD officials “certify that the data used to construct the FYDP is accurate.” DoD said that “This requirement is unnecessary as information from these systems is already used to provide the President’s Budget.”

The unclassified FYDP helps inform budget analysis

At a time when it is clear to everyone that US national security spending is poorly aligned with actual threats to the nation, the DoD proposal would make it even harder for Congress and the public to refocus and reconstruct the defense budget.

Without an unclassified FYDP, Congress and the public would be deprived of unclassified analyses like “Long-Term Implications of the 2020 Future Years Defense Program” produced last year by the Congressional Budget Office. Other public reporting by GAO, CRS, the news media and independent analysts concerning the FYDP and future defense spending would also be undermined.

Some information in the FYDP — such as projected intelligence spending — has always been deemed sensitive enough that it can be classified.

But most information in the FYDP is unclassified and is properly the subject of public oversight. So, for example, the recent FY2021 defense budget request for military construction includes an “FY21 FYDP Project List” identifying numerous proposed construction projects across the country and around the world that are anticipated through 2025.

DoD no longer publishes its legislative proposals

Until two years ago, DoD published its legislative proposals to Congress on the website of the DoD General Counsel. (The proposals for FY 2019 are still online.) But that is no longer the case. As part of a broader retreat from public oversight and accountability, the Pentagon today does not make its legislative proposals easily accessible to the public.

A copy of the current package of DoD legislative proposals through March 6, 2020 was obtained by Secrecy News. A complete tabulation of the dozens of specific proposals is available here. A section-by-section description of all of the proposals is here.

Among the current batch is a proposed exemption from the Freedom of Information Act for certain unclassified documents concerning military tactics, techniques, or procedures.

That very same proposed FOIA exemption has previously been rejected by Congress on at least four prior occasions. So legislative approval of such requests is not necessarily a foregone conclusion.

Late last week, the House Armed Services Committee filed a preliminary version of the FY21 defense authorization act (HR 6395) based on the DoD legislative proposals. “When the Committee meets to consider the FY21 NDAA, the content of H.R. 6395 will be struck and replaced with subcommittee and full committee proposals,” according to a March 27 news release.

Update 1: On March 31, DoD posted its legislative proposals for the FY 21 defense authorization act.

Update 2: A DoD spokesman said the Pentagon’s proposal was not intended to limit public access to all future year spending data. “There will be no reduction in any currently provided information,” the spokesman said. See Pentagon denies it seeks to hide future budget information by Aaron Mehta, Defense News, April 3, 2020.

A new congressional tally of military construction projects that have unobligated fund balances turned up hundreds of current projects fitting that description. See “FY2017-2019 Military Construction Projects/Programs with Unobligated Balances.”

Because the President declared a national emergency, some of the funds for those military construction activities could be repurposed in order to pay for barriers along the border with Mexico, pursuant to 10 USC 2808.

Declaring that a national emergency exists made it possible “to secure additional resources” to construct barriers along the border, the Trump White House said on February 15.

The White House said that up to $3.6 billion in unobligated Department of Defense military construction funds would now “be available to build the border wall.”

Funds are said to be “obligated” as the result of a purchase, contract or other government action that incurs a legal obligation to pay them. Until that happens, they are “unobligated” even though they have been appropriated for a specific purpose.

There is a considerable amount of military construction money that has not been obligated.

“According to DOD information, the department reported unobligated balances in the military construction and family housing accounts totaling $13.3 billion at the end of FY2018,” the Congressional Research Service noted recently.

Even though the money may be legally available, it is not “free.”

“All of this money has been assigned for other purposes, so it really then comes to what can — what are you going to trade off, because when you say tradeoff, it really is a tradeoff,” said Acting Secretary of Defense Patrick Shanahan on February 16.

The President’s declaration of national emergency faces a legislative challenge as well as pending litigation.

“Since September 11, 2001, the Department of Defense (DoD) has obligated $1,500.8 billion for war-related costs.”

That’s the headline from the latest report to Congress on the post-9/11 costs of war, according to the Pentagon’s own reckoning. See Cost of War Update as of March 31, 2018 (FY 2018, Quarter 2).

Independent estimates of military spending that use a broader definition of the term yield a considerably higher total.

The new DoD report provides a detailed retrospective account of post-9/11 military spending, broken down by theater (Afghanistan, Iraq, Syria), by fiscal year, and by military service. A copy was obtained by Secrecy News.

The fraction of war-related funds that were appropriated to DoD in the post-9/11 period for classified purposes totaled $88 billion, the report said.

The 76-page DoD report itself exemplifies a certain financial profligacy, with a price tag that is orders of magnitude higher than one might have supposed. “The cost to the Department of Defense to prepare and assemble this report is approximately $209,000 for FY 2018,” the document states.