Tracking “Unobligated” Military Construction Funds

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.

IG Reports on Wars Abroad Unaffected by Trump Rebuke

In apparent disregard of criticism from President Trump, two new Inspector General reports on aspects of the wars in Afghanistan, Syria and Iraq were openly published this week.

“What kind of stuff is this?” the President had complained at a January 2 cabinet meeting. “We’re fighting wars, and they’re doing reports and releasing it to the public? Now, the public means the enemy. The enemy reads those reports; they study every line of it. Those reports should be private reports. Let him do a report, but they should be private reports and be locked up.”

Despite that rebuke, however, the reports produced this week were published as usual.

There was no basis for a change. According to the Special Inspector General for Afghanistan Reconstruction (SIGAR), no policy directive implementing the President’s remarks last month was ever generated, and so the continuing release of SIGAR reports has not been affected.

The latest SIGAR report finds that DoD is delivering more military helicopters to the Afghan Air Force than can be used. “Based on the current UH-60 delivery schedule, it is unlikely that there will be enough pilots trained before all 159 UH-60s are delivered. DOD runs the risk of wasting U.S. taxpayer dollars to purchase aircraft the AAF and SMW [Afghan security forces] cannot fly or maintain.” See the report here.

Meanwhile, another DoD Inspector General report released this week finds that “ISIS remains a potent force of battle-hardened and well-disciplined fighters” — a finding that is at odds with the President’s public remarks. A classified appendix to the IG report that was not released addressed topics such as “ISIS Retains its Military Capabilities [in Syria] Despite Loss of Territory” and “Iran Strikes ISIS in Syria.” That report is here.

The bureaucracy’s indifference to the President’s objections is remarkable. Philosophers of language (following J.L. Austin) speak of “performative utterances,” meaning speech that not only describes but transforms the reality under discussion. When a judge or clergyman declares “I now pronounce you man and wife,” for example, that statement actually effects a change in the status of the couple to whom it is addressed.

Likewise, one might have expected the strictures on publication uttered by the President — who is the chief executive and commander-in-chief of the armed forces and who was speaking in an official capacity before his own subordinates — to have this sort of performative quality and to alter agency conduct in the way he prescribed.

But that is not what happened. The President’s remarks were not connected to any policy apparatus that might have put them into effect. And so they were inconsequential.

Can the Defense Department Build a Border Wall?

If the President were to declare a national emergency in order to justify building a “wall” on the border with Mexico, there would be certain legal authorities that he could invoke to initiate construction operations.

But the scope of those legal authorities is uncertain and would almost certainly trigger litigation to challenge their application, the Congressional Research Service said last week.

“Whether these authorities — individually or in combination — extend to the construction of a border wall would present a reviewing court with several questions of first impression,” CRS said. See Can the Department of Defense Build the Border Wall?CRS Legal Sidebar, January 10, 2019.

On the other hand, the National Emergencies Act has been effectively invoked on two previous occasions to authorize military construction activity overseas (by Presidents George H.W. Bush and George W. Bush), CRS said in another new publication. See Military Construction Funding in the Event of a National EmergencyCRS Insight, updated January 11, 2019.

Some other noteworthy new and updated publications from the Congressional Research Service include the following.

Mexico’s Immigration Control EffortsCRS In Focus, updated January 3, 2019

How a Government Shutdown Affects Government ContractsCRS Legal Sidebar, January 10, 2019

Defense Primer: FY2018 Department of Defense Audit ResultsCRS In Focus, updated January 9, 2019

New CRS Series: Introduction to Financial ServicesCRS Insight, updated January 11, 2019

Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, January 10, 2019

U.S. Sanctions on Russia, updated January 11, 2019

Cluster Munitions: Background and Issues for Congress, updated January 7, 2019

U.S.-Proposed Missile Technology Control Regime ChangesCRS In Focus, January 10, 2019

Trump Says DoD IG Reports Should Be “Private”

The recurring dispute over the appropriate degree of secrecy in the Department of Defense arose in a new form last week when President Trump said that certain audits and investigations that are performed by the DoD Inspector General should no longer be made public.

“We’re fighting wars, and they’re doing reports and releasing it to the public? Now, the public means the enemy,” the President said at a January 2 cabinet meeting. “The enemy reads those reports; they study every line of it. Those reports should be private reports. Let him do a report, but they should be private reports and be locked up.”

It is not clear what the President had in mind. Did he have reason to think that US military operations had been damaged by publication of Inspector General reports? Was he now directing the Secretary of Defense to classify such reports, regardless of their specific contents? Was he suggesting the need for a new exemption from the Freedom of Information Act to prevent their disclosure?

Or was this simply an expression of presidential pique with no practical consequence? Thus far, there has been no sign of any change to DoD publication policy in response to the President’s remarks.

Meanwhile, Rep. Adam Smith, the incoming chairman of the House Armed Services Committee, reiterated his view to the contrary that the Pentagon needs to be more forthcoming with information, not less.

“As Chairman, I will work with my colleagues to promote transparency and Congressional oversight, enhance military readiness, combat inefficiency and waste at DOD, advance green technology in defense and address the threat climate change poses to our national security, fight for an inclusive military, and move towards a responsible approach to nuclear weapons,” he said on January 4. (And, he wrote earlier, “Constant misinformation from the president is a real problem in a democratic society.”)

There are indications that some Pentagon officials may be receptive to Chairman Smith’s concerns.

After reporters complained about the growing use of “For Official Use Only” markings to restrict access to information, Under Secretary of Defense (acquisition and sustainment) Ellen Lord responded that “I understand the need, the requirement” for transparency, “and I will put out guidance to make everything open to the public to the degree we can.” See “Pentagon’s Chief Weapons Buyer Promises Less Secrecy in Reports” by Anthony Capaccio, Bloomberg, January 4.

While secrecy in the Department of Defense has increased noticeably in the Trump Administration, the Pentagon remains an astonishingly prolific publisher of military information, issuing dozens or hundreds of directives, manuals, reports and other publications each day. Most are the product of routine bureaucratic churning, and are of little if any significance, but some have broader interest or appeal. Here are a few that caught our eye.

Techniques for Visual Information Operations, ATP 6-02.40, US Army, January 3, 2019

Military Diving Operations: Multi-Service Tactics, Techniques, and Procedures, ATP 3-34.84, January 2, 2019

DoD support to non-contiguous States and territories in response to disasters, threats, and emergencies, report to Congress, n.d. (Nov. 2018)

The U.S. Army in Multi-Domain Operations 2028, TRADOC Pamphlet 525-3-1, 6 December 2018

DoD Scientific and Technical Information Program (STIP), DoD Instruction 3200.12, August 22, 2013, Incorporating Change 3, Effective December 17, 2018

The latter document directs that “DoD will maximize the free flow of scientific and engineering information developed by or for DoD to the public.”

DoD Says US, Turkey on a Collision Course

Turkey’s pending procurement of a Russian surface to air missile system would jeopardize its status in NATO, and disrupt other aspects of US military relations with that country, the Department of Defense told Congress.

“The U.S. Government has made clear to the Turkish Government that purchasing the S-400 [surface to air missile system] would have unavoidable negative consequences for U.S.-Turkey bilateral relations, as well as Turkey’s role in NATO,” DoD said in an unclassified summary of a classified report to Congress.

See DoD report to Congress on Status of the U.S. Relationship with the Republic of Turkey (unclassified summary), November 2018.

The report was obtained and reported by Bloomberg News. See “Turkey’s F-35 Role at Risk If It Buys From Russia, Pentagon Warns” by Tony Capaccio, November 28, 2018.

Defense Primers, Costs of War, and More from CRS

Several short introductions to basic aspects of U.S. military policy have recently been updated by the Congressional Research Service. Intended for congressional consumers, they may also be useful to others.

Defense Primer: Organization of U.S. Ground ForcesCRS In Focus, updated November 16, 2018

Defense Primer: Special Operations ForcesCRS In Focus, updated November 16, 2018

Defense Primer: Navigating the NDAACRS In Focus, updated November 16, 2018

Defense Primer: Defense Appropriations ProcessCRS In Focus, updated November 16, 2018

Defense Primer: Department of the Army and Army Command StructureCRS In Focus, updated November 16, 2018

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It is hard even for attentive members of the public to fully comprehend the U.S. military budget.

“The scale of spending alone makes it hard to grasp. Public understanding of the costs of war is further limited by secrecy, faulty accounting, and the deferral of current costs,” I argued recently in a short paper for the Costs of War Project at Brown University. See The Costs of War: Obstacles to Public Understanding, November 14, 2018.

Neta C. Crawford of Brown University estimated the post-9/11 costs of war at $5.9 trillion through FY 2019.

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Other noteworthy new releases from the Congressional Research Service include the following.

The Global Research and Development Landscape and Implications for the Department of Defense, updated November 8, 2018

U.S. Ground Forces Robotics and Autonomous Systems (RAS) and Artificial Intelligence (AI): Considerations for Congress, updated November 20, 2018

United States and Saudi Arabia Energy RelationsCRS In Focus, November 19, 2018

Global Human Rights: Multilateral Bodies & U.S. ParticipationCRS In Focus, updated November 23, 2018

The European Union: Current Challenges and Future Prospects, updated November 15, 2018

Immigration: “Recalcitrant” Countries and the Use of Visa Sanctions to Encourage Cooperation with Alien RemovalsCRS In Focus, November 15, 2018

Infrastructure Investment and the Federal GovernmentCRS In Focus, updated November 19, 2018

Insulin Products and the Cost of Diabetes TreatmentCRS In Focus, November 19, 2018

Quantum Information Science: Applications, Global Research and Development, and Policy Considerations, updated November 19, 2018

What Role Might the Federal Government Play in Law Enforcement Reform?CRS In Focus, updated November 16, 2018

Who Can Serve as Acting Attorney GeneralCRS Legal Sidebar, November 15, 2018

Next HASC Chair Sees Need for Greater DoD Transparency

Rep. Adam Smith (D-WA), the likely chair of the House Armed Services Committee in the next Congress, told congressional colleagues that enhancing national security transparency is among his top oversight priorities.

“Together, we have made strides on national security issues but much more must be done to conduct vigorous oversight of the Trump Administration and the Department of Defense,” he wrote in a November 8 letter to House Democrats, declaring his candidacy for HASC chairman.

“Specifically, we must look to eliminate inefficiency and waste at the DOD; boost oversight of sensitive military operations and ensure that the military works to avoid civilian casualties; protect our environmental laws nationwide; advance green technology in defense; take substantial steps to reduce America’s overreliance on nuclear weapons; and promote greater transparency in national security matters,” he wrote.

In an opinion column last month, Rep. Smith elaborated on the topic. He said the Trump Administration and the Pentagon had abused their secrecy authority with counterproductive results.

“The Defense Department under this administration [. . .] declared war on transparency in their earliest days on the job. On issue after issue, they have made conspicuous decisions to roll back transparency and public accountability precisely when we need it most,” he wrote, citing numerous examples of unwarranted secrecy.

A course correction is needed, he said.

“Candid discussion with Congress about military readiness, the defense budget, or deployments around the world; the release of general information about the effectiveness of weapons systems that taxpayers are funding; and many other basic transparency practices have not harmed national security for all the years that they have been the norm,” he wrote. “The efforts to further restrict this information are unjustified, and if anything, the recent policies we have seen call for an increase in transparency.”

See “The Pentagon’s Getting More Secretive — and It’s Hurting National Security” by Rep. Adam Smith, Defense One, October 28, 2018.

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The mystery surrounding a classified US military operation called Yukon Journey was partially dispelled by a news story in Yahoo News.

“Even as the humanitarian crisis precipitated by Saudi Arabia’s more-than-three-year war in Yemen has deepened, the Pentagon earlier this year launched a new classified operation to support the kingdom’s military operations there, according to a Defense Department document that appears to have been posted online inadvertently.”

See “Pentagon launched new classified operation to support Saudi coalition in Yemen” by Sharon Weinberger, Sean Naylor and Jenna McLaughlin, Yahoo News, November 10.

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The need for greater transparency in military matters will be among the topics discussed (by me and others) at a briefing sponsored by Sen. Jack Reed and the Costs of War Project at Brown University on Wednesday, November 14 at 10 am in 236 Russell Senate Office Building. A new report on the the multi-trillion dollar costs of post-9/11 US counterterrorism operations will be released.

Post-9/11 Costs of War Exceed $1.5 Trillion

“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.

Pentagon Moves to Support War in the “Grey Zone”

The Department of Defense issued a directive this month based on new authority granted by Congress last year to engage in “low-visibility, irregular warfare” operations.

In the FY2018 defense authorization act (PL 115-91, sect. 1202) Congress specifically authorized the Secretary of Defense “to provide support to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing irregular warfare operations by U.S. Special Operations Forces (SOF).”

The new authority was needed, Congress said, in order to fill a perceived gap in the US military’s ability to fight in conflicts that are below the threshold of war.

“Adversarial nations are becoming more aggressive in challenging U.S. interests and partnerships and destabilizing regional order through the use of asymmetric means that often fall below the threshold of traditional armed conflict, often referred to as the ‘grey zone’,” according to the Senate Armed Services Committee report (115-125) on the 2018 defense bill (section 1201).

“The committee notes that the ability of U.S. SOF [special operations forces] to conduct low-visibility, irregular warfare operations in politically sensitive environments make them uniquely suited to counter the malign activities of our adversaries in this domain.”

“However, the committee is concerned that the Secretary of Defense lacks sufficient authority to provide support for irregular warfare operations by U.S. SOF to counter this growing threat and therefore believes that granting this authority will provide the Secretary with the necessary options and flexibility to achieve U.S. military objectives,” the Senate Armed Services Committee wrote last year.

The amount of money that was authorized for this purpose — $10 million per year for three years — is minuscule by conventional U.S. military standards, but it could still be meaningful in the context of irregular warfare.

To begin implementing the new authority, Deputy Secretary of Defense Patrick Shanahan this month issued Directive-type Memorandum 18-005 that defines the policies and procedures for employing the funding authorized by Congress. See Authority for Support of Special Operations for Irregular Warfare (IW), DTM-18-005, August 3, 2018.

Pentagon Audit: “There Will Be Unpleasant Surprises”

For the first time in its history, the Department of Defense is now undergoing a financial audit.

The audit, announced last December, is itself a major undertaking that is expected to cost $367 million and to involve some 1200 auditors. The results are to be reported in November 2018.

“Until this year, DoD was the only large federal agency not under full financial statement audit,” Pentagon chief financial officer David L. Norquist told the Senate Budget Committee in March. Considering the size of the Pentagon, the project is “likely to be the largest audit ever undertaken,” he said.

The purpose of such an audit is to validate the agency’s financial statements, to detect error or fraud, to facilitate oversight, and to identify problem areas. Expectations regarding the outcome are moderate.

“DOD is not generally expected to receive an unqualified opinion [i.e. an opinion that affirms the accuracy of DoD financial statements] on its first-ever, agency-wide audit in FY2018,” the Congressional Research Service said in a new report last week. See Defense Primer: Understanding the Process for Auditing the Department of Defense, CRS In Focus, June 26, 2018.

In fact, “It took the Department of Homeland Security, a relatively new and much smaller enterprise, about ten years to get to its first clean opinion,” Mr. Norquist noted at the March Senate hearing.

In the case of the DoD audit, “I anticipate the audit process will uncover many places where our controls or processes are broken. There will be unpleasant surprises. Some of these problems may also prove frustratingly difficult to fix.”

“But the alternative is to operate in ignorance of the challenge and miss the opportunity to reform.  Fixing these vulnerabilities is essential to avoid costly or destructive problems in the future,” Mr. Norquist said.