House Armed Services Committee Report on H.R. 5658, Duncan Hunter National Defense Authorization Act for Fiscal Year 2009

2008

110TH CONGRESS 2D SESSION

HOUSE OF REPRESENTATIVES

REPORT

110-652

DUNCAN HUNTER NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2009

R E P O R T

OF THE

COMMITTEE ON ARMED SERVICES

HOUSE OF REPRESENTATIVES

ON

H.R. 5658

together with

ADDITIONAL VIEWS

[Including cost estimate of the Congressional Budget Office]

congress.#13

MAY 16, 2008- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

TITLE IX--DEPARTMENT OF DEFENSE ORGANIZATION AND MANAGEMENT

ITEMS OF SPECIAL INTEREST

INTER-AGENCY TRANSFORMATION OF THE UNITED STATES SOUTHERN COMMAND

The United States Southern Command (SOUTHCOM), with the approval of the Secretary of Defense, has moved quickly to transform itself into a joint, inter-agency, regional security command over the last year. It plans to complete the transformation by October 1, 2008. As part of this process, SOUTHCOM envisions altering its mission statement and its organizational structure and functioning. The combatant command (COCOM) plans to alter its current mission of `conduct[ing] military operations and promoting security cooperation to achieve U.S. strategic objectives' to a mission of `support[ing] security, stability, and prosperity in the Americas.' Thus, it would elevate stability operations and prosperity-generating activities to the same level as the security activities for the COCOM mission.

With regard to the organization itself, SOUTHCOM established a director of inter-agency partnering (J9) along-side SOUTHCOM's eight other joint directorates. The J9 acts as the inter-agency `portal' for the command, identifying and coordinating inter-agency opportunities, and as the facilitator of the transformation. Ultimately, SOUTHCOM envisions shifting to `mission-centric' directorates as African Command is implementing, from having Directorates which are based upon traditional Joint Staffing. According to SOUTHCOM and with the guidance of Joint Forces Command, four new directorates are planned: a directorate for strategy and policy; a directorate for security and intelligence; a directorate for stability; and a directorate for inter-agency partners. These four directors would be supported by two offices, one for resources and management, and one for enterprise support. In addition, the command wishes to expand its efforts in public-private cooperation and international partnerships to the extent legally permissible. Eventually, SOUTHCOM would like to become `the regional focus point for policy implementation' for inter-agency efforts in their geographic area of responsibility.

Although the committee generally supports the efforts of SOUTHCOM to transform itself to meet the twenty-first-century challenges in the Western Hemisphere more effectively, the committee does have a series of concerns about the implications of these changes. Chief among these concerns are:

(1) The concept for how the four new, mission-centric directorates that are planned for SOUTHCOM will interface laterally with other COCOMs that maintain traditional joint directorate structures and vertically with the Joint Staff at the Pentagon;

(2) The duties and responsibilities of the two proposed deputy commanders for SOUTHCOM;

(3) A description of the warfighting chain of command, as required under title 10, United States Code, from the commander of SOUTHCOM down to the proposed joint operations center of the security and intelligence directorate, as well as the coordination of this center with the proposed stability directorate and the inter-agency partnering directorate;

(4) SOUTHCOM's plan to manage and evaluate its internal transformation, including measures of progress;

(5) The role of the Department of State, the United States Agency for International Development, the Millennium Challenge Corporation, and other foreign assistance agencies in the delivery of assistance by SOUTHCOM and other COCOMs;

(6) The appropriateness of including the economic welfare of a region, in this case Central and South America and the Caribbean, within the core of the COCOM's mission;

(7) The role the Department of Defense generally, and the COCOMs more particularly, should have in establishing foreign assistance policy as part of the foreign assistance process at the Department of State or as part of the inter-agency process led by the National Security Council; and

(8) The Department's plan to incorporate lessons learned from SOUTHCOM's inter-agency transformation into other COCOMs aside from United States African Command.

In light of these concerns, the committee directs the Secretary of Defense, in consultation with the Secretary of State, to submit a written response to the committee's concerns by July 31, 2008. The response shall be submitted to the Senate Committee on Armed Services and House Committee on Armed Services.

SUBTITLE E--OTHER MATTERS

SECTION 942--AMENDMENTS OF AUTHORITY FOR REGIONAL CENTERS FOR SECURITY STUDIES

This section would amend section 184 of title 10, United States Code, to make funds authorized under that section in any fiscal year available for programs that begin in that fiscal year, but end in the following fiscal year, beginning with fiscal year 2009. This section would also create a pilot in which the Secretary of Defense, with the concurrence of the Secretary of State, may waive reimbursement of the costs of activities at the Regional Centers up to $1.0 million for fiscal year 2009 and 2010 for non-governmental and international organization personnel. This section would also require the Secretary of Defense to submit a report describing the extent of nongovernmental and international organization participation in the programs of each regional center, including the costs incurred by the United States for the participation of each organization. The committee notes that `international organization personnel' in this section is intended to refer to personnel from non-profit or not-for-profit entities such as the United Nations, the African Union or the European Union, and not international corporations or businesses.

SECTION 943--FINDINGS AND SENSE OF CONGRESS REGARDING THE WESTERN HEMISPHERE INSTITUTE FOR SECURITY COOPERATION

This section would express the sense of congress that the Western Hemispheric Institute for Security Cooperation (WHINSEC) is 1) one of the most effective mechanisms that the United States has to build relationships with future leaders throughout the Western Hemisphere, influence the human rights records and democracy trajectory of countries in the Western Hemisphere, and mitigate the growing influence of non-hemispheric powers; 2) succeeding in meeting its stated mission while fostering mutual knowledge, transparency, confidence, and cooperation among the participating nations; and 3) is an invaluable education and training facility which the Department of Defense should continue to utilize in order to help foster a spirit of partnership that will ensure security and enhance stability and interoperability among the United States military and the militaries of participating nations.

SECTION 944--RESTRICTION ON OBLIGATION OF FUNDS FOR UNITED STATES SOUTHERN COMMAND DEVELOPMENT ASSISTANCE ACTIVITIES

This section would require that the Secretary of Defense, within 30 days after the date of enactment of this Act, to submit to the congressional defense committees a report describing the development assistance activities carried out by the United States Southern Command (SOUTHCOM) and containing: a certification that such activities will not negatively impact the readiness of SOUTHCOM; do not divert resources from funded or unfunded requirements of SOUTHCOM; are not already, or will not be, undertaken by other federal departments or agencies; and are designed, planned, and conducted as derivative activities of SOUTHCOM's warfighting responsibilities under title 10 of the United States Code.

This section would also restrict the obligation or expenditure of 10 percent of SOUTHCOM's operation and maintenance funds until 30 days after the certification required by this section is received by the congressional defense committees.

TITLE X--GENERAL PROVISIONS

ITEMS OF SPECIAL INTEREST

COUNTER-DRUG ACTIVITIES

OVERVIEW

The budget request contained $1.1 billion for drug interdiction and counter-drug activities, in addition to $189.9 million, for operational tempo, which is contained within the operating budgets of the military services. The budget is organized in fiscal year 2009 to address four broad national priorities: (1) international support; (2) domestic support; (3) intelligence and technology; and (4) demand reduction.

The committee recommends an authorization for fiscal year 2009 Department of Defense counter-drug activities as follows (in millions of U.S. dollars):

FY09 Drug Interdiction and Counter-Drug Request $1,060.5

International Support 541.3

Domestic Support 207.6

Intelligence Technology and Other Demand Reduction 173.6

Demand Reduction 138.0

Recommended Decrease

International Support 5.0

Recommended Increase

Southwestern Border Fence 5.0

Recommendation 1,060.5

ITEMS OF SPECIAL INTEREST

Budget requests

The budget request contained $1.1 billion for drug interdiction and counter-drug activities, including all counter-narcotics resources in the Department of Defense with the exception of those resources in the operating budget for the military services and those resources which are appropriated or requested in emergency budgets. The committee notes that the fiscal year 2009 budget request represents the sixth year that the Administration has funded the overwhelming majority of counter-narcotics activities in the Islamic Republic of Afghanistan and the rest of Central Asia through the use of emergency budget requests, instead of including these amounts in the regular budget request.

International support

The budget request contained $541.3 million for international support. The committee recommends $536.3 million, a decrease of $5.0 million, for international support. The committee notes that this small decrease will not result in diminished activities as the international support program continues to receive funding from emergency budget requests.

Self-propelled semi-submersible vessels and low profile vessels without nationality

The committee recognizes that one of the emerging and most significant threats in the forty-two million square mile transit zone that includes the Caribbean Sea, the Gulf of Mexico, and the eastern Pacific Ocean is the use of manned and unmanned self-propelled semi-submersible (SPSS) vessels and Low Profile Vessels (LPVs) to transport illicit narcotics into the United States. Narcotics traffickers in the region have increasingly turned to this method of transportation to circumvent the effective counter-drug efforts of the United States and partner nations have. The committee has significant concerns that these vessels represent a potential platform for other dangerous cargos and for human trafficking.

Southwest border fence

The southwest border continues to be a major human and drug smuggling corridor into the United States. Since 1990, the Department of Defense has been involved in addressing the heavily used smuggling corridor in San Diego, California, by building physical barriers throughout the region. As a result, the number of drug `drive-throughs' and the number of apprehensions of illegal crossers has greatly diminished. The Southwest Border Fence has served as an invaluable counter-narcotics resource and supports the President's border security initiative and makes for more efficient and effective use of the national guardsmen deployed in support of Operation Jump Start.

However, the border fence construction project is still under construction, and the area remains one of the nation's most heavily utilized drug smuggling corridors. Additional funds are required to continue work on the fourteen-mile Border Infrastructure System near San Diego, California.

Accordingly, the committee recommends an increase of $5.0 million for this purpose.

Temporary expansion of the Joint Inter-Agency Task Force-South

The United States African Command (AFRICOM) is scheduled to establish a counter narco-terrorism (CNT) office by October 1, 2008. This office will assume responsibility for existing programs of the United States European Command (EUCOM) CNT office. Given Joint Inter-Agency Task Force-South's (JIATF-S) existing capabilities that it has developed over nearly two decades, EUCOM-CNT is relying on JIATF-S to provide information regarding trans-Atlantic drug events as well as helping to establish intelligence analyst support in various U.S. embassies in Africa. In addition, it will take a collective effort with Western European countries that have years of experience in the region, other U.S. Government agencies, non-governmental organizations, and the United Nations Office on Drugs and Crime.

JIATF-S's primary mission is to detect, monitor, and support interdiction of the south-to-north flow of illicit drugs and other narco-terrorist threats to the security of the United States within the prescribed Joint Operating Area (JOA). It also serves as a center for detection and monitoring, as well as counter-drug support to U.S. country teams in Latin America and the Caribbean. JIATF-S's JOA responsibilities currently extend from up to 100 nautical miles from the Continental United States (CONUS) for air targets, to the CONUS territorial seas for maritime targets, to the U.S. territorial seas of Puerto Rico and the U.S. Virgin Islands for both air and maritime targets and also includes the territory of the Bahamas.

The committee recognizes the efforts of AFRICOM to establish an effective counter-narcotics program within the command and appreciates AFRICOM's limited resources to do so. As an interim measure, the committee recommends that the JOA of JIATF-S be expanded to include Africa. The committee recommends only a temporary expansion; as opposed to longer term expansion, because much of JIATF-S's success is attributable to its relatively small area of responsibility. The committee does not want to jeopardize ongoing and future operations of the task force. Additionally, the committee recommends an increase in the number of Tactical Analysis Teams with oversight and management by J2. Authorization of funding for this temporary expansion would be provided by section 1033 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85), as amended by section 1021 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), section 1022 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364), section 1022 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 109-181), and section 1024 of this Act. The committee directs the Commander of AFRICOM to report to the Senate Committee on Armed Services and the House Committee on Armed Services by March 1, 2009 on: the combatant command's overall counter-narcotics strategy; the identification of priorities for counter-narcotic efforts in AFRICOM's area of responsibility, particularly in West Africa; the role that JIATF-S will temporarily play in meeting these objectives; and the role of international and regional partnerships in executing the same.

SUBTITLE C--COUNTER-DRUG ACTIVITIES

SECTION 1021--CONTINUATION OF REPORTING REQUIREMENT REGARDING DEPARTMENT OF DEFENSE EXPENDITURES TO SUPPORT FOREIGN COUNTER-DRUG ACTIVITIES

This section would extend, by one year, the requirement for the Secretary of Defense to submit a report detailing the expenditure of funds by the Secretary during fiscal year 2008 in direct and indirect support of the counter-drug activities of foreign governments. This requirement expired in fiscal year 2008. The committee notes that the Department of Defense continues to increase its level of counter-narcotics assistance to foreign law enforcement agencies and militaries in recent years. The committee believes that it should provide closer oversight of such expenditures.

SECTION 1023--EXTENSION OF AUTHORITY TO SUPPORT UNIFIED COUNTER-DRUG AND COUNTER-TERRORISM CAMPAIGN IN COLOMBIA AND CONTINUATION OF NUMERICAL LIMITATION ON ASSIGNMENT OF UNITED STATES PERSONNEL

This section would extend the continuation of authorities provided in section 1021 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375), which allows the Department of Defense to support a unified campaign against narcotics trafficking and activities by organizations designated as terrorist organizations for fiscal year 2009. This section would also extend the limitation on the number of U.S. military and federally funded civilian contractor personnel in the Republic of Colombia through fiscal year 2009. Section 1021 limits the number of military personnel in Colombia to 800 people and the number of federally funded civilian contractors to 600 people. This section would extend the authorities for an additional year to provide support to Colombian efforts against the three designated, Colombian-based Foreign Terrorist Organizations: the Revolutionary Armed Forces of Colombia; the United Self-Defense Forces of Colombia; and the National Liberation Army.

SECTION 1024--EXPANSION AND EXTENSION OF AUTHORITY TO PROVIDE ADDITIONAL SUPPORT FOR COUNTER-DRUG ACTIVITIES OF CERTAIN FOREIGN GOVERNMENTS

This section would extend by one fiscal year the duration of authority for assistance under section 1033 of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105-85), as amended by section 1021 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), section 1022 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364), and section 1022 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181). The current authority, which would expire at the end of fiscal year 2008, enables the Department of Defense to provide counter-drug equipment to nations of the Western Hemisphere, Central Asia, and the Caucasus.

This section would expand the list of countries that could qualify for assistance under section 1033 to include three West African countries which have been recognized by the U.S. Government as major transit countries, countries of concern, or countries from which significant counter-narcotic activities for sub-regions can be conducted. These countries are: the Republic of Ghana; the Republic of Guinea-Bissau; and the Republic of Senegal. According to the 2008 International Narcotics Control Strategy Report of the Department of State, Ghana has become a `significant transshipment point for illegal drugs, particularly cocaine from South America, as well as heroin from Southeast and Southwest Asia. Europe is the major destination, but drugs also flow to South Africa and to North America.' For fiscal year 2008, the President determined that Guinea-Bissau, while not a major drug transit or major illicit drug producing country, is `becoming a warehouse refuge and transit hub for cocaine traffickers from Latin America transporting cocaine to Western Europe.' The Department of Defense has identified Ghana as an `anchor country' for its emerging counter-narcotic efforts through the African Command on the continent.

This section would increase the funding limitation under section 1033 from $60.0 million to $65.0 million for fiscal year 2009.

This section would make a technical correction to section 1033 to reflect the respective name today of the Committee on Foreign Affairs.

The committee notes that the Department has not fully utilized the existing section 1033 authority with regard to all of the eligible countries and will again evaluate its use over fiscal year 2009.

The committee also notes that although the Republic of Ecuador is currently eligible to receive support under section 1033, it will consider that country's cooperation with the United States on counter-narcotic activities through the remainder of fiscal year 2008 and fiscal year 2009 to determine whether it should remain eligible.

TITLE XII--MATTERS RELATING TO FOREIGN NATIONS

ITEMS OF SPECIAL INTEREST

COMBATANT COMMANDERS' INITIATIVE FUND

The committee welcomes the Department of Defense's added emphasis on using the Combatant Commanders' Initiative Fund (CCIF), as established in section 166a of title 10, United States Code, and modified by the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364), as a valuable tool for combatant commanders to tailor programs and initiatives for their respective areas of responsibility. The committee also notes the Department's plans to increase the use of this authority, as amended, so that combatant commanders can better provide urgent and unanticipated humanitarian relief and reconstruction assistance to countries, particularly where U.S. armed forces are engaged in contingency operations.

Because the use of this modified authority is a relatively recent development, the committee expects that the Department will update its guidelines for use of the CCIF, especially as it relates to humanitarian relief and reconstruction activities, to ensure that the authority can be used quickly and without bureaucratic delay in urgent situations. As noted in the conference report accompanying the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364), the committee underscores that CCIF authority, particularly as it relates to humanitarian relief and reconstruction activities, is not intended for use in the Islamic Republic of Afghanistan or the Republic of Iraq so long as the Commanders' Emergency Response Program or other similar authority is available for use in those countries.

Finally, the committee directs the Secretary of Defense to submit an annual report on the exercise of CCIF authority for fiscal years 2009, 2010, and 2011. Each report shall be due to the congressional defense committees within 90 days after the end of the respective fiscal year and shall, at a minimum, identify each foreign nation that received assistance under CCIF authority for that fiscal year, the amount of that assistance, and the national security rationale for providing that assistance.

FOREIGN MILITARY SALES

The committee notes that the training and equipping of foreign security forces is an increasingly important element of U.S. national security policy and is an area with growing involvement by the Department of Defense. Foreign military sales (FMS) can be a highly beneficial and effective part of this effort. For example, in recent years, the Government of Iraq has increasingly utilized the FMS process to acquire and sustain U.S.-origin military equipment because the FMS process provides high-quality equipment while minimizing concerns about procurement integrity that otherwise have inhibited the Republic of Iraq's efforts to make major investments in equipment. As the United States focuses increasingly on building partnership capacity around the world, it is often doing so with countries that are not traditional FMS customers. These countries have underdeveloped institutional capacities, particularly in matters of budgeting and acquisition, which present challenges for an FMS sales system that has traditionally focused on sales to longer-term, more developed allies.

These trends have correctly led to a reexamination of the policies and processes associated with FMS, including the appointment of a dedicated FMS task force by the Deputy Secretary of Defense. The committee is pleased to note that the efforts of this task force led to a significant reduction in the time needed to process high-priority FMS requests. The committee expects that the Department will continue to examine the policies and processes associated with FMS to ensure that they are appropriately tailored to the changing environment for this program.

At the same time, the committee notes that processes other than FMS that have been and are still being used to equip foreign security forces, particularly the special funds for Iraqi and Afghan security forces, have proven extremely vulnerable to materiel diversion, corruption, and accountability failures. These failures can not only limit the effectiveness of U.S. assistance, in extreme cases, they can and have led to outcomes that work at cross purposes to U.S. policy and the military mission. The FMS program is a better long-term alternative to these more ad hoc programs, which have limited institutional support and under-developed accountability processes.

The FMS program suffers from its own accountability issues as highlighted in reports issued by the Government Accountability Office and by the recent discovery of the accidental delivery of classified parts to the Republic of China on Taiwan. The Government Accountability Office identified numerous cases of shipments leaving U.S. ports in which the defense articles were not authorized by the FMS agreement, the FMS agreement was closed, or the value of the articles exceeded the amount authorized. The Government Accountability Office also found that there is no effective system for tracking shipments after they have left a U.S. port, which increases opportunities for diversion, improper delivery, or theft. The committee expects the Department to work and share information with other federal agencies to correct problems with tracking FMS shipments at U.S. ports and during transport to the country of destination.

The committee directs the Secretary of Defense, working in coordination with the Secretary of State, to submit a report, by September 1, 2008, to the Senate Committee on Armed Services, the House Committee on Armed Services, the Senate Committee on Foreign Relations, and the House Committee on Foreign Affairs containing an analysis of the implications of the Department's efforts to build partner capacity around the globe for the FMS program, measures needed to address problems with the tracking of FMS shipments, and efforts within the Department to update its policies and processes for handling FMS.

RECONSTRUCTION, SECURITY, AND STABILIZATION ASSISTANCE

The committee believes that the authority provided in section 1207 of the National Defense Authorization Action for Fiscal Year 2006 (Public Law 109-163), provides the Department of State with critical resources to engage in reconstruction, security, or stabilization activities. The committee reaffirms that the resources provided under this authority are intended to meet immediate, short-term needs. They are not intended for long-term development programs, even when other funding authorities that currently exist are not sufficient or appropriate. Nor is this authority intended to be used for broader security assistance initiatives that would be better suited for traditional foreign military financing authorities; as stated in the conference report accompanying Public Law 109-163, Congress does not believe it is appropriate to provide long-term funding from the Department of Defense to the Department of State so that the Department of State can fulfill its statutory requirements. Finally, this authority should not be used for broader security assistance programs undertaken under the type of authority provided under section 1206 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163), as amended by section 1206 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364).

LEGISLATIVE PROVISIONS

SUBTITLE A--ASSISTANCE AND TRAINING

SECTION 1202--MILITARY-TO-MILITARY CONTACTS AND COMPARABLE ACTIVITIES

This section would amend section 168(e) of title 10, United States Code, so that funds provided under that section in any fiscal year may be used for programs that begin in that fiscal year, but end in the next fiscal year, beginning with fiscal year 2009.

SECTION 1203--ENHANCED AUTHORITY TO PAY INCREMENTAL EXPENSES FOR PARTICIPATION OF DEVELOPING COUNTRIES IN COMBINED EXERCISES

This section would amend section 2010 of title 10, United States Code, so that funds authorized under that section in any fiscal year are available for programs that begin in that fiscal year, but end in the following fiscal year, starting in fiscal year 2009.

SECTION 1206--MODIFICATION AND EXTENSION OF AUTHORITIES RELATING TO PROGRAM TO BUILD THE CAPACITY OF FOREIGN MILITARY FORCES

This section would amend section 1206 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163), to provide authority to use funds provided in a fiscal year for programs begun in that fiscal year, but continued into the next fiscal year, beginning with fiscal year 2009. It would extend the authority provided in section 1206 for an additional two years, through fiscal year 2010.

The committee is disappointed to learn that, in the case of assistance provided to the Republic of Panama, the Department of Defense pushed beyond the clearly articulated limits of this authority and is concerned about the responsible execution of this authority in the future. The committee continues to believe that capable foreign partners play a vital role in the international security environment but remain unconvinced that this authority should reside permanently with the Department of Defense. The committee expects that, over the long-term, these `train and equip'-type authorities, which appear to be migrating to the Department of Defense, might better remain within the Department of State's jurisdiction.

The committee believes military-to-military programs are beneficial in fostering a deeper sense of partnership and commitment between the United States, our allies, and friends and therefore encourages the Department of Defense to use members of the United States military to conduct the training provided under this authority whenever possible.

SECTION 1207--EXTENSION OF AUTHORITY FOR SECURITY AND STABILIZATION ASSISTANCE

This section would amend section 1207 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163), by extending the authority from September 30, 2008, to September 30, 2010.

SECTION 1209--REGIONAL DEFENSE COMBATING TERRORISM FELLOWSHIP PROGRAM

This section would amend section 2249c of title 10, United States Code, to increase the authorized annual funding level for the Program from $25.0 million to $35.0 million.