Senate Committee on Armed Services Report on S. 1390, National Defense Authorization Act for Fiscal Year 2010

Bill Number: 
S. Rept. 111-35
Bill Status: 
Bill Location: 
Date of Last Action: 
Thursday, July 2, 2009
Relevant Text: 

111TH CONGRESS

Report

SENATE

1st Session

111-35


AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 2010 FOR MILITARY ACTIVITIES OF THE DEPARTMENT OF DEFENSE, FOR MILITARY CONSTRUCTION, AND FOR DEFENSE ACTIVITIES OF THE DEPARTMENT OF ENERGY, TO PRESCRIBE PERSONNEL STRENGTHS FOR SUCH FISCAL YEAR, AND FOR OTHER PURPOSES

July 2, 2009- Ordered to be printed

Mr. LEVIN, from the Committee on Armed Services,submitted the following

R E P O R T

[To accompany S. 1390]

The Committee on Armed Services reports favorably an original bill to authorize appropriations for the fiscal year 2010 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year, and for other purposes, and recommends that the bill do pass.

PURPOSE OF THE BILL

This bill would:

      (1) authorize appropriations for (a) procurement, (b) research, development, test and evaluation, (c) operation and maintenance and the revolving and management funds of the Department of Defense for fiscal year 2010;
      (2) authorize the personnel end strengths for each military active duty component of the Armed Forces for fiscal year 2010;

      (3) authorize the personnel end strengths for the Selected Reserve of each of the reserve components of the Armed Forces for fiscal year 2010;

      (4) impose certain reporting requirements;

      (5) impose certain limitations with regard to specific procurement and research, development, test and evaluation actions and manpower strengths; provide certain additional legislative authority, and make certain changes to existing law;

      (6) authorize appropriations for military construction programs of the Department of Defense for fiscal year 2010; and

      (7) authorize appropriations for national security programs of the Department of Energy for fiscal year 2010.

    DIVISION A--DEPARTMENT OF DEFENSE AUTHORIZATIONS

    TITLE IX--DEPARTMENT OF DEFENSE ORGANIZATION AND MANAGEMENT

    SUBTITLE A--DEPARTMENT OF DEFENSE MANAGEMENT

    em>Sense of Senate on the Western Hemisphere Institute for Security Cooperation (sec. 903)

    This committee recommends a provision that would express the sense of Senate that the Western Hemispheric Institute for Security Cooperation (WHINSEC): (1) offers professional military bilingual instruction that promotes democracy, subordination to civilian authority, and respect for human rights; (2) builds partner capacity which enhances regional and global security while encouraging respect for human rights and promoting democratic principles among eligible military personnel, law enforcement officials, and civilians of nations in the western hemisphere; (3) provides a valuable education and training facility whose curriculum is not duplicated in any of the military departments; and (4) is an essential tool to educate future Latin American leaders and improve relationships with partner nations that are working with the United States to promote democracy, prosperity, and stability in the western hemisphere.

    TITLE X--GENERAL PROVISIONS

    SUBTITLE C--COUNTER-DRUG ACTIVITIES

    Summary

    The budget request for drug interdiction and counterdrug activities of the Department of Defense totaled approximately $1.1 billion for fiscal year 2010: $537.6 million for international support; $212.5 million for domestic support; $169.8 million for intelligence, technology, and other activities; and $139.2 million for demand reduction programs. The committee recommends the following fiscal year 2010 budget for the Department's counterdrug activities.

    DRUG INTERDICTION AND COUNTERDRUG ACTIVITIES, OFFICE OF NATIONAL DRUG CONTROL POLICY FUNCTION AREAS

    [In millions of dollars; may not add due to rounding]

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    Fiscal Year 2010 Counterdrug Request $1,059.0

    Intelligence: Domestic Law Enforcement 35.5

    Intelligence: Interdiction 56.6

    Intelligence: International 101.6

    Interdiction 335.9

    International 205.9

    Investigative 45.2

    Prevention 130.7

    Research and Development: Interdiction 19.8

    Research and Development: International 4.0

    State and Local Assistance: 115.5

    Treatment 8.5

    Increases:

    High Priority National Guard Counterdrug Programs 30.0

    Mobile Sensor Barrier 5.0

    Decreases:

    United States European (EUCOM) Command Counternarcotics Support (Project Code (PC) 9205) 8.0

    EUCOM Headquarters Support (PC2346) 0.8

    EUCOM Interagency Fusion Centers (PC2365) 1.0

    Relocatable Over-the Horizon-Radar (PC3217) 5.0

    U.S. Special Operations Command Support to Combatant Commanders (PC6505) 0.2

    EUCOM Counternarcotics Reserve Support (PC9215) 1.2

    Fiscal Year 2010 Counterdrug Funding Authorized 1,077.8

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    Mobile sensor barrier

    The committee is aware of the growing use of Self Propelled Semi-Submersibles (SPSS) by drug trafficking organizations operating out of South and Central America. According to United States Southern Command (SOUTHCOM), SPSS are responsible for at least one-third of all cocaine movement in the transit zone. SOUTHCOM and the United States Coast Guard consider SPSS a serious threat to U.S. and regional security. As such, the committee recommends an increase of $5.0 million for the Department to develop, test, and demonstrate a system of autonomous surface vehicles to detect, monitor, and support interdiction of SPSS. SOUTHCOM has assigned the SPSS a high priority in its most recent Integrated Priority List submission to the Chairman of the Joint Chiefs of Staff.

    Fiscal year 2011 congressional budget justification documents

    According to the budget justification materials, $537.6 million is dedicated to international support, but the budget justification books for fiscal year 2010 provide little or no specific information as to the level of assistance to be provided to partner nations. In preparing congressional budget justification books for fiscal year 2011, the committee directs the Department to provide information relating to partner nations receiving assistance under section 1004 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1991 (Public Law 101-510), as amended, and section 1033 of the NDAA for FY 1998 (Public Law 105-85), as amended. At a minimum, the committee believes this should include: recipient partner nation and recipient within the partner nation's government; type and amount of support provided; expected duration; and U.S. agency executing support.

    Extension and modification of authority to provide additional support for counter-drug activities of certain foreign governments (sec. 1021)

    The committee recommends a provision that would extend by 1 fiscal year the duration of authority for assistance under section 1033 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1998 (Public Law 105-85), as amended by section 1021 of the NDAA for FY 2004 (Public Law 108-136), section 1022 of the John Warner NDAA for FY 2007 (Public Law 109-364), section 1022 of the NDAA for FY 2008 (Public Law 110-181), section 1024 of the Duncan Hunter NDAA for FY 2009 (Public Law 110-417); would increase the funding limitation under section 1033 of Public Law 105-85, as amended, from $75.0 million to $100.0 million for fiscal year 2010; and would make technical changes to the reporting requirements to include requiring the Secretary of Defense to report to the congressional defense committees on an annual basis.

    The committee is aware of the Department's request to expand the list of countries that could qualify for assistance under section 1033 of Public Law 105-85, as amended, to include Indonesia, Philippines, Nicaragua, Ghana, Nigeria, and Sierra Leone. However, given the Department's failure to utilize section 1033 of Public Law 105-85, as amended, vis-a.AE2-vis the additional four countries provided under the Duncan Hunter NDAA for FY 2009 (Public Law 110-417), the committee has decided not to expand the list of eligible countries. The committee, however, shares the Department's concerns about the burgeoning illegal narcotics trade in West Africa and urges the Department to expand its authorized activities with Guinea-Bissau and Senegal.

    For the first time, the committee has recommended a significant increase in the authorized maximum amount the Department can expend under this authority without expanding the list of eligible countries. The committee has opted to take this action in part as a response to the Department's repeated attempts to leverage other authorities (e.g., section 1206 of the NDAA for FY 2006 (Public Law 109-163), as amended) that are designated for counterterrorism purposes or stability operations in which the United States is a participant. The committee believes that some of the projects put forward by the Department under section 1206 of Public Law 109-163 over the past 2 fiscal years (e.g., Operation Enduring Freedom--Caribbean and Central America and the Mexico counterterrorism capabilities) would have been more appropriately funded under section 1033 of Public Law 105-85, as amended.

    Further, the committee reminds the Department that joint task forces of the Department that provide support to law enforcement agencies conducting counterdrug activities may provide similar support to law enforcement agencies conducting counterterrorism activities on the condition that any support provided under this section is consistent with all applicable laws and regulations; that the support may only be provided in the geographic area of responsibility of the joint task force; and that a verifiable nexus exists between the individuals involved in the illegal narcotics trade and individuals involved in terrorist-related activities. This authority was provided under section 1022 of Public Law 108-136 as amended.

    The committee is aware of commanders' concerns about current constraints to the types of support authorized to be provided under this authority (e.g. certain types of lethal assistance). As such, the committee directs the Under Secretary of Defense-Policy to report to the committee 180 days after enactment of this Act on what constraints commanders executing funding under this authority are confronting and whether changes to this authority should be considered.

    One-year extension of authority for joint task forces support to law enforcement agencies conducting counter-terrorism activities (sec. 1022)

    The committee recommends a provision that would extend the authority provided in section 1022 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136), which expires at the end of fiscal year 2009, through fiscal year 2010. The authority granted under this provision provides that a joint task force of the Department of Defense, which is providing support to law enforcement agencies conducting counterdrug activities (e.g., Joint Interagency Task Force--South, Joint Interagency Task Force--West, and Joint Task Force--North), may also provide these law enforcement agencies with support for their counterterrorism activities.

    This provision also includes an amendment which would require the Secretary of Defense to submit to the congressional defense committees, no later than December 31st of each year, a report evaluating the effect on counterdrug and counterterrorism activities and objectives of using counterdrug funds of a joint task force to provide counterterrorism support, a description of the type of support and recipient(s) of support provided, and a list of current joint task forces conducting counterdrug operations.

    One-year extension of authority to support unified counter-drug and counterterrorism campaign in Colombia (sec. 1023)

    The committee recommends a provision that would extend for 1 fiscal year the continuation of the authorities provided in section 1021 of the Ronald W. Reagan National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2005 (Public Law 108-375), as amended by the John Warner NDAA for FY 2007 (Public Law 109-364), which allows the Department of Defense to support a unified campaign against narcotics trafficking and activities by the Revolutionary Armed Forces of Colombia; the United Self-Defense Forces of Colombia; and the National Liberation Army. Each of these organizations is designated as foreign terrorist organizations by the U.S. Department of State under section 219 of the Immigration and Nationality Act of 1965 (Public Law 89-236).

    This provision 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 2010. Section 1021 of Public Law 108-375, as amended, limits the number of military personnel in Colombia to 800 people and the number of federally funded civilian contractors to 600 people.

    Given the success of Operation Willing Spirit, which successfully rescued three American hostages in July 2008, the ongoing negotiations with the Republic of Colombia regarding U.S. military access to Palanquero, Apiay, and Baranquilla air bases, and the scheduled loss of access to Manta Air Base in Ecuador, the committee directs the Secretary of Defense to perform an assessment of the numerical limitations included in section 1021 of Public Law 108-375, as amended, and report to the congressional defense committees 180 days after enactment of this Act on whether these numeric limitations should be changed, upward or downward, or repealed.

    TITLE XII--MATTERS RELATING TO FOREIGN NATIONS

    SUBTITLE A--ASSISTANCE AND TRAINING

    Modification of authorities relating to program to build the capacity of foreign military forces (sec. 1203)

    The committee recommends a provision that would provide that no more than $75.0 million of the $350.0 million authorized annually for fiscal years 2010 and 2011 for a program under section 1206 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364; 120 Stat. 2418), as amended, may be used to build the capacity of foreign military forces to participate in or support military and stability operations in which the United States Armed Forces are a participant.

    The committee notes the request by the Department for new authorities to: (1) build the capacity of a foreign country's national military forces preparing to support a coalition operation conducted as part of Operation Iraqi Freedom (OIF) or Operation Enduring Freedom (OEF) in Afghanistan, or by the North Atlantic Treaty Organization (NATO) International Security Assistance Force (ISAF); and (2) build the capacity of NATO and partner special operations forces to support NATO or coalition special operations conducted as part of OIF or OEF in Afghanistan, or by the NATO ISAF. The committee believes that both these activities can be conducted within the existing authority of section 1206 of Public Law 109-364, as amended.

    The authority provided in section 1206 of Public Law 109-364, as amended, has been developed through a process of close consultation between the Department of Defense and Congress, resulting in both a number of legislative changes and informal policy guidance intended to ensure that the program is conducted consistent with the legislative intent. For example, the committee has made clear its desire that section 1206 funds not be used to build the capacity of foreign military forces of countries for which designated funds for training and equipping security forces have been established, such as in Iraq and Afghanistan. The committee would be open to considering proposals to use the authority under this section to help build the capacity of NATO and other coalition partners whose ability to contribute to ongoing military or stability operations in Iraq and Afghanistan would otherwise be limited.

    The committee has repeatedly stated that the authority of section 1206 of Public Law 109-364, as amended, is intended to address emerging needs and should not duplicate or become a substitute for security assistance under Foreign Military Financing (FMF) authorities. To this end, the committee has emphasized the need for 1206 programs to develop plans to transition to FMF funding if longer-term assistance is required. The Department's stated desire to conduct sustained capacity building to prepare special operations to deploy for coalition operations suggests that it intends to establish multi-year programs with respect to certain recipient countries. To reduce the potential impact of such multi-year programs on the section 1206 program as a whole, the committee would establish the $75.0 million funding limit provided in this section.

    The committee reiterates its view that the authority of section 1206 of Public Law 109-364, as amended, is temporary and encourages the Administration to review the existing security assistance authorities of the Department of Defense and Department of State to reconcile, de-conflict, and improve the effectiveness of these authorities.

    Modification of notification and reporting requirements for use of authority for support of special operations to combat terrorism (sec. 1204)

    The committee recommends a provision that would establish two distinct notification requirements under section 1208 of the Ronald Reagan National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2005 (Public Law 108-375), as amended by the Duncan Hunter NDAA for FY 2009 (Public Law 110-417). In the event the Department is providing assistance under this authority to irregular forces, groups, or individuals supporting or facilitating military operations by U.S. special operations forces to combat terrorism, the Secretary of Defense shall notify the congressional defense committees at least 72 hours prior to the use of such authority, and in the event the Department is providing assistance under this authority to foreign forces supporting or facilitating military operations by U.S. special operations forces to combat terrorism, the Secretary of Defense shall notify the congressional defense committees no later than 48 hours following the use of such authority. This provision would also require the Department to notify the congressional defense committees again should there be any change in the scope or funding level of the operation.

    The committee has reviewed the most recent notifications and the annual report submitted by the Department and believes the level of information provided by the Department is inadequate, particularly on issues of the type of support provided to U.S. special operations forces; type of support provided to the recipient; intended duration of the support (i.e. duration of the program); amount obligated under the authority to provide support; and an after-action assessment of the operational support. Therefore, this provision also amends the notification and reporting requirements established in section 1208 (c) and (f) respectively of the Ronald Reagan NDAA for FY 2005 (Public Law 108-375) to reflect these unaddressed matters.

    The committee is concerned that U.S. Special Operations Command (SOCOM) may be leveraging this authority for long-term engagement with partner nations, rather than exclusively for support of or facilitating of military operations by U.S. special operations forces to combat terrorism, particularly in countries other than Iraq and Afghanistan. The committee recommends that SOCOM review the current programs to ensure that they are being executed in a manner consistent with the original intent.

    One-year extension of authority for security and stabilization assistance (sec. 1207)

    The committee recommends a provision that would extend for 1 year the authority for the Secretary of Defense to transfer up to $100.0 million in services or funds to the Department of State to support Department of State programs of security and stabilization assistance under section 1207 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163), as amended by section 1210 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181).

    The committee believes that one valuable aspect of the section 1207 authority is the increased coordination between the Department of Defense (DOD) and the Department of State (DOS) in the formulation and implementation of reconstruction, security, and stabilization assistance projects under this authority. At the same time, the committee reaffirms its view that section 1207 is a temporary authority. Should a section 1207-type authority be established within the DOS, the committee would urge that it be adequately resourced within the DOS budget and that authority be designed to institutionalize the expanded coordination between the DOD and DOS achieved under section 1207.

    TITLE XXI--ARMY

    ITEM OF SPECIAL INTEREST

    Cooperative security location in Manta, Ecuador

    The committee continues to monitor closely the Ecuadorian Government's decision not to renew the lease of the United States Government at Manta Air Base, which is used by the United States Southern Command (SOUTHCOM) for intelligence, surveillance, and reconnaissance operations against illegal narcotics trafficking in the Eastern Pacific. In 1999, the United States signed a 10-year agreement with then Ecuadorean President Jamil Mahuad. The Government of Ecuador fulfilled its agreement allowing the United States to conduct counter-narcotics operations out of Manta through 2009.

    The committee notes that the Manta Air Base provided a unique set of capabilities that are difficult to replace in a single location and that SOUTHCOM is looking at several options to mitigate the loss of Manta. However, the loss of Manta will impact the operational reach of detection and monitoring missions in the Eastern Pacific region, and while some operations can be conducted from other locations in the region to mitigate some of the loss of Manta, operating from different locations increases transit times and operational costs.

    The committee understands that SOUTHCOM is currently preparing a mitigation plan for the loss of Manta Air Base. With this in mind, the committee directs the Commander of SOUTHCOM to provide a report to the committee 60-days after enactment of this Act which would include SOUTHCOM's mitigation plan, as well as explain how the Command specifically intends to mitigate this loss to its detecting and monitoring operations in the Eastern Pacific; what, if any, replacement options within the region are being explored; and the potential for future negotiations with the Government in Ecuador.

    TITLE XXIII--AIR FORCE

    Temporary prohibition on use of funds for military construction improvements, Palanquero Air Base, Colombia (sec. 2307)

    The committee recommends a provision which would fence the funding for military construction improvements at Palanquero Air Base, Colombia until the Secretary of Defense, in consultation with the Secretary of State, certifies to the congressional defense committees and the military construction appropriations committees that the negotiations with the Republic of Colombia have resulted in long-term access rights that will permit United States Southern Command (SOUTHCOM) to adequately perform its mission.

    The Air Force budget request includes $46.0 million for military construction improvements at Palanquero Air Base, Colombia, including funding for runway, apron expansion, and various other facilities improvements. The committee is aware of the not yet completed negotiations between the United States Government and the Republic of Colombia regarding access rights for American equipment and personnel. As a result, the committee believes these funds should not be expended until the Commander of SOUTHCOM has secured terms that will permit the Command to perform its mission over a period of time that justifies the investment in military construction.

    Further, the committee is aware of the Department's expected loss of Cooperative Security Location Manta, Ecuador later this calendar year, and the Department's ongoing requirement for air base facilities from which to operate counter-narcotics aerial detection and reconnaissance operations. As such, the committee has approved the Air Force request for $46.0 million in funding for military construction projects at Palanquero Air Case, Colombia.

    Finally, the committee is aware of concerns raised and the perception that this expanded U.S. military presence in the region, particularly for Colombia's neighbors (e.g., Venezuela, Ecuador, and Bolivia) will give rise to increased skepticism about American military intentions in the region. Given these concerns, the committee directs the Commander of SOUTHCOM to consult partner nations in the region to ensure they are aware of ongoing U.S. requirements for robust counter-narcotics aerial detection and reconnaissance operations.