The Department of Defense has a transparency problem, and Congress knows it. The department has long not complied or undercomplied with its legal obligations to provide lawmakers with reports and notifications about military activity. Recently, Congress has begun to push back — gently — on these shortfalls. In 2019, Congress required the department to prepare a plan for standardizing its submission of reports. And in 2021, Congress required the department to publish biannual lists of the reports it submitted. Unfortunately, these modest efforts have not led to improved military transparency. More robust action from Congress may be necessary to overcome the Department of Defense’s persistent failure to give information to lawmakers.
Through a Freedom of Information Act request, the Brennan Center obtained a copy of the Department of Defense’s plan for standardizing its submission of reports — a document titled A Report on Reports. Instead of proposing concrete steps for the department to take, the plan is rife with blame shifting, legal misinterpretation, and an implicit unwillingness to follow the law.
In the Report on Reports, the Department of Defense describes itself as “eager to improve its reports process” but frustrated in this endeavor by Congress. Apparently, “only Congress can implement many of the key reforms necessary” to ensure that the department submits its reports on time. The Report on Reports proposes no changes to department protocols to meet this goal. Instead, it assigns Congress a range of tasks and reforms.
Chief among the Department of Defense’s asks is that Congress compile and include in each National Defense Authorization Act a list of reports that the department must submit. Per the Report on Reports, compiling this kind of list — by combing through the provisions of the National Defense Authorization Act — can take the department as long as three months, delaying report production. This, in and of itself, is preposterous. A single person reviewing a National Defense Authorization Act should be able to identify the reporting requirements in a week’s time; Brennan Center staff have done as much. Even more absurd is the department’s suggestion that Congress, with its $7 billion annual budget, should take on administrative responsibilities that are too burdensome for the military, which commands an annual budget of $816 billion. The department has ample resources to comply with the law and enable Congress to oversee military affairs. It simply has not prioritized doing so.
The Department of Defense also claims that its report compliance is hampered by Congress’s enactment of Section 480 of Title 10 of the U.S. Code, a law that allegedly “mandates default delivery of reports in hardcopy.” The Report on Reports highlights the “logistical problems” and “considerable expenditures” caused by the supposed requirement to submit physical reports. This excuse is wafer-thin, particularly given the text of Section 480, which actually directs the secretary of defense to submit reports “in an electronic medium” — the opposite of what the Report on Reports claims. Although classified reports are exempted from Section 480’s electronic submission requirement, nothing in the law says that classified reports must be submitted in hard copy and cannot be submitted electronically.
To top things off, the Report on Reports recommends that Congress afford the Department of Defense flexibility in deciding how and even whether to comply with statutory reporting requirements. According to the department, it should be able to reach informal agreements with congressional staffers to downgrade reporting requirements to briefing requirements, as well as to axe requirements altogether when they “become obsolete.” Never mind that these agreements behind closed doors would lack legal force and could not supersede the requirements of duly enacted laws.
Unsurprisingly, the Department of Defense has continued to flout its reporting requirements since preparing the Report on Reports. To know this, we need look no further than Congress’s recent effort to improve military transparency.
In 2021, Congress amended Section 122a of Title 10 of the U.S. Code, a decade-old law that requires the Department of Defense to publish unclassified reports that it has submitted to Congress. The department has largely ignored Section 122a and rarely publishes reports. Indeed, there is no available list of reports that the department has submitted, which should be queued up for publication. The 2021 amendment sought to change this, requiring the department to issue a “summary of all reports submitted to Congress” every January 1 and July 1, starting in 2023. Each summary is meant to inform both Congress and the public of which reports have been submitted when and pursuant to what sections of law. But no such summary exists. Nor was anyone in the department’s public affairs office able to tell the Brennan Center when a summary would be issued — or even whether the department maintains policies for implementing Section 122a.
This level of dysfunction is damaging to our democracy. The Constitution not only requires the military to abide by congressionally enacted statutes; it also requires Congress to exercise a heightened degree of oversight of military affairs.
Congress must continue its push to improve military transparency with vigor. This means making Department of Defense funding contingent on the submission of critical reports — a mechanism that both the House and Senate have proposed in their respective versions of the National Defense Authorization Act for Fiscal Year 2024. It also means strengthening Section 122a and requiring the department to explain how it implements the law, consistent with an important transparency reform in the House’s version of the defense act. Given the department’s recalcitrance, the Report on Reports is correct on one score: Congress does, in fact, need to implement key reforms to department reporting practices.