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The Pentagon Must Submit to Congressional Oversight

The Biden administration has appeared to greenlight the Defense Department’s disturbing pattern of noncompliance with reporting requirements required by law.

February 11, 2022
View of Pentagon
Digital Vision/Getty

This article was first published in The Hill

This week, Demand Progress, the Bren­nan Center for Justice, the Project On Govern­ment Over­sight and 39 other civil soci­ety organ­iz­a­tions sent Pres­id­ent Biden a letter protest­ing his sign­ing state­ment for the National Defense Author­iz­a­tion Act for Fiscal Year 2022. Biden’s state­ment indic­ated that the Depart­ment of Defense (DOD) would not comply with certain parts of the law requir­ing it to submit reports to Congress. Repeat­ing an excuse often used to frus­trate over­sight of the milit­ary, Biden said that compli­ance with the law “could reveal crit­ical intel­li­gence sources or milit­ary oper­a­tional plans,” threat­en­ing national secur­ity.

Biden is wrong about his abil­ity to with­hold national secur­ity inform­a­tion from Congress, as the letter of protest notes. But Biden’s state­ment raises another issue that receives too little atten­tion: DOD’s disturb­ing pattern of viol­at­ing report­ing oblig­a­tions. Noncom­pli­ance with report­ing require­ments is a prob­lem under any circum­stance, but it’s partic­u­larly alarm­ing when the noncom­pli­ant agency is in such dire need of over­sight.

Take the 2001 Author­iz­a­tion for Use of Milit­ary Force — the pres­id­ent’s stand­ing author­ity for prosec­ut­ing the war on terror. Congress regu­larly demands inform­a­tion on how the author­ity is inter­preted and imple­men­ted by the milit­ary. But compli­ance is spotty or nonex­ist­ent, leav­ing lawmakers to find out about the scope of Amer­ican hostil­it­ies only when misfor­tune strikes. Indeed, the pres­id­ent and DOD have yet to produce a single update under a 2019 law that requires bian­nual report­ing on the use of the 2001 Author­iz­a­tion.

Congress also requires DOD to submit inform­a­tion on civil­ian casu­al­ties. Suspi­cious of poten­tial under­counts, Congress passed a law four years ago mandat­ing that DOD over­haul its proced­ures for receiv­ing and review­ing alleg­a­tions of civil­ian harm. No over­haul has taken place. Adding insult to injury, DOD will not tell Congress what assist­ance it needs to complete the over­haul — never mind that Congress enacted a separ­ate law in 2021 request­ing that inform­a­tion.

Then there’s the national emer­gency declared by Pres­id­ent Bush after 9/11 and still in place today. The declar­a­tion unlocked emer­gency powers that DOD relies on to bolster its milit­ary capa­city and spend­ing. The National Emer­gen­cies Act requires the pres­id­ent, who has deleg­ated the task to DOD, to submit bian­nual reports on the costs of using these emer­gency powers. Twenty years into the national emer­gency, there should have been 40 such reports. There are zero.

These repeated fail­ures to produce reports to Congress can’t be chalked up to the pres­id­ent’s need to protect sens­it­ive inform­a­tion. The pres­id­ent has no author­ity to with­hold inform­a­tion that Congress must have to perform its own consti­tu­tional role. When it comes to milit­ary over­sight, that role is substan­tial: It is Congress — not the pres­id­ent — that has the consti­tu­tional power to raise and main­tain the milit­ary and to declare war.

Moreover, the Consti­tu­tion imposes on Congress unique over­sight respons­ib­il­it­ies — and asso­ci­ated prerog­at­ives — with respect to the milit­ary. Because of the risk the milit­ary can pose to demo­cracy and good governance, the Founders had the keen sense to limit army appro­pri­ations to two years, ensur­ing regu­lar review and recon­sid­er­a­tion of milit­ary activ­ity. No other appro­pri­ations power was so limited.

The need for robust Congres­sional over­sight is as acute now as it has ever been. The 2001 AUMF and 9/11 national emer­gency were enacted to confront the threat posed by al-Qaeda. Two decades later, they have been stretched to support oper­a­tions far afield from that original purpose. Many of these oper­a­tions take place in secret, without public debate or express congres­sional author­iz­a­tion. This opens the door to abuse.

And there has been abuse — not just in the scope of milit­ary oper­a­tions, which span Africa and Asia, but also in the conduct of those oper­a­tions. As recent report­ing has revealed, the milit­ary has bombed crit­ical civil­ian infra­struc­ture, preven­ted the collec­tion of evid­ence on civil­ian harm, and ignored concerns about reck­less airstrikes from officers in the field. Last month, 50 Demo­cratic lawmakers urged DOD to “end this pattern” and “emphas­ize[] the rule of law.” That neces­sar­ily entails abid­ing by report­ing require­ments, instead of forcing lawmakers to learn about milit­ary miscon­duct from invest­ig­at­ive journ­al­ists.

Shortly after taking office, Biden acknow­ledged that revital­iz­ing our national secur­ity insti­tu­tions would “require[] a recom­mit­ment to the highest stand­ards of trans­par­ency.” He also prom­ised to “work closely and cooper­at­ively with the Congress” to improve the account­ab­il­ity of those insti­tu­tions. Biden’s sign­ing state­ment, which green­lights the DOD’s noncom­pli­ance with congres­sional report­ing require­ments, does not reflect these commit­ments.

Biden must honor Congress’s consti­tu­tional role, and Congress must insist upon its consti­tu­tional right to inform­a­tion to over­see the milit­ary. Should this admin­is­tra­tion continue to enable DOD’s lack of account­ab­il­ity, Congress should rethink whether this agency deserves, and can be trus­ted with, broad oper­a­tional author­it­ies and a budget of $778 billion.