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NDAA Markups Continue Under a Veil of Secrecy

Secrets, secrets are no fun; that is, of course, unless you are one of the 26 members of the Senate Armed Services Committee (SASC). Earlier this week, the Senate began debating the 2017 National Defense Authorization Act (NDAA), the colossal $602 billion defense authorization bill shaping issues as divisive as the closing of Guantanamo, the Iran nuclear deal, and US-Cuba relations. Once again, SASC has usurped the democratic process by holding the markup of the bill behind closed doors.

At a time when Congress’s approval ratings remain below 20 percent and Americans feel their government accomplishes nothing, it is confounding that SASC would withhold discussion of a bill that authorizes more than half of the federal government’s discretionary spending. Open markups provide, not only the ability to ensure proper accountability, but also the opportunity to demonstrate the consideration and deliberation required when drafting such a massive bill.

SASC subcommittee chairs are able to hold their individual markups in open or closed sessions; however, discussion of the bill markups occurs in closed executive sessions. SASC members, when justifying the need for the closed sessions, argue that the burden of shifting between open and classified sessions is too cumbersome. In addition to the evident disregard this argument demonstrates towards taxpayers, the argument about inconvenience seems exaggerated in light of the fact that the Committee has successfully held partially open sessions in the past.

When reviewing the FY 2014 NDAA, SASC held an open and televised session to discuss Senator Kirsten Gillibrand’s amendments addressing rampant military sexual assault. The open and vigorous debate of prosecution authority in military sexual assault cases led to at least one Senator reassessing his position. So if the Senate has experienced how open markups can lead to a richer substantive debate, why is it so eager to disappear beneath a veil of secrecy?

What is more, according to POGO sources, SASC staff argues that the transparency of the markup meetings is irrelevant as amendments and debate become public when the bill is brought to the Floor. Yet, when the bill is finally considered, the remainder of the Senate has scarcely had enough time to discuss key amendments, let alone dissect the behemoth bill in full. Holding confidential markup meetings is simply precluding robust debate and adequate transparency.

The bill was originally scheduled for Floor time before the Memorial Day recess, but Senate Minority Leader Harry Reid (D-NV) forced the bill’s supporters to file a cloture petition on a motion for the bill to proceed, which delayed a vote until this week. Senator John McCain (R-AZ), who chairs SASC, criticized Reid for “shameful” partisan obstructionism, to which Senator Reid retorted that the Senate needed time to read through the 1,600 page bill.

In a statement released thereafter, Senator Reid explained, “Chairman McCain may have read and understood every line in it. He has a better chance that most since he conducted the markup behind closed doors and in secret sessions. But few outside the committee probably know what’s in this monstrous bill—this big, big bill.” Let us not forget though, that secret secrets hurt someone—in this case, the taxpayers. As Senator Reid and others have stressed, without appropriate time to analyze the NDAA, there is no time to check the superfluous provisions that lie therein.

Despite SASC’s continued opposition to holding transparent markup sessions, the Project On Government Oversight is encouraged by the decision of Senators Kelly Ayotte (R-NH), Joni Ernst (R-IA), Mike Lee (R-UT), Ted Cruz (R-TX), Claire McCaskill (D-MO), Jeanne Shaheen (D-NH), Kirsten Gillibrand (D-NY), Richard Blumenthal (D-CT), Tim Kaine (D-VA), and Martin Heinrich (D-NM) to vote in favor of open hearings. In 2011, Senator McCaskill, who has led the initiative for greater transparency in the markup process, held the first open deliberation in 15 years. Although minor actions have been taken by Committee members since then, greater action is still needed to ensure that the integrity of the democratic process is preserved.

POGO continues to hold that all broad policy amendments that do not affect classified information should be considered in open sessions so the public can provide proper oversight.