When it comes to foreign policy, among the most powerful words in any Congressman’s vocabulary are “none of the funds appropriated by this Act…” Congress used them, or a variation thereof, twice this week in connection with Burma policy.
The 2015 Omnibus Spending Bill contains language prohibiting funding for “International Military Education and Training (IMET)” and “Foreign Military Financing (FMF)” for Burma. More importantly, especially considering the chances that congressional action will be misinterpreted in Burma, is similar language in the 2015 National Defense Authorization Act (NDAA) related to military-to-military (mil-to-mil) relations.
The NDAA states that “[n]o Department of Defense assistance to the Government of Burma is authorized by this Act” except in the following areas:
- Consultation, education, and training on human rights, the laws of armed conflict, civilian control of the military, rule of law, and other legal matters;
- Consultation, education, and training on English-language, humanitarian and disaster relief, and improvements to medical and health standards;
- Courses or workshops on defense institution reform;
- Observer status to bilateral or multilateral humanitarian assistance and disaster relief exercises; and
- Aid or support in the event of a humanitarian crisis or natural disaster.
The NDAA also requires an annual report from the Secretary of Defense on mil-to-mil with Burma, to include a description of objectives and activities associated with this engagement, an explanation of how such engagement supports U.S. national security and cause of reform in Burma, and an assessment of Burma’s political, military, economic, and civil society reform efforts.
The door to misinterpretation is opened by the verbiage in the bill. The NDAA does not represent further relaxation of sanctions on Burma. Quite the contrary, it prohibits mil-to-mil, with exceptions. It simply lists the exceptions as positive authorizations. In fact, the Administration did not seek authorization for these activities. The Department of Defense (DOD) previously asserted that it had the authority to do any and all of them without formal approval from Congress. It was Congress that sought to constrain the DOD’s options. Concerned that mil-to-mil could develop too quickly and without regard for the Burmese military’s reprehensible human rights record, Congress sought to offer explicit legislative guidance.
Representative Trent Franks (R–AZ), an early leader in the effort, acknowledged what has been accomplished in the NDAA as follows:
During these last two years, my office and a strong, bipartisan coalition of members of Congress worked to limit and condition U.S. military engagement with Burma’s military based on their involvement in egregious human rights abuses. I am of the belief that the U.S. needs to incentivize Burma to make further and more permanent reform. The bill language in the FY [fiscal year] 15 NDAA does precisely this.
Essentially, the NDAA is telling the DOD that it can do the five things listed above, but no more. If it wishes to do more, it will have to come back again next year, and in light of the report it submits in the meantime, ask for additional authorization.
It is not a perfect solution. The language is a product of compromise and an unfortunate “pre-conference” process that truncated Senate consideration of the bill and left final decisions to the discretion of the Chairmen and ranking minority members of the Armed Services Committees. And like most legislative language there is room for creative reading, particularly in areas like training for humanitarian and disaster relief and observation of exercises. It also would have been preferable to have explicit benchmarks for measuring progress in political and military reforms. Implementation will have to be watched closely by Congress and outside groups over the next year to see that the DOD does not exceed a reasonable reading of the act.
All in all, however, the NDAA is a victory for congressional oversight and the years-long effort to re-apply formal accountability in America’s Burma policy. It legally limits U.S.–Burma mil-to-mil relations and firmly establishes a requirement for such interaction to be explicitly authorized by Congress. This puts Congress in the driver’s seat on Burma policy in a way it has not been since 2011.