Defense

Does the Pentagon skip too many of its congressional reporting duties?

The Defense Department is under statutory obligation to deliver a thousand reports to Congress each year. One analysis says the department consistently fails a...

Tom Temin@tteminWFED

September 14, 2023 1:58 pm

9 min read

The Defense Department is under statutory obligation to deliver a thousand reports to Congress each year. One analysis says the department consistently fails at this task and that Congress doesn’t get the information it needs for proper oversight of military affairs. For more on all of that, the Federal Drive with Tom Temin spoke with Brennen Center counsel Katherine Yon Ebright.

Interview Transcript:

Tom Temin And you took a look at the situation some FOIA documents will get into. But first of all, just outline the issue. A thousand. Is that about the right number? And if that’s the case, how many do they actually send over to the Hill every year?

Katherine Yon Ebright The reporting requirements for the Department of Defense, established in each annual National Defense Authorization Act now stands at a very high, as you suggested, 1000 plus reports on an annual basis. That’s actually a very large increase relative to about a decade, decade and a half ago when that number would have been in the hundreds. But now we’re sort of in the mid thousands. And while advocates have identified substantial shortfalls as well, as you know, congressional overseers have identified substantial shortfalls in the Department of Defense’s reporting compliance, the exact quantity of the under compliance is yet unknown, at least as a matter of public record. That’s something that the Brennan Center is trying to assess. We’re trying to get data from the Department of Defense and have filed a separate FOIA request that will be able to quantify not only what that shortfall looks like, but also whether there are specific subject areas or Department of Defense component parts that are especially bad with respect to report compliance. I’m happy to talk to you about why we can say with certainty, though, that there’s that under compliance.

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Tom Temin Well, yeah, let’s go there first, then why can you tell with certainty there’s under compliance.

Katherine Yon Ebright So we know with certainty that there is under compliance because some of the Department of Defense’s reporting requirements explicitly say that the reports not only must be submitted to Congress, but also must be publicly posted. And so you have organizations like the Center for Civilians in Conflict who track, for instance, civilian harm and on an annual basis are combing through the NDAA and trying to find, okay, what are these public reporting provisions and then tracking whether those reports are actually extent. And oftentimes they are not. You also look from a year to year basis on what the lawmakers are writing or proposing for various defense bills. And you will see on a regular basis proposals sometimes that do make it into the final text that say we want to withhold a percentage of the Department of Defense’s budget for this year until it submits this report. That report, the other report from sometimes as far back as five years ago. And so you have these persistent asks from the lawmakers. You also, of course, have things coming up in congressional testimony, in private conversations with congressional overseers in which they’re identifying not only the number of reports, but specific, very important reports that they’ve been asking for and haven’t received.

Tom Temin Yeah, that was my question. It’s noticed on Capitol Hill that they’re not received. Do you think the members notice it or is it pretty much staff that is the recipient as a practical matter, for these reports?

Katherine Yon Ebright So the reports will typically go to the committee staffers and then the committee staffers, if they know that there is a member who is particularly interested in an area, maybe that member sponsored the requirement for the report. They can send that report along where they can summarize the report. So that’s sort of the chain of it. But certainly there are reports of high salience that the lawmakers will be looking out for. And they will mention they will ask, for instance, Department of Defense officials, why have we not received this report when we asked for it by law, however many years ago?

Tom Temin And the follow on question then is, do we know and in your experience dealing with members of Congress, do they actually read them and make decisions and funding priorities and hearing questions based on them, or do they just want to make sure they get it and it may sit on the shelf? Because I think that’s what happens to a lot of reports that go to Congress.

Katherine Yon Ebright Yeah. So again, for some reports, I think we can say with certainty that the lawmakers are looking out for them or engaging with them when they receive them, and certainly staffers are. So whether the lawmakers themselves are going into a skiff and reading a report or are looking for a publicly available report or whether they’re relying on some really bright 33 year old to read it, summarize it, tell them the headline points. It’s still the information being conveyed to Congress, and Congress needs that to be informed in its legislative process. There are, though, and you do raise the point and it’s a good one, a lot of reports where the Department of Defense, as well as the lawmakers and their staffers, get the sense it’s submitted and it just sits on the shelf. And I don’t want to say that this problem is 100% the Department of Defense’s fault. You see that explosion in reporting requirements that the Department of Defense has. And I think Congress needs to be a little bit more discerning in what it’s actually asking for.

Tom Temin We’re speaking with Katherine Yon Ebright. She is counsel at the Brennan Center. And you FOIA’d and received a report that the Pentagon itself prepared. This was a few years ago on how they could improve their own reporting process. Give us the highlights of what that said. You know, it’s a 26 page, single spaced report. But in it and having scanned it, the Defense Department does lay a lot of the blame on Congress. The fact they thought to have to submit in paper instead of electronically. And so whatever happened to that report and there’s anyone acting on it, the report on reports.

Katherine Yon Ebright Let’s pull back a moment and talk about why the Department of Defense produced this report on reports extremely bureaucratic. It’s because Congress had identified all of these shortfalls in reporting and said, hey, Department of Defense, what’s up? Why is this so bad and what are you going to do to fix it? And so in response to that legal requirement from Congress, come up with a plan to fix your reporting. What the department does is it submits this report on a report which lays virtually every single reform necessary at Congress’s feet. So you mentioned, for instance, the Department of Defense claiming, alleging that Congress has enacted legislation that requires hard copies of reports. And if you look at the law that they’re citing, which is Section 480 of Title ten of the U.S. Code. If any of our listeners are going to look it up, that section actually requires the Department of Defense to submit reports electronically, not in hard copy. That’s very plain from the face of the text. Moreover, for the past two decades, going back as far as 2003 when enacting reporting requirements; often Congress will specify and the Department of Defense shall submit this in electronic form in accordance with Section 480. And so it’s completely unambiguous. Yet the Department of Defense has said our excuse is you’re asking for it in paper copy, not in electronic media. And that’s just untrue. Other things that they say slow their report compliance is they claim that it takes as long as three months to identify all of the reporting requirements within each big defense bill. And then they say it takes several months on top of that to assign out those reporting requirements within the Department of Defense. And that’s similarly preposterous. You know, just speaking frankly. The Brennan Center has had junior staffers comb through those same documents and identify reporting requirements, and it can be done in a week, two weeks if you really prioritize it. So it’s a matter of prioritizing complying with the law, and that’s simply not been done when it comes to providing critical information to the Hill.

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Tom Temin All right. And I suppose maybe the Hill could publish the NDAA in searchable PDF. That would be progress, I think, for just about anyone who has waded into this document, as I have. Well, given all this, they’re at loggerheads then, basically, and there’s sort of passive resistance on the part of the Pentagon ever increasing demands on the part of Congress. Is there a practical way out of this?

Katherine Yon Ebright So I think the way out of this is for Congress to play a little bit of hardball, which is to say that this is a matter of failing to prioritize complying with reporting requirements. And we can’t pretend that the Department of Defense doesn’t have the resources to comply with those requirements when it has over $800 billion in its budget, which, by the way, Congress’s budget is 1% of the Department of Defense’s budget. So for DoD to say Congress needs to do this, that and the other thing to allow us to fulfill our requirements our legal obligations; it’s a little bit questionable, but I think by playing hardball, what I mean is Congress has historically and increasingly is taking to mechanisms that say you can only use 50% of your budget for travel, you can only use 75% of your operations and maintenance budget until you submit this critical report. And so I think that does two things. One, it uses Congress’s power of the purse to ensure that it’s getting the information that it needs to govern. And two, it is implicitly saying these are really critical reports and we’re going to attach our power of the purse, our appropriations power to obtaining compliance, obtaining that information.