The FY23 NDAA – Middle East-Related Elements (FINAL)

Resource

[Last update: 12/9/22] On 12/6/22, the Armed Services Committee of both the House and the Senate jointly released the consensus/compromise version of the FY23 National Defense Authorization Act (which as a reminder is considered must-pass legislation). The bill is expected to be passed expeditiously and signed by the President. [Update – the House adopted the measure on 12/8/22 by a vote of 350-80.]

For full details/information, see:

Please note that the vehicle for the FY23 NDAA/omnibus is HR 7776 – a bill formerly known as the “Water Resources Development Act of 2022”. Now, HR 7776  has been repurposed into the 2023 NDAA (i.e., the original text was deleted and replaced with the consensus/compromise NDAA text). As a reminder, the House passed it version of the FY23 NDAA, HR 7900, way back on 7/14/22; and as a reminder, the Senate approach to this bill has been something of a black box — its own version of the bill – S. 4543 – was reported out of the Senate Armed Services Committee on 7/18/22 (but never voted on in the Senate). The Senate instead took up HR 7900 in October (with the goal of replacing the text with S. 4543 via an amendment in the nature of a substitute – an ANS), but never completed its consideration of that bill (which included hundreds of amendments offered to the ANS). That ANS, including many amendments adopted en bloc, became the Senate text negotiated with the House against HR 7900.

Finally, please note that while this bill is officially called the ‘‘James M. Inhofe National Defense Authorization Act for Fiscal Year 2023,’’ it is actually an omnibus bill that in addition to the Defense Authorization Act includes: Military Construction Authorizations, Department of Energy National Security Authorizations and Other Authorizations, Intelligence Authorization Act for Fiscal Year 2023, Homeland Security, Water Resources, Department of State Authorizations (see HFAC release – Major FY 23 NDAA Provisions by the House Foreign Affairs Committee), Oceans and Atmosphere, and the Don Young Coast Guard Au1thorization Act of 2022).

———————

Below is a comprehensive list/summary of all of the Middle East-related provisions that made it into the final text (including the origin of the provision, if it was not in both base bills). This includes provisions that appear across all of the divisions of the bill (not just in the NDAA) Below that is a comprehensive list/summary of all of the Middle East-related provisions that were in either the House (HR 7900) or Senate (S. 4543) version of the bill, but did NOT make it into the final text.

Also note that selected members’ Tweets/press releases related to specific Middle East provisions in the NDAA are included with the relevant provisions.

——————-

Middle East-related provisions that made it into the NDAA package

Section 1067. Report on Department of Defense practices regarding distinction between combatants and civilians in United States military operations. Includes requirement for “A description of how the Department of Defense has differentiated between combatants and civilians in both ground and air operations since 2001, including in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen, including— (A) relevant policy and legal standards and how these standards were implemented in practice; and (B) target engagement criteria.” And “A description of how the Department of Defense has differentiated between combatants and civilians when assessing allegations of civilian casualties since 2001, including in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen, including— (A) relevant policy and legal standards and the factual indicators these standards were applied to in assessing claims of civilian casualties.”

Section 1231. Modification of annual report on the military capabilities of Iran and related activities. Amending the existing report to include, among other things “Iranian-linked proxy groups, in particular those forces as having been assessed as to be willing to carry out terrorist operations on behalf of Iran or in response to a military attack by another country on Iran;” and support provided to “Lebanese Hezbollah, Hamas, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, Asa’ib ahl al-Haq, Harakat Hezbollah al-Nujaba, Kata’ib Sayyid al-Shuhada, Kata’ib al-Imam Ali, Kata’ib Hezbollah, the Badr Organization, the Fatemiyoun, the Zainabiyoun, and Ansar Allah (also known as the ‘Houthis’” [Senate provision]

Section 1232. Extension of authority to support operations and activities of the Office of Security Cooperation in Iraq. [extending through FY23]

Section 1233. Extension of authority to provide assistance to vetted Syrian groups and individuals. [extending through FY23]

Section 1234. Extension and modification of authority to provide assistance to counter the Islamic State of Iraq and Syria. [extending through FY23]

Section 1235. Prohibition on transfers to Iran. “None of the amounts authorized to be appropriated by this Act or otherwise made available to the Department of Defense may be made available to transfer or facilitate a transfer of pallets of currency, currency, or other items of value to the Government of Iran, any subsidiary of such Government, or any agent or instrumentality of Iran.” [from House text]

Section 1236. Report on Islamic Revolutionary Guard Corps-affiliated operatives Abroad. “…a report that includes a detailed description of— (1) all Islamic Revolutionary Guard Corps-affiliated operatives serving in diplomatic and consular posts abroad; and (2) the ways in which the Department of State and the Department of Defense are working with partner countries to inform them of the threat posed by Islamic Revolutionary Guard Corps-affiliated officials serving in diplomatic and consular roles in third party countries.”

Section 1237. Assessment of support to Iraqi Security Forces and Kurdish Peshmerga Forces to counter air and missile threats. [Senate provision]

Section 1238. Interagency strategy to disrupt and dismantle narcotics production and trafficking and affiliated networks linked to the regime of Bashar al-Assad in Syria. “It is the sense of Congress that— (1) the Captagon trade linked to the regime of Bashar al-Assad in Syria is a transnational security threat; and (2) the United States should develop and implement an interagency strategy to deny, degrade, and dismantle Assad-linked narcotics production and trafficking networks” and “GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of State, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Administrator of the Drug Enforcement Administration, the Director of National Intelligence, the Director of the Office of National Drug Control Policy, and the heads of other appropriate Federal agencies, shall provide a written strategy (with a classified annex, if necessary), to the appropriate congressional committees for disrupting and dismantling narcotics production and trafficking and affiliated networks linked to the regime of Bashar al-Assad in Syria.” [Hill (R-AR-2) 12/09/2022: Tweet – “I am proud that the CAPTAGON Act, my bill to disrupt and dismantle the Assad regime’s production and trafficking of the lethal narcotic Captagon, was included in this year’s NDAA. My full statement, below: RELEASE: Rep. French Hill’s Bill Included in 2023 Defense Act… | hill.house.gov”]

Section 1239. Prohibition on transfers to Badr Organization. [House provision]

Section 1240. Report on United Nations arms embargo on Iran. Requiring a report that includes “(1) a detailed assessment of whether and how Iranian arms proliferation, particularly drone proliferation, has increased following the expiration of the United Nations arms embargo on Iran in October 2020; and (2) a description of the measures that the Departments of State and Defense are taking to constrain Iran’s ability to supply, sell, or transfer, directly or indirectly, arms or related materiel, including spare parts, to include Iranian proliferation of drones.” [House provision]

Section 1277. Modification and extension of United States-Israel cooperation to counter unmanned aerial systems. “including directed energy capabilities” and authorizing an increase of $15 million (to $40 million total) to support this. Also see- Lieu (D-Ca) 12/6/22: Rep Lieu Statement In Support Of Directed Energy Technology Development [“Today, Congressman Ted W. Lieu (D-Los Angeles County) issued the following statement following the news that Lockheed Martin and Israeli company Rafael are cooperating to jointly develop, test, and manufacture High Energy Laser Weapon Systems (HELWS). Congressman Lieu introduced the United States-Israel Directed Energy Cooperation Act in 2019, which authorized DOD to research, develop, test, and evaluate joint US-Israel directed energy capabilities to address threats to both the United States and Israel. This bill was passed into law as part of the FY 2021 national defense spending package.”]

Section 1278. Sense of Congress and briefing on multinational force and observers. “(a) SENSE OF CONGRESS.—It is the sense of Congress that—(1) the Multinational Force and Observers has helped strengthen stability and kept the peace in Sinai Peninsula; and (2) the United States should continue to maintain its strong support for the Multinational Force and Observers. (b) BRIEFING.—Not later than 60 days before the implementation of any plan to move a Multinational Force and Observer site, the Secretary of Defense shall brief the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives and the Committee on Armed Services and the Committee on Foreign Relations of the Senate on the resulting impacts of such plan on existing security arrangements between Israel and Egypt.”

Section 1508. Military Cybersecurity Cooperation with Hashemite Kingdom of Jordan. Requiring DOD to “seek to engage the Ministry of Defense of the Hashemite Kingdom of Jordan for the purpose of expanding cooperation of military cybersecurity activities” to include “(1) Bilateral cybersecurity training activities and exercises. (2) Efforts to— (A) actively defend military networks, infrastructure, and systems; (B) eradicate malicious cyber activity that has compromised those networks, infrastructure, and systems; and (C) leverage United States commercial and military cybersecurity technology and services to harden and defend those networks, infrastructure, and systems. (3) Establishment of a regional cybersecurity center. [Senate provision]

Section 1658. Middle East integrated air and missile defense. “The Secretary of Defense, in consultation with the Secretary of State and the Director of the Defense Intelligence Agency, shall seek to cooperate with allies and partners in the Middle East with respect to implementing an integrated air and missile defense architecture to protect the people, infrastructure, and territory of such countries from cruise and ballistic missiles, manned and unmanned aerial systems, and rocket attacks from Iran and groups linked to Iran.” – plus detailed description of what strategy shall involve. NOTE: from the Joint Explanatory statement: The House bill contained a provision (sec. 1645) that would require the Secretary of Defense, in consultation with the Secretary of State and the Director of National Intelligence, to seek to cooperate with allies and partners of the United States in the Central Command (CENTCOM) area of operations to improve integrated air and missile defense capability for the region. The House provision also would require the Secretary of Defense to submit a strategy to increase cooperation with respect to an integrated air and missile defense architecture. The Senate amendment contained a similar provision (sec. 1542) that also directs the Secretary of Defense to undertake a cost feasibility study. The agreement includes the House provision with clarifying amendments. We direct that as a component of the strategy required under section (a) of the provision, the Secretary assess, with concurrence from the Secretary of State, the feasibility and advisability of establishing a fund for an integrated air and missile defense system to counter the threats from cruise and ballistic missiles, manned and unmanned aerial systems, and rocket attacks for countries in the CENTCOM area of responsibility from Iran and groups linked to Iran.” [Emmer (R-MN-6) 12/09/2022: Tweet – “The United States must always stand with our allies and partners in the Middle East against Iranian aggression. We were pleased to see @cathymcmorris DEFEND Act, which we cosponsored, included in this year’s NDAA.”]

Section 1659. Iron Dome short-range rocket defense system and Israeli cooperative missile defense program co-development and co-production. [$80 million “may be provided to the Government of Israel to procure components for the Iron Dome short-range rocket defense system”; $40 million “may be provided to the Government of Israel to procure the David’s Sling Weapon System”; up to $80 million ““may be provided to the Government of Israel for the Arrow 3 Upper Tier Interceptor Program” — total: $200 million] [Senate provision; the original House version included the identical funding in its budget tables]

Section 5592. Secretary of State assistance for prisoners in Islamic Republic of Iran. “POLICY.—It is the policy of the United States that—(1) the Islamic Republic of Iran should allow the United Nations Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran unimpeded access to facilitate the full implementation of the mandate of the United Nations Special Rapporteur, including—(A) investigating alleged violations of human rights that are occurring or have occurred both within prisons and elsewhere; (B) transmitting urgent appeals and letters to the Islamic Republic of Iran regarding alleged violations of human rights; and (C) engaging with relevant stakeholders in the Islamic Republic of Iran and the surrounding region; (2) the Islamic Republic of Iran should immediately end violations of the human rights of political prisoners or persons imprisoned for exercising the right to freedom of speech, including— (A) torture; (B) denial of access to health care; and (C) denial of a fair trial; (3) all prisoners of conscience and political prisoners in the Islamic Republic of Iran should be unconditionally and immediately released; (4) all diplomatic tools of the United States should be invoked to ensure that all prisoners of conscience and political prisoners in the Islamic Republic of Iran are released, including raising individual cases of particular concern; and (5) all officials of the government of the Islamic Republic of Iran who are responsible for human rights abuses in the form of politically motivated imprisonment should be held to account, including through the imposition of sanctions pursuant to the Global Magnitsky Human Rights Accountability Act (22 U.S.C. 10101 et seq.) and other applicable statutory authorities of the United States. (b) ASSISTANCE FOR PRISONERS.—The Secretary of State is authorized to continue to provide assistance to civil society organizations that support prisoners of conscience and political prisoners in the Islamic Republic of Iran, including organizations that—(1) work to secure the release of such prisoners; (2) document violations of human rights with respect to such prisoners; (3) support international advocacy to raise awareness of issues relating to such prisoners; (4) support the health, including mental health, of such prisoners; and (5) provide post-incarceration assistance to enable such prisoners to resume normal lives, including access to education, employment, or other forms of Reparation.” [House provision]

Section 5593. Iran Nuclear Weapons Capability and Terrorism Monitoring Act of 2022. A long sense of Congress + requirement that “The Secretary of State shall establish a task force to coordinate and synthesize efforts by the United States Government regarding— (A) nuclear activity of the Islamic Republic of Iran or its proxies; and (B) regional and global terrorism activity by the Islamic Republic of Iran or its proxies.” Also requires the Director of National Intelligence to submit to Congress a detailed “assessment regarding any uranium enrichment, nuclear weapons development, delivery vehicle development, and associated engineering and research activities of the Islamic Republic of Iran” as well as a detailed assessment “regarding the regional and global terrorism of the Islamic Republic of Iran.” Requires Secretary of State, in consultation with the task force, to submit annually to Congress a detailed “diplomatic strategy that outlines a comprehensive plan for engaging with partners and allies of the United States regarding uranium enrichment, nuclear weaponization, missile development, and drone-related activities and regional and global terrorism of the Islamic Republic of Iran.” [Senate provision]

Section 5599D. Sense of Congress regarding Israel. [“(1) since 1948, Israel has been one of the strongest friends and allies of the United States; (2) Israel is a stable, democratic country in a region often marred by turmoil; (3) it is essential to the strategic interest of the United States to continue to offer security assistance and related support to Israel; and (4) such assistance and support is especially vital as Israel confronts a number of potential challenges at the present time, including continuing threats from Iran.” [House provision]

Section 5599G. Sense of Congress regarding development of nuclear weapons by Iran. “Congress— (1) reiterates its commitment to ensuring Iran will never acquire a nuclear weapon; (2) supports the important work of the International Atomic Energy Agency (IAEA) in safeguarding nuclear material around the globe; (3) condemns Iran for its lack of transparency and meaningful cooperation with the IAEA on the unresolved matter of uranium particles discovered at undeclared sites in Iran and additional escalatory actions related to its nuclear program; and (4) applauds the IAEA Board of Governors’ resolution urging Iran’s full cooperation with the IAEA on outstanding safeguards issues on an urgent basis.”] [House provision]

Section 6318. Measures to mitigate counterintelligence threats from proliferation and use of foreign commercial spyware. “It shall be the policy of the United States to act decisively against counterintelligence threats posed by foreign commercial spyware, as well as the individuals who lead entities selling foreign commercial spyware and who are reasonably believed to be involved, have been involved, or pose a significant risk to being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States.”

Section 6511. Notice of deployment or transfer of containerized missile systems by Russia, China, or Iran.

Section 6513. Lead intelligence community coordinator for countering and neutralizing proliferation of Iran-origin unmanned aircraft systems. “Not later than 120 days after the date on which the Coordinator is designated under paragraph (1), the Coordinator shall— (A) develop a comprehensive plan of action, driven by intelligence information, for countering and neutralizing the threats posed by the proliferation of Iran-origin unmanned aircraft systems; and (B) provide to appropriate committees of Congress a briefing on such plan of action.”

 

Middle East-related provisions that did NOT make it into the NDAA package [per the JES]

Grant program for increased cooperation on post-traumatic stress disorder research between United States and Israel: The House bill contained a provision (sec. 778) that would require the Secretary of Defense, in coordination with the Secretary of State, to award grants to eligible entities to conduct collaborative post-traumatic stress disorder (PTSD) research between the United States and Israel. The Senate amendment contained no similar provision.

United States – Israel Artificial Intelligence Center. The Senate amendment contained a provision (sec. 6202) that would establish the United States-Israel Artificial Intelligence Center to develop research collaboration and cooperation in the areas of machine learning, image classification, object detection, speech recognition, natural language processing, data labeling, computer vision, and model explainability and interpretability. The House bill contained no similar provision.

Public report on military capabilities of China, Iran, North Korea, and Russia. The House bill contained a provision (sec. 1205) that would direct an annual report on the military capabilities of China, Russia, Iran, and North Korea be produced and posted to a publicly accessible website. The Senate amendment contained no similar provision.

Report on assisting Iranian dissidents and people access telecommunications tools. The House bill contained a provision (sec. 1226) that would require the Secretary of State to submit a report with an assessment of the Iranian government’s ability to impose internet shutdowns, a list of technologies that would encourage the free flow of information to better enable the Iranian people to communicate with each other and the outside world, whether existing United States policy impedes the ability of Iranians to circumvent the Iranian government’s attempts to block access to the internet, and a review of the legal exemptions that would authorize access to information technology. The Senate amendment contained no similar provision. 

Limitation on transfer of F–16 aircraft. The House bill contained a provision (sec. 1271) that would prohibit the President from selling or authorizing a license for export of new F-16 aircraft or F-16 upgrade technology or modernization kits to Turkey or to any agency or instrumentality of Turkey unless the President provides certain certifications and reports. The Senate amendment contained no similar provision.  The conferees note: “We believe that North Atlantic Treaty Organization (NATO) allies should not conduct unauthorized territorial overflights of another NATO ally’s airspace.” Also see:

  • Sarbanes (D-MD-3) 12/08/2022: Tweet – “I will continue working with @SFRCdems @SenatorMenendez to oppose the sale of F-16 fighter jets to Turkey until President Erdogan stops his aggression against our allies. Turkey must be held accountable for its destabilizing activity in the region. #NoJetsForTurkey Link to quoted tweet”
  • Malliotakis (R-NY-11) 12/07/2022: Retweet of @lenaargiri – “Breaking:Congress sends a clear message to Erdogan “we believe that NATO allies should not conduct unauthorized territorial overflights of another NATO ally’s airspace” (joint explanatory statement that accompanies the NDAA 2023)”
  • Menendez (D-NJ) 12/07/2022: Tweet – “Contrary to some claims, the #NDAA is not a win for #Turkey. This is just one of many tools we have at our disposal in the Senate to deal with arms sales. I’ll say it again. As #SFRC Chairman, I will NOT approve F-16s for Turkey until Erdogan halts his abuses across the region. Link to quoted tweet”
  • Pallone (D-NJ-6) 12/07/2022: Tweet – “I strongly agree with @SFRCdems. Congress must use every tool available to prevent the sale of F-16s to Turkey. I will continue to work with Chair Menendez and my other colleagues to halt potential US security assistance to the human rights abusing Erdogan regime. Link to quoted tweet”

Prohibition on participation in offensive military operations against the Houthis in Yemen. The Senate amendment contained a provision (sec. 1271) that would prohibit support for then Saudi-led coalition’s offensive operations against the Houthis in Yemen. The House bill contained no similar provision. 

Annual report on role of antisemitism in violent extremist movements. The House bill contained a provision (sec. 1336) that would require the Secretary of Defense, in coordination with the Secretary of State and the Office of the Special Envoy To Monitor and Combat Antisemitism, to report annually on the rise of antisemitism and the role of antisemitism in violent extremist movements. The Senate amendment contained no similar provision. 

Use of United States-origin defense articles in Yemen. The House bill contained a provision (sec. 1337) that would require the Secretary of State, in consultation with the Secretary of Defense, to develop guidance for investigating indications that United States-origin defense articles have been used in Yemen by the Saudi-led coalition in substantial law of war violations. The Senate amendment contained no similar provision. 

Protection of Saudi dissidents.  The House bill contained provisions (secs. 7001, 7002, 7003, and 7004) related to the protection of Saudi dissidents which impose limits on arms sales to Saudi Arabia and require additional reports and actions related to the death of Saudi Arabian journalist Jamal Khashoggi and the protection of Saudi dissidents inside the United States. The Senate amendment contains no similar provision.

Study and report on feasibility of suspension of mergers, acquisitions, and takeovers of certain foreign surveillance companies. The House bill contained a provision (sec. 5827) that would require the Secretary of Commerce to conduct a study and submit a report on the feasibility of suspension of mergers, acquisitions, and takeovers of certain foreign surveillance companies. The Senate amendment contained no similar provision.

Report on political prisoners in Egypt. The House bill contained a provision (sec. 5828) that would require the Secretary of State, in consultation with the Director of National Intelligence, to submit a report on the status of political prisoners in Egypt. The Senate amendment contains no similar provision. [Which is remarkable given the high-profile nature of this issue and given the extensive section included in the final bill on the US commitment to Iran prisoners].

Just one more thing from the Joint Explanatory Statement: Modification of Secretary of Defense Strategic Competition

Secs. 11001-11808 – Don Young Coast Guard Authorization Act of 2022. The House bill contained Division G that included the Don Young Coast Guard Authorization Act of 2022. The JES stipulates: “...Not later than January 31, 2023, we direct the Commandant of the Coast Guard, to provide a briefing to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives, in an unclassified setting, with a classified component if necessary, on the extent to which the Commandant assesses Iran would use sanctions relief received by Iran under the Joint Comprehensive Plan of Action to bolster Iran’s support for Iranian forces or Iranian-linked groups across the Middle East in a manner that may impact Coast Guard personnel and operations in the Middle East; and the Coast Guard requirements for deterring and countering increased malign behavior from such groups with respect to activities under the jurisdiction of the Coast Guard.”