Transparency Groups Pressure Senators to Mark Defense Bill in Public

With the eyes of the national security community soon to train on the Senate Armed Services Committee, a coalition of 60 good-government groups is mobilizing a phone blitz for Monday to pressure senators to vote to hold a public markup of the fiscal 2016 National Defense Authorization Act.

The “Open NDAA” campaign, led by the nonprofit Project on Government Oversight and spread via social media, was prompted by frustration that the nearly $600 billion bill -- markup for which begins at the subcommittee level on May 11 -- is tough to amend, as well as a view that an earlier vote to hold a closed markup violates committee rules.

“Given the size and scope of this important legislation, it is unacceptable for the vast majority of senators to have to vote on a bill compiled almost entirely behind closed doors, with very little chance for public input or accountability,” the planners said in an April 22 letter to Armed Services Chairman John McCain, R-Ariz., and ranking member Sen. Jack Reed, D-R.I.

Groups joining the pressure campaign include the Society of Professional Journalists, the Sunlight Foundation, the Electronic Frontier Foundation and Human Rights Watch. The Capitol Hill reporters organization, the Standing Committee of Correspondents, sent a similar letter to the panel leaders on May 6.

Open NDAA planners note that the House markup of the huge bill is done in open session. “Unless a majority of the Senate Armed Services Committee supports public hearings, critical decisions such as war authorizations, base closures and benefits for our troops will continue to be debated behind closed doors,” they said.

A Senate committee spokesman told Government Executive that McCain “was not considering” opening the markup, but that he took over the chairmanship with a promise “unlike the past chairman to not dictate the outcomes. He wanted to hear from other members, a few of whom expressed strong feelings about opening it, but a vast majority of whom thought it should remained closed.” Reasons for the secrecy involve discussions of classified information, which “become a logistical nightmare in opening and closing the meetings,” he added. Adding to the difficulty of an open markup are discussions of proprietary information on “some of the bigger weapons systems,” the spokesman said.

Last year the Senate panel also marked up the main defense bill in a closed “executive session.” The panel held a roll call and voted 18-8 for a closed hearing to protect classified information. Senators voting to open the markup were Claire McCaskill, D-Mo.; Jeanne Shaheen, D-N.H.; Kristen Gillibrand, D-N.Y.; Richard Blumenthal, D-Conn.; Kelly Ayotte, R-N.H.; David Vitter, R-La.; Mike Lee, R-Utah; and Ted Cruz, R-Texas.

The panel voted during a closed session on April 23 this year to again go the closed route, but McCaskill has vowed to continue her opposition. “When we’re talking about how billions of taxpayers’ dollars are going to be spent on our defense priorities, there’s no reason to do it behind closed doors,” she said in a statement to Government Executive on Friday. “The public has a right to know, understand, and scrutinize national security policies that’ll affect all of us, and I’ll continue working to build support for that transparency for this committee in the future.”

The committee’s roster has changed with the addition of freshmen Tom Cotton, R-Ark.; Joni Ernst, R-Iowa.; Mike Rounds, R-S.D.; Dan Sullivan, R-Alaska; and Thom Tilllis, R-N.C. Also recently joining the panel is Sen. Martin Heinrich, D-N.M.

The transparency advocates—who say they have hundreds of thousands within email reach--note that in the past the Senate panel has held public markups of portions of the NDAA, such as the provisions on combatting sexual assault. But they fault the Senate for not releasing text promptly in advance, as the House counterpart does.

They quote congressional procedure experts saying the committee violated rules by conducting, behind closed doors, the April 23 vote on whether the May markup should be public.

Charles Tiefer, author of the 1989 book "Congressional Practice and Procedure" and a law professor at the University of Baltimore, said, “When Congress wrote the ‘open committee’ rule, it meant to take committees out of the business of closing off their proceedings from public scrutiny, so the Senate Armed Services Committee is basically cheating.”

The Senate panel’s subcommittees are set to begin markups on the afternoon of Monday, May 11, through Tuesday, May 12, with three out of six of them closed. The full committee markup begins May 13 at 9:30, and continues through until Friday, with all of it marked “closed.”