In my last post, I wrote about a very, very bad provision in S. 1790, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), which codifies in statute a questionable legal theory known as "parole in place". I failed to mention one good omission from that bill, for which I will take (possibly undeserved) credit.
On October 25, 2019, I wrote a post captioned "House Democrats Want to Know Where Soldiers on the Border Work and Sleep: A road map for Antifa and the drug cartels", which discussed section 1044 in H.R. 2500, the House version of NDAA 2020. All appropriations bills start in the House, so H.R. 2500 was the first crack at funding the military, and not surprisingly, it was a wish-list for the Democrats who control that chamber.
Even at that, section 1044 was something else, and not in a good way. I focused on two specific provisions in that section that would have amended paragraph 1059(f)(1) of the National Defense Authorization Act for Fiscal Year 2016 (NDAA 2016), and in particular add subparagraphs (H) and (I) thereto:
That paragraph, as amended, itself would require the Secretary of Defense to submit a report to the Senate and House Committees on Armed Services, the House Homeland Security Committee, and the Senate Committee on Homeland Security and Governmental Affairs, within 30 days of the deployment of troops at the request of the Department of Homeland Security (DHS) along the southern border, and every 90 days thereafter, that includes:
(H) A map indicating the locations where units so deployed are housed [and]
(I) A map indicating the locations where units so deployed are conducting their assigned mission and an explanation for the choice of such locations.
As an aside, legislative provisions follow the following format: section, subsection, paragraph, subparagraph, clause, subclause. I use shorthand like "section 235(b)(1)(B)(iii)(I) of the Immigration and Nationality Act" when it is actually more correct to refer to that provision as "subclause 235(b)(1)(B)(iii)(I) of the Immigration and Nationality Act", to avoid confusion with the inevitable legalese that such a description would entail, but when it comes to legislation, precision is important, as the foregoing shows.
It was not in any way understatement when I asked:
[W]hat possible legitimate purpose is served by demanding that the Department of Defense (DOD) provide Congress with the address of the hotels in which soldiers deployed to the border to assist CBP are staying? To make sure that the breakfast bar has a waffle maker? That the bathrooms have sufficient soap and towels? None comes to mind, and I [had been] a busy, and nosy, staffer [when I was on Capitol Hill].
Now, think about the harm that could come from the disclosure of such information. Imagine what would happen if it became public that the Holiday Inn in Yuma houses troops who are supporting CBP? (NB: I have no reason to believe that they do, or even if there is a Holiday Inn in Yuma.) How many sanctimonious trolls would call for a "boycott of Holiday Inn" because they are supporting the detention of "asylum seekers", and how long would it be able to oppose such efforts before tired soldiers got turned out into the streets? Worse, can you imagine what Antifa would do with this information? Protests at these locations are the baseline.
Further, what legitimate purpose is served by providing Congress with "[a] map indicating the location where units are so deployed?" The best explanation is to allow members to second guess that troops should be set up at mile marker 175 instead of mile marker 282. That said, members seem to have forgotten that there was an attack on the U.S. consulate in Benghazi seven years ago in which our ambassador was killed by terrorists. Do you really think that they have the ability to make tactical considerations about deployments along a 1,954-mile border?
Worst case scenario: This information becomes public knowledge and the information is used by drug cartels as intelligence to direct their operations. In fact, this is the most likely outcome. You do not become the head of a "multi-billion dollar, multi-national criminal enterprise" without a sophisticated intelligence operation. In this instance, your source for intelligence is not Aldrich Ames or Bob Hanssen, it would be the Congress of the United States.
In my opinion, this was a bad, needless, and needlessly intrusive effort by the #resistance to undermine, to the degree they could, efforts by an administration they despised to use the military to defend the border of the United States, which when you think about it is logically job one of that military.
Fortunately, section 1044 was cut out in conference, as the conference report for NDAA 2020 reveals:
The House amendment contained a provision (sec. 1044) that would modify the authority under section 1059 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114-92) by requiring a certification and notification requirement prior to the provision of assistance to ... United States Custom[s] and Border Protection at the U.S. southern land border. Additionally, this section would amend and add reporting requirements, require that the support be on a reimbursable basis, and terminate the authority on September 30, 2023.
The Senate bill contained no similar provision.
The House recedes.
Those last three words are critical, and in my opinion are the best three words in the report.
By way of background, a "conference report" is a document that is prepared by members (really staff, but there is no reason to get bogged down in the finer points) of both houses of Congress when one version of a bill is passed in one chamber, and a different version is passed in the other. The various sides pick "conferees", members of both parties in both chambers who meet in an attempt to hammer out the differences between the two versions of the bill. The compromises are, in the best-case scenario, explained in the report.
The Senate bill did not contain a version of section 1044 (for good reason), and their conferees (along with, logically, Republican conferees from the House of Representatives) saw no reason to include it in the final product, so it did not make the cut.
Modestly, I was the only person of whom I am aware who even raised this as an issue. Annual NDAAs are long and complicated documents, veritable burritos into which anything can be stuffed — as section 1044 of H.R. 2500 demonstrates. It rears its ugly head on page 978 and runs to page 985 of a 1,976-page bill. Few in the media really dig into the finer points of such documents, with the exception of specialized journals that are interested in, say, the construction of new littoral combat ships.
That is the problem with mega-bills of this sort, and the reason why Republicans have been shy to engage in "comprehensive immigration reform bills" that run 844 pages and contain critical semi-colons that can have massive impacts. We expect our representatives to be just that — representative of the voters who elect them, generalists with big policy ideas, not specialists in every area that comes across their desks. The problem is that lobbyists and interest groups are specialists, and they are able to sneak in seemingly minor provisions with oversized consequences into legislation.
Which is why think tanks like the Center for Immigration Studies exist (and why there are so many well-funded organizations that want to silence us). Congress directs and oversees the executive branch, but who watches Congress?
Fortunately, we are not alone, but we will always pose a danger to those who want, or have, power. That is why certain members call me every name but a child of God — stringing together allegations, innuendos, and non-sequiturs to besmirch my character and the Center's — whenever I testify. Because I do care what is on pages 978 to 985 of a bill that has nothing to do with immigration, and they don't like it. Which is why I include voluminous footnotes and hyperlinks in everything. You can check my facts if you don't agree with my conclusions, but they never do because it is easier to sling mud.
Now that I have gotten my self-important, immodest sanctimony out of the way, here is the critical takeaway: Democrats in the House attempted to get a bad provision that could have endangered troops sent to the border and the national security into a large bill. The Senate cut it out. All those involved deserve credit. I will give myself mine — whether I deserve it or not.