Taiwan in the National Defense Authorization Act of 2019: Parsing Mandatory Vs. Suggested Actions

Taiwan in the National Defense Authorization Act of 2019: Parsing Mandatory Vs. Suggested Actions

Taiwan in the National Defense Authorization Act of 2019: Parsing Mandatory Vs. Suggested Actions

The United States’ recently passed the National Defense Authorization Act (NDAA) for fiscal year 2019 [1], which lists many new defense-related initiatives with Taiwan. For 2019, Congress approved USD $717 billion for the Department of Defense. The NDAA includes calls for a US government report on how to assist Taiwan’s defense, meetings between high-level military officers, military exercises, and a US hospital ship visit to Taiwan. While overall the provisions demonstrate robust support for Taiwan, it is important to differentiate between the mandatory actions versus recommended actions within this text.

Before reaching the president, the NDAA 2019 bill received strong support throughout Congress by passing the US House of Representatives in a 361-66 “yea-nay” (yes-no) vote, and then passing the US Senate in a 87-10 vote. President Trump then signed the new NDAA on August 13, which is when it officially became public law 115-232.

As an Act passed by Congress, the executive branch is required by law to implement the initiatives in the NDAA within the 2019 fiscal year. Yet, will the Trump Administration actually fulfill all of the initiatives related to Taiwan, such as the defense report, within the next fiscal year? After all, the previous NDAA 2018 mentioned US naval port visits to Taiwan, but they have  not yet taken place. Therefore, it appears that while it is a mandatory piece of legislation, it does not mean that every item will necessarily be implemented. This brings attention to wording of obligations, such as “shall” versus “sense,” which have very different implications.

What “shall” the Trump Administration do?

According to the Congressional Research Service, “shall” means the stated tasks are mandatory.

The “shall” text related to Taiwan in the new NDAA 2019 means it is mandatory for the US government to assess Taiwan’s military force readiness with recommendations on how to help Taiwan’s self-defense capability. Specifically, the text states the following in section 1257:

The Secretary of Defense shall, in consultation with appropriate counterparts of Taiwan, conduct a comprehensive assessment of Taiwan’s military forces, particularly Taiwan’s reserves. The assessment shall provide recommendations to improve the efficiency, effectiveness, readiness, and resilience of Taiwan’s self-defense capability. [emphasis added]

As US officials regularly explain, US government’s efforts to improve Taiwan’s self-defense capability are in line with the Taiwan Relations Act of 1979, which states that the “United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.”

Congress further directs the Secretary of Defense to make recommendations on how Taiwan’s military can improve in specific aspects. These include personnel management, recruitment, and training when it comes to military personnel. For military equipment, the Department of Defense would assess how Taiwan could improve its command, control, and communications; research and development for military technology; and weapons procurement and resource management.

In addition to assessing Taiwan’s military, the Secretary of Defense must work in consultation with the Secretary of State to provide a written report to Congress within a year of enactment of the NDAA 2019—essentially due before August 2019. The report will summarize the assessments and recommendations mentioned above. It must also include a plan to “facilitate any relevant recommendations from such list” mentioned above.

The report must also include plans to expand senior military-to-military engagement and joint training between the US military and Taiwan military. In addition, the report must include plans to “support US foreign military sales to Taiwan, particularly for developing asymmetric warfare capabilities.” These are the full extent of the mandatory actions for Taiwan in the US’ new NDAA 2019.

“Sense” of Congress on what the Trump Administration should do

Contrary to “shall,” according to the Congressional Research Service the phrase “sense of” is not legally binding. Furthermore, “sense of” provisions, “merely express the opinion of Congress or the relevant chamber.” The word “sense” is a key caveat for the action items related to Taiwan in NDAA 2019. Relevant to Taiwan, the NDAA offers a long list of “sense of Congress” items in section 1258 that the executive branch “should” do with Taiwan, though it is not required to do so.

US’ NDAA 2019 section 1258, “sense of Congress” on Taiwan begins by referring to the US’ Taiwan Relations Act of 1979 as the US law precedent and foundation for the US-Taiwan relationship. The NDAA also notes that the US’ Six Assurances toward Taiwan, in conjunction with the Taiwan Relations Act, are both “cornerstones” of US relations with Taiwan. On the foundation of the Taiwan Relations Act and Six Assurances, the NDAA writes in general terms that the United States should “strengthen defense and security cooperation with Taiwan to support the development of capable, ready, and modern defense forces necessary for Taiwan to maintain a sufficient self-defense capability.”

Specifically, the United States should assist Taiwan’s military by providing new weapons. It mentions the three ways for the US to provide weapons to Taiwan, which include: 1) a government-to-government channel through foreign military sales (FMS); 2) US private company to Taiwan government channel through direct commercial sales (DCS); and 3) cooperation between US private companies and Taiwan companies through industrial cooperation.

The NDAA further emphasizes weapons suitable for “asymmetric warfare” and “undersea warfare” capabilities. The NDAA mentions asymmetrical warfare because it is a defining characteristic of a potential cross-Strait conflict. Asymmetrical warfare is defined as warfare between opposing forces, which differ greatly in military power, such as between China and Taiwan. It typically involves the use of unconventional weapons and tactics, with an example of how insurgents use hit-and-run ambushes and sniper shooters to inflict casualties while minimizing risks. When there is a great difference in power between opposing forces, an asymmetrical approach is essential for relatively weaker opponents because it could be disastrous for the weaker side to engage a far stronger adversary head on through conventional warfare. For Taiwan, fielding new diesel-electric submarines and large numbers of shore-based missiles have been mentioned as examples of improving its asymmetrical warfare capability.

The NDAA also writes that the executive branch should improve “predictability” of arms sales to Taiwan by ensuring timely review of Taiwan’s requests. This is in response to the phenomena in recent years of the lag time between Taiwan’s requests and final US approval announced through the Federal Register Notice. The decision-making time period on the US side can range from many months to even one or two years. Therefore, Congress urges the Executive through the NDAA to take action on Taiwan arms sales decisions through more “timely review”—meaning expedited decision-making processes.

The NDAA also writes that it is a “sense of Congress” for the US Department of Defense to promote new and higher-level military exchanges with Taiwan. It suggests that the Defense Department promote “opportunities for practical training and military exercises with Taiwan.” The United States and Taiwan already engage in abundant training, especially since training is often part of foreign military sales to teach the Taiwanese military how to use the weapons that the United States sells to Taiwan. However, military exercises between the two are rare or non-existent. Therefore, the NDAA directs the Department of Defense to explore new opportunities for both of these aspects of engagement.

The Act also notes that the United States should promote exchanges between senior defense officials and general officers. It mentions that the legal precedent is the Taiwan Travel Act that was passed months ago as public law 115-135.

According to the NDAA, the “sense of Congress” is that the United States and Taiwan should also promote cooperation in humanitarian assistance and disaster relief, especially with their militaries working together side-by-side to help civilians in the aftermath of natural disasters. Related to disaster relief, the Act makes a creative new suggestion for a US hospital ship to visit Taiwan as part of the annual Pacific partnership mission to improve disaster relief planning. However, all of these proposals listed under “sense of Congress” are just suggestions.

Taiwan is featured positively and prominently in the US’ new National Defense Authorization Act of 2019, but rather than mistakenly reading everything that the act mentions about Taiwan as mandatory, it is important to note  that only some items are actually required by law. The difference is especially important in Taiwan’s case because around a third of the listed action items are required—particularly the US Defense Department’s assessment and report on Taiwan’s military capabilities and recommendations for how the United States can help Taiwan. However, all of the rest of the action items for Taiwan are only recommended: timely review of Taiwan’s weapons requests, new military exercises between the United States and Taiwan, exchanges between senior military officers, cooperation in humanitarian assistance and disaster relief, and the possibility of a US hospital ship visit to Taiwan.

The main point: In the long list of action items regarding Taiwan that is mentioned in the US National Defense Authorization Act 2019, the only mandatory items are the US’ assessment and official written report of Taiwan’s military capabilities along with recommendations on how to help to improve it.

[1] The NDAA 2019 is essentially a government-funded document that Congress drafted and approved; and then the President authorized by signing it (hence, turning it into law). Funding is an important tool that the legislative branch uses to enable the executive branch of government to take action. It is difficult for the president and others in the executive branch to take action if Congress does not provide the funding to do so.