"Unidentified Anomalous Phenomena": A preliminary look at the UAP-related provisions of the final FY 2023 National Defense Authorization Act (H.R. 7776)
By Douglas Dean Johnson (@ddeanjohnson)
Posted December 6, 2022, 11:30 PM EST. Latest update: December 23, 2022, 11:30 AM EST. A list of substantive changes since the initial posting appears at the bottom of the page.
The first PDF document linked below contains all of the provisions relating to "unidentified anomalous phenomena" (UAP) that appear in the final version of the Fiscal Year 2023 National Defense Authorization Act (NDAA), H.R. 7776. The House of Representatives passed this legislation on Thursday, December 8, 2022, by a vote of 350-80. The U.S. Senate approved it without changes on December 15, 2022, by a vote of 83-11. President Biden signed the bill into law on December 23, 2022.
The second PDF document linked below is the same UAP-related text, as it appeared in the Congressional Record of December 8, 2022, which is a more condensed format, and not as easy to read.
The third PDF document linked below is the "enrolled bill," which is the final form of the bill that is sent to the President for his signature (and which he signed on December 23, 2022).
The three PDF documents contains the same substantive UAP-related content; only the formatting and pagination varies.
The bill contains two main UAP related provisions, found in three numbered sections of the bill (Section 1673 and Sections 6802-6803). They are in many ways similar to the provisions seen earlier in the year in versions of the NDAA, and in the Intelligence Authorization bills (which were ultimately wrapped into the NDAA), as I discussed in this detailed article published on July 14, 2022. However, over a period of months, members of the congressional security committees (armed services and intelligence committees) in closed-door negotiations made some noteworthy refinements, which are reflected in the final text posted at the links above.
I may explore the new language and its implementation in more detail in months to come. To receive email notifications of future articles on this blog, click the "Subscribe" button and enter your email address (it is free and will remain so).
For now, I will briefly summarize some of the key provisions, highlighting some of the changes from the earlier versions that jump out at me.
Bill Section 1673:
Secure Method for Authorized Reporting ("Safe harbor" or "UAP whistleblower" provisions)
This section (found on pages 565-568 of the enrolled bill version of H.R. 7776, the third PDF linked above) creates a "secure method" by which current or former government employees or contractors can submit UAP-related information to the Pentagon UAP office, and through that office reach also the congressional armed services and intelligence committees.
The Pentagon UAP office was given a statutory foundation by the extensive UAP provisions enacted on December 7, 2021, as part of the the FY 2022 NDAA. (For those not familiar with the provisions of the 2021 law, sometimes called "Gillibrand-Rubio-Gallego," codified at 50 U.S. Code § 3373, I recommend review of my detailed article of December 7, 2021, here.) Under the new bill, that office will retain its current name, the All-domain Anomaly Resolution Office (AARO, pronounced "arrow"), which it adopted by administrative decision earlier this year.
The secure-reporting provision originated in a closed-door voting meeting ("mark up") of the U.S. Senate Select Committee on Intelligence (SSCI) on the FY 2023 Intelligence Authorization Act (S. 4503), on June 22, 2022. It was put forward as part of a substitute amendment advanced by SSCI Chairman Sen. Mark Warner (D-VA) and SSCI ranking Republican Marco Rubio (R-FL).
S. 4503 did not reach the Senate floor, but a similar amendment later was offered on the floor of the U.S. House of Representatives to the House version of NDAA (H.R. 7900) by Reps. Mike Gallagher (R-WI) and Rep. Ruben Gallego (D-AZ); it was adopted, and that bill passed the House on July 14, 2022.
The essence of bill Sec. 1673 tracks what we saw in the earlier versions. Notably, Sec. 1673(a)(1)(B) contains new language that explicitly and expansively defines the scope of interest as "any activity or program by a department of agency of the Federal Government or a contractor of such department or agency relating to unidentified anomalous phenomena, including with respect to material retrieval, material analysis, reverse engineering, research and development, detecting and tracking, developmental or operational testing, and security protections and enforcement."
Sec. 1673(b)(1) provides that those bringing information forward into the new system are not thereby committing any violation of the laws and executive order that govern classified national security information, and are not impeded from that disclosure by any previously applicable non-disclosure agreement. These protections apply to information fed into the secure system, and do not authorize public disclosure of classified information.
Sec. 1673(b)(2)(A) is a sweeping anti-reprisal clause, applicable both to government employees and contractors. A provision of the SSCI-reported bill to grant a private cause of action for persons who feel they've suffered reprisal has been dropped, for reasons not entirely clear, but replaced with Sec. 1673(b)(2)(B), providing that the Secretary of Defense and the Director of National Intelligences "shall establish procedures for the enforcement" that are "consistent with" two existing laws that establish procedures to protect members of the military and the Intelligence Community who report possible wrongdoing (10 U.S. Code § 1034 and 50 U.S. Code § 32343, respectively).
Sec. 1673(a)(4)(B) contains a noteworthy requirement not seen in earlier versions: If AARO receives through the secure system a disclosure about a UAP-related restricted access program that had not previously been disclosed to the congressional defense or intelligence committees, "the Secretary [of Defense] shall report such disclosure to such committees and the congressional leadership" within 72 hours.
The term "whistleblower" does not appear in Section 1673, which speaks of "authorized disclosure." The question arises, is Section 1673 properly described as "whistleblower protection" legislation? I would say yes, but it is broader than that.
The term "whistleblower," at least as employed in the news media, generally refers to someone within government coming forward to bring possible wrongdoing to the attention of appropriate higher authorities. If there is a case in which someone currently or formerly connected with the government knows of a classified UFO-related program, of which Congress was never notified although notification was clearly required by an applicable statute, then if that person could be described as a "whistleblower" if he or she used the new secure system to bring that information to the attention of AARO and Congress. The bill provides robust anti-reprisal protections for such an individual.
But the focus of the new law is not to identify arguably unlawful activity or to sanction those who may have operated under different understandings of what their legal obligations were, in times past. The primary purpose of the legislation is to gather together and distill important data regarding UAP, and to give the congressional security committees and congressional leadership a much more complete picture of the involvement of government actors in UAP matters, going back many years, and currently.
I believe that the legislation reflects a perception, by some key members of Congress, that there is important information on this subject to which classification may have been appropriate, but that much important data has been "stovepiped" – sealed up within specific projects or programs in ways that have impeded meaningful progress towards coming fully to grips with the entire scope of UAP, and perhaps also stymied meaningful congressional oversight. Much important data may have been lost, forgotten, or hidden under premises that are no longer applicable.
The "secure system" ensures that persons with knowledge of such data can share it with the new office designed to consolidate such information and to properly present it to the congressional security committees, and do so without fear of thereby committing a breach of a nondisclosure agreement or the statutes that apply to unauthorized disclosure of classified information. Such witnesses are not "whistleblowers" in the usual sense, because they are not testifying regarding any true wrongdoing – but they are bringing important information to the attention of persons who ought to have it, through a system of disclosure now fully authorized by law.
In this article, I do not discuss Sections 5204 and 6609 of H.R. 7776, which make multiple revisions to existing "whistleblower" laws covering the Intelligence Community. These sections represent a congressional response to certain events that occurred within the Executive Branch during the Trump Administration. They are not related directly to the UAP sections of the bill that am discussing here. However, it is conceivable that one or more of these broader whistleblower laws also could come into play in some future UAP-related scenario, depending on who has the pertinent information and other factors. The "authorized disclosure" process created by Section 1673 is a more streamlined and optimized process designed specifically for disclosure of UAP-related information to AARO and Congress.
Bill Sections 6802 and 6803:
General revisions pertaining to the Pentagon UAP office (AARO) and its operations, and AARO-conducted "historical record report" on government involvement in UAP
These sections, which are found on pages 1192-1200 of the enrolled version of H.R. 7776 (the third of the PDFs linked above) make multiple changes in the groundbreaking UAP law that was enacted on December 27, 2021 ("Gillibrand-Rubio-Gallego"), 50 U.S. Code § 3373. Bill Section 6802 essentially writes over the entire 2021 enactment, preserving most of the original language but also making many changes. As I read it, the changes contained in this bill are enhancements and refinements, intended to further the purposes of the 2021 law. I do not see provisions diluting any key provision of the 2021 law.
This re-write originated in an amendment offered by Senator Roy Blunt (R-MO) at the Senate Select Committee on Intelligence (SSCI) closed-door voting session on June 22, 2022. (Again, those unfamiliar with the December 2021 law to which these changes are being made are advised to study my earlier articles of December 7, 2021 and July 14, 2022.)
Notably, the bill significantly elevates the status of the AARO program by providing at Sec. 1683(b)(3)(A) that its director in general "shall report directly to the Deputy Secretary of Defense and the Principal Deputy Director of National Intelligence." The Deputy Secretary of Defense is the second-ranking official in the vast Pentagon bureaucracy, sometimes referred to as the "alter ego" of the Secretary of Defense. This clause seems clearly intended to give AARO enhanced clout in its interactions with other components of the vast military bureaucracy.
(The director of the All-domain Anomaly Resolution Office is Dr. Sean Kirkpatrick, a scientist with a long and distinguished career as an intelligence officer and federal program manager. I was the first person to report on Dr. Kirkpatrick's selection to the position, in this article of May 12, 2022; his selection was publicly confirmed by the Pentagon about 10 weeks after my article appeared.)
The SSCI-approved bill (S. 4503) contained a proposed definitional change to exclude from the scope of the phenomena being investigated "temporary nonattributed objects or those that are positive identified as man-made." This language generated sharply conflicting interpretations among commentators over the past six months. Whatever it was intended to mean, it has been dropped from the final bill.
The bill does change the statutory catch-all term for the phenomena being targeted, from "unidentified aerial phenomena" to "unidentified anomalous phenomena." However, new term is defined in the same manner as old term was defined in the 2021 law, to include "(A) airborne objects that are not immediately identifiable; (B) transmedium objects or devices; and (C) submerged objects or devices that are not immediately identifiable and that display behavior or performance characteristics suggesting that the objects or devices may be related to the objects described in subparagraph (A)." The term "transmedium objects or devices" is again defined to mean those that are "observed to transition between space and the atmosphere and bodies of water" and "are not immediately identifiable."
[Some commentators have jumped to the conclusion that the replacement of "aerial" with "anomalous" will vastly expand the scope of the phenomena that AARO would be tasked with investigating – to include, for example, "poltergeists" or "werewolves." Such claims fail to take into account that the old term and the new term point to functionally identical definitions, and both are centered on "objects or devices."]
The SSCI-reported bill mandated a historical study of involvement of the Intelligence Community in UAP matters, going back to January 1, 1947 [but see the change described below], by the Government Accountability Office (GAO), which is an arm of Congress. That proposal originated at the June 22, 2022 voting meeting of the Senate Select Committee on Intelligence, in a second amendment offered by Senator Roy Blunt (R-MO). A slightly altered version later was approved by the House Permanent Select Committee on Intelligence (HPSCI) in its version of the Intelligence Authorization Act (H.R. 8367), approved by HPSCI on June 20, 2022. That bill never reached the House floor.
In the versions of the historical study proposal as approved by the two intelligence committees, the mandate for the historical study was placed on the Government Accountability Office (GAO), which is an arm of Congress. In the final bill version, however, the responsibility for the historical study and ensuing report is placed with AARO, with the GAO to perform only a later "audit" and congressional briefing functions.
In the final bill, the scope of the "historical record report" has, if anything, been broadened, now to include "the historical record of the United States Government relating to unidentified anomalous phenomena..." going back to January 1, 1945. The report is to include "a compilation and itemization of the key historical record of the involvement of the intelligence community with unidentified anomalous phenomena, including (I) any program or activity that was protected by restricted access that has not been explicitly and clearly reported to Congress; (II) successful or unsuccessful efforts to identify and track unidentified anomalous phenomena; and (III) any efforts to obfuscate, manipulate public opinion, hide, or otherwise provide incorrect unclassified or classified information about unidentified anomalous phenomena or related activities."
The findings of the study are to be presented by AARO to the congressional defense and intelligence committees, and top leadership, in about one and one-half years. It is not immediately clear to me, simply on reading the revised bill, how much of this report (if any) ultimately might be made public, but it seems clear enough that the investigation will have to delve into a good deal of classified material.
-- Douglas Dean Johnson
(My gmail address is my full name. My Twitter handle is @ddeanjohnson)
SUBSTANTIVE REVISIONS TO THIS ARTICLE MADE AFTER INITIAL POSTING
- December 7, 2022, 8 AM EST. Addition of graphics from Joint Explanatory Statement on the bill (issued December 7, 2022) and from the report of the Senate Select Committee on Intelligence on S. 4503, the FY 2023 Intelligence Authorization Act (Report 117-132, issued July 20, 2022). Various small edits for clarity.
- December 8, 2022, 10 AM EST. Expanded and clarified paragraphs dealing with the bill provisions dealing with use of the "secure method" for reporting UAP-related data to AARO/Congress, the appropriateness of the term "whistleblower," etc. Added paragraph and graphics comparing current definition of "unidentified aerial phenomena" with proposed definition of "unidentified anomalous phenomena." Added paragraph discussing elevation of the director of the All-domain Anomaly Resolution Office (AARO) to now report directly to the Deputy Secretary of Defense, the second-ranking official in the Department of Defense.
- December 8, 2022, 2 PM EST: Noted passage of NDAA (H.R. 7776) by the U.S. House of Representatives on a roll call vote of 350-80 on Thursday, December 8, 2022, at 1:39 PM EST.
- December 10, 2022, 12:30 PM: Added link to my May 12, 2022 article, which was the first published report anywhere of the selection of Dr. Sean Kirkpatrick to head the All-domain Anomaly Resolution Office (AARO).
- Added a link to a PDF document of the UAP-related pages of the House-passed NDAA (H.R. 7776) as they appeared in the Congressional Record of December 8, 2022.
- Added U.S. Senate passage of the NDAA, without amending it, on December 15, 2022, by a vote of 83-11.
- Added that President Biden signed the bill into law on December 23, 2022.
- Added a link to a PDF document of the UAP-related pages from the final "enrolled bill" version of H.R. 7776. It contains the same substantive content as the UAP sections found in the earlier prints, but with different formatting and pagination.
- Added several paragraphs explaining that the primary purpose of Section 1673 is not to search out arguably unlawful activity, but to consolidate important data on UAP and provide it to congressional oversight committees. The "secure system" does provide protection for a "whistleblower" in the usual sense of the term, but the new law more broadly establishes a system for authorized disclosure of certain types of sensitive information to AARO and congressional security committees, whether or not there has been any aspect of unlawful concealment. (February 18, 2023)