What the National Defense Authorization Act Means for US Policy Toward Myanmar

On December 27, President Joe Biden signed into law the 2022 National Defense Authorization Act (NDAA), which marks a shift in the U.S. government’s policy on Myanmar. Section 6510 of the $770 billion NDAA calls for “supporting democracy in Burma,” but what this legislation is demanding is a new U.S. strategy toward the country.

Since the February 1, 2021 coup d’etat that ousted the democratically elected National League of Democracy (NLD), the Biden administration has made only a token response to the Myanmar military’s violent takeover and egregious human rights abuses. To be fair, the coup happened just 10 days after Biden’s inauguration, in the midst of a pandemic and an economic slowdown. Myanmar was a low priority, despite the administration’s pledge to make human rights a foreign policy priority and the U.S. government’s stated competition with China.

The administration quickly froze $1 billion in Myanmar government assets that had been deposited in the New York Federal Reserve. The U.S. Department of the Treasury immediately sanctioned the Myanmar military’s two conglomerates. Other rounds of sanctions against senior military officers, their children and cronies, and other military-linked corporations, were imposed. But the U.S. was unable to get key partners and allies, including Japan, Thailand, and Singapore to follow suit. The U.S. gave Temporary Protective Status to Myanmar nationals, supported the seating of Myanmar’s ambassador to the United Nations, who defected to the opposition government, and charged two for his attempted murder.

The U.S. subsequently sent several high ranking State Department delegations to Southeast Asia to lobby for greater ASEAN pressure on the junta, including more assistance on economic sanctions and humanitarian access. National Security Advisor Jake Sullivan held a virtual meeting with NUG representatives in October. The U.S. government has condemned atrocities and called for accountability.

In a December 9 press briefing, State Department spokesperson Ned Price laid out the U.S. policy toward Myanmar, to the extent that it has one:

The military’s widespread use of horrific and brutal violence underscores for us the urgency of ending the Burmese military’s culture of impunity by holding military actors accountable and restoring Burma’s path to inclusive democracy. As you’ve heard us say before, we stand with the people of Burma and their aspirations for freedom, for justice, for democracy, and we call on the military regime to end the use of violence, release those unjustly detained, to address human rights abuses, and to respect the will of the people.

The United States has done more than most countries in the 11 months since the coup, but it’s been insufficient. I have outlined some eight non-lethal steps the U.S. government should begin taking previously for War on the Rocks. With the 2022 NDAA, there are signs that some are now being implemented.

Some of the language in the NDAA is very pro forma, and requires the executive branch to keep Congress informed of “United States policy and security objectives in Burma.” What is new in the legislation is that it is no longer simply calling for the military to hand over the power to the elected NLD government and to release Aung San Suu Kyi and other NLD leaders.

The establishment of the NUG, and its relative successes, has changed things. Though dominated by NLD members and elected MPs, the NUG is more than the NLD government that was elected in November 2020. It is broader based, includes greater ethnic minority representation, and includes civil society actors. The NUG’s stated goal is not simply to revert back to January 31, 2021. The NUG has made it very clear that its goal is to establish a federal democratic system with power sharing between the country’s various ethnic minorities, and the establishment of genuine civilian oversight of the military.

The NDAA explicitly calls on the U.S. government to do seven things:

First, to “support and legitimize the National Unity Government of the Republic of the Union of Myanmar, the civil disobedience movement in Myanmar, and other entities promoting democracy in Burma, while simultaneously denying legitimacy and resources to the Myanmar‘s military junta.”

This is a big deal. By law, the U.S. government now has to support the NUG.

The NDAA does not compel the U.S. government to end diplomatic recognition of the State Administration Council (SAC), as the junta is formally titled. Nor does it require the State Department to shut down the U.S. Embassy in Yangon. This seems to be a way for the U.S. to maintain diplomatic relations, while at the same time, increasing support for the opposition shadow government. It is not clear if the U.S. will have a formal liaison with the NUG, though it should appoint a special representative.

Second, the NDAA calls on the administration “to impose costs on Myanmar‘s military junta.” To that end, it requires an assessment of existing sanctions and “a description of potential prospects for additional sanctions.” It is unclear whether this will entail sanctioning the oil and gas sectors that keep the junta solvent, as the NUG and many human rights groups are demanding, but a new round of sanctions to cripple the economy is currently being discussed.

There is nothing here about supplying the NUG, its affiliated People’s Defense Forces, or the more established ethnic armed organizations (EAOs) with lethal assistance. The U.S. is still only wielding the economic instrument to “impose costs.” But there is much more that the U.S. government could do in providing non-lethal assistance.

The third NDAA demand is for the U.S. “to secure the restoration of democracy, the establishment of inclusive and representative civilian government, with a reformed military reflecting the diversity of Burma and under civilian control and the enactment of constitutional, political, and economic reform in Burma.” This is actually the most explicit call to date for what the Biden administration sees as the end game. But importantly, it gets U.S. policy in sync with the NUG’s stated objectives rather than the SAC’s.

The fourth thing the NDAA demands is for the U.S. “to secure unconditional release of all political prisoners in Burma.” According to the Assistance Association for Political Prisoners, the junta has arrested 11,248 people since the coup, with nearly 2,000 more evading arrest. Over 130 detainees have been tortured to death.

Fifth, it says the U.S. should “promote genuine national reconciliation amongst Burma’s diverse ethnic and religious groups.” This is critical to Myanmar’s future. There can only be lasting peace when the core interests of the ethnic minorities are addressed and there is power sharing. But the U.S. government has long eschewed direct interactions with the EAOs, either because they are too close to the Chinese or engaged in the trafficking of narcotics and other illicit trades. The reality is, they will have a seat at the table so the U.S. government needs to start engaging them. Current U.S. policy is self-defeating. The NDAA justifies that engagement, even if covertly.

The sixth demand laid out in the NDAA is for Washington “to ensure accountability for atrocities, human rights violations and crimes against humanity committed by Myanmar’s military junta.” Obviously, the U.S. Embassy is trying to keep tabs on the human rights violations. But the U.S. government should also offer direct support to NGOs that are documenting evidence of war crimes and human rights abuses for use at future trials.

The seventh and final demand is that the U.S. should help “avert a large scale humanitarian disaster” in Myanmar. The country has been hard hit by the COVID-19 pandemic; its economy is in shambles, having contracted 18 percent in 2021, leaving half of the population living in poverty and reversing a decade’s worth of economic gains. It is not clear what resources the U.S. government, through the State Department or U.S. Agency for International Development, will be putting toward this.

Many of the goals articulated in the NDAA lack specificity.  But if nothing else, it legally obliges the Biden administration to “support and legitimize the National Unity Government” and identifies an end state that is in line with the NUG’s stated position. It is now up to the various departments and agencies to put together a ways and means package that will lead to the international legitimization of the NUG and greater resources for it, while amping up pressure on the military junta.

ASEAN has proven feckless in resolving the crisis in Myanmar. American leadership is needed more than ever. The 2022 NDAA is an important step to defeating a regime that is waging a brutal war against its own population as it stubbornly clings to power.