On December 22, 2023, President Biden signed into law the 2024 National Defense Authorization Act (“FY 2024 NDAA”).  Sections 1841 through 1843 of the new law address Unidentified Anomalous Phenomena (“UAP”).

The version of the FY 2024 NDAA enacted in the Senate in July of this year incorporated the Unidentified Anomalous Phenomena Disclosure Act of 2023—which would have mandated the Federal Government’s exercise of eminent domain over UAP-related material controlled by private persons or entities.  As discussed in greater detail below, the eminent domain mandate was not included in the final version of the NDAA passed by both chambers of Congress.  The newly enacted law requires only the establishment of a government wide UAP records collection; that government offices transfer UAP records to the collection; and that records be reviewed for disclosure (or not) against a set of criteria under which public release could be “postponed.”  Nonetheless, the substance of these final UAP provisions and Congress’s renewed interest in UAP may be a harbinger of things to come for government contractors and research entities, especially those involved in defense, intelligence, and other national security projects.  We expand on the background, evolution, and national security implications of the UAP amendment—and its potential impacts on contractors and other private entities—below.

July 2023:  The Original UAP Amendment

Earlier this year, as the Senate Armed Services Committee (“SASC”) version of the NDAA was being debated on the Senate floor, Majority Leader Chuck Schumer (D-NY) and Senator Mike Rounds (R-SD), a senior member of the SASC, proposed the Unidentified Anomalous Phenomena (UAP) Disclosure Act of 2023 as an amendment to the bill.  The amendment was premised on the idea that “legislation is necessary to afford complete and timely access to all knowledge gained by the Federal Government concerning unidentified anomalous phenomena in furtherance of comprehensive open scientific and technological research and development essential to avoiding or mitigating potential technological surprise in furtherance of urgent national security concerns and the public interest.”  Closely modeled on the President John F. Kennedy Assassination Records Collection Act of 1962, the amendment included two key provisions.

First, that amendment mandated that the Federal Government exercise eminent domain over any and all “recovered technologies of unknown origin and biological evidence of non-human intelligence” held by private persons or entities.  This would have obligated commercial entities, including defense contractors, academic research entities, and private citizens to turn over to the government UAP-related material and information in their possession. 

Second, the amendment would have established a government-wide records Review Board, comprised of qualified and impartial citizens nominated by the President and confirmed by the Senate.  The Review Board would have had the authority to review and approve, or postpone, the public release of UAP records.  UAP records would have been subject to a presumption of public disclosure—meaning that, barring the President’s approval of a Review Board recommendation that records remain classified, they would be made available to the public.  Ultimately, the amendment was adopted and included in the Senate version of the FY 2024 NDAA.

December 2023: Final UAP Provisions

The NDAA conference made significant modifications to the Senate provisions, eliminating many of their more controversial features.  Most notably, the eminent domain and Review Board provisions, which would have had the most significant effect on private sector entities, were not included in the final law.

The more benign UAP provisions remaining in the NDAA for FY 2024 direct the National Archives and Records Administration (“NARA”) to establish a “UAP Records Collection” not later than February 23, 2024.  The Records Collection will consist of “all government, government-provided, or government-funded records relating to unidentified anomalous phenomena, technologies of unknown origin, and non-human intelligence[.]”  Further, not later than October 23, 2024, government offices must identify and review UAP records in their custody, and, on determining that a record should be disclosed to the public, transmit it to NARA, where it will be made available for public inspection.  In the alternative, the government office also may determine that public disclosure of a record should be “postponed,” in which case the record will be secured in a “protected, yet-to-be-disclosed, or classified” part of the NARA Collection.  Postponement requires a finding that disclosure would pose a grave threat to military defense, intelligence operations, or the conduct of foreign relations.  Congress must be informed within 15 days of any decision to postpone public disclosure of a UAP record.  Although all records subject to postponement must be periodically reviewed for declassification and disclosure, public disclosure of such records is not mandated until 25 years after the record was first created, however.  Of note, the law provides that UAP-related records created by non-federal persons or entities are not eligible for postponement. 

Implications of UAP Provisions in the FY 2024 NDAA

Although the FY 2024 NDAA’s UAP provisions no longer include many elements of the Schumer-Rounds amendment, the law’s allowance for the disclosure of “government-funded” UAP-related records may impact defense contractors and research organizations that have worked with or for government agencies.  The government alone is tasked with determining what “government-funded” UAP-related information should be disclosed publicly; the law does not require that the government share its disclosure intentions with affected private sector entities or afford them an opportunity to rebut a proposed disposition or redact a record.  To the extent that private sector entities are concerned about disclosure of UAP-related information in their possession by virtue of work under a government-funded contract or project, they should approach the relevant government agency to discuss the provisions’ implications for their work.  Given the national security exception built into the law, as well as the long lead-time for disclosure, many contractors may have good arguments to support “postponing” the release of information they believe to be sensitive or protected.  

Additionally, Congressional interest in UAP remains strong.  Lawmakers have voiced intent to continue pressing for the inclusion of the eminent domain and Review Board provisions in future legislation.  In particular, Senator Schumer noted that although the FY 2024 NDAA establishes “a strong foundation for more action in the future” he and other proponents of the Senate amendment would continue efforts “to create an independent, presidentially-appointed review board that can oversee UAP classified records, and create a system for releasing them, where appropriate, to the public.”

Conclusion

Given the rapid development in this newly emerging area of focus, private-sector entities involved in government-funded projects, particularly defense or intelligence-related contracts or research projects, should monitor closely both the implementation of FY 2024 NDAA provisions related to UAP records and future UAP legislation.

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Photo of Stephanie Barna Stephanie Barna

Stephanie Barna draws on over three decades of U.S. military and government service to provide advisory and advocacy support and counseling to clients facing policy and political challenges in the aerospace and defense sectors.

Prior to joining the firm, Stephanie was a senior…

Stephanie Barna draws on over three decades of U.S. military and government service to provide advisory and advocacy support and counseling to clients facing policy and political challenges in the aerospace and defense sectors.

Prior to joining the firm, Stephanie was a senior leader on Capitol Hill and in the U.S. Department of Defense (DoD). Most recently, she was General Counsel of the Senate Armed Services Committee, where she was responsible for the annual $740 billion National Defense Authorization Act (NDAA). Additionally, she managed the Senate confirmation of three- and four-star military officers and civilians nominated by the President for appointment to senior political positions in DoD and the Department of Energy’s national security nuclear enterprise, and was the Committee’s lead for investigations.

Previously, as a senior executive in the Office of the Army General Counsel, Stephanie served as a legal advisor to three Army Secretaries. In 2014, Secretary of Defense Chuck Hagel appointed her to be the Principal Deputy Assistant Secretary of Defense for Manpower and Reserve Affairs. In that role, she was a principal advisor to the Secretary of Defense on all matters relating to civilian and military personnel, reserve integration, military community and family policy, and Total Force manpower and resources. Stephanie was later appointed by Secretary of Defense Jim Mattis to perform the duties of the Under Secretary of Defense for Personnel and Readiness, responsible for programs and funding of more than $35 billion.

Stephanie was also previously the Deputy General Counsel for Operations and Personnel in the Office of the Army General Counsel. She led a team of senior lawyers in resolving the full spectrum of issues arising from Army wartime operations and the life cycle of Army military and civilian personnel. Stephanie was also a personal advisor to the Army Secretary on his institutional reorganization and business transformation initiatives and acted for the Secretary in investigating irregularities in fielding of the Multiple Launch Rocket System and classified contracts. She also played a key role in a number of high-profile personnel investigations, including the WikiLeaks breach. Prior to her appointment as Deputy, she was Associate Deputy General Counsel (Operations and Personnel) and Acting Deputy General Counsel.

Stephanie is a retired Colonel in the U.S. Army and served in the U.S. Army Judge Advocate General’s Corps as an Assistant to the General Counsel, Office of the Army General Counsel; Deputy Staff Judge Advocate, U.S. Army Special Forces Command (Airborne); Special Assistant to the Assistant Secretary of the Army (Manpower & Reserve Affairs); and General Law Attorney, Administrative Law Division.

Stephanie was selected by the National Academy of Public Administration for inclusion in its 2022 Class of Academy Fellows, in recognition of her years of public administration service and expertise.

Photo of Jasmine Wang Jasmine Wang

Jasmine Wang is an associate in the firm’s Washington, DC office. She is a member of the Government Contracts and Employment Practice Groups and maintains an active pro bono practice.

Photo of Moushmi Patil Moushmi Patil

Moushmi Patil is an associate in the firm’s Washington D.C. office. She is a member of the Government Contracts Practice Group as well as the White Collar Defense and Investigations Practice Group. She also maintains an active pro bono practice, with a focus…

Moushmi Patil is an associate in the firm’s Washington D.C. office. She is a member of the Government Contracts Practice Group as well as the White Collar Defense and Investigations Practice Group. She also maintains an active pro bono practice, with a focus on indigent criminal defense.