Independence (from Congress) Day: Considering UAP Reporting Legislation – N.Y.U. Journal of Legislation & Public Policy

By Charlie Driver

Americans have long been fascinated by worlds beyond ours and the possibility of non-human life within them. Space has inspired legions of artists, scientists, and politicians. It has also fostered a litany of conspiracy theories and hoaxes, coming from people with various degrees of credibility.

Emerging recently from that societal fascination with space are David Grusch’s allegations to Congress that the federal government has been hiding evidence of non-human Unidentified Anomalous Phenomena (UAPs).¹ Grusch’s exact credibility remains to be seen. While he has legitimacy from his work on the Pentagon’s UAP taskforce, he provided no direct evidence of UAP cover-ups and has been contradicted by Department of Defense (DOD) staff as well as an agency report.²

Despite the questions over Grusch’s allegations, Congress has been sufficiently motivated to act. The FY2024 National Defense and Intelligence Authorization Act (NDAA) contained an amendment called the UAP Disclosure Act (“Disclosure Act”).³ It requires all federal agencies to review their files for documents about UAPs and release identified files (with certain exceptions, including national security) to the National Archives within 25 years of their creation.

This essay will consider possibilities for future legislation related to reporting and oversight of UAPs, and tackle a few of the key issues central to creating an effective bill.

Legislative Purpose and Defining UAPs

The clear legislative purpose of Congress in considering bills to expand oversight of UAP would be to become aware of non-human—specifically, extra-terrestrial—discoveries. As a result, any legislation should necessarily focus on that, rather than taking on a broader scope that could bring in issues of national security like other states’ new military technology.

The definition of UAP that a new statute would use is a crucial part of fulfilling Congress’ narrow intent. The current statutory definition of UAP comes from 50 U.S.C. § 3373. UAPs are defined as airborne, transmedium, or submerged objects that are not “immediately identifiable.”⁴ This simple focus on unidentifiable objects could encompass anything from a balloon to a new kind of missile.

A contrasting, narrower definition can already be found in the Disclosure Act’s original Senate draft. It defines UAPs as airborne, transmedium, or submerged objects that have “performance characteristics . . . not previously known to be achievable based upon commonly accepted physical principles.”⁵ The definition clearly focuses on extra-terrestrial craft; it explicitly includes objects described as “flying discs” and “flying saucers.” Ultimately, the final version of the Disclosure Act eliminated this definition, instead cross-referencing the existing section of the U.S. code.⁶

Reviving this narrower definition to limit applicability to extra-terrestrial objects would tailor future legislation to the specific target of Congress: the alleged pattern of executive concealment of extra-terrestrial activity. Any concerns about competing statutory definitions could be addressed by codifying the original Disclosure Act definition as a subsidiary definition under the current statutory definition of UAP, perhaps using the term “unidentified object.” In doing so, any new reporting requirement could apply the subsidiary definition to exclude human weaponry and advanced technology or meteorological phenomena without disturbing the existing statutes which rely on the current definition.

The Existing UAP Reporting Framework

A good place to start analyzing how a new bill could tackle a reporting and oversight role is with the existing UAP regulatory scheme, which centers on the All-Domain Anomaly Resolution Office (AARO; “the Office”). The AARO was created by the FY2022 NDAA and is now codified at 50 U.S.C. § 3373. The Office replaced a less formal UAP task force based out of DOD (which Grusch had served on before whistleblowing).⁷ The AARO is housed at DOD, with a Director appointed by the Secretary of Defense and a Deputy Director appointed by the Director of National Intelligence, and reports to both cabinet members.⁸

The NDAA requires the AARO to prepare and release a report to Congress reviewing executive records relating to UAPs from 1945–present, prepare unclassified annual reports to Congress describing and analyzing UAP-related events, and provide semiannual classified briefings to Congress on UAP activity.⁹ The AARO must perform these tasks until December 31, 2026. The AARO must partner with other federal agencies to ensure UAP reports contain operational, technological, and scientific analysis.¹⁰ In addition to fulfilling its statutory duties, the Office has released analyses of UAP sightings on its website for public consumption.¹¹

The AARO is an extremely new part of the federal government and is currently still developing its internal processes.¹² It also only became fully funded in the current Fiscal Year, after the FY23 budget was viewed by Senator Gillibrand and 16 other Senators as inadequate.¹³

Any new UAP legislation should leave the AARO intact, allowing it to continue its development. This would allow Congress the time to evaluate the success of the Office as a hub for interagency evaluation of UAP sightings. Establishing a new body to evaluate UAPs would be at best duplicative of, and at worst actively deleterious to, existing efforts to marshal the federal government’s expertise. It may also be wise for new legislation to extend the lifespan of the AARO beyond 2026. A minimum of four additional guaranteed years, lasting through 2030, would provide more incentive for successive presidential administrations to invest money and authority in the AARO, allowing it to continue to grow.

Expanding Congressional Oversight

There is room for additional regulation relating to UAPs beyond the AARO. Following Grusch’s testimony, members of Congress expressed frustration about difficulties performing UAP oversight over DOD officials.¹⁴ These include some simple problems, like difficulties in securing a Sensitive Compartmentalized Information Facility (SCIF)—secure rooms in which Congress can hear or examine classified material—to receive additional testimony. They also include more complex issues, like an alleged inability to get clear answers relating to UAPs from DOD officials.¹⁵

One proposal to address these issues has come from Tim Burchett (R-TN), who wants to create a special committee on UAPs. Burchett’s special committee, which he would likely seek to chair, would be able to use subpoena power to compel witnesses from inside and outside government to testify under oath.¹⁶ This would become a bully pulpit for Burchett to subpoena executive officials, force the release of sensitive materials, and try to push his belief that the federal government is hiding evidence of extra-terrestrials.¹⁷ While politically useful and enticing to media, this would not encourage a stronger dialogue between Congress and the executive branch; rather, it would likely lead to hostility and entrenchment.

Conclusion

A better approach to UAP regulation would involve two steps. First, Congress should revive the initial framework of the Disclosure Act, which would have created an independent agency to carry out ongoing review of the federal government’s internal documents relating to extra-terrestrials, composed of private citizens with national security, science, and historical experience.¹⁸ That body should only focus on documents that relate to “unidentified objects” as discussed above, rather than UAPs as currently defined, to ensure that document disclosure is limited to extra-terrestrial issues. Second, Congress should designate additional funding to create a UAP-specific SCIF space, where confidential oversight can occur without unnecessary delays. Together, these steps would ensure that information is responsibly released to the public, while also providing Congress with an independent, informed group of people to talk to about UAPs when relations with DOD officials on that topic are strained.

Congress has already taken multiple steps to formalize an extra-terrestrial reporting system. As discussed here, additional measures should be tailored to members’ narrow intent—revealing any evidence of covered-up government documents and creating sensible oversight measures.

Charlie Driver, J.D. Class of 2026, N.Y.U. School of Law.

Suggested Citation: Charlie Driver, Independence (from Congress) Day: Considering UAP Reporting Legislation, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
Leslie Kean & Ralph Blumenthal, Intelligence Officials Say U.S. Has Retrieved Craft of Non-Human Origin, The Debrief (June 5, 2023), https://thedebrief.org/intelligence-officials-say-u-s-has-retrieved-non-human-craft [https://perma.cc/D7BP-2JYY].
2
C. Todd Lopez, DOD Report Discounts Sightings of Extraterrestrial Technology, DOD News (Mar. 8, 2024), https://www.defense.gov/News/News-Stories/Article/Article/3701297/dod-report-discounts-sightings-of-extraterrestrial-technology [https://perma.cc/S6ZH-F5UE].
3
National Defense Authorization Act for Fiscal Year 2024, H.R. 2670, 118th Cong. §§ 1841–43 (2023).
4
50 U.S.C. § 3373(n)(8) (2023).
5
S. Amdt. 797 to S. 2226, 118th Cong. § 3(21) (2024) (hereinafter “Initial Disclosure Act”).
6
National Defense Authorization Act § 1687(c)(3).
7
50 U.S.C. § 3373(m).
8
50 U.S.C. § 3373(b).
9
50 U.S.C. § 3373(j)–(l). Published AARO reports and transcripts are available at https://www.aaro.mil.
10
50 U.SC. § 3373(e).
11
UAP Case Resolution Reports, All-Domain Anomaly Resolution Office (last visited July 12, 2024) https://www.aaro.mil/UAP-Cases/UAP-Case-Resolution-Reports [https://perma.cc/9MQ7-TF36].
12
Office of the Dir. of Nat’l Intell. & Dep’t of Def., Fiscal Year 2023 Consolidated Annual Report on Unidentified Anomalous Phenomena, 8–9 (Oct. 2023) (AARO program update section describes “further normaliz[ing] UAP operations” and establishing a science and technology plan).
13
Gillibrand Secures Full Funding For UAP Office In Senate Defense Bill Markup, Kirsten Gillibrand (June 23, 2023) https://www.gillibrand.senate.gov/news/press/release/gillibrand-secures-full-funding-for-uap-office-in-senate-defense-bill-markup [https://perma.cc/A2VB-GAPX].
14
Veronica Roseborough, Lawmakers want subpoena power in UFO inquiries, The Hill (Aug. 22, 2023, 1:16 PM), https://thehill.com/homenews/house/4164741-lawmakers-want-subpoena-power-in-ufo-inquiries.
15
Ellen Mitchell, Classified UFO briefing: House members emerge with mixed feelings, The Hill (Jan. 12, 2024, 5:09 PM), https://thehill.com/homenews/house/4406059-classified-ufo-briefing-house-members-mixed-feelings.
16
Roseborough, supra note 14.
17
Kayla Guo, Congress Orders U.F.O. Records Released but Drops Bid for Broader Disclosure, N.Y. Times (Dec. 14, 2023), https://www.nytimes.com/2023/12/14/us/politics/congress-ufos-defense-pentagon.html (Burchett previously proposed an amendment to the NDAA that would declassify all UAP documents without any review).
18
Initial Disclosure Act §7.