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The “Leahy Law” Prohibiting US Assistance to Human Rights Abusers: Pulling Back the Curtain

 

With almost weekly news reports of US support for foreign governments with track records of gross human rights abuse—think torture in Yemen by Emirati security forces, violations by Iraqi forces in Mosul, or extrajudicial killings by police in the Philippines—it is worth focusing attention on the statute intended to bar some of this assistance. In the fall of 2013, I assumed the role of overseeing implementation of the so-called Leahy Law, and the accompanying process commonly referred to as “Leahy vetting” for the Bureau of Democracy, Human Rights and Labor (DRL). The Leahy Law is the colloquial term for a provision of the Foreign Assistance Act (section 620M) and its twin provision in the National Defense Authorization Act. There are some important differences between the State and DOD laws, but for the sake of simplicity, I will deal primarily with the Department of State’s law or the features that are common to both.

The Leahy Law is intended to prevent US-funded assistance from reaching specific security force units or individuals who have committed gross violations of human rights. Less commonly acknowledged, the law is also intended to promote accountability for violations through its “remediation” clause which allows the restoration of eligibility for US assistance once violators have been held to account.  Anybody who has touched the Leahy Law has an opinion about it, but it’s hard to find anybody fully satisfied by the way it is interpreted or implemented. Human rights advocates tend to love the law but believe it is not applied comprehensively or rigorously enough.[1] Many people inside State and DOD privately tend to resent the law as a noxious irritant at best or a dangerous threat to US national security at worst. (The Leahy Law may be unrivaled in its ability to generate hyperbole.)

The first two provisions read:

(a) IN GENERAL—No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.
(b) EXCEPTION—The prohibition in subsection (a) shall not apply if the Secretary determines and reports to the Committee on Foreign Relations of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committees on Appropriations that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.

While the language seems clear enough, decisions of eligibility (and the roots of most controversy) stem from how the Department of State, which is the lead agency in this space, chooses to interpret one of several key terms within these two sections. Let’s walk through those elements:

“Assistance”:  The law requires the U.S. to halt assistance when certain conditions are met, but what is meant by “assistance”? State and DOD apply the law to most forms of training, but not other forms of cooperation, such as direct technical assistance, intelligence sharing, joint exercises, conferences, or training purchased by the partner country through Foreign Military Sales (FMS) or Direct Commercial Sales (DCS). Several funding authorities for both Departments also have a “notwithstanding” provision, which exempts programs or whole funding authorities (such as the Afghanistan Security Forces Fund) from Leahy and other legal requirements. Under some circumstances, the Departments may vet candidates in these programs as a matter of policy, such as police training programs funded by the International Narcotics and Law Enforcement authority; in others, not. (For an excellent analysis of the changes to DOD’s Leahy Law and the Afghanistan notwithstanding provision, see Erica Gaston’s research for the Global Public Policy Institute.)

“This act…”: State vets only training and some equipment, but not arms sales, although the law clearly mentions assistance provided under the Arms Export Control Act, which would include the licensing and sales under FMS and DCS. In fact, although DRL does review DCS license applications, the State Department does not weigh its recommendations on the basis of Leahy and as a result, DRL has a vanishing record of success in recommending the denial of arms sales. Legal scholars, most recently from the ABA, have identified this as a gap, but to my knowledge, State has offered no public defense for the policy.

“Credible Information”: Although meeting the threshold of credibility is less for “information” than it is for “evidence,” the bar is still surprisingly hard to meet, contrary to common perception. The State Department’s Office of the Legal Advisor, appropriately in my view, counseled that information need only be credible to a “reasonable” person in order to compel a restriction of assistance. And in theory, according to State Department Guidance, “the standard should generally be regarded as low.” In practice, when the Departments or NSC wanted to train somebody, they could usually find something wrong with the information or its source. The Leahy Law has also led to deliberate self-censorship in US government reporting, which may preserve eligibility by leaving facts out of the record, but which also comes at much more profound cost.

“Unit”:  Defining a unit can be challenging, both in terms of who should be subject to vetting, and how the Departments should interpret unit composition.  Should the violations attributable to members from “joint” units affect their unit of origin, or just the composite unit to which they are currently assigned? Savvy Embassies sometimes submit vetting lists with temporary unit affiliations such as “Training Center” to avoid identification with problematic source units.

“Security Forces”: State vets uniformed military and police forces, but not civilian security officials, although DOD as a matter of policy routinely submit civilian Ministry of Defense officials for vetting. Leahy did not technically apply to the original training programs for opposition forces in Syria, although subsequent legislation for that program did mandate “vetting,” but mostly related to concerns over affiliation with terrorist groups.

“Commit”: The Department restricts assistance from those who directly committed the act or those who could be shown to have ordered a violation, but not those who knew, or should have known, and did nothing to stop a violation from occurring. Confusion around this term is partially resolved by the requirement to vet units, which usually captures those who were complicit in ordering or enabling a violation.

“Gross violation of human rights”: The State Department uses the original definition in section 502B of the Foreign Assistance act to define this term to include “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.” The State Department includes rape in its interpretation, provided it took place under the color of law, which can be a difficult variable to ascertain in places where the line between “official” and “unofficial” roles for security services is blurry.

“Effective steps to bring the responsible members of the security forces to justice”: For several years, this key provision was left undefined and effectively under-utilized. Prior to 2014, neither the State Department nor Defense Department had ever reported to any of the relevant congressional committees that a country had effectively held the perpetrators of a gross violation of human rights to account in order to resume or commence an assistance program. In 2014, we produced a joint DOD-State policy that defined “effective steps” and an interagency process for assessing accountability for purposes of restoring eligibility under Leahy. The single biggest area of unresolved controversy is the omission of time passed as a factor in accountability, i.e. there is no “sunset” clause on violations that occurred long ago if justice has not been served.

As with other sources of legislation, the State Department avoids a rigid, written definition of terms in order to preserve policy flexibility, even if coming to some agreement could forestall major disagreements within the building.

Those are the major elements of the Leahy Law. Here are a few other items to keep in mind:

The law does not restrict assistance to entire countries: The original legislation (502B) restricted all foreign assistance from countries where there was a consistent reported pattern of abuse. The executive branch has never once complied with this provision, which successive administrations interpreted as too vague and too broad. The Leahy Law was introduced in 1997 as a more targeted measure, which adds precision to the sanction, but also means that little prevents the US from legally providing massive amounts of military assistance to countries with highly problematic records of conduct like Egypt and the Philippines.

Vetting sometimes takes place before a violation is committed: Vetting units won’t prevent violations of human rights. When a unit or individual is vetted and then trained by the US and goes on to commit abuses, it might call into question the value of the training, often touted as the best way of preventing misconduct by critics of Leahy, rather than the vetting itself.

Vetting is the last step in a multi-part security assistance process: The best opportunities to carefully evaluate the record of conduct and its implications for US partnership takes place well before a candidate is invited for training. A few minutes spent evaluating open-source information will never, and should never, replace a more thoughtful and selective approach to security assistance. Too many US agencies involved in security assistance defer the selection of candidates for training entirely to the partner country, which, while providing host-country ownership and agency, can also lead to entirely avoidable and embarrassing results when a candidate has to be excluded.

Human rights information is different: Documenting human rights violations can be tricky, even dangerous, business. Conventional long-form reporting from international NGOs does not lend itself well to Leahy review, because it typically provides a representative rather than exhaustive set of cases or facts. Critics on both ends often focus their recommendations for “fixing” the Leahy process on the relatively few resources DRL has for vetting and the relatively little time a vetter spends on any one case. But the time spent on vetting is perhaps less important than the capacity to obtain, store, and analyze human rights information from more local sources and apply it much earlier in the development of security assistance programs.

Leahy does not generally apply to civilian harm in conflict: The State Department and DOD do not generally consider civilian harm incurred during the conduct of hostilities in a conflict as a gross violation of human rights, even if and when credible third parties have determined that the laws of armed conflict may have been violated.

During my time working on Leahy, I came to appreciate it as an important tool and an under-valued means of promoting accountability. Unfortunately, I also came to understand that the law will never replace a long overdue examination of the consequences of human rights abuses and impunity for US foreign policy, which continue to surface in the headlines twenty years after Leahy was introduced.

 

[1] In 2016, RAND conducted a very good study of the process and made many good recommendations, among them the need for more education among stakeholders and the need to standardize processes.

Photo: An Iraqi Emergency Response Division (ERD) soldier prepares to pass through a hole made between buildings during fighting in west Mosul on April 7, 2017 in Mosul, Iraq – Carl Court/Getty Images (see ABC’s Brian Ross, Rhonda Schwartz, James Gordon Meek and Randy Kreider’s documentation of the ERD’s use of torture and extrajudicial killings.)

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About the Author

Senior Advisor for the United States at the Center for Civilians in Conflict, Served at the U.S. Department of State (1999-2015), led the creation of the Office of Security and Human Rights in the Bureau of Democracy, Human Rights and Labor (2013) The views in this article may not reflect the opinion of the Department of State or his current employer. Follow him on Twitter (@danmahanty).