Leahy Law

The Leahy Law or Leahy amendment is a U.S. human rights law that prohibits the U.S. Department of State and Department of Defense from providing military assistance to foreign military units that violate human rights with impunity.[1] It is named after its principal sponsor, Senator Patrick Leahy of Vermont.[2]

To implement this law, U.S. embassies and the Bureau of Democracy, Human Rights, and Labor and the appropriate regional bureau of the U.S. Department of State vet potential recipients of security assistance.[3] If a unit is found to have been credibly implicated in a serious abuse of human rights, assistance is denied until the host nation government takes effective steps to bring the responsible persons within the unit to justice. While the U.S. Government does not publicly report on foreign armed force units it has cut off from receiving assistance, press reports have indicated that security force units in Bangladesh, Bolivia, Colombia, Guatemala, Mexico, Nigeria, Turkey, Indonesia, and Pakistan have been denied assistance due to the Leahy Law.

Origins and background

Senator Leahy first introduced this law in 1997 as part of the Foreign Operations Appropriations Act. It initially referred only to counter-narcotics assistance for one year. The next year, with his leadership, Congress expanded it to cover all State Department funded assistance. This provision was included in all annual Foreign Operations budget laws until 2008. At that time Congress made the law permanent by amending it into the Foreign Assistance Act.[4] In 2011, Congress revised the law substantially, seeking to enhance its implementation.

The United States government has long been a major, if not the largest, provider of assistance—funding, training, non-lethal equipment, and/or weaponry---to foreign military and other security forces.[5] In 2012 it spent $25 billion on training and equipping foreign militaries and law enforcement agencies of more than 100 countries around the world.[6] Security assistance is driven by overriding U.S. national security objectives, including a desire to challenge/overturn communist regimes during the Cold War, counter drug trafficking in the 1990s, or counter anti-Western terrorism in the 2000s. Throughout the United States' long history of providing assistance to foreign armed forces, some portion of this assistance has been provided to forces that repress and abuse their own populations.

Before 1997, the primary U.S. legislation constraining aid to countries with poor human rights records was Section 502B of the Foreign Assistance Act, which prohibited security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” This law was seen as too vague to be effective in cases where the U.S. government had an overriding interest. According to Senator Leahy, his law “makes it clear that when credible evidence of human rights violations exists, U.S.aid must stop. But, it provides the necessary flexibility to allow the U.S. to advance its foreign policy objectives in these countries.” [2]

Text of the laws

U.S. assistance to foreign armed forces comes from two different budgets; therefore, two separate versions of the Leahy amendment have been enacted into law. One covers assistance to foreign forces funded through the State Department foreign assistance budget, and another covers assistance funded out of the Department of Defense budget.

The law covering State Department funded aid is found in Section 620M of the Foreign Assistance Act of 1961 (as amended most recently in January 2014).[7] It states:

“ (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.

(c) DUTY TO INFORM. – In the event that funds are withheld from any unit pursuant to this section, the Secretary of State shall promptly inform the foreign government of the basis for such action and shall, to the maximum extent practicable, assist the foreign government in taking effective measures to bring the responsible members of the security forces to justice.

(d) CREDIBLE INFORMATION. The Secretary shall establish, and periodically update, procedures to

(1) ensure that for each country the Department of State has a current list of all security force units receiving United States training, equipment, or other types of assistance;

(2) facilitate receipt by the Department of State and United States embassies of information from individuals and organizations outside the United States Government about gross violations of human rights by security force units;

(3) routinely request and obtain such information from the Department of Defense, the Central Intelligence Agency, and other United States Government sources;

(4) ensure that such information is evaluated and preserved;

(5) ensure that when an individual is designated to receive United States training, equipment, or other types of assistance the individual's unit is vetted as well as the individual.

(6) seek to identify the unit involved when credible information of a gross violation exists but the identity of the unit is lacking; and

(7) make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to subsection (a).

 ”

The Department of Defense Appropriations version of the Leahy Law, as most recently found in Section 8057 of the 2014 Omnibus bill reads:[8]

“ (a) IN GENERAL--

(1) None of the funds made available by this Act may be used for any training, equipment, or other assistance for the members of a unit of a foreign security force if the Secretary of Defense has credible information that the unit has committed a gross violation of human rights.

(2) The Secretary of Defense, in consultation with the Secretary of State, shall ensure that prior to a decision to provide any training, equipment, or other assistance to a unit of a foreign security force full consideration is given to any credible information available to the Department of State relating to human rights violations by such unit.

(b) EXCEPTION--The prohibition in subsection (a)(1) shall not apply if the Secretary of Defense, after consultation with the Secretary of State, determines that the government of such country has taken all necessary corrective steps, or if the equipment or other assistance is necessary to assist in disaster relief operations or other humanitarian or national security emergencies.

(c) WAIVER --The Secretary of Defense, after consultation with the Secretary of State, may waive the prohibition in subsection (a)(1) if the Secretary of Defense determines that such waiver is required by extraordinary circumstances.

(d) PROCEDURES--The Secretary of Defense shall establish, and periodically update, procedures to ensure that any information in the possession of the Department of Defense about gross violations of human rights by units of foreign security forces is shared on a timely basis with the Department of State.

(e) REPORT --Not more than 15 days after the application of any exception under subsection (b) or the exercise of any waiver under subsection (c), the Secretary of Defense shall submit to the appropriate congressional committees a report--

(1) in the case of an exception under subsection (b), providing notice of the use of the exception and stating the grounds for the exception; and

(2) in the case of a waiver under subsection (c), describing the information relating to the gross violation of human rights; the extraordinary or other circumstances that necessitate the waiver; the purpose and duration of the training, equipment, or other assistance; and the United States forces and the foreign security force unit involved.

(f) DEFINITION --For purposes of this section the term ``appropriate congressional committees means the congressional defense committees and the Committees on Appropriations..

 ”

There are several key differences between the two versions of the law. First, the Department of Defense version includes a waiver that allows the Secretary of Defense - after consulting with the Secretary of State - to waive the requirements of the provision if "extraordinary circumstances" warrant it.[9]

Another difference concerns what steps a government must take to resume assistance once a security force unit has been flagged for gross human rights violations. The Foreign Assistance Act version requires that the government of the country in question "is taking effective steps to bring the responsible members of the security forces unit to justice" while the Defense Department version prohibits assistance "unless all necessary corrective steps have been taken."[9]

Leahy Law provisions are sometimes confused with human rights conditionality that applies to overall Foreign Operations aid packages to a specific country, such as Colombia, Mexico, or Guatemala. Leahy Law applies only to assistance to specific units, and does not necessarily affect the level of assistance to a country, even when implemented. Human rights conditionality, on the other hand, typically requires a percentage of assistance to a country to be withheld until the Department of State certifies progress on certain human rights conditions.

Vetting process

The U.S. government (via the State Department) implements the law through a process known as “Leahy vetting.”[10] A prospective aid recipient's unit is searched for evidence of past commission of gross human rights violations. The State Department has interpreted “gross human rights violations” to mean a small number of the most heinous acts: murder of non-combatants, torture, “disappearing” people, and rape as a tactic.

The government utilizes the International Vetting and Security Tracking (INVEST) system, which tracks all units and individuals who are potential recipients of assistance, including any information that suggests they are ineligible for assistance and any past determinations regarding their eligibility.

Vetting is done at several points in the approval process and by several elements of the State Department, starting at the U.S. embassy in the particular country and occurring at the Bureau of Democracy, Human Rights and Labor (DRL) and the appropriate regional bureau. If any vetter finds credible derogatory information, the information is entered into INVEST, triggering a review with all relevant bureaus. All assistance remains on hold until a final decision is reached.[11] If found to have committed Human Rights abuse, the unit will be deemed untrainable forever, unless they complete a series of steps to rectify actions. To date, no unit has ever completed these steps required for rectification.

While there is no exact definition of what constitutes “credible” evidence, the standard of the State Department is that it need not reach the same standard as would be required to admit evidence in a U.S. court of law. Vetters rely on a wide array of sources including the annual Depart of State Country Reports on Human Rights, US government agency records, NGO human rights reports, and information garnered from the media.

Withholding of assistance

Due to diplomatic sensitivity, the U.S. government rarely publicizes decisions to either flag a unit or individual as a human rights violator or to cease assistance under the Leahy Law. The vast majority of vettings are cleared immediately; in 2011, only 1,766 units and individuals out of approximately 200,000 were barred from receiving aid because of gross violations of human rights.[12]

In 1998, financing from the Export-Import Bank was denied for thirty-nine of 140 armored police vehicles being bought by Turkey because those vehicles were destined for 11 provinces where police had been implicated in abuses of human rights. The manufacturer, General Dynamics, ultimately provided the financing for the thirty-nine vehicles.[13]

Indonesia’s elite Komando Pasukan Khusus (Kopassus) was subject to a 12-year ban on U.S. security assistance after it was implicated in a series of kidnappings and murders of activists in the late 1990s.[14]

In 2010 outrage over extrajudicial killings committed by the armed forces of Pakistan led to the suspension of aid to “about a half-dozen” units of the Pakistani army.[15]

A 2013 report by Freedom House described the Leahy Law as "an invaluable tool in preventing U.S. assistance to military or police units that commit human rights abuses" and added that "it is invoked sparingly and only in egregious cases of specific violence."[16]

In 2014, Major General Paul Eaton(retired) spoke in support of the law, saying, "the value of the Leahy Law is that it serves as a moral guide to the application of U.S. military engagement. Some in the U.S. armed forces have argued that the law frustrates U.S. partnership at precisely the moment we need most to influence better behaviors. This dilemma has a solution embedded in the amendment itself, which provides that if human rights remediation has begun, U.S. assistance can be brought to bear.",[17]

Criticisms of the law and its implementation

In 2013, several U.S. military commanders cited the law as interfering with their ability to train foreign forces. They claimed that the law was being applied too broadly.[18]

Most criticism, however, has been that the law is too weak and is not enforced robustly enough.[19] For instance, in 2011 Human Rights Watch reported that the U.S. "continued to aid and train Cambodia's armed forces including units with records of serious human rights violations such as Brigade 31, battalion 70 and Airborne Brigade 911- in violation of the Leahy Law."[20]

A perpetual criticism of the law has been that it has never been enforced against Israel. Commentators have said that it indicates a gleeful hypocrisy in US foreign policy.[21][22][23] In 2011, Haartez reported,that veteran U.S. Senator Patrick Leahy (D-VT), a long-time human rights defender, after being approached by constituents in Vermont was pushing clauses that would bar aid to three elite Israeli military units that have been accused of human rights violations in the occupation of the West Bank and Gaza.[24] A spokesman for Senator Leahy denied this.[25] Sen. Leahy's Senate page[26] repeats his views that while "he has supported Israel's right to self-defense", "he disagrees with restrictions on imports of goods into Gaza as it amounts to collective punishment, with Israel's use of excessive force in Gaza which has caused the deaths of hundreds of civilians, and with home demolitions and settlement construction in the West Bank."

Because it was the initial focus of the Leahy Law, Colombia is a natural case study for assessing the law's effectiveness, and much has been written on application of the Leahy Law there.

Authors Doug Stokes and John Barry argued during the first years of its application that there were major weaknesses to the law.[27][28] Stokes wrote that the law has four weaknesses which he says make it effectively useless.[29]

First, the Colombian military and US embassy in Colombia used procedures to circumvent the "vetting procedure" after the Leahy Law came into force in 1998.[30] In a September 1997 letter to Senator Leahy, United States Ambassador to Colombia Curtis Warren Kamman stated that the list of potential units which would receive aid “was judged to be severely deficient.”[30] An anonymous U.S. official told the Washington Post that "the Colombian army had difficulty finding any units without serious human rights violations, thus slowing the process. "The question is, is there anyone we can deal with out there?" the official asked." [31] Five months later, in January and February 1998, the Colombian defense minister submitted a new list to the US ambassador. US Ambassador Kamman stated that the delay was because the brigade needed to transfer out two officers accused of human rights abuses.[30] Simply transferring officers accused of human rights abuses to make a unit "clean" is a clear violation of the Leahy Law, which states that aid is conditioned until the Colombian government is "taking effective measures to bring the responsible members of the security forces unit to justice."[32]

Further, as Human Rights Watch discovered, if a unit is "considered important enough to drug war objectives…the U.S. will violate the Leahy Provision in order to continue funding and training it." [33] For example, the US State Department informed the Colombian government that the US “will not consider providing assistance to the 17th Brigade [in Urabá Antioquia, northwestern Colombia] until all significant human rights allegations involving the unit have been credibly addressed.”[34] But the 18th brigade, which is stationed in the oil fields of Arauca, Colombia, and which is the focus of numerous human rights violation allegations, continues to receive US military aid.[35]

The second way that the U.S. and Colombian government circumvent the Leahy law is by "allowing vetted units to mix, coordinate logistics with, and share the facilities of suspended units".[36]

The third way that the U.S. and Colombia government circumvent the Leahy law is that when a unit is vetted it is cleared, but once the unit has been vetted, new soldiers who come into the unit are not screened.[37]

Finally, the Leahy law is limited to units assisted by the United States, and does not apply to private contractors that are carrying out US operations.[28] In September 2004, After Congress set a United States civilian contractor cap at 400, DynCorp, a weapons supplier for the military, hired foreign nationals to work in Colombia, which effectively circumvented Congressional authority.[38] Also, the hundreds of DynCorp nonmilitary civilian war personnel are not counted under the Congressional cap.[39] In 2001, DynCorp rescued a shot down Colombian helicopter crew. During this search and rescue, DynCorp was involved in a battle with rebels, and it was revealed for the first time that DynCorp had four helicopter gun ships. Despite this, the Bush administration continues to assert that civilian contractors are not involved in warfare.[40] The former ambassador to Colombia, Myles Frechette explained why private mercenaries are so convenient: "It's very handy to have an outfit not part of the U.S. armed forces. Obviously, if somebody gets killed or whatever, you can say it's not a member of the armed forces. Nobody wants to see American military men killed."[41] This government-private sector partnership would therefore undermine the Leahy law, which only covers public money and official US equipment and soldiers, providing "plausible deniability" for the U.S. government.

“This is a law that works, if it is enforced,” Senator Leahy was quoted as stating in the New York Times. “We can help reform foreign security forces, but they need to show they are serious about accountability. If not, we are wasting American taxpayers’ money and risk prolonging the abusive conduct that we seek to prevent.”[42]

See also

United States security assistance to the Palestinian Authority

Notes

  1. ↑ 22 USC § 2378d http://www.law.cornell.edu/uscode/text/22/2378d
  2. ↑ 2.0 2.1 http://www.leahy.senate.gov/issues/human-rights
  3. ↑ http://www.humanrights.gov/2013/07/09/an-overview-of-the-leahy-vetting-process/
  4. ↑ Section 620M of the Foreign Assistance Act.
  5. ↑ Robert M. Gates, Helping Others Defend Themselves:The Future of U.S. Security Assistance, Foreign Affairs, May/June 2010 at http://www.foreignaffairs.com/articles/66224/robert-m-gates/helping-others-defend-themselves
  6. ↑ International Security Advisory Board, Report on Security Capacity Building, January 7, 2013, p. 15 at http://www.state.gov/t/avc/isab/202710.htm
  7. ↑ 22 USC § 2378d
  8. ↑ Public Law No 113-6, Division C--Dept. of Defense Appropriations Act for 2013, Section 8057
  9. ↑ 9.0 9.1 US Government Accountability Office, "Human Rights: Additional Guidance, Monitoring, and Training Could Improve Implementation of the Leahy Laws," September 2013, GAO-13-866, p. 7
  10. ↑ http://www.humanrights.gov/issues/leahy-vetting/
  11. ↑ http://www.humanrights.gov/wp-content/uploads/2011/10/Leahy-Vetting-Law-Policy-and-Process.pdf
  12. ↑ Eric Schmitt, Military Says Law Barring U.S. Aid to Rights Violators Hurts Training Mission, The New York Times, June 20, 2013, http://www.nytimes.com/2013/06/21/us/politics/military-says-law-barring-us-aid-to-rights-violators-hurts-training-mission.html?pagewanted=all&_r=0
  13. ↑ Dana Priest, New Human Rights Law Triggers Policy Debate, Washington Post, December 31, 1998.
  14. ↑ John Pomfret, U.S. may train Indonesian unit; AN EFFORT TO IMPROVE TIES Aid to Kopassus has been banned since '97, Washington Post, March 3, 2010
  15. ↑ Eric Schmitt and David E. Sanger, Pakistani Troops Linked to Abuses Will Lose Aid, New York Times, October 21, 2001, http://www.nytimes.com/2010/10/22/world/asia/22policy.html
  16. ↑ Sarah Trister, "Investing In Freedom: Democracy Support in the U.S. Budget," Freedom House Policy Brief, July 22, 2013.
  17. ↑ National Security Network, Critical Issues in the Senate Defense Appropriations Bill, July 11, 2014, http://nsnetwork.org/critical-issues-in-the-senate-defense-appropriations-bill/,
  18. ↑ http://www.nytimes.com/2013/06/21/us/politics/military-says-law-barring-us-aid-to-rights-violators-hurts-training-mission.html?pagewanted=all&_r=0
  19. ↑ Winifred Tate, "Human Rights Law and Military Aid Delivery: A Case Study of the Leahy Law," PoLAR: Political and Legal Anthropology Review, Volume 34, Issue 2, pages 337–354, November 2011; http://onlinelibrary.wiley.com/doi/10.1111/j.1555-2934.2011.01169.x/abstract; and U.S. Government Accountability Office, "Human Rights: Additional Guidance, Monitoring, and Training Could Improve Implementation of the Leahy Laws," September 2013, GAO-13-866
  20. ↑ HRW World Report 2011, http://www.hrw.org/en/world-report-2011/cambodia
  21. ↑ http://www.salon.com/2014/03/08/35_countries_the_u_s_has_backed_international_crime_partner/
  22. ↑ http://thehill.com/blogs/congress-blog/foreign-policy/177199-hold-israel-accountable-with-leahy-law
  23. ↑ http://thejerusalemfund.org/ht/a/GetDocumentAction/i/3061
  24. ↑ http://www.haaretz.com/print-edition/news/u-s-senator-seeks-to-cut-aid-to-elite-idf-units-operating-in-west-bank-and-gaza-1.378800
  25. ↑ http://www.politico.com/blogs/bensmith/0811/Leahy_says_legislation_doesnt_aim_at_Israel_but_could_hit_it.html
  26. ↑ http://www.leahy.senate.gov/issues/policies-by-region
  27. ↑ Barry, John (Spring 2002). "From Drug War to Dirty War: Plan Colombia and the U.S. Role in Human Rights Violations in Colombia". Transnational Law & Contemporary Problems 12: 161.
  28. ↑ 28.0 28.1 Stokes, Doug (2005). America's Other War : Terrorizing Colombia. Zed Books. ISBN 1-84277-547-2. p. 99
  29. ↑ Stokes, p. 97.
  30. ↑ 30.0 30.1 30.2 Human Rights Watch, p. 95.
  31. ↑ Douglas Farah, U.S. Aid in Limbo as Colombian Army Fails to Provide Evidence on Rights Abuses, Washington Post, January 10, 1998, at A20.
  32. ↑ Foreign Operations, Exporting Financing –Appropriations, Pub.L. 106–429 § 563, 114 Stat. 1900 (2000).
  33. ↑ Human Rights Watch, p. 96-100.
  34. ↑ Memorandum of Justification concerning Human Rights Conditions with Respect to Assistance for Colombian Armed Forces, U.S. Dept. of State 5 (Wash. August 1, 2005).
  35. ↑ Erasing the Lines: Trends in U.S. military programs with Latin America 12 (Center for International Policy 2005) available at http://www.ciponline.org/facts/0512eras.pdf.
  36. ↑ Human Rights Watch, p. 100.
  37. ↑ Human Rights Watch, p. 102.
  38. ↑ Kristen McCallion, War For Sale! Battlefield Contractors in Latin America & the 'Corporatization' of America's War on Drugs, 36 U. Miami Inter-Am. L. Rev. 317 (Winter, 2005 / Spring, 2005). p. 338.
  39. ↑ Nicholas von Hoffman, Contract killers: how privatizing the U.S. military subverts public oversight, Harper's Magazine, June 1, 2004 at 81.
  40. ↑ McCallion, p. 342.
  41. ↑ Paul De La Garza , Military aid . . . from the private sector, St. Petersburg Times, December 3, 2000 at 1A.
  42. ↑ Schmitt, Eric, "Military Says Law Barring U.S. Aid to Rights Violators Hurts Training Mission," The New York Times (June 20, 2013). http://www.nytimes.com/2013/06/21/us/politics/military-says-law-barring-us-aid-to-rights-violators-hurts-training-mission.html?pagewanted=all&_r=1&

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