Ahmad Masood / Reuters An Afghan National Army officer takes part in a training exercise at the Kabul Military Training Center in Afghanistan, October 7, 2015.

Getting the Leahy Law Right

How to Improve U.S. Funding of Foreign Forces

The protection of human rights has long been a core component of global security. In advancing this principle, the United States has sought to limit security cooperation with foreign security forces that violate human rights and in 1997 passed legislation to prevent the State and Defense Departments from using taxpayer money to provide training and equipment to foreign security forces that commit gross violations of human rights. The Leahy laws, as they are known, contain two provisions: one restricts funds and an exception allows for the resumption of funds if a foreign government is taking measures to bring violators to justice.

Over time, in an effort to comply with the laws, the State and Defense Departments have suspended U.S. cooperation with foreign security forces when credible information of violations were found. But counter to the laws and their intent, once cooperation was terminated, there was no remediation mechanism through which foreign security forces could regain favorable status. It became common to say that once a unit was on the “withheld” list, it would remain there forever. Discussing individual cases with foreign governments was not always encouraged; it was sometimes expressly prohibited, to the detriment of foreign relations. In one particular instance, after a foreign government repeatedly attempted to obtain more information on why it had been defunded, it began canceling some joint military engagements with the United States. Human rights became more or less a forbidden topic of discussion with some countries, and the military-to-military and broader government-to-government relationships became strained. 

In the summer of 2013, a small group of U.S. military officers and Defense Department civilians decided to independently analyze the case files of some foreign military units whose funding had been halted. Their findings revealed considerable variance in how the Leahy laws were implemented. In some cases, the State and Defense Departments cut off funds to the wrong unit. In others, the information or sources that led to the allegation were questionable or unverifiable. And in still others, when a violation had occurred and the foreign government had brought the case to trial with convictions, U.S. funding remained restricted. Years of ineffective implementation of the Leahy laws led to a sizable list of barred units that could not receive training. To illustrate the extent of the problem, in one country alone, the State and Defense Departments erroneously denied funding to more than 40 security force units, which equaled roughly 15 percent of that country’s military forces. 

The Defense Department team conducting this research focused much of its attention on cases where foreign governments had taken judicial action in response to human rights violations. The Leahy laws permit the State and Defense Departments to resume cooperative activities with the security force units in question once certain measures have been taken against perpetrators, such as judicial action. But for decades, no policy or procedures existed to implement this part of the law. After a year and a half of research, meetings, dialogue with foreign nations, and political wrangling in Washington, the State and Defense Departments issued a joint policy guidance that addressed the remediation of defunded foreign security force units, in compliance with the Leahy laws. The new policy was signed and published in February 2015. In order to resume U.S. funding, the policy requires State and Defense Department personnel to document that the foreign government has completed a credible investigation, judicial or administrative review, and, if warranted, judicial or administrative action in response to a gross violation of human rights. Later that year, for the first time, the State and Defense Departments restored funding to three units, each from three separate countries. To date, the Defense Department has resumed security cooperation funding to a total of seven foreign security force units under the remediation provision of the Leahy laws.

Nonetheless, implementation of the new joint State and Defense Department remediation policy, as well as broader human rights vetting procedures, remains uneven. Many officials at both departments are unaware of the new policy, and many do not know how to use it. Neither department offers training on how to use remediation as an effective foreign policy tool. Unless the new policy is fully understood and incorporated into standard procedures at both departments, the old problems will persist. The common practices of suspending security cooperation funding in response to every allegation, whether proven credible or not, and continuing to withhold funds even if a foreign government is taking effective steps to bring violators to justice, weaken the impact of the Leahy laws. Unexplained suspensions of security force units hinder the advancement of shared foreign policy objectives because the U.S. government loses the trust of partner nations when it fails to serve as an honest broker on security and human rights issues.

There are several steps the State and Defense Departments can take to ensure they are properly implementing the Leahy laws. First, the two departments should call for a review of all cases in which security cooperation funds are suspended or rejected. This review will verify the quality of existing withholdings and could identify cases eligible for remediation. Both departments should give priority to remediation, including open and honest engagement with partner nations.

In addition, the State and Defense Departments should update and disseminate, based on input from practitioners in the field, revised policies and procedures on how to manage human rights vetting in order to ensure current U.S. policy is implemented in a coherent and consistent manner. Existing challenges include the lack of standards for determining if the source reporting a human rights violation is credible. There is also no standard in determining whether the unit itself or every individual in the unit must undergo vetting or what level of leadership is permitted to approve or withhold U.S. funding to a foreign security force unit. Once such guidance is clarified, it should be codified in State and Defense Department operating procedures. 

Both the State and Defense Departments must also address ongoing misunderstandings about which department is accountable for implementing the Leahy laws. Both departments are separate but equal collaborators in implementing them. Therefore, even if the State Department oversees the administrative aspects of human rights vetting for both departments, the Defense Department needs to remain informed at every level and phase of that process when it involves Defense Department–funded activities, and vice versa. While these procedures are put in place, the State and Defense Departments should ensure training is available to officials at all levels who are responsible for human rights vetting decisions. This training should involve studying best practices and techniques for working with partner nations.

Congress also plays a role in ensuring the Leahy laws are properly implemented. It should provide both the State and Defense Departments with sufficient resources to undertake the very technical and time-intensive work of vetting human rights violations, as well as sufficient funds to ensure department personnel are properly trained to implement the laws. Both departments spend billions of dollars per year on security cooperation activities worldwide but spend only a fraction of a percent of this amount on implementation of the human rights vetting required.

Professional and capable armed forces that respect and protect human rights are critical to the long-term stability and security of the United States and its global partners. In advancing this issue, the U.S. government should not only continue to limit security cooperation with nations that violate human rights but also renew support and cooperation with those that hold violators accountable.

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