Top military commanders are taking aim at a 16-year-old human rights law, saying it undermines their ability to act abroad. As the Obama administration moves to end the Afghan War and curtail the intelligence community’s use of the drone program, Congress has been forced to reconsider the measure by concerns that it will block the Pentagon’s efforts to train and equip local security services.
The Leahy provisions, or the Leahy Law, are a set of amendments to various foreign operations and defense spending bills. They are named after the law’s author, Sen. Patrick Leahy (D-Vt.). The amendment, originally attached to the 1997 Foreign Operations Appropriation Act, is now part of the legal restrictions attached to all military appropriations bills.
For example, the 2001 Foreign Operations Appropriations Act states that “None of the funds made available by this Act may be provided to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights, unless the Secretary determines and reports to the Committees on Appropriations that the government of such country is taking effective measures to bring the responsible members of the security forces unit to justice.”
A differently worded amendment was attached to the 2001 Defense Appropriations Act that restricted training forces accused of crimes against humanity.
Gaming the system
In the past, the United States has invoked this provision to justify the denial of military assistance to dozens of nations, including Pakistan and Indonesia. It has been hailed as an important measure in the United States’ commitment to prevent the funding of human rights violators. However, the law was found to be ineffective and easy to circumvent.
For example, a foreign brigade accused of human rights violations could fold into a “clean” brigade to avoid the State Department’s charges, funnel funding and equipment via a civilian contractor, transfer its commanders and replace them with “clean” officers, or transfer soldiers from a “dirty” unit to a “clean” unit.
To help remedy this, the 2011 Leahy provision made it illegal to offer assistance to a unit accused of human rights violations, even if just one member of the unit is actually implicated. Assistance would be suspended until the allegation is investigated by the State Department and remedied by the unit’s home country. This is a process that can take weeks or months to complete, if it is ever completed at all.
This is the issue that concerns the military’s brass. Several top-ranking admirals and generals — including Adm. William H. McRaven, who executed the operation that resulted in the death of Osama bin Laden — have complained that implementation of the current Leahy provision restricts their ability to engage the Afghan military.
“We absolutely want to ensure that the forces we’re working with understand and appreciate their requirement to maintain appropriate human rights,” McRaven told Congress in March. “Unfortunately, it has restricted us in a number of countries across the globe in our ability to train units that we think need to be trained.”
It should be noted that McRaven himself has been accused of sponsoring and supporting human rights violations — most notably in the documentary “Dirty Wars: The World is a Battlefield,” where writer Jeremy Scahill accused McRaven of allowing covert raids throughout the Middle East.
Out of a total of about 200,000 cases, 1,766 individuals and units from 46 countries were denied assistance in 2011, according to the State Department. Totals from 2012 are similar. The military leadership feels that the training itself could help to mitigate future incidents of rights violations.
“We’re always going to comply with Leahy vetting, but the conundrum it presents us is that the nations whose militaries have had human rights violations perhaps are the ones that need U.S. engagement the most,” said Vice Adm. Charles J. Leidig Jr., the United States Africa Command’s military deputy.
Inefficiencies in the law
Many in the diplomatic community feel that the law is well-intentioned but ineffective because it does not offer an effective incentive for foreign militaries to improve human rights. American officials are restricted in what they can say about specific offenders, as to protect sources and methods, such as electronic surveillance. In addition, if the administration is desperate enough to support a particular blacklisted unit, backdoor routes — such as the use of third parties — are available.
“This is a law that works, if it is enforced,” Leahy said in a statement, in defiance of such criticism. “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.”
A large problem in the enforcement of the Leahy Law lies in the realities of warfare in the nations the United States wishes to aid. Nations with militaries built in the British tradition — such as Pakistan and Afghanistan — are centrally controlled and organizationally fluid. There are no stand-alone units or armies within armies. As such, one cannot fund a unit of such an army without funding the entire army — “clean” or otherwise. The law also requires civilian authorities to regulate and control the action of the militaries of their nations, an arrangement that may be unthinkable in certain situations.
“In the final analysis the problem with the Leahy Amendment is that it requires the Secretary of State to determine whether an incident of gross violation of human rights has occurred. This is problematic because the Secretary of State is guided by the pre-dominate goal of his or her job: the self-interest of the United States,” Ali Chrishti wrote in a commentary for Crimes of War. “If the amendment is meant to be merely a tool for the Secretary of State to conduct foreign policy and obtain some measure of leverage against states with poor human rights records, then it may serve an important political purpose. If, however, the intent of the legislation is to ensure U.S. taxpayers are not funding atrocities committed by foreign armies, it looks a lot better on paper than it does in practice.”
“The position of the Departments of Defense and State is that they strongly support the Leahy amendment, which is the law,” Leahy said in comments to Mint Press News. “Despite that, critics in the Pentagon say they want to improve the Afghan Army’s performance, but if a unit of the Afghan Army rapes and kills a civilian and nothing is done to investigate and punish those responsible, we should continue business as usual and give U.S. military aid to that unit. We used to do that, and it discredited the United States and it perpetuated the worst crimes. Rather than try to undermine the law, individual Pentagon officials should uphold it. That is the way to encourage the Afghan Army to respect human rights and be accountable to their own citizens.”
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