[Congressional Record Volume 160, Number 109 (Monday, July 14, 2014)]
[Senate]
[Pages S4452-S4453]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE LEAHY LAW
Mr. LEAHY. Mr. President, 18 years ago I wrote a law that has been
repeated annually ever since and is now codified as section 620M of the
Foreign Assistance Act. It has become widely known as the ``Leahy Law''
and it has two primary purposes.
The first is to prevent U.S. taxpayer funded training, equipment, or
other assistance from going to units of foreign security forces that
have committed heinous crimes. We saw many instances when U.S. aid
ended up in the hands of foreign military or police forces that had
engaged in rape, murder, torture, or other gross violations of human
rights, and the U.S. was tainted by association with those crimes.
The second is to encourage foreign governments to bring to justice
the individual members of units responsible for such atrocities. In
many countries that receive U.S. aid there is a long history of
impunity for crimes committed by government security forces. Rather
than protect their citizens, they abuse them, and then they beat up or
kill witnesses and threaten prosecutors and judges. They act outside
the law and literally get away with murder. They are the antithesis of
professional, accountable military or police forces.
A similar, although not identical, provision that is also known as
the Leahy Law is contained in the annual Defense Appropriations Act.
Both Leahy Laws serve important national interests and they have
become increasingly institutionalized within the U.S. government. The
State Department's Bureau of Democracy, Human Rights, and Labor has
developed a database for vetting foreign units and individuals that is
continually updated, and they and the Defense Department increasingly
coordinate to apply the laws consistently. The Department of State and
foreign operations appropriations bill for 2015, reported to the Senate
on June 19, includes $5 million to pay salaries and other costs of the
vetting process, an increase of $2.25 million above fiscal year 2014.
While the Leahy Laws have been modified over the years and their
implementation is a continuing work in progress, I appreciate the
support they have received from the highest levels of the State and
Defense Departments, and the willingness of officials in those agencies
to work with Congress and representatives of human rights organizations
and foreign governments to address issues of interpretation and
implementation as they arise.
As with many laws, the Leahy Laws have their detractors. However,
with rare exceptions questions about, or criticism of, the laws have
been due to misinformation or misunderstandings that have been easy to
clarify or resolve.
While I know of no one who has expressed opposition to the Leahy
Laws, some have raised concerns with their implementation, suggesting
that they pose unacceptable obstacles to the ability of the U.S.
military to engage with foreign counterparts. Not only do the facts
indicate otherwise, the laws are working. In more than 90 percent of
cases the foreign units or individuals vetted have been deemed eligible
to receive U.S. assistance under the Leahy Laws. In the rare instances
when a unit or individual was denied assistance, it was due to credible
information that the individual or unit had committed a heinous crime
and the foreign government had done nothing about it.
At a July 10 hearing in the House Foreign Affairs Subcommittee on
Africa, Global Health, Global Human Rights and International
Organizations, Stephen Rickard, a former Senate staff member, State
Department official, director of the Robert F. Kennedy Center for
Justice and Human Rights, director of Amnesty International's
Washington Office, and now executive director of the Open Society
Policy Center, provided testimony on the Leahy Laws. His testimony does
an excellent job of describing the purposes and impact of the Leahy
Laws, and addressing key questions that have been asked about their
implementation. I ask unanimous consent that his statement be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Stephen Richard, Executive Director, Open Society Policy
Center
Presented to the House Foreign Affairs Subcommittee on Africa, Global
Health, Global Human Rights and International Organizations
Human Rights Vetting: Nigeria and Beyond
July 10, 2014
I would like to begin by thanking Chairman Smith and
Ranking Member Bass for holding this important hearing and
for their leadership on human rights.
I have worked on the Leahy Laws in one form or another for
nearly 17 years and have discussed them with countless State
Department and Defense Department officials, as well as with
human rights experts working all over the world. I also spent
a period of time as a Franklin Fellow in the Department of
State during which time I was able to learn in detail about
the process for implementing the Leahy Laws. I have been
engaged on detailed questions about the application of the
Leahy Laws in Colombia, Turkey, Afghanistan, Sri Lanka,
Indonesia, Nigeria, Kenya and dozens of other countries, and
I believe that these laws are among the most important human
rights statutes on the books. The law has been poorly
funded--less than two-hundredths of one percent of the cost
of U.S. military assistance is spent on Leahy Law vetting.
And it has often been misunderstood and misrepresented.
But with President Obama proposing a new $5 billion fund
for military assistance to combat terrorism it is essential
to help the public understand this vital law and to help
insure that it is vigorously implemented.
A Common Sense Formula for Security Cooperation Consistent
With U.S. Values
The Leahy Laws are common sense laws that prohibit the
United States Government from arming or providing military
training to security force and police units abroad who have
been credibly alleged to have committed gross human rights
violations. These laws (there is one for State Department
assistance and one for Department of Defense assistance) do
not prohibit the United States from providing assistance in
violent, conflict-wracked countries like Nigeria and
Colombia. On the contrary, because they involve a unit by
unit examination, the Leahy Laws provide a formula for the
United States to assist foreign military forces even in
countries where some government forces are committing gross
atrocities. They are a formula for success in such countries,
not a prohibition on engagement.
Four Numbers
There are four important numbers to keep in mind about the
impact of the Leahy Laws. (All these statistics have been
provided by the State Department and cover 2011-2013.) The
first number is 530,000. That's the approximate number of
foreign military and police units which the United States
government considered arming or training over the last three
years and subjected to Leahy vetting.
The second number is 90 percent. That is the minimum
percentage of prompt approvals given under the Leahy Law--
generally within 10 days of a request. There is even a ``fast
track'' approval process for countries with generally good
human rights records. Some vetting requests require more
information, investigation or discussion. But at least 90%
are approved more or less immediately.
The third number is 1 percent. In every one of the last
three years less than 1 percent of all units vetted under the
Leahy Law were ultimately declared to be ineligible for
assistance under the law. Of course it is true that the
number will be higher in some specific countries, but taken
as a whole the Leahy Law actually blocks aid in a miniscule
percentage of cases.
The final number is 2,516. The Leahy Law blocks aid in a
tiny percentage of cases, but that doesn't mean that it is
unimportant. Because the U.S. now provides training to so
many people, even 1 percent is a lot. And 2,516 is the number
of vetted units that the U.S. Government found to be credibly
linked to gross atrocities over the last three years when it
took the time to examine their records because of the Leahy
Law.
Those 2,516 units were not being asked to satisfy a high
standard. In no way does the Leahy Law require pristine
forces. In fact, the State Department defines ``gross human
rights violations'' to include a very short list of only the
most heinous offenses: murder, torture, rape, disappearances
and other gross violations of life and liberty. That's it. So
even though less than 1 percent of proposed units failed the
standard, it is still pretty
[[Page S4453]]
shocking that over the last three years the United States
Government probably would have armed and trained 2,516 units
(or individuals in those units) containing murders, rapists
and torturers without the Leahy Law.
The Leahy Laws don't actually prohibit the U.S. from
working with even these units--the ones that have committed
murder and torture. It only says that the U.S. cannot arm or
train them until the foreign government takes steps to clean
up the unit.
Three Questions
So whenever anyone says that it is a problem for the United
States that it cannot train or arm a particular foreign
battalion or police unit, one should ask three questions:
(1) What did the unit do? If we can't work with them, it
must mean that the United States has determined that this
unit is one of the worst of the worst. It is in the 1 percent
of units where the U.S. government found credible information
linking it to murder, rape, torture or another gross
atrocity. So, when someone argues that we should arm a Leahy-
prohibited unit, one should ask, ``What did the unit do to
get on the list?''
(2) Why won't the government clean up the unit? Maybe the
foreign government wants to make a point to the U.S.--it
doesn't accept the U.S. commitment to human rights; it won't
let the U.S. ``tell it what to do.'' Maybe the government has
no control over its own military and cannot do anything to
clean up the unit even if it wanted to do so. But one should
insist on knowing: ``Why won't the government clean up the
unit?''
(3) Finally, if the unit committed murder, rape or torture
and the foreign government won't or can't clean it up, why
should U.S. taxpayers give that specific unit guns anyway?
Under what possible circumstances would it make sense for the
United States to arm known killers who are either completely
out of their government's control, or who work for a
government that refuses to take any action against them?
Responses to Three Criticisms
Tempus Fugit: There are a number of arguments raised
against the Leahy Law which might make some sense if the law
covered lesser offenses. For instance, there is an argument
that it makes no sense to keep a unit on the Leahy Law
``pariah'' list long after the atrocity occurred, especially
if everyone who was in the unit has now moved on. But there
are no other contexts in which we would accept a 4 year, or 8
year or even 15 year statute of limitations on murder,
torture or rape. So why accept one here? And the law is
intended to create an incentive for foreign governments to
improve their human rights records and to hold people
accountable. Letting a unit off the hook because the
government rotated people out of the unit (and into other
ones) or because the foreign government simply waited us out
for a few years sends exactly the wrong message. Moreover,
units have reputations and traditions that are regularly
passed on to new members of the unit over many years and even
decades. That is often true for units with gallant histories.
But it is also true of death squads and praetorian guards.
Just as importantly, one needs to ask what it says about a
foreign military ``partner'' if documented cases of murder,
rape and torture go without redress after decades. The
government always has the option of working with the United
States to create new, carefully vetted units--something that
has been done in a number of countries with gross human
rights problems. If the government will not do that, it is
probably trying to make a point. Is it appropriate to reward
such behavior with assistance?
Pariah Forever: Critics of the law also sometimes argue
that it is impossible for a tainted unit to be rehabilitated.
This is, of course, completely false--unless the government
in question refuses or is unable to take any meaningful
action to address the problem. So what these critics are
really saying is: It is almost never the case that America's
military partners in these countries have the political will
or commitment to human rights to take the kind of
disciplinary action against killers and rapists that is
absolutely routine in the U.S. military. And that is a very
odd sort of argument for waiving or weakening the Leahy Law
so that we can give more guns to these government's forces.
In fact, there are cases in which specific units have been
rehabilitated. But it takes a willing partner. This is one
area where critics of the law and its supporters should make
common cause to support earmarked funding for remediation of
tainted units. One percent of U.S. military assistance--just
one penny out of every dollar--should be set aside for
vetting and remediation. It should be used to help foreign
militaries set up JAG officer corps, criminal investigation
services and other elements of a professional disciplinary
system. This should simply be considered a cost of doing
business in some of the most violent places on earth. There
is a precedent for applying a fixed surcharge as a ``cost of
doing business.'' Every time the United States Government
sells weapons abroad it applies a surcharge--currently 3.5%--
to administer the sale. The U.S. should apply a 1% surcharge
to ensure that it knows what is being done with the other 99%
and so that it can help move its partner forces in a positive
direction on human rights.
Just a Few Bad Apples: Critics sometimes argue that it is
wrong to hold whole units accountable for the acts of just a
few, or perhaps even just one, member of the unit. They argue
that we should vet specific individuals rather than units and
only withhold information from those individuals who are
linked to atrocities.
Here it is important to understand that the Leahy Law was a
compromise. There was and is an important human rights law--
Section 502B of the Foreign Assistance Act--which does not
permit the United States to engage in a unit by unit
assessment of foreign partner forces: ``No security
assistance may be provided to any country the government of
which engages in a consistent pattern of gross violations of
internationally recognized human rights.'' There is a very
strong argument to be made under Section 502B that the United
States should be providing no assistance whatsoever to
Nigerian forces, and many others around the world.
But historically the United States has been extremely
reluctant to invoke Section 502B even in the most extreme
cases. So the Leahy Law was proposed as an intermediate step:
If the U.S. will not completely cut off governments engaging
in a consistent pattern of gross human rights violations,
then at least it should not arm the specific military units
it believes are the ones actually committing the gross
violations. However, Senator Leahy also believed that it
would be absurd and unreasonable to ask that human rights
victims be able to identify the specific murder, torturer or
rapist by name before the U.S. took any action. So, his law
states that if credible information can be presented that
links an identifiable unit to a specific atrocity the United
States would be required to cut off that unit--at least until
the foreign government identifies the specific individuals
within it who are responsible and deals with them.
One Final Thought
The Bible tells us in the Book of Acts that before his
conversion on the road to Damascus the Apostle Paul was a
persecutor of the Christian Church. In fact, according to
Acts (Chapter 7, Verse 59) he was present at the killing of
St. Stephen and held the cloaks of those who stoned him. He
cast no stones himself; but he was complicit. He gave aid to
the killers. When we go to places like Nigeria, shouldn't we
at least ask, ``Whose cloaks are we holding?'' That's all the
Leahy Law says.
The Leahy Law cannot guarantee that the U.S. will never arm
bad people. It's not a panacea. It's just the least we can
do.
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