THE LEAHY LAW; Congressional Record Vol. 160, No. 109
(Senate - July 14, 2014)

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[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.

                          ____________________