Leahy Law Diplomacy: Human Rights Vetting and Foreign Policy

By Colonel Andrew M. Leonard, U.S. Army

Disclaimer:   The views presented are those of the author and do not necessarily represent the views of the U.S. Department of Defense or its components.  Republished by permission of FOREIGN AFFAIRS, 2017, June 29. Copyright 2019 by the Council on Foreign Relations, Inc.

Protection of universal human rights is a core component of global security.  In advancing this issue, the government of the United States of America should not only continue to limit security cooperation with foreign governments that violate human rights, but should also renew support and cooperation with those that hold violators accountable. 

In 1996, the U. S. Congress passed the first legislation designed to prevent the Department of State (DoS) and Department of Defense (DoD) from using taxpayer money to provide training and equipment to foreign security forces that commit gross violations of human rights.  Over the past 20 years, implementation of accompanying policy guidance, not the law itself, has hampered U.S. national security and foreign policy objectives.

 For years, the DoS and DoD have suspended U.S. funded cooperation with foreign security forces when either department found credible information that the unit had committed a gross violation of human rights.  But despite congressional intent, once suspended there was no mechanism through which foreign security forces could regain favorable status, even if a government demonstrated it was taking or had taken appropriate measures to bring the responsible individuals to justice.  It became common to say that once a unit was on the list, it would remain forever on the list. 

 However, in 2015, new policy developments allowed for the full implementation of the human rights vetting requirements of the Foreign Assistance Act and the National Defense Authorization Act.  Initial experiences indicate that effective implementation of these provisions can reinforce national security and foreign policy objectives while strengthening protections of internationally recognized principles of human rights.

Human Rights Vetting Requirement

 Prior to 1996, the U.S. Government (USG) responded to human rights violations in foreign countries with an all or nothing policy.  If a single foreign military or police unit was shown to have committed a human rights violation, USG funded cooperation was restricted from the entire country.  This technique was seen as ineffective because it neither strengthened critical security partnerships nor encouraged the advancement of constructive human rights actions.

   In the Omnibus Consolidated Appropriations Act of 1997, the U.S. Congress developed a more nuanced policy when it passed the first version of what is now commonly referred to as the Leahy Laws, named for their author, the Democratic Senator from Vermont, Patrick Leahy.  The original law, and subsequent versions, contained two parts:  a restriction on the expenditure of U.S. funds, and an exception to this restriction.  The restriction states, 

That none of the funds made available under this heading (International Narcotics Control)

 may be provided to any unit of the security forces of a foreign country if the Secretary of

 State has credible evidence to believe such unit has committed gross violations of human rights…”

and the exception is written as,

    “unless the Secretary determines and reports to the Committees on Appropriations that

       the government of such country is taking steps to bring the responsible members of the

       security forces unit to justice.”

    According to the original law, if a security force unit (military or civilian) has committed a gross violation of human rights, the DoS is restricted from spending congressionally appropriated funds in support of that unit.  But, once a country is taking measures to hold violators accountable, the DoS may again use congressionally appropriated funds to conduct cooperative engagements with this unit.  The intent is to encourage countries to hold human rights violators accountable, and support countries that do so.

       Since 1997, the U.S. Congress has amended the law several times, including creating a second and distinct law governing the use of funds appropriated to the DoD.  The laws encourage consultation between the departments, but both the DoS and the DoD are now independently accountable for upholding the provisions contained within, and responsible for reporting to Congress on implementation of, their respective Leahy Law.  For reference, the full text of both current laws are found at the end of this article. 

   Effective implementation of the Leahy provisions consists of two analysis and decision making periods: adjudication and remediation.  When the USG is made aware of potential violations of human rights, officials of the DoS and DoD must adjudicate whether the known information is credible, if the incident in question rises to the level of a Gross Violation of Human Rights (GVHR), and (not “or”, but “and”) if the implicated security force unit is actually the unit which committed the violation.  If there is common agreement, ideally not only within the USG but also with and within the foreign government, that a Gross Violation of Human Rights occurred, then officers of the Departments of State and Defense must determine if the foreign government is taking or has taken effective steps to bring the responsible individuals to justice.  In order to make this determination, U.S. national security professionals must determine, in working with their foreign government counterparts, whether the partner nation has conducted a thorough and impartial investigation(s), credible administrative and/or judicial review under due process, and (if applicable) has applied appropriate and proportional administrative action and/or sentencing.  If such a determination is made, the unit may be “remediated” and the restriction against expenditure of U.S. funds can be lifted.  Effectively applying the Leahy provisions is a mix of diplomacy, investigation, policy, and legal review.  Both foreign policy decision makers and legal advisors should be a part of the decision making processes contained within both the adjudication and remediation phases.

    The bulk of this article will focus on how U.S. national security officials were able for the first time to resume U.S. funded cooperation in cases where the responsible individuals were brought to justice; in vetting speak, demonstrate “remediation.”  The end of this article will briefly address continuing adjudication challenges, and what can be done to address systemic adjudication and remediation implementation problems.

A Gross Violation of Human Rights (GVHR) Case Study

      The first attack had occurred earlier in the day.  In the intense gunfire, four enemy fighters and one government soldier were killed, and two more soldiers were wounded.  Now, just past noon, the enemy struck again.  This time the soldiers repelled the attackers, killing two.  But then, after the fire fight concluded, something happened.  Two civilians, a husband and wife, one of them wounded by an enemy fighter, came out from the place where they had taken shelter.  With their hands raised, shouting they were in need of assistance, they approached one of the soldiers.  Then it happened.  The soldier fired, repeatedly.  Fourteen times in total.  Most of the shots were at close range, having been fired from no more than two feet away.  The two civilians fell, and died in the street.  The soldier then placed weapons in the hands of the now dead, and previously unarmed, civilians.  He then reported having killed two enemy fighters.

   In the days immediately following the incident, local government officials claimed enemy fighters, and not the military, had killed the two civilians.  A national-level human rights organization published a report, in the local language (not English), on the incident.  The report included an interview with the commander of a local neighboring military unit, but there was no by-name mention of the involved soldier or his unit.  Meanwhile, an ongoing military investigation of the incident led to the soldier’s arrest on charges of homicide.  The military subsequently turned the case over to civilian authorities, who conducted their own investigation and confirmed the charges against the soldier.  The soldier was brought before a federal civilian judge who found that while the murder was intentional it was not premeditated.  The soldier was convicted of simple intentional homicide, imprisoned, and received appropriate and proportional sentencing considering the legal, judicial, and administrative standards of the country’s civilian and military justice system.  The soldier was discharged from the military and barred from any future government service.  The soldier’s original unit received additional training on the use of force and respect for human rights, and no further such incidents have occurred by this unit to date.  The government and military paid reparations and financial support to the victim’s family.  International and national human rights organizations acknowledged and commended the government’s actions in response to the case. 

    Years after the incident occurred, and during the period when the foreign government was in the process of taking effective measures to bring the responsible soldier to justice, mid-level officials at the DoS unilaterally imposed a restriction on the use of DoD congressional-appropriated funds for a DoD cooperative engagement with the adjacent unit, whose commander was interviewed in the local human rights report, rather than with the unit actually involved in the incident.  Additionally, the DoS neither conducted an independent review of the original source information (the foreign language human rights report) nor discussed the case with the partner nation’s government or military.

     In response to this decision, and others at the time, the partner nation military requested the local U.S. Embassy provide information used to determine the alleged fault, and expressed a willingness to share information regarding alleged human rights abuses.  Neither the DoS nor the DoD responded, and the Departments prohibited embassy officials from discussing the source(s) of the allegations and decision with the partner nation.  After repeated attempts to obtain more information, the foreign government began canceling any military-to-military engagement for which either the DoS or DoD restricted funded cooperation without dialogue or explained cause.  Human rights became a forbidden topic of discussion, and the military-to-military and larger government-to-government relationships were strained. 

      It took nearly two years for the DoS and the DoD to begin to reverse the impact of the mistakes made in this case.  Ultimately, the two departments agreed to resume DoD and DoS funded cooperative activities with both the neighboring military unit and the convicted soldier’s unit.  As a result, the DoD and the host national military not only resumed cooperative engagement, but opened an honest and productive human rights dialogue. 

Development of a Remediation Process

     In Summer 2013, a small group of U.S. military officers assigned to a U.S. Embassy-based Security Cooperation Office (SCO) began to independently research the case files of military units within the foreign country to which U.S. funded cooperation was suspected to be denied, including the one in the case study above.  First, they discovered significant errors in the “adjudication” of some cases:  funding had been cut off to the wrong unit; the source information was singular (i.e. unable to be corroborated) and/or was of questionable nature; and/or a crime had likely been committed but a human rights violation had not occurred.  Second, in select cases, they found that the partner nation had brought the perpetrators to trial; some had been found not guilty, but most had been found guilty and sentenced to prison.  In accordance with the Leahy law, the U.S. is permitted to cooperate with these units.  But, U.S. funded cooperation was still restricted.  No one had monitored these cases, nor even thought twice about them, since funding was first restricted.  Contrary to congressional intent, no one had discussed these human rights violations with the partner nation.  Even worse, at times the country was not told why the funding was restricted, but merely informed that there was some sort of issue with the administrative process of vetting the individuals or units.  Dialogue was not encouraged; sometimes it was expressly prohibited. 

      If their initial findings were accurate, at least a portion of the previously withheld U.S. funded cooperation should be resumed.  The military officers, in coordination with their DoS Foreign Service Officer colleagues and support from the U.S. Ambassador in country, immediately began work to re-review, and re-adjudicate as appropriate, the cases with vetting errors.  Meanwhile, the officers turned significant focus to the cases in which partner nations took judicial action against human rights violations. 

        After months of research, supported by their human rights and legal advisors, the officials reported their findings to their higher headquarters, but no one knew what to do next.  The information was sent back to The Pentagon and the DoS in Washington, DC.  Everyone agreed that in cases where the partner nation was or had taken actions to bring human rights violators to justice, funding should be restored, but no mechanism existed to effect the restoration.  The law said funding shouldn't be restricted given the facts, but no policy or procedures existed by which to enact the exemption / remediation aspect of the law.  Funding remained restricted, and skeptics abounded. 

     The critics were right… sort of.  They were right that the independent research alone should not be sufficient to resume U.S. funds.  But their arguments were oftentimes based on personal views, not a review of facts, and as such, misplaced.  The problem was in the process, or lack thereof, rather than in the individuals or the quality of their research.  All levels had work to do.  Washington had to write implementation policy guidance (or at least improve upon it), and the embassy-based officials had to find more information with which to confirm or deny their initial assessments.  They decided the best way to understand what actions the partner nations had taken was to present the information to them and ask them directly.  But here again, embassy officials ran into roadblocks. 

    Here lies two misconceptions: First, it has been said that Leahy vetting source information can’t or shouldn’t be shared with the partner nation.  But the truth is that the vast majority of information is unclassified open source information.  Usually it is from the foreign government’s public records, non-governmental organizations (usually human rights organizations) reports, and/or foreign national or international media.  Oftentimes, the partner nation is already aware of the information, but they are not aware that the U.S. has used it to restrict funding. 

      Secondly, discussing these cases will not destroy relationships with a reasonable partner.  Instead, not discussing these cases will harm the relationships.  Partner nations know the facts of these cases better than the USG.  They know when the USG gets it right and when it gets it wrong.  When the DoS and/or the DoD restrict funding without the courtesy of a discussion, they negatively impact the bilateral relationship.  Let’s be honest… these are very difficult conversations.  No one enjoys talking about such things, especially if one side or the other hasn't done what's right by international norms.  But, the most important diplomatic discussions often revolve around contentious subjects.  The vast majority of time, the reaction received, after getting past the ‘how dare you accuse me’ stage, is one of ’thank you for being open and honest.  Now how can you help us move beyond this?’

       After finally receiving permission from Washington, the embassy-based officials sat down with their foreign partners to discuss the case specific information used to determine restriction of U.S. funded cooperation.  In one such meeting, a U.S. military officer was ushered into a room to meet with six foreign military lawyers, two foreign military human rights officers, and two more foreign military liaison officers.  Dialogue was what they asked for, and that is what they got.  They had their work cut out for them.  It’s not that the embassy officials were overmatched… they themselves brought binders of researched information with them… but they did have a lot to learn.  The first meetings were more discussions on the foreign nation’s civilian and military judicial systems… clarifying terminology, understanding procedures, etc.  It should be noted that these meetings, and most of the research, were conducted in the language of the partner nation.  While the embassy officials had been trained in the foreign language, they had not received training in human rights or human rights vetting.  While there were no policies and procedures governing remediation, there was even less training.  For the most part, the only training that exists is technical training primarily focused on how to administratively input and track names and units in the DoS-run International Vetting Security Tracking (INVEST) system.    

     At first, the embassy officials didn't have much to offer.  The policy guidance by which to resume U.S. funded cooperation was still in draft, and action officers did not know how long it would take the DoS and the DoD to approve it.  Rapport was built, and information was shared.  Holes in research were filled in… often for the better (when the country had taken greater action than those of which the U.S. officials were aware), but sometimes for the worse (when judicial action wasn't as far along as the U.S. officials thought, or action hadn't been taken at all).  Easy cases – those with a vast amount of open source information and in which judicial processes were complete – were picked to be the first considered for remediation.  This helped build confidence in the system, and allowed a training ground for U.S. and partner nation officials who were managing their first remediation cases. 

    A first case was picked in which the partner nation tried, convicted (in civilian court), and sentenced multiple military personnel to more than 100 years in jail for their offenses (highly proportional in the international system given their crimes).  Still no DoS or DoD policy existed.  The case was submitted regardless, where it sat on the Departments’ doorsteps while officials figured out how to respond to it.  Meanwhile, other cases were developed.  Once the policy guidance was signed and published, review boards began to meet in Washington.  The traditional spoilers were in the room; ideologues with an inherent mistrust of all security forces who would never be happy with any amount of information presented, or those who favored a less transparent and more “black box” system that gave them greater control over the process and/or allowed them to advance personal agendas.  But organizational momentum prevailed.  Enough of the people involved in the processing of the cases knew the Departments needed to be responsive in full implementation of the law. 

     A remediation assessment process was established.  Resumption of DoS or DoD funded cooperation with a foreign security force unit requires the development of a request packet for a Secretary of State and Secretary of Defense designated approval authority.  For remediation cases focused on accountability, the Foreign Service Officers and Foreign Area Officers working in a country need to demonstrate the completion of a credible investigation, judicial or administrative review, and, if warranted, judicial or administrative action. 

            In reporting on the credibility of an investigation, DoS and DoD policies require identification of the investigating authority and an assessment of impartiality.  The timeline, thoroughness, and major findings or recommendations of the investigation should be provided, as well as information on the removal of the alleged offender(s) from their unit and the individual(s) current disposition. 

     Judicial or administrative review is discussed in the context of the reviewing authority, a summary of the review, if the standards used complied with those of the country, and resulting decisions (i.e. to dismiss the case, to bring the case to trial, etc.).  Attention is given to a determination if the matter was adjudicated in a manner free from improper influence such a political considerations, as well as if due process was afforded to the accused in accordance with the legal norms of the body adjudicating the case. 

     If sentencing or administrative action was warranted, a summary of that adjudication, including who imposed the punishment and if it was done so freely from improper influence is documented.  A determination is made if the action was appropriate and proportional to the misconduct committed, considering the legal, judicial, and administrative standards of the foreign government’s law. 

      Nineteen years after legislation was enacted, three cases from three separate countries were initially approved and notified to the U.S. Congress.  More cases have followed, but implementation is still limited. 

Existing Adjudication Process

      As word spreads of the possibilities for “remediation,” challenges still exist in adjudication. For years, implementation of the provisions has erred on the side of guilty-until-proven-innocent and once-bad-always-bad. Additionally, lack of thoughtful adjudication, mismanagement, or attempts to advance ideological interests has weakened the impact of the law and at times had devastating implications for the advancement of U.S. foreign policy objectives. If the DoS and/or the DoD suspends funded cooperation over every allegation, both credible and non-credible, partner nation governments will not view the U.S. as an honest broker in the process and will not seriously engage in a balanced manner on issues of security and human rights.

      Adjudication of the restriction within the law requires determination of three key elements: that, if true, the allegations constitute a gross violation of human rights; that the allegations represent credible information; and that those culpable are part of a foreign security force acting under the “color of law.” None of these are expressly defined in the Leahy Laws, but other laws or policies provide some clarity.

    The Foreign Assistance Act of 1961 states a Gross Violation of Human Rights (GVHR) includes,

  “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention

   without charges and trial, causing the disappearance of persons by the abduction and

  clandestine detention of those persons, and other flagrant denial of the right to life,

   liberty, or the security of person.”

     DoS public policy documents also include “politically-motivated rape” as a GVHR, and cite “extrajudicial killing” as an example of flagrant denial of the right to life. The DoS makes clear that “this is not an exhaustive list” and “incidents are examined on a case-by-case basis.”

  While most of these concepts are well understood and agreed upon, some are not. For examples, the elements of color of law are not well differentiated or applied (i.e. the distinction between “official capacity” and “personal capacity”). The DoS Office of the Legal Adviser and the DoD Office of General Counsel are critical advisors in both the adjudication and remediation process.

    DoS public documents direct, in determining the credibility of information, that “it is not required to meet the same standard as would apply to admit evidence in a U.S. court of law, but consideration is given to the source, the details available, the application to the individual or unit, the circumstances in the relevant country, and other factors.” Credible information “should be deserving of confidence as a basis for decision-making” and “ideally should be corroborated by multiple sources.” 

     Sometimes a tendency to suspend first and investigate later can create a ‘guilty until proven innocent’ approach.  This practice breeds mistrust in the seriousness of U.S. commitments towards both security cooperation and the advancement of the rule of law.  Again, while a determination is made on a “case-by-case basis,” adjudication is often delegated to junior-level vetting officials.  Senior and experienced leaders with an understanding of civilian and/or military diplomatic relations in a particular region or country are not always part of the credible information determination nor initial decision to withhold assistance.

  DoS policy has determined a foreign security force “unit may be construed as the smallest operational group in the field implicated in the reported violation.” Additional guidance specifies the “lowest organizational element capable of exercising command and discipline over its members,” and “the smallest deployable unit.” A U.S. Army battalion (comprised of 600 to 800 soldiers) or its equivalent is provided as an example.

    This standard is not equally applied, and while adjudicators are often encouraged to identify the smallest culpable unit (down to company -- 100 to 200 soldiers, or possibly even platoon -- 30 to 40 soldiers, consensus is rarely obtained to reduce the scope of the restriction to this level. Additionally, it is accepted policy that responsibility must be accredited to a specific and identified security force unit. Geographic proximity alone is insufficient to accredit responsibility.

    Utilizing these three criteria, (GVHR, credible information, and specific unit) adjudication results in a decision to either “approve,” reject,” or “suspend” the DoD and/or the DoS from spending congressionally appropriated funds to cooperate with a particular foreign security force unit.  The latter is utilized if the adjudicating officials lack specific or complete information to make a final determination, and therefore suspends the adjudication process.  This is a temporary measure.  A formal decision to either approve or reject the expenditure of funds is desired.  The absence of completed adjudication (i.e. a final decision) places the unit in a position of neither receiving cooperation nor initiating a request to resume cooperation.  In practical terms this amounts to an informal rejection without the possibility of remediation… or vetting purgatory.  Limiting the expenditure of U.S. funded cooperation in this manner may unnecessarily castigate security forces which are conducting themselves in a manner which respects human rights.  It also weakens the position of U.S. officials in discussing serious human rights violations with foreign governments, and undermines the use of the human rights vetting provisions as an effective foreign policy tool.

    The RAND Corporation’s report entitled, “Improving Implementation of the DoD Leahy Law,” provides additional information and detailed analysis of the adjudication process.

Policy Recommendations

   The past several years have seen greater effort than ever before to provide comprehensive guidance and effectively implement the law, but training and standardization shortfalls still challenge effective implementation. There are several steps the DoD and the DoS can take to ensure effective implementation of their respective congressionally mandated human rights vetting provisions:

    First and foremost, the DoS and the DoD should implement a review of all cases of suspended or rejected U.S. funded cooperation with foreign security forces in order to provide quality assurance audits and to identify potential remediation cases.  Those should include cases in which judicial action has already been taken and those in which additional action would bring responsible individuals to justice. Both Departments should make remediation, including open and honest engagement with partner nations, a priority.  The DoS and DoD should regularly update policies and procedures designed to ensure judicious implementation, of both adjudication and remediation, and management of human rights vetting requirements. The Departments should also develop greater senior leader oversight of the vetting process. The implications associated with the decision to approve or deny U.S. funded cooperation with a foreign government should not be delegated as an administrative function.  A discussion and determination of the appropriate decision making authority is required. Implementation processes should be codified in accurate and up-to-date national-level and embassy-level standard operating procedures.

   Congress should provide both the DoS and the DoD with sufficient appropriations to completely and effectively implement congressionally mandated human rights vetting requirements, and both Departments should allocate sufficient personnel and resources to do the same. The DoS is resourced to accomplish the technical data-entry (i.e. input and processing of requests to vet individuals and unit) and initial-review (i.e. discovery of derogatory information) aspects of vetting via the INVEST system, and does so for both the DoS and DoD. Once derogatory information is identified, review and adjudication of this information, and, if warranted, subsequent request for resumption of funded cooperation, requires additional (often significant) work. For National Defense Authorization Act funded activities requiring vetting, the DoS is only responsible for providing the discovered derogatory information to the DoD. The DoD is ultimately responsible for making adjudication and remediation determinations, but is not resourced nor sufficiently staffed at any level (from Embassy-based SCOs to Pentagon-based policy offices) to accomplish these congressionally mandated tasks.  The DoS and the DoD spend billions of dollars a year on security cooperation activities worldwide, but spend a fraction of a percent of this amount on implementation of the human rights vetting required before this cooperation can occur.

     The DoS and the DoD should provide national security professionals and security cooperation practitioners – at the junior-, mid-, and senior-levels – standardized human rights vetting implementation training, in both a theoretical and case study format, prior to assignment overseas or in a regional office / bureau / command. Best practices should be captured, documented, and taught. This training should also include the diplomacy of human rights and vetting, including techniques to work with partner nations to bring forward actions taken on past cases and encourage action on new cases. Open and honest dialogue, and successful engagement, can lead to proactive discussions between the U.S. and partner nation governments, private and public acknowledgement of actions (both violations and response) taken, and (most importantly) greater action to protect the citizens of our nations. In addition to integration into pre-existing security cooperation courses, the DoS and the DoD should provide basic online e-learning in order to ensure the instruction is easy to access for officials assigned around the world. Security cooperation practitioners must be able to effectively manage a broad range of human rights vetting case management.

    DoS and the DoD leadership should provide guidance to their subordinates that both departments are separate but equal collaborators towards complete and effective implementation. The Secretary of State is responsible to the U.S. Congress for human rights vetting decisions made in relation to cooperative activities funded by the Foreign Assistance Act, and the Secretary of Defense is responsible to the U.S. Congress for human rights vetting decisions made in relation to cooperative activities funded by the National Defense Authorization Act. Under current law, neither department can direct how the other department executes their congressionally appropriated funds, and therefore neither Secretary nor department personnel can legally make human rights vetting decisions for the other department. Even if the DoS administratively manages the human rights vetting process for both departments, it must keep the DoD informed at every level and phase of that process, and defer all human rights vetting decisions to the Secretary of Defense (or his/her designee) if the cooperative activity is funded by the National Defense Authorization Act.  Human rights vetting case management requires access, even if read-only, by personnel from both departments to the DoS run International Vetting Security Tracking (INVEST) system. 

Balanced National Security Priorities

      Since its inception, at least two distinct positions have been taken by both supporters and opponents of the law. On one end of the spectrum, there are those who fiercely advocate for a very strict and conservative interpretation that any and all allegations of possible abuse is sufficient to permanently deny funded cooperation to foreign police and military forces. In fact, those on the farthest spectrum believe the standard should be higher for, and the withholding greater upon, military forces versus other civilian security forces. On the opposite side of the spectrum are those who support not only the most liberal interpretation, but profess the Leahy provisions are actually a hindrance to achieving U.S. national security interests. The most stanch supporters of this position believe the U.S. Government should, in fact must, be able to work with and train/equip whomever it desires whenever it desires. Unfortunately, both of these positions are counter to the actual intent of the law, and do not serve to effectively advance U.S. and international human rights interests. The law itself is well balanced, but requires equally balanced implementation.

   Protection of universal human rights is a core component of global security.  It is not an issue of security cooperation versus human rights; they go hand-in-hand.  Professional and capable security forces which respect and protect human rights are critical to the long term stability and security of the U.S. and global partners.  In advancing this issue, the government of the U.S. of America should not only continue to limit security cooperation from nations which violate human rights, but should also renew support and cooperation with those who hold violators accountable. The use of human rights vetting laws as effective foreign policy tools means working with, through open and honest dialogue, foreign government counterparts. In order to completely and effectively implement these laws, the DoS and the DoD should expand upon recent policy advancements and address continuing challenges.

About the Author

    Colonel Leonard has over 24 years of service as a United States Army Infantry and Foreign Area Officer. He is a national security professional and security cooperation senior manager, with assignments in Colombia, Germany, Guatemala, Iraq, Kuwait, Mexico, and the Republic of Korea, and to the Defense Threat Reduction Agency's Joint Improvised Threat Defeat Organization, the Inter-American Defense Board/College, Office of the Under Secretary of Defense for Policy, and United States Northern Command. His actions led to the first, and subsequent, United States Government "remediation" of a foreign security force unit.

TEXT OF THE LEAHY LAWS

The DoS appropriation (the Foreign Assistance Act) 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.

The DoD appropriation (the National Defense Authorization Act) states:

(a) In General.—

(1) Of the amounts made available to the Department of Defense, none may be used for any training, equipment, or other assistance for 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 shall, in consultation with the Secretary of State, 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 DoS 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 determines that the waiver is required by extraordinary circumstances.