The Leahy Law is one of the most significant international human rights laws the U.S. Congress has passed since the Jackson-Vanik Amendment to the Trade Act of 1974, which tied trade to the freedom of emigration. Vermont Senator Patrick Leahy sponsored the initial Leahy Law as part of the Foreign Operations Appropriate Act in 1997, as he grew concerned that the United States was providing aid and assistance to Colombian and other Latin American militaries that had committed human rights abuses as they sought to counter drug cartels, but it soon expanded to cover all State Department assistance on any subject. A permanent feature of law since 2008, Congress has continued to expand its reach and implementation ever since. The full text of the law is here but, in sum, it prohibits any U.S. assistance to any foreign security forces or military officer “if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” It does make an exception if “the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.”
The purpose of Leahy vetting of foreign military officers who seek to come to the United States for training or who seek to participate in other U.S. government-funded programs in their home countries is well-intentioned and necessary: The United States should not be partnering with death squad leaders, nor should those engaged in the worst human rights abuses face no consequences or be embraced with open arms.
There are two major problems, however, which threaten to undercut both the Leahy Law’s intent and U.S. partnerships abroad.
First, countries penalized under Leahy can easily accuse the United States of double standards. The U.S. military takes human rights seriously. Lawyers, both inside and outside the military, scrutinize almost every decision soldiers in the field make. Many U.S. policies — for example, the Obama administration’s extensive use of drones — remain quite controversial. If these countries were to apply the same standard as Leahy vetting does, that is that accusation is enough, then the United States would find itself without the valuable partnerships it has across the globe, especially as Leahy vetting often applies not only to individual commanders but to everyone who has served underneath him.
Second, and perhaps more corrosively, the Leahy Law relies not on evidence but rather on accusations. Hence, the secretary of state’s ability to wave Leahy sanction represent the equivalent of justice in 17th century Salem: Submerge the accused in a pool and if he drowns, then he’s innocent. If an accusation is false, the secretary of state can waive the sanctions only if the government in questions takes action as if it were true.
In addition, the idea of “credible information” can pay too much heed to groups like Human Rights Watch and Amnesty International who have done good work in the past, but too often today filter human rights analysis through a political lens that infuses their reports with agendas that have little to do with human rights. Governments that have a culture of openness — Morocco and Israel, for example — suffer disproportionate criticism simply because they do not prohibit the movement of human rights researchers in the way that countries like Algeria, Saudi Arabia, and the Hamas-run administration in the Gaza Strip do. This can translate theoretically into the Leahy vetting creating a perverse incentive for countries to be less transparent with human rights.
Nor can human rights organizations always be trusted to uphold professional standards in their work. Both Human Rights Watch and Amnesty International, for example, incorporated information provided by al-Karamah, which was led by a man designated by the U.S. Treasury Department as a financier for al-Qaeda. In effect, al-Karamah became a mechanism for promoting radical Islamist groups and promoting sometimes questionable accusations about their opponents. By including al-Karamah’s reports, both organizations effectively laundered the information that the State Department then embraced. Human Rights Watch Executive Director Kenneth Roth showed how he let personal animus trump objective analysis when he essentially augmented reported casualty figures in Egypt’s very real abuse of human rights in a fit of pique after he had been stopped at the Cairo airport.
The Congress should not throw the baby out with the bathwater. Vetting is important. But it’s time to accept that the politicization of human rights has eroded both the value and the credibility of the community making the accusations. There has to be a higher standard of evidence; if not, human rights will actually worsen, as regimes seeking to defeat terrorism will be unable to enjoy the aid and expertise that the United States military can provide.