The Leahy Amendment, or Leahy law, is a little known piece of United States legislation that bans US assistance to units of foreign security forces where there is credible information that a member has committed gross violations of human rights. The Leahy law has accomplished far less than its champions hoped for, but far more than its critics presume, and nowhere are these contradictions on better display than in Afghanistan. Guest author Erica Gaston* has taken a closer look at some post-2014 improvements to its enforcement in Afghanistan, and discovered that the foremost security official in the south, Kandahar Provincial Police Chief Abdul Razeq has failed Leahy law vetting. However, how far he and his forces have been excluded from receiving assistance is an open question, and provides a litmus test of the law’s effectiveness.Police post in Kandahar, 2005. Photo: Thomas Ruttig
This dispatch is one of a number of publications under a joint three-year project of AAN, the Global Public Policy institute (GPPi), and the American University of Iraq, Sulaimani (AUIS). The project explores the role and impact of militias, local or regional defence forces or other quasi-state forces in Afghanistan, Iraq, and Syria, including mechanisms for foreign assistance to such actors. Funding is provided by the Netherlands Research Organisation.
The Leahy Law
The US Leahy law was first proposed by Vermont Senator Patrick Leahy in 1997 and has been a permanent fixture of the US foreign assistance landscape since 2008. There are parallel versions of the Leahy amendment in the Foreign Appropriations Act of 1961 and the annual Department of Defence Appropriations Bill, which respectively authorise US Department of State (DoS) and US Department of Defence (DoD) funding. (1) Although there are slight distinctions between the two, in essence, both versions prohibit US assistance to any unit of foreign security forces where there is “credible information” that one of its members has committed “gross violations of human rights.”(2) Where credible allegations are found against a member of the security forces, not only that individual but his entire unit is “tainted” and cannot receive assistance from either DoS or DoD funds. This includes training, participation in conferences supported with US funds, provision of supplies, participation in US-funded workshops or meetings, or other US-funded activities.
The vetting process is managed by the State Department’s Bureau of Democracy, Human Rights, and Labour (DRL), for both DoS and DoD funding. In 2010, DRL created a database system called the International Vetting and Security Tracking (INVEST) system to track and record allegations, which can come from reporting by journalists, human rights activists, US intelligence sources or the State or Defence departments’ own reporting in country. According to the State Department’s guide on the process, where assistance is proposed for the individual or unit, the relevant US embassy first enters the information into INVEST to check for any negative allegations. If no credible negative allegations are found, the individual or unit’s name goes onto a second round of checks through the Washington DC bureau of DRL. Where the credibility of the allegations is unclear, DRL or the US embassy concerned can decide to investigate further. State Department guidance notes that the standard of what is “credible” for Leahy vetting is not the same as would be required for evidence in a court of law.
When all of those involved in the vetting agree that the information is credible, the individual or unit is rejected and cannot receive any assistance unless and until “remediation” happens, meaning when the foreign government has taken steps to address the violations. This is typically through prosecution or disciplinary actions, but can be through training, reorganisation of units, or other means in the DoD version of the law. (3) Additionally, State Department officials have a “duty to inform” the foreign government which individuals are blocked under the Leahy law, in order to give an opportunity for remediation.
Remediation is the primary exception in the Leahy law, however, there is also a blanket “waiver” in the DoD version that could allow the Secretary of Defence to waive the Leahy law in “extraordinary circumstances,” implicitly where serious national security interests are invoked. However, this waiver has never been requested, nor applied. There are also exceptions for DoD-funded foreign disaster assistance.
Public reporting requirements on the Leahy law are relatively new – they were introduced in 2011 – and so far have not been implemented. (4) As a result, there are no public records on how often the Leahy law has been used to block assistance in any particular country. However, the Congressional Research Service reported that DRL completes an average of 130,000 unique vetting processes per year. Approximately one per cent fail the vetting, although a higher number – perhaps as high as ten per cent according to officials interviewed – may be suspended because of “administrative reasons.”
Application of the Leahy Law in Afghanistan
Since its inception, the Leahy Act has received equal measure of public accolade and scorn. The fact that any country is willing to give human rights concerns the ability to trump other security or policy considerations is significant, especially coming from the US. However, both US officials and some foreign aid recipients have criticised the law, arguing it undermines important policy objectives by blocking the US’ ability to provide assistance to critical security partners. (5) On the opposite tack, other critics have argued the law has too many exceptions, and is under-applied. Again and again, in country after country, evidence of abuse does not appear to lead to aid cut-offs – due to a combination of security or political interests, the difficulty of substantiating allegations, or other administrative and implementation challenges (see the US Government Accountability Office’s reports of 2005, 2006, and 2013).
Afghanistan would appear to be a case in point in terms of the latter critiques. Since 2003, commanders notorious for widespread and serious human rights abuses have continued to receive significant US assistance. The lack of any seeming application of the Leahy law (again, bearing in mind the lack of public reporting on where it is applied) has appeared even more egregious because of the amount of documentation and reporting in Afghanistan on human rights abuses, not only by journalists and rights activists, but also by US officials themselves.
If Afghanistan is a case study of the Leahy law’s failings, then Abdul Razeq has been the poster child. At least since 2006, during his time first as Spin Boldak Border Police Chief and then as Kandahar Police Chief, there have been numerous, repeated and substantiated allegations against Razeq and his men for extrajudicial killing, enforced disappearances, torture and extreme abuse of detainees. (6) In a searing 2011 piece for The Atlantic, “Our Man In Kandahar,” journalist Matthieu Aikins documented how millions of dollars of US training and equipment continued to flow to Razeq and forces under his command despite clear State Department knowledge and evidence of abuse. Aikins interviewed witnesses who had been electrocuted, hung from the ceiling in handcuffs, or beaten with a cable or metal rod by Border Police forces under Razeq’s command. Another investigative piece by Anand Gopal, “Kandahar’s Mystery Executions,” documented patterns of torture and extrajudicial killing by policemen under Razeq’s command in Kandahar, including by electrocution and beheading. Several of those who appeared to have been killed by Kandahar police force had holes drilled through their skulls, or were missing noses, ears, eyes, or other body parts, Gopal reported.
Past investigations have indicated that Razeq’s command had a systematic effect, increasing and regularising abuses across Kandahar forces under his command. UNAMA’s 2013 investigation into detention facilities, for example, singled out the Kandahar Afghan National Police detention as the only facility where torture had risen to the level of being systematic; it noted a marked increase in the “level of brutality” and the use of cruel, inhuman and degrading treatment since Razeq had taken charge. (7)
In addition to this extensive public record, journalists and rights activists have provided specific evidence directly to DRL on abuses by Razeq and those under his command. The extent of the allegations, and level of documentation against Razeq and his forces has been so substantial that there have been persistent calls to block him, and persistent questions as to why the Leahy law has not been invoked in Razeq’s case.
As late as 2015, State Department officials were unwilling to publicly comment on why such an apparently huge anomaly in Leahy accountability continued. However, in more recent interviews by this author with US officials involved in implementing the Leahy law, several said Razeq has since failed Leahy vetting and the law has been enforced against him.
Much of the funding for Kandahar police force salaries, equipment, and other assistance comes from the US, specifically US DoD funds. In addition to bilateral assistance, these are channelled through the UNDP-administered Law and Order Trust Fund for Afghanistan (LOTFA). So, the news that Razeq has failed Leahy vetting should raise two key questions. First, and most obviously, why is he still receiving salary and support as Kandahar police chief? Second, why are those under his command, i.e. the Kandahar police force, also still receiving assistance?
To unpack both questions requires a little background about changes to the Leahy law that took place in 2014, and how the Leahy law application has developed in Afghanistan since then.
Post-2014 Leahy Law Reforms
As noted, the DoS and DoD have always had slightly different versions of the Leahy law. One of the biggest differences is the definition of what the Leahy law applies to – in essence, what is assistance? Prior to 2014, the language in the DoD version limited Leahy law application only to “training.” DoD interpreted this narrowly and so, prior to 2014, the Leahy law was not considered to be applicable to most DoD funding in Afghanistan, including salaries, equipment, and many other combined train-and-equip measures.
In the Financial Year (FY) 2014 DOD appropriations bill, Congress widened the scope, changing the language of the DoD provision to include not only training, but also “equipment, or other assistance.” (8) With this change, the vast majority of US assistance to Afghan security forces that previously had been excepted was now subject to Leahy vetting.
While significant, the change in definitions would not have been enough in itself to make a substantial difference. The effectiveness Leahy law ultimately comes down to implementation, which varies starkly from one country to another. However, with the change in the law in 2014, DoD decided to embrace the broader mandate for Leahy enforcement and set up processes to implement it more meaningfully in Afghanistan, according to officials interviewed by this author. From 2014 on, a process evolved wherein DoD staff regularly monitored both classified and public reports for allegations of abuses. A committee of DoD and DoS officials met regularly (often biweekly) to discuss a spreadsheet summarising each allegation. They were required to decide affirmatively whether to reject, further investigate, or determine the allegations not credible. The more dedicated DoD scrutiny was helped by efforts at the State Department, since 2011, to improve and better support Leahy implementation, including the establishment of the INVEST database system. (9)
What resulted from these reforms was a higher level of scrutiny and proactivity than happens in most countries (with the possible exception of Colombia, the country the Leahy Act was originally created for). In addition, in Afghanistan, US officials have resources to cast a broader net. Due to the many years on the ground and the greater and deeper staff resources in country, US officials have more knowledge about Afghan security structures, more sources of information, and more contacts with local officials than in many other countries. This can help in investigating allegations, identifying the unit to be blocked, and in following up remediation.
While there are no public statistics on how many members of the security forces in Afghanistan have failed Leahy vetting, Razeq is not alone. Officials would not disclose how many individuals or units had been blocked in Afghanistan, or even give a ballpark figure, but they said that vetting, exclusion and remediation happened more regularly in Afghanistan than in other countries. For example, of the caseload of remediation cases in August-September 2016, they said, just over a third were from Afghanistan. (10) In this respect, the processes that evolved for Leahy vetting in Afghanistan offer a model for the type of regular scrutiny and follow-up that should be happening in other countries where US security assistance is given.
Partial Exclusions and the Notwithstanding Clause
The decision to more broadly apply a law with the potential to cut off valuable security partners in the name of human rights would seem to go against the broader narrative that the US has prioritised security objectives above human rights or other policy concerns in Afghanistan. US officials have often conceded to, or even pressured for, corrupt and abusive warlords to take positions of power, created loopholes in disarmament programmes for abusive forces who filled security gaps, or continued to fund contractors and other subsidiaries who engaged in extortion, paid off the Taleban, or were part of criminal networks. As former US senior advisor Barnett Rubin has framed it, “When there was a conflict between the counterterrorist agenda and anything else, the counterterrorist agenda won out.”
There are two critical reasons why DoD may have been willing to make such a shift. First, bureaucracies are complex creatures. While the overall thrust of US policy may have elevated military expediency above human rights accountability, individuals and agencies across the US government have funded and supported human rights initiatives for the last fifteen years. Military officers and civilian officials have sunk considerable funding and energy into developing a military justice system for the Afghan government, providing Laws of Armed Conflict training, and encouraging enforcement. Those interviewed suggested that, internally, DoD had decided that having a provision like the Leahy law that allowed them to screen for gross violations of human rights (GVHR) and to pressure the Afghan government, was seen as a valuable part of these overall military accountability efforts. As one DoD official framed it, “There are lots of very good policy reasons that we might not want someone with a [bad] human rights record to be supported.”
Equally important was that at the same time that Congress broadened what Leahy applied to, it gave DoD a potential ‘out’ for operations in Afghanistan, in consideration of the scope and importance of security assistance at that time. In the same FY2014 appropriations bill, Congress authorised a special type of waiver for the Afghan Security Forces Fund known as a ‘notwithstanding clause.’ The waiver (quoted from the FY 2014 DoD Appropriations Act) reads:
For the “Afghanistan Security Forces Fund… That such funds shall be available to the Secretary of Defense, notwithstanding any other provision of law, for the purpose of allowing the Commander, Combined Security Transition Command—Afghanistan, or the Secretary’s designee, to provide assistance, with the concurrence of the Secretary of State, to the security forces of Afghanistan, including the provision of equipment, supplies, services, training, facility and infrastructure repair, renovation, and construction, and funding. (11)
What that translates to in non-legal English is that any other conflicting provision of US law – from a minor procurement rule, to the application of the Leahy law – can be waived when it comes to supporting the Afghan security forces. DoD could apply the Leahy law more broadly and meaningfully in most cases, safe in knowing that where doing so would compromise serious security objectives, it could use this exclusion.
The notwithstanding provision is currently only being applied in Afghanistan, according to officials interviewed (although notwithstanding provisions have existed in other funding authorisations related to security forces). (12) The Obama Administration did request – but was denied – broader notwithstanding authority for financial year 2015 funding for counter-terrorism operations in places like Syria (see here at p 5-6) and Iraq. There has been ongoing discussion between Congress and DoD officials about whether to phase out the notwithstanding provision for Afghan Security Forces Fund in financial year 2017 funding.
While this notwithstanding clause might seem like a blank cheque, it is in practice a very difficult cheque to cash. Any such waivers require direct sign-off from the Secretary of Defence and must be taken on an individual basis, so the issue would have to reach a very high level of importance before it would even be considered.
Because of the policy considerations discussed above, DoD has not used the notwithstanding clause to block Leahy application as a whole in Afghanistan, but has used it to limit its application in select cases. One DoD official gave the example of a situation in which they found gross human rights violations by an individual or a unit, but cutting that individual off would have resulted in gaps in security protection. Instead he said they would use the notwithstanding authority to create a partial exception to the Leahy law – all assistance to that unit would not be blocked, but they would “create other repercussions” for the individual. Often this also depends on the type of assistance at issue. As one DoD official framed it, it is tough to give fuel assistance to the army, but withhold it from Unit X, or give boots to all policemen and women, but take back the ones from Unit Y. Certain types of assistance – the purchase of a plane ticket, sponsoring participation in a course – are easier to block because it is given on an individual, rather than security force-wide, basis. Thus, a blocked individual, or his immediate surrounding unit might no longer be able to receive direct US military training and advising, or go on a training junket to the US, but might still receive the same equipment, and supplies (likely including salary) that is channelled to all Afghan forces through LOTFA.
Unit Exclusions and the Special Case of Abdul Razeq
Officials interviewed confirmed to this author that Razeq had failed Leahy vetting and had not been remediated. However, they would not provide specific details on the ways in which he is prohibited from receiving US assistance. This suggests that some of the possible exclusions, outlined above, have been used to implement a partial or selective ban on Razeq and his men. As in the example provided above, perhaps he still receives the same support that all police officers receive through LOTFA, but cannot himself receive direct US military training, travel to the US, or other direct perks.
How Razeq’s unit is defined is also important. The standard interpretation of the Leahy law is that once an individual is rejected under the law, the entire unit is “tainted” by that abuse. No one in the unit can receive any DoS or DoD assistance. Where the individual is a low-ranking foot soldier, only his immediate, lower level unit would be blocked. But where credible allegations are established against a senior commander, all military units or individuals under his command are also considered tainted and typically blocked from US assistance, absent remediation. This is the standard practice, but defining the surrounding unit is ultimately a matter of discretion, and could vary on a case-by-case basis.
Taking the standard interpretation of a commander’s unit should mean that once Razeq was blocked under Leahy, neither he, nor any forces under him – in essence, all of Kandahar police forces – should be eligible for US DoD or DoS assistance. This clearly has not happened. Instead, what appears to have happened is that for this select case only Razeq, and perhaps a few of those in immediate proximity to him (who may also have credible allegations against them specifically), have been blocked under Leahy. All others under his command – the whole Kandahar provincial police force – are still considered eligible for US support.
Is Vetting Worth It?
Trying to limit support to human rights abusers is important. Enforcing human rights criteria over foreign assistance more rigorously in the past would not only have been more consistent with long-standing western rhetoric about human rights, but would probably have also brought strategic benefits. In Afghanistan perhaps more than anywhere, there is evidence that western support or acquiescence for human rights abuses, corruption, and other misconduct created significant blowback and undermined larger policy goals.
Leahy vetting in Afghanistan, even with its faults, stands out as a laudable effort to do something. No other ISAF member established a similar vetting programme in Afghanistan, despite equally high human rights promises and significant Afghan security force support (if not as high as the levels of US support). The author asked officials from several European countries if such vetting and tracking programs had been tried, either in Afghanistan or in other countries, and was told there simply had not been the resources to systematically track whether those receiving assistance had engaged in abuses. A Dutch interviewee gave the example of a 2012 Dutch police training programme in Kunduz that ran aground due to tracking and monitoring requirements imposed by the Dutch parliament. Although the Dutch program was aimed at a different purpose – ensuring that police trained by the Dutch were not those engaged in paramilitary or offensive activities – the Dutch official said the lesson they had come away with was that any vetting and tracking (for human rights, training, or another purpose) was too cumbersome: “The final evaluation of the programme was very critical of the tracking and monitoring and for that reason, politically, they would never [again] institute a tracking and monitoring programme.”
Yet, if the Leahy law application in Afghanistan is the best we can get, and even that best-case scenario is riddled with implementation failures and ‘Razeq-sized’ exceptions, is it still worth doing? Is it more valuable to have some form of human rights vetting – even if it results in, at most, a couple of dozen officers excluded, or partially excluded – than to have nothing at all? And where vetting criteria are established, is there value in creating some exceptions and safety valves – for example, something that would prevent a severe consequence like the entire Kandahar police force being cut off from salaries and equipment? Or do such exceptions undercut the principled value of creating human rights criteria at all?
These are important questions, but for the moment difficult ones to answer. There is too little public information to properly evaluate Leahy accountability in Afghanistan. Greater public reporting on who has been excluded and how this affects accountability in Afghanistan could strengthen the case that the Leahy law has improved human rights accountability, but for now the verdict is still out.
Regardless, it seems likely that this is the high point for Leahy accountability in Afghanistan. Carrying out this kind of programme is not cheap – it costs money, significant amounts of US officials’ time to implement, and trade-offs on other policy goals. As US engagement in Afghanistan continues to draw down, and resources in Washington DC and in Afghanistan are re-assigned elsewhere, the practical assets that allowed the Leahy law to be implemented somewhat more rigorously will decline. With priorities shifting elsewhere, and even Afghan officials unwilling to invest in accountability, there is likely to be a shift toward less, not more external accountability mechanisms in the near term.
* Erica Gaston is a human rights lawyer with the Global Public Policy institute, in Berlin, Germany. She has worked on numerous field research studies and rule of law programming in Afghanistan since 2008.
(1) The State Department version of the Leahy Law is found in Section 620M (22 U.S.C. 2378d) of the Foreign Assistance Act of 1961, as amended, and affects funds under the Foreign Assistance Act and the Arms Export Control Act. The Defence Department version of the Leahy Law is a recurring provision attached to the annual Congressional appropriations bill for Department of Defence funding. Bringing the two different versions or interpretations of the Leahy Law into alignment has been a continuing process over the last decade. For a larger discussion of the differences and legislative efforts to reform both provisions, see Nina M. Serafino, June S. Beittel, Lauren Ploch Blanchard, & Liana Rosen, ‘“Leahy Law” Human Rights Provisions and Security Assistance: Issue Overview,’ Congressional Research Service, 29 January 2014 .
(2) This includes “torture or cruel, inhuman or degrading treatment or punishment” and “flagrant denial of the right to life, liberty or the security of the person” as well as other types of abuse. The Foreign Assistance Act of 1961, Pub L No 87-195, 75 Stat 424 (1961).
(3) The DoS version of Leahy defines remediation as when “the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice,” which is understood as official court processes or other formal disciplinary action. The FY2014 DoD version defined remediation as when “all necessary corrective steps have been taken.” DoD has preferred that remediation happen through the military justice system, the Congressional Research Service notes (p 5-6), but it could also include reorganisation of units, or other measures. Officials interviewed noted that since 2014, DoS and DoD officials have been working to bring the remediation standards closer together in practice. DoS officials noted that while they feared that reorganization of units would prove to be a major loophole, in their experience, it had not so far been proposed as a remediation avenue.
(4) In December 2011, the Consolidated Appropriations Act 2012 created new procedural requirements for the State Department implementation of the Leahy law, including that it “make publicly available, to the maximum extent practicable, the identity of those units for which no assistance shall be furnished pursuant to the law.” See Government Accountability Office, ‘Additional Guidance, Monitoring, and Training Could Improve Implementation of the Leahy Laws (GAO-13-866),’ September 2013, p 5-8.
(5) US officials or implementing partners involved in applying the law have tended to argue that the Leahy vetting is time-consuming, difficult to implement, and undermines other key policy goals. For example, in hearings and public statements in 2013, the head of US Special Operations Command Admiral William McRaven argued that Leahy exclusions limit support to important partners for US forces in many countries, and can be counter-productive by preventing the type of human rights training that might prevent abuses. Recipients of US assistance have also sometimes criticised the law. In one of the most public recriminations, in July 2015, Nigerian President Muhammadu Buhari argued that the Leahy law had “aided and abetted the Boko Haram terrorists” by impeding US military assistance to Nigeria.
(6) Anand Gopal documents numerous allegations of extrajudicial killings by police under Razeq’s command in Kandahar, in ‘Kandahar’s Mystery Executions: Are the Afghan police using torture to achieve peace?’ Harper’s Weekly, September 2014. In “Our Man in Kandahar” Aikins details an infamous March 2006 incident in which Razeq ordered the extrajudicial killing of 16 men who were Razeq’s rivals in smuggling routes, and successfully passed it off as the result of a gun battle with the Taliban. Despite an internal ministry of interior investigation, international attention to the issue, and strong evidence suggesting guilt, no charges were made. Aikins’ article also describes his investigation of previously unreported extrajudicial killings of two other men in September 2010, who had been detained on suspicion of connection with a police killing. They were found handcuffed and shot. In terms of enforced disappearances, UNAMA has received allegations of 81 men going missing after being detained by ANP between September 2011 and October 2012. A reference to this UNAMA reporting can be found in Human Rights Watch, ‘“Today We Shall All Die” Afghanistan’s Strongmen and the Legacy of Impunity,’ 3 March 2015, p 79.
(7) Torture was found to be more severe and systematic at Kandahar facilities than in ANP facilities in other provinces – it was the only province in which facilities met the standard for “systematic torture.” Torture was also found in more Kandahar facilities than in facilities in any other province, seven in total in Kandahar province compared to 15 non-Kandahar facilities nationwide. UNAMA, ‘Treatment of Conflict-Related Detainees in Afghan Custody: One Year On,’ January 2013, p 56-57.
(8) The direct language can be found in Senate Appropriations Committee (SAC) version of the FY2014 DOD Appropriations bill (Section 8057 of S. 1429), the final version of which is in Consolidated Appropriations Act, 2014 (Division C, Section 8057, P.L. 113-76, signed into law January 17 since 2014). For a larger discussion of the change in language, and other reforms in 2011 and 2014, see the Congressional Research Service 2014 report on the Leahy Law referenced in endnote 1, p 5.
(9) Following the financial year (FY) 2014 bills, for example, the legal office at the US Department of State made a determination that assistance under the Leahy law was to be interpreted broadly, including not only training, but practically any engagement or activities involving State Department funds and foreign security forces. As described in endnote 3, there were also some reforms to the State Department’s version of the Leahy law in 2011 that would overall have the effect of giving vetting more teeth and scope, but also increased or altered procedural requirements. For specifics on these changes, see the Statement of Lauren Ploch Blanchard, Specialist in African Affairs, Congressional Research Service, before the House Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations Hearing: “Human Rights Vetting: Nigeria and Beyond,” 10 July 2014, p 3. Further discussion of changes made to the language of the law and to its implementation from 2011 can be found in the Congressional Research Service 2014 report cited in endnote 1.
(10) The higher number of exclusions and remediation in Afghanistan is likely due, in part, to the sheer scale of assistance – there are more Afghan security forces eligible for assistance that must go through vetting, and also a stronger and longer-standing US relationship with the Afghan government that allows the US to press for remediation more than in other countries. However, it also appears to be in part because of the decision to implement the Leahy law more extensively, and the presence of resources on the ground to do so.
(11) H.R.2397 – Department of Defence Appropriations Act, 2014, 30 July 2013, 113th Congress.
(12) The Congressional Research Service report (p 5) notes that “the International Narcotics and Law Enforcement (INCLE) funds and Nonproliferation, Antiterrorism, Demining, and Related Programs (NADR) funds are exempt under notwithstanding provisions, but the State Department generally applies the Leahy Law as a matter of policy.”
This article was last updated on 9 Mar 2020