Senator Leahy first introduced this law in 1997 as part of the Foreign Operations Appropriations Act. It initially referred only to counter-narcotics assistance for one year. The next year, with his leadership, Congress expanded it to cover all State Department funded assistance. This provision was included in all annual Foreign Operations budget laws until 2008. At that time Congress made the law permanent by amending it into the Foreign Assistance Act. In 2011, Congress revised the law substantially, seeking to enhance its implementation.
The United States government has long been a major, if not the largest, provider of assistance—funding, training, non-lethal equipment, and/or weaponry---to foreign military and other security forces. In 2012 it spent $25 billion on training and equipping foreign militaries and law enforcement agencies of more than 100 countries around the world. Security assistance is driven by overriding U.S. national security objectives, including a desire to challenge/overturn communist regimes during the Cold War, counter drug trafficking in the 1990s, or counter anti-Western terrorism in the 2000s. Throughout the United States' long history of providing assistance to foreign armed forces, some portion of this assistance has been provided to forces that repress and abuse their own populations.
Before 1997, the primary U.S. legislation constraining aid to countries with poor human rights records was Section 502B of the Foreign Assistance Act, which prohibited security assistance to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” This law was seen as too vague to be effective in cases where the U.S. government had an overriding interest. According to Senator Leahy, his law “makes it clear that when credible evidence of human rights violations exists, U.S.aid must stop. But, it provides the necessary flexibility to allow the U.S. to advance its foreign policy objectives in these countries.”
U.S. assistance to foreign armed forces comes from two different budgets; therefore, two separate versions of the Leahy amendment have been enacted into law. One covers assistance to foreign forces funded through the State Department foreign assistance budget, and another covers assistance funded out of the Department of Defense budget.
The law covering State Department funded aid is found in Section 620M of the Foreign Assistance Act of 1961 (as amended most recently in January 2014). It states:
The Department of Defense Appropriations version of the Leahy Law (10 U.S. Code § 2249e) reads:
There are several key differences between the two versions of the law. First, the Department of Defense version includes a waiver that allows the Secretary of Defense - after consulting with the Secretary of State - to waive the requirements of the provision if "extraordinary circumstances" warrant it.
Another difference concerns what steps a government must take to resume assistance once a security force unit has been flagged for gross human rights violations. The Foreign Assistance Act version requires that the government of the country in question "is taking effective steps to bring the responsible members of the security forces unit to justice" while the Defense Department version prohibits assistance "unless all necessary corrective steps have been taken."
Leahy Law provisions are sometimes confused with human rights conditionality that applies to overall Foreign Operations aid packages to a specific country, such as Colombia, Mexico, or Guatemala. Leahy Law applies only to assistance to specific units, and does not necessarily affect the level of assistance to a country, even when implemented. Human rights conditionality, on the other hand, typically requires a percentage of assistance to a country to be withheld until the Department of State certifies progress on certain human rights conditions.
The U.S. government (via the State Department) implements the law through a process known as “Leahy vetting.” A prospective aid recipient's unit is searched for evidence of past commission of gross human rights violations. The State Department has interpreted “gross human rights violations” to mean a small number of the most heinous acts: murder of non-combatants, torture, “disappearing” people, and rape as a tactic.
The government utilizes the International Vetting and Security Tracking (INVEST) system, which tracks all units and individuals who are potential recipients of assistance, including any information that suggests they are ineligible for assistance and any past determinations regarding their eligibility.
Vetting is done at several points in the approval process and by several elements of the State Department, starting at the U.S. embassy in the particular country and occurring at the Bureau of Democracy, Human Rights and Labor (DRL) and the appropriate regional bureau. When a vetter finds credible derogatory information, the information is entered into INVEST, triggering a review with all relevant bureaus. All assistance remains on hold until a final decision is reached.
If credible information is found implicating a unit in a gross violation of human rights, the unit will be prohibited from receiving assistance until remediation steps are taken. The law requires the U.S. government to offer assistance to the country's government in bringing those responsible to justice and remediate the sanctioned unit.
The process is, in general, not transparent; in June 2016, State Department Spokesperson John Kirby said department officials do not "speak to specific cases on Leahy vetting. We don’t do that."
While there is no exact definition of what constitutes “credible” information, the State Department's standard is that it need not reach the same standard as would be required to admit evidence in a U.S. court of law. Vetters rely on a wide array of sources including the annual Depart of State Country Reports on Human Rights, US government agency records, NGO human rights reports, and information garnered from the media.
Certain countries known as "Fast Track" countries are only required to be vetted at the embassy level. The State Department's Leahy Working Group determines by consensus which countries are eligible for Fast Track vetting. A Fast Track country has a "favorable human rights record, including no serious or systemic problems in the country's security forces and no widespread problems with impunity." The State Department's "Country Reports on Human Rights Practices" is the primary source for Fast Track determination. The Fast Track list is updated annually via State Department diplomatic cable. As of 2009 the list of Fast Track countries is as follows:
-AF: Mauritius, Seychelles
-EUR: Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Macedonia, Malta, The Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom
-EAP: Australia, Japan, Republic of Korea, Kiribati, Micronesia, the Marshall Islands, Mongolia, Nauru, New Zealand, Palau, Tuvalu, Vanuatu
-WHA: Antigua and Barbuda, Aruba and Netherlands Antilles, The Bahamas, Barbados, Canada, Chile, Costa Rica, Dominica, Grenada, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Uruguay, Trinidad and Tobago.
The U.S. government rarely publicizes decisions to deny cease assistance under the Leahy Law. The vast majority of requests for assistance are cleared immediately; in 2011, only 1,766 units and individuals out of approximately 200,000 were barred from receiving aid because of gross violations of human rights.
In 1998, financing from the Export-Import Bank was denied for thirty-nine of 140 armored police vehicles being bought by Turkey because those vehicles were destined for 11 provinces where police had been implicated in abuses of human rights. The manufacturer, General Dynamics, ultimately provided the financing for the thirty-nine vehicles.
Indonesia’s elite Komando Pasukan Khusus (Kopassus) was subject to a 12-year ban on U.S. security assistance after it was implicated in a series of kidnappings and murders of activists in the late 1990s.
In 2010 outrage over extrajudicial killings committed by the armed forces of Pakistan led to the suspension of aid to “about a half-dozen” units of the Pakistani army.
A 2013 report by Freedom House described the Leahy Law as "an invaluable tool in preventing U.S. assistance to military or police units that commit human rights abuses" and added that "it is invoked sparingly and only in egregious cases of specific violence."
In 2014, Major General Paul Eaton(retired) spoke in support of the law, saying, "the value of the Leahy Law is that it serves as a moral guide to the application of U.S. military engagement. Some in the U.S. armed forces have argued that the law frustrates U.S. partnership at precisely the moment we need most to influence better behaviors. This dilemma has a solution embedded in the amendment itself, which provides that if human rights remediation has begun, U.S. assistance can be brought to bear."
In 2013, several U.S. military commanders cited the law as interfering with their ability to train foreign forces. They claimed that the law was being applied too broadly.
Most criticism, however, has been that the law is too weak and is not enforced robustly enough. For instance, in 2011 Human Rights Watch reported that the U.S. "continued to aid and train Cambodia's armed forces including units with records of serious human rights violations such as Brigade 31, battalion 70 and Airborne Brigade 911- in violation of the Leahy Law."
A number of observers have complained that the Leahy Act has not been enacted in response to what they've claimed are human rights abuses by the Israeli military. In 2011, Haartez reported,that veteran U.S. Senator Patrick Leahy (D-VT), a long-time human rights defender, after being approached by constituents in Vermont was pushing clauses that would bar aid to three elite Israeli military units that have been accused of human rights violations in the occupation of the West Bank and Gaza. A spokesman for Senator Leahy denied this. Sen. Leahy's Senate page repeats his views that while "he has supported Israel's right to self-defense", "he disagrees with restrictions on imports of goods into Gaza as it amounts to collective punishment, with Israel's use of excessive force in Gaza which has caused the deaths of hundreds of civilians, and with home demolitions and settlement construction in the West Bank." In February 2016, 11 members of Congress, including Senator Leahy, sent a letter to the State Department demanding a review of the Leahy Act be conducted after reports of extrajudicial killings by Israeli and Egyptian military forces.
Because it was the initial focus of the Leahy Law, Colombia is a natural case study for assessing the law's effectiveness, and much has been written on application of the Leahy Law there.
Authors Doug Stokes and John Barry argued during the first years of its application that there were major weaknesses to the law.
First, the Colombian military and US embassy in Colombia used procedures to circumvent the "vetting procedure" after the Leahy Law came into force in 1998. In a September 1997 letter to Senator Leahy, United States Ambassador to Colombia Curtis Warren Kamman stated that the list of potential units which would receive aid “was judged to be severely deficient.” An anonymous U.S. official told the Washington Post that "the Colombian army had difficulty finding any units without serious human rights violations, thus slowing the process. "The question is, is there anyone we can deal with out there?" the official asked." Five months later, in January and February 1998, the Colombian defense minister submitted a new list to the US ambassador. US Ambassador Kamman stated that the delay was because the brigade needed to transfer out two officers accused of human rights abuses.
Further, as Human Rights Watch discovered, if a unit is "considered important enough to drug war objectives…the U.S. will violate the Leahy Provision in order to continue funding and training it." For example, the US State Department informed the Colombian government that the US “will not consider providing assistance to the 17th Brigade [in Urabá Antioquia, northwestern Colombia] until all significant human rights allegations involving the unit have been credibly addressed.” But the 18th brigade, which is stationed in the oil fields of Arauca, Colombia, and which is the focus of numerous human rights violation allegations, continues to receive US military aid.
The second way that the U.S. and Colombian government circumvent the Leahy law is by "allowing vetted units to mix, coordinate logistics with, and share the facilities of suspended units".
The third way that the U.S. and Colombia government circumvent the Leahy law is that when a unit is vetted it is cleared, but once the unit has been vetted, new soldiers who come into the unit are not screened.
“This is a law that works, if it is enforced,” Senator Leahy was quoted as stating in the New York Times. “We can help reform foreign security forces, but they need to show they are serious about accountability. If not, we are wasting American taxpayers’ money and risk prolonging the abusive conduct that we seek to prevent.”