The United States and the Leahy Laws: A History of Supporting Human Rights Violators

Winter 2025

Alex Borgas Edited by: Ryan O’Donnell

In 1997 Senator Patrick Leahy introduced a new provision to the Foreign Operations Appropriations Act [1].  After many amendments, the Leahy laws as they’re known today were created. The Leahy laws set a standard for both the Department of State and the Department of Defense designed to prevent the US from selling or giving military aid to foreign military units that commit gross violations of human rights [2].  Since its introduction, the Leahy laws have been enforced multiple times; however,  there are also many cases where the US has continued to send military aid to countries with credible reports of gross human rights violations.  Many people, including Patrick Leahy himself, have questioned the US’s apparent double standard when it comes to this piece of legislation [3].  On October 7th, 2023, that double standard was again called into question when the terrorist group Hamas launched an attack from the Gaza Strip on Israel [4].  Soon after, Israel declared itself in a state of war, prompting the US to send a significant amount of military aid to Israel.  Israel is the single largest cumulative recipient of US aid, and since the start of the war they’ve received over 17 billion dollars in military assistance [5].  There’s no doubt that Israel and the US have a special relationship, considering that the US has continued these contributions despite numerous reports of human rights violations being committed by Israeli units even before October 7th [6].  This war, partially fueled by the US’s donations, risks sparking a broader nuclear conflict in the West Asia-North Africa region.  Our commitment to Israel also appears to be contradictory with US efforts to uphold human rights.  It’s for that reason that there needs to be an especially thorough analysis of the impact of our alliance and the aid we send as a result.  Opponents of the US’s relationship with Israel cite these human rights abuses as a major problem, and these abuses in and of themselves should bar the US from sending military aid to those respective units as per the Leahy Laws.  That being said, many exceptions and loopholes allow the government to get around these laws, ultimately watering down their effectiveness in encouraging other countries to respect human rights.  Those exceptions manifest in things like notwithstanding clauses in aid packages, clauses that mandate that aid is available in spite of other provisions of the law.  Additionally, if a foreign government is deemed to be correcting human rights violations or if the president claims aid is necessary for humanitarian, disaster relief, or national security issues, the US can continue to send military aid to that country as per Sub-section (b) of Section 362 of Title 10 of the U.S. Code [7].  And that’s not to mention the bigger problem of getting members of government to faithfully enforce the Leahy Laws.  It’s because of these issues that lawmakers should reform the Leahy laws to better promote the intended goal of supporting only those countries that have respect for the innate rights of people, preventing the United States from abusing exceptions to further their personal objectives at the cost of human rights.

The Leahy laws exist not just as a check on the US’s actions.  They serve to encourage other countries to consciously follow existing human rights norms.  Unfortunately, there is no incentive to respect human rights norms if the US can get around its own laws designed to punish human rights abusers by denying them military assistance.  The problem, then, lies not in the purpose of the law but rather in the way it’s realized.  Sending military aid to other countries is an easy way for the US to boost the Defense Industrial Base, exert power over foreign countries, and pursue security interests in the name of maintaining liberal hegemony [8].  These exceptions allow the US to do those things at the cost of human rights, so it's important to understand how they are used and what can be done to address them.  It’s especially pressing considering that this is happening currently between the US and Israel.  The best way to better understand this problem is by looking at cases where the US hasn’t enforced the Leahy law and seeing where parallels can be drawn between the past and Israel.

The first place to look is Colombia in the year 2000.  Human rights concerns arose regarding highly integrated Colombian paramilitary groups known as the “Sixth Division” who had a record of death threats, extra-judicial killings, forced disappearances, and brutal massacres [9].  The close ties these groups have with the Colombian military result in many officials omitting taking action even when there is knowledge of a possible massacre occurring, for example.  Even when there were arrest warrants for paramilitary troops, they were rarely enforced.  The United States sent over a billion dollars to Colombia under the Plan Colombia, a program designed to combat the narcotics industry by bolstering Colombian military and police, along with money for economic development and social justice reform [10].  In this aid package, the US claimed that all military and police aid was in line with the Leahy Laws and that units with credible evidence of gross human rights violations wouldn’t be funded.  However, according to Human Rights Watch the United States failed to act on credible reports of Colombian troops violating human rights and had consistently violated the spirit of the Leahy Laws, downplaying the actions of military and paramilitary groups [11].  This criticism was also brought up during the creation of Plan Colombia by then-Senator Patrick Leahy who firmly believed that Colombia was going out of its way to avoid responsibility and accountability for its units [12].  Part of his criticism was that the final aid package included a waiver that could be used by the president to send the aid regardless of the human rights conditions in Colombia.  This waiver was eventually used by President Clinton who said that there was a drug emergency in Colombia, a concern to national security, on top of claiming that Colombia was taking the necessary steps to rectify said abuses [13, 14]. Prior to Clinton signing the waiver multiple human rights groups met with the Department of State to show their unanimous opposition to the waiver [15].  Allowing the president to use a waiver to make these claims negates all processes meant to ensure human rights are being cared for, and that’s an especially pressing matter when the country’s military you are funding has a history of working with human rights abusers.  Similar to the previously mentioned waiver, Sub-section (b) of Section 362 of Title 10 of the U.S. Code allows the government to continue to send aid if it is a concern of disaster relief, humanitarian aid, or national security [16].  It makes sense to have these exceptions if there is a truly pressing emergency or threat, but determining that is arbitrary, and in this case, the exception was clearly used to avoid addressing concerns about human rights.  This isn’t the only reason why Colombia is relevant in modern discussions regarding the Leahy Law.  As stated before Clinton also justified his waiver by claiming that Colombia was in the process of remediating human rights problems which is the other exception in that part of the US code.  Elected officials in Colombia would often publicly condemn these paramilitary groups, but none truly prosecuted them.  The Colombian military would train closely with paramilitaries who then acted out massacres, but were hard to trace and identify, meaning the “Sixth Division” acted largely as a shield of impunity for the military [17].  Any suspensions, firings, or arrests that did happen failed to address the underlying systems that allowed for these atrocities to happen, and yet it was still enough for Colombia to be eligible for aid.  Part of the problem is that there is no clear threshold for whether a country has sufficiently remediated or addressed whatever human rights issues they’ve encountered.  This results in units with a history of human rights violations firing a couple of soldiers and continuing to use US weapons.  That isn’t the only way that this piece of legislation has been avoided, though, and looking at another country can help with that.

In 2001 the United States entered Afghanistan to help combat the Taliban and Al Qaeda as part of George W Bush’s Global War on Terror following 9/11 [18].  20 years of warfare cost the US over 2 trillion dollars, much of the cost in the form of sending aid to Afghan forces under the Afghan Security Forces Fund authorized by the Department of Defense [19].  Over the years aid continued to flow despite multiple instances of Afghan units committing gross violations of human rights.  One example is that of Abdul Razeq, a high-ranking police chief.  Razeq and his men were reported leading tortures, abusing detainees, and committing extrajudicial killings, but aid continued to flow to his unit [20].  Another example was the more widespread problem of child sexual abuse among the police and military in Afghanistan.  It was common for commanders to have underage boys as sex slaves, and just like Abdul Razeq, nothing was ever done to prevent aid from reaching these units [21].  At the time a bipartisan group in the House of Representatives requested that the Special Inspector General for Afghan Reconstruction(SIGAR) look into these issues, and SIGAR’s report concluded that although the Department of State and Department of Defense found some of the allegations of gross violations of human rights credible, aid was ultimately allowed to flow because of the notwithstanding clause found in this aid package [22].  The Afghan Security Forces Fund specifies that assistance would be provided to Afghan security forces notwithstanding any other provision of law [23].  That clause means that even if the bill violated a part of US law, such as the Leahy laws, funding would still need to be sent.  The purpose of a notwithstanding clause is to avoid ambiguity and legal disputes over different parts of the law, but in this case, it functions as a sort of blanket immunity over the Afghan Security Forces Fund.  Attempting to prevent legal ambiguity is important, but allowing lawmakers to avoid addressing laws created specifically to prevent aid from ending up in the hands of human rights abusers by adding a notwithstanding clause to their piece of legislation is nonsensical and defeats the purpose of having the Leahy Laws in the first place.

So how does Israel fit into this?  After the attacks of October 7, the Department of State has reported Israel committing extrajudicial killings, torture, harsh prison conditions, violence against journalists, the targeting of members of national, racial, or ethnic minorities, and more [24].  Furthermore, the United Nations has credibly reported on Israel committing war crimes and crimes against humanity in their treatment of hostages and their attacks on medical facilities and personnel [25].  However, Israel has continued to receive aid.  One thing that’s important to understand about the aid the US sends to Israel is that a majority of it comes in the form of grants under the Foreign Military Financing program, requiring Israel to use these funds to purchase military equipment from the US [26].  As a result, military aid that Israel receives is not designated to particular units by the US but instead is sent to Israel as a whole where they choose which units are given the aid.  This process is at odds with how the Leahy Laws function since the law places restrictions on specific units that receive aid, not entire countries.  In response to this issue, lawmakers included a subsection of US code 2378d called the “duty to inform”, which requires the Secretary of State to regularly provide a list of units ineligible to receive assistance if which units are receiving assistance is not clear before the transfer [27].  No such list has ever been sent to Israel.  This is the most recent example in a long history of the US failing to enforce and uphold its own laws.  It’s also a problem more unique to Israel, but the government has not failed to use old exceptions to continue to send aid.  Anthony Blinken, the Secretary of State at the time, claimed time and time again that Israel was taking effective steps to correct human rights abuses.  In a memo responding to multiple credible reports of human rights violations, including the extra-judicial killing of 20-year-old Palestinian Abed al-Fatah al Sharif, a member of the Israeli police force pretending to be a high-ranking official to rape multiple women, and more, Blinken deemed that justice had been brought to those responsible by the government of Israel [28].  The perpetrators in the memo were all convicted and sentenced, but there was never any accountability for those in positions of power who created an environment allowing for gross violations of human rights to happen, which is the larger problem.  This is exactly what happened in Colombia 25 years ago and is equivalent to treating the symptom but not the illness.  As long as solely punishing individual perpetrators is sufficient to be considered a remediation of human rights violations, governments that receive US aid will never be incentivized to protect human rights.  Reforming the Leahy laws to better address these issues is imperative, and that can be done in several ways.  The most pressing part of the law to address is the exception for countries remediating human rights abuses.  It makes sense that countries shouldn’t forever be banned for aid; otherwise, there’s no incentive to prevent human rights abuses after the first instance of abuse.  That being said, the review the Department of State does to determine whether or not a country is resolving human rights issues should be on a more systemic level, focusing on what allowed these abuses to happen in the first place on top of punishing the individual.  Unit commanders should be involved in these investigations to help determine the validity of violations while having some consequence for the actions their units have taken.  Also, there should be a mandatory period of no aid to units whose members violate human rights, ensuring that there is always a punishment while still incentivizing recipient countries to be more deliberate about respecting human rights in the future.  In the case of the notwithstanding clause, it’s clear that it’s being used to avoid important parts of the law in order to get aid sent, which was seen in Afghanistan.  Although this clause has not been cited to continue sending aid to Israel, it is important to understand the impact that it had in Afghanistan to stop history from repeating itself.  Legislators should need to have a justification for including a notwithstanding clause in aid bills, and they certainly should not apply to the Leahy Laws considering that these laws were created specifically to regulate the military aid we send to other countries.  Other parts of the law to address include the presidential waiver and exceptions for humanitarian and disaster relief as well as national security issues.  Having a presidential waiver in the Leahy Laws gives an unnecessary amount of power to the executive branch.  Congress should have to hold a vote on whether or not to waive the conditions of aid, but there’s also an argument to be made for the waiver to be removed completely to ensure that human rights are never trampled for some other reason.  The exceptions for humanitarian and disaster relief are irrelevant because those are distinct from military aid, but the exception for national security issues should be more clearly defined.  Any president or Secretary of State could claim that an international issue is one of national security, just as Clinton claimed that drug cartels in Colombia posed a threat to US security.  Trump could just as easily claim that a larger nuclear war in Israel is a question of national security to get aid sent, so there must be a limited interpretation of what is a national security threat.  These all are reforms that would certainly strengthen the Leahy laws, but the final issue is simply one of enforcement.  It appears that the US deliberately avoids enforcing this law in order to further its own interests.  That’s clear to see in how the US failed to send Israel a list of any units not to send aid to, even when there is irrefutable evidence of multiple units having a history of gross violations of human rights.  There doesn’t seem to be a clear solution other than holding public officials accountable for the actions that they take.  Additionally, every exception or loophole that is reformed or amended makes it that much harder for the US to mindlessly avoid the Leahy Laws.

There’s a lot that can be done to address the current state of the Leahy laws.  The most pressing issues are correcting the broad exceptions to the law, the leniency by which countries are deemed to be participating in remediation, the totalizing nature of notwithstanding clauses, and the general reluctance of the US to enforce the laws.  What should actually be done to address those issues is a different problem, though, and there’s not necessarily one correct answer.  That being said, it’s important that actual solutions are brought forward in one way or another.  In the current government, there’s not a push to bring amendments to the Leahy laws, but that doesn’t mean that nothing is being done.  It’s clear that the law forbids the continued support of a country committing human rights abuses, such as Israel, but in one way or another, legally or not, the US has continued to get around it.  To rectify this injustice groups such as Democracy for the Arab World Now have helped Palestinians and Palestinian Americans bring lawsuits against the US in an attempt to rectify this injustice [29].  The claim is that the former Secretary of State Anthony Blinken failed to comply with federal statutes, specifically the Administrative Procedure Act, by not enacting the Leahy law to prohibit US assistance to Israeli security forces who had committed gross violations of human rights [30].  An important component of this lawsuit is pointing out the apparent double standard that the US has for Israel versus other countries.  The burden for a credible report of gross violations of human rights appears to be low when reading through the text of the law, but in practice, it has been hard to get the Secretary of State to admit there are truly human rights abuses occurring.  Just like the aforementioned lawsuit aims to highlight, this may not be a question of amending the law, but simply having the Leahy laws be enforced in the first place.  Americans must be familiar with the processes and laws surrounding foreign aid so that the government can be called out on their negligence.  Otherwise, human rights abusers will continue their campaigns with the help of the US so long as it is beneficial for the US.  Unfortunately, this is the reality of the present, but it is not a reality that is impossible to change.

References

[1] U.S. Department of State, PP410 Introduction to Leahy Vetting Policy, Version 2.1 https://www.state.gov/wp-content/uploads/2020/06/PP410_INVEST_v2.1.pdf

[2] U.S. Department of State, PP410 Introduction to Leahy Vetting Policy, Version 2.1

[3] Patrick Leahy, “I created the Leahy Law. It should be applied to Israel.” The Washington Post, May 20, 2024 https://www.washingtonpost.com/opinions/2024/05/20/israel-leahy-human-rights-aid/

[4] Jim Zanotti and Jeremy M. Sharp, Israel and Hamas Conflict in Brief: Overview, U.S. Policy, and Options for Congress, Congressional Research Service, October 4, 2024 https://crsreports.congress.gov/product/pdf/R/R47828

[5] Linda J. Bilmes, William D. Hartung, and Stephen Semler, United States Spending on Israel’s Military Operations and Related U.S. Operations in the Region, October 7, 2023 - September 30, 2024, Watson Institute for International & Public Affairs https://watson.brown.edu/costsofwar/files/cow/imce/papers/2023/2024/Costs%20of%20War_US%20Support%20Since%20Oct%207%20FINAL%20v2.pdf

[6] U.S. Department of State, ISRAEL 2022 HUMAN RIGHTS REPORT, 2022 https://www.state.gov/wp-content/uploads/2023/03/415610_ISRAEL-2022-HUMAN-RIGHTS-REPORT.pdf

[7] 10 U.S.C. § 362 (2016) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section362&num=0&edition=prelim#:~:text=%281%29%20Of%20the%20amounts%20made%20available%20to%20the,has%20committed%20a%20gross%20violation%20of%20human%20rights.

[8] Trevor Thrall and Caroline Dorminey, “Risky Business: The Role of Arms Sales in U.S. Foreign Policy,” Cato Institute Policy Analysis, no. 836 (2018) http://www.jstor.com/stable/resrep23043

[9] Human Rights Watch, The ‘Sixth Division’: Military-paramilitary Ties and U.S. Policy in Colombia, October 4, 2001 https://www.hrw.org/legacy/reports/2001/colombia/6theng.pdf

[10] U.S. Department of State, Bureau of Western Hemisphere Affairs, Plan Colombia, July 19, 2000 https://1997-2001.state.gov/www/regions/wha/colombia/fs_000719_plancolombia.html

[11] Human Rights Watch, The ‘Sixth Division’: Military-paramilitary Ties and U.S. Policy in Colombia

[12] Patrick Leahy, “Speech by Sen. Patrick Leahy (D-Vermont),” Center for International Policy’s Latin America Security Program, June 30, 2000 https://adamisacson.com/files/old_cip_colombia/063004.htm

[13] Human Rights Watch, The ‘Sixth Division’: Military-paramilitary Ties and U.S. Policy in Colombia, IV. U.S. Policy

[14] Marc Lacey, “Clinton Defends the Outlay Of $1.3 Billion to Colombia,” New York Times, August 24, 2000 https://www.nytimes.com/2000/08/24/world/clinton-defends-the-outlay-of-1.3-billion-to-colombia.html

[15] Human Rights Watch, “Clinton’s Colombia Waiver ‘a Grave Mistake,’” August 22, 2000 https://www.hrw.org/news/2000/08/22/clintons-colombia-waiver-grave-mistake

[16] U.S. Code 10 (2016), § 362 https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section362&num=0&edition=prelim#:~:text=%281%29%20Of%20the%20amounts%20made%20available%20to%20the,has%20committed%20a%20gross%20violation%20of%20human%20rights.

[17] Human Rights Watch, Colombia's Killer Networks: The Military-Paramilitary Partnership and the United States, November 1, 1996 https://www.refworld.org/reference/countryrep/hrw/1996/en/22145

[18] “Global War on Terror,” George W. Bush Presidential Library https://www.georgewbushlibrary.gov/research/topic-guides/global-war-terror#:~:text=On%20October%207%2C%202001%2C%20the,camps%20and%20Taliban%20military%20installations.

[19] Watson Institute for International and Public Affairs, HUMAN AND BUDGETARY COSTS TO DATE OF THE U.S. WAR IN AFGHANISTAN, 2001-2022, August 2021 https://watson.brown.edu/costsofwar/figures/2021/human-and-budgetary-costs-date-us-war-afghanistan-2001-2022

[20] Erica Gatson, “The Leahy Law and Human Rights Accountability in Afghanistan: Too little, too late or a model for the future?,” Afghanistan Analysts Network, March 5, 2017 https://www.afghanistan-analysts.org/en/reports/international-engagement/the-leahy-law-and-human-rights-accountability-in-afghanistan-too-little-too-late-or-a-model-for-the-future/

[21] Rod Norland, “Afghan Pedophiles Get Free Pass From U.S. Military, Report Says,” New York Times, January 23, 2018 https://www.nytimes.com/2018/01/23/world/asia/afghanistan-military-abuse.html

[22] Special Inspector General for Afghanistan Reconstruction, (U) Child Sexual Assault in Afghanistan: Implementation of the Leahy Laws and Reports of Assault by Afghan Security Forces, June 2017 https://www.sigar.mil/Portals/147/Files/Reports/Audits-and-Inspections/Evaluation/SIGAR-17-47-IP.pdf

[23] Department of Defense Appropriations Act, HR 2397, 113th Cong. (2014) https://www.congress.gov/bill/113th-congress/house-bill/2397/text

[24] U.S. Department of State, 2023 Country Reports on Human Rights Practices: Israel, West Bank and Gaza, 2023 https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/israel-west-bank-and-gaza/

[25] United Nations, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, September 11, 2024 https://documents.un.org/doc/undoc/gen/n24/262/79/pdf/n2426279.pdf

[26] Jonathan Masters and Will Merrow, “U.S. Aid to Israel in Four Charts,” Council on Foreign Relations, November 13, 2024 https://www.cfr.org/article/us-aid-israel-four-charts#chapter-title-0-2

[27] 22 U.S.C. §2378d (2007) https://uscode.house.gov/view.xhtml?req=(title:22%20section:2378d%20edition:prelim)

[28] U.S. Department of State, MEMORANDUM OF JUSTIFICATION FOR DETERMINATION ON EFFECTIVE STEPS TAKEN BY THE GOVERNMENT OF ISRAEL https://s3.documentcloud.org/documents/24655615/memo-of-justification.pdf

[29] Sarah Whitson, “Why Palestinian Families Are Suing the State Department for Failing to Enforce the Leahy Law,” Just Security, January 17, 2025 https://www.justsecurity.org/106399/suing-state-department-leahy-law/

[30] Gaza v. Blinken, 1:24-cv-03503 (D.D.C.), December 17, 2024 https://dawnmena.org/wp-content/uploads/2024/12/GAZA-et-al-v.-BLINKEN.pdf