The U.S. is pumping billions of dollars in military aid into the hands of Egypt’s strongman president Abdel Fattah El Sisi, who is using the money to fuel an authoritarian crackdown under the guise of “counterterrorism.” Meanwhile in Nigeria, the U.S. has taken heat for doing the exact opposite: By blocking much needed military aid to units accused of similar rights violations, the Obama administration is “aiding and abetting” an Islamic State in Iraq and the Levant affiliate, Boko Haram, Nigerian President Muhammadu Buhari said last month.
At the crux of this perennial dilemma in security assistance lies the Leahy law, which bars foreign units guilty of gross human rights abuses — like rape, murder and torture — from receiving American military aid if effective steps have not been taken to bring those responsible to justice. Named after its author Sen. Patrick Leahy, D-Vt., the law was introduced in 1997 to discourage conduct by allied military units that stoke anti-government sentiment in local populations, thereby fueling insurgent fire.
That principle has been vindicated in the past year, as ISIL surged across Syria and Iraq, inspiring satellite affiliates in countries like Nigeria, Egypt, Libya and Afghanistan. In each of these cases, the group has exploited the very grievances Leahy seek to guard against — sectarian resentments and local discontent with the government, including local armed forces — to attract recruits and consolidate control. As U.S. President Barack Obama put it in February, “when people are oppressed and human rights are denied … It creates an environment that is ripe for terrorists to exploit.”
But as Egypt and Nigeria demonstrate, implementing the rule with any consistency has proven difficult, critics say. In part, that is because in most countries where ISIL operates, the U.S. has few good options to partner with on the ground.
Nowhere is that more evident than in Syria, where U.S.-backed “moderate” rebels have floundered, or in Iraq, where U.S.-backed government forces have earned a reputation for wilting before the ISIL onslaught. There, the U.S. has found itself de facto working with Iran-backed Shia militias, who are themselves mired in rights abuses and prone to reprisal massacres against Sunnis.
Yet even in countries where the central government is strong and ostensibly a U.S. ally, critics say there are cases where the Leahy law has taken a backseat. A perennial criticism of the law is that is has never targeted U.S. ally Israel, which receives American aid in one lump sum, making it difficult to follow the money to units accused of rights violations. Politics may also be playing a role with Cairo, which the U.S. considers both a critical bulwark against ISIL (it has an affiliate in the Sinai Peninsula, too) as well as a key backer of peace with Israel.
In a recent letter to the Secretary of State, Sen. Leahy himself called for clarity on whether $1.3 billion in annual U.S. military aid was being channeled by the Sisi government toward its alleged extrajudicial executions of Muslim Brotherhood supporters, prisoners and nonviolent dissidents. “According to information I have received,” Leahy wrote, “the number of militants has steadily increased, due, at least in part, to ineffective and indiscriminate operations by the Egyptian military and the lack of licit economic opportunities for inhabitants of the Sinai.”
In a statement to Al Jazeera, a State Department spokesman said: “We have applied and continue to apply the Leahy Law in Egypt, in the same way we do globally. We do not provide assistance to any security force unit in Egypt when we have credible information that they have committed a gross violation of human rights.”
But experts say finding “credible information” is often impossible. For one, it is not enough for civilians to merely report grievances against soldiers or the military in general; the Leahy law requires more specificity. In contrast to previous, broad stipulations against arming human rights abusers, Leahy was designed explicitly to apply to units on the battalion or brigade level, since punishing a single unit was thought more strategically pragmatic — and therefore, more likely to be implemented. The Leahy law takes a “laser-like approach,” explained Lora Lumpe, an expert on U.S. security assistance at the Open Society Foundation.
In Egypt’s case, Sisi has prevented journalists, human rights investigators and even U.S. officials from traveling to the Sinai, where many of the alleged abuses are taking place, citing “safety concerns.” But as a New York Times editorial, where excerpts from Leahy’s letter were first published last week, argued, “The real reason is likely that it wants to keep the evidence of its scorched-earth approach to fighting militants hidden.” And in the absence of independent reporting, Lumpe explained, “the state is under no obligation to provide it.”
Evidence has been more widely reported in northern Nigeria, where the army has been implicated in prison shootings, mass rapes and razing villages to the ground. Still, Buhari, speaking at the U.S. Institute of Peace late last month, accused Washington of a “blanket application” of the law that was denying Nigeria access to the “appropriate strategic weapons” needed to secure the country. “Unwittingly, and I dare say, unintentionally, the application of the Leahy law ... has aided and abetted the Boko Haram terrorist group in the prosecution of its extremist ideology and hate, the indiscriminate killings and maiming of civilians, in raping of women and girls and in their other heinous crimes,” Buhari said.
Proponents of the law, however, say those comments stem from a fundamental misunderstanding of how it works. The Leahy law never cuts off all aid to an entire military body, nor is it meant to prevent arms sales — only taxpayer-funded aid. Washington has even announced an additional $5 million in new aid to the Nigerian military, for units that have not been implicated in rights violations. And Leahy suspensions are rare; according to State Department statistics from 2011, only 1,766 units or individuals from among the 200,000 cases reviewed for aid were actually blacklisted.
“Often times Leahy gets blamed for suspensions in stopping work between the U.S. military and foreign bodies, but that can be inaccurate,” said Seth Binder, with the Center for International Policy’s Security Assistance Monitor. The very premise of Leahy is that suspended units can restore their eligibility by taking perpetrators to task. “You get suspended but not indefinitely placed on a black list,” Binder explained. “The point of Leahy is not just to punish but to encourage reform."
Still, there are many who argue that, even if those like Buhari misstate the Leahy law, his point stands: Blacklisting certain units of an army that is already struggling to stay afloat undermines efforts in the short term. Vetting is only supposed to take 10 days, but military officials have said it can drag on for longer. As Vice Adm. Charles J. Leidig Jr., the Africa Command’s military deputy, told the New York Times in 2013, “We’re always going to comply with Leahy vetting, but the conundrum it presents us is that the nations whose militaries have had human rights violations perhaps are the ones that need U.S. engagement the most.”
Proponents of the law, which has been applied in places like Colombia, Pakistan and Bangladesh, warn against prioritizing short-term fixes over deeper, institutional reform. “The Leahy law is no panacea,” said Sarah Margon, the Washington director at Human Rights Watch, in a recent op-ed for Salon. “But it does present a path for dealing with the worst of the worst.”