Global Human Rights: Security Forces Vetting (“Leahy Laws”)



Updated August 5, 2022
Global Human Rights: Security Forces Vetting (“Leahy Laws”)
receive U.S. assistance, the individual’s service unit must
Introduction
also be vetted. The Secretary is also required to publicly
The “Leahy Laws” prohibit U.S. assistance to foreign
identify those foreign security forces units that the
security force units when there is credible information that
department barred from U.S. assistance under the law
the unit has committed a “gross violation of human rights”
unless the Secretary, “on a case-by-case basis, determines
(GVHR). Pursuant to the laws, before providing relevant
and reports” to the appropriate committees that public
assistance, the U.S. government “vets”—that is, screens—
disclosure is not in the U.S. national security interest, and
potential recipients for information about GVHR
“provides a detailed justification for such determination.”
involvement. The origins of the laws date back to
appropriations provisions sponsored by Senator Patrick
The Defense Department’s Leahy Law
Leahy (D-VT) in the 1990s; they were preceded by a series
The Leahy Law applicable to assistance furnished by DOD
of provisions beginning in the 1970s that sought to restrict
is codified at 10 U.S.C. §362. Pursuant to the law, DOD
U.S. security assistance to governments with poor human
funds are prohibited from being used for “any training,
rights records. Today’s “Leahy Laws” are permanent law
equipment, or other assistance” to a foreign security force
and located in both Title 22 (Foreign Relations) and Title
unit if the Secretary of Defense has credible information
10 (Armed Forces) of the U.S. Code. They generally restrict
that the unit has committed a GVHR; DOD is to fully
security assistance otherwise funded by the Departments of
consider any credible information that is available to DOS.
State (DOS) and Defense (DOD). The laws remain of
The Secretary of Defense may waive applicability of the
ongoing interest to Congress and continue to be modified as
Leahy Law on DOD assistance (a provision not found in the
Congress reacts to their implementation.
DOS Leahy Law) under “extraordinary circumstances” and
The State Department’s Leahy Law
following Secretary of State consultation. Assistance to
foreign security forces units may also be excepted from the
The Leahy Law applicable to assistance authorized by the
DOD Leahy Law if the Secretary of Defense, after
Foreign Assistance Act (FAA) of 1961, as amended, or the
Secretary of State consultation, determines (1) the foreign
Arms Export Control Act (AECA), as amended, is codified
government in question “has taken all necessary corrective
at 22 U.S.C. §2378d (Section 620M of the FAA). It
prohibits “assistance” to a foreign security forces unit
steps” or (2) the DOD equipment or other intended
if the
assistance is necessary to assist in disaster relief operations
Secretary of State has credible information that the unit has
or other humanitarian or national security emergencies.
committed a GVHR. Assistance to such foreign security
DOD must report to Congress within 15 days of exercising
forces units may be excepted, however, if the Secretary of
its waiver or exception authorities.
State determines and reports to Congress that the foreign
government “is taking effective steps to bring the
Gross Violation of Human Rights (GVHR)
responsible members of the security forces unit to justice.”
The Leahy Laws do not define GVHR. Drawing instead
on the term “gross violations of internationally
Congress amended 22 U.S.C. §2378d in March 2022 to
recognized human rights,” as defined and articulated
address cases in which the specific unit(s) that will
elsewhere in the FAA (see 22 U.S.C. 2304(d) and 22
ultimately receive assistance cannot be identified prior to
U.S.C. 2151n(a)), the U.S. government primarily vets
the transfer of assistance (such as may be the case for some
foreign security forces for credible information
equipment). For such cases, the Secretary of State is to
indicating (1) torture, (2) extrajudicial killing, (3)
regularly provide to the recipient government a list of units
enforced disappearance, or (4) rape under color of
that are prohibited from receiving assistance and, effective
December 31, 2022, such assistance “shall only be made
law (in which a perpetrator abuses their official
position to commit rape). Other acts may also be
available subject to a written agreement that the recipient
government will comply with such prohibition.”
assessed as to whether they constitute GVHRs.
Moreover,
if a recipient government withholds assistance from a unit
Foreign Security Forces
pursuant to the law, DOS is “to the maximum extent
The Leahy Laws do not define what constitutes a
practicable, assist the foreign government in bringing the
foreign security force. For purposes of Leahy vetting,
responsible members of the unit to justice.” Previously, the
the U.S. government generally considers the term to
law contained a more broadly applicable requirement for
include any organization or entity authorized by a
DOS to inform foreign governments in the event that any
state to use force, including, but not limited to, the
assistance is withheld from a unit pursuant to the law.
powers to search, detain, and arrest.
Pursuant to 22 U.S.C. 2378d, the Secretary of State is also
required to establish and maintain certain procedures for
Leahy Laws Implementation
collecting, validating, and preserving security assistance
DOS’s Bureau of Democracy, Human Rights, and Labor
recipient and vetting information. The provision clarifies
(DRL) oversees the implementation of Leahy Law vetting
that, when a foreign security forces member is designated to
policy and processes. Within DOD, the Office of the
https://crsreports.congress.gov

Global Human Rights: Security Forces Vetting (“Leahy Laws”)
Deputy Assistant Secretary of Defense for Stability and
sales (FMS) or direct commercial sales (DCS), as the
Humanitarian Affairs (SHA) leads on policy matters
executive branch interprets “assistance” under the Leahy
pertaining to the DOD Leahy Law. The DOS-led vetting
Laws as that provided with U.S-appropriated funds. Some
process begins at U.S. embassies overseas where a variety
DOD authorities that entail forms of support to foreign
of consular, political, and other security and human rights
military forces may also be interpreted as not subject to the
checks are conducted, as well as assessments of the
DOD Leahy Law (see below paragraph). Additionally,
credibility of any derogatory information identified. In most
assistance not authorized under the FAA or AECA or
cases, further vetting is also conducted in Washington, DC.
furnished by DOD is also not subject to the Leahy Laws;
this fact was highlighted by allegations in recent years that
U.S. policy and procedures for Leahy vetting have evolved
foreign park rangers (which are generally considered part of
over time, and observers have sometimes criticized their
a security force) supported by organizations receiving
implementation as uneven. A 2013 Government
Department of the Interior international conservation
Accountability Office (GAO) report found, for example,
funding had committed human rights violations.
that U.S. missions overseas inconsistently applied DRL
guidance for developing standard operating procedures
Congress in some cases has narrowed the executive
(SOPs) for Leahy Law vetting. According to GAO, the
branch’s interpretive discretion by explicitly specifying that
State Department in subsequent years made efforts to
certain authorities are subject to the relevant Leahy Law
ensure more consistent implementation of the laws,
(e.g., DOD “train and equip” authority authorized under 10
including through DRL reviews of embassy SOPs. An
U.S.C. 333). More recently, the National Defense
October 2018 DOS Office of Inspector General (OIG)
Authorization Act (NDAA) for FY2021 (P.L. 116-283)
report also found that DRL had improved the
introduced some relevant human rights requirements for
institutionalization of Leahy vetting processes, but lacked
DOD support authorized under 10 U.S.C. 127e and Section
certain internal control procedures such as those to monitor
1202 of the NDAA for FY2018 (P.L. 115-91, as amended),
embassy vetting performance. Some GAO and OIG reports
while not specifying that this support is subject to the DOD
issued since 2016 have raised issues of lapses in
Leahy Law. Some Members may wish to consider the
implementation in certain contexts or with regard to certain
potential benefits and drawbacks of expanding or further
types of assistance, such as equipment transfers.
clarifying what types of support, and/or specific authorities,
are subject to the Leahy Laws.
Considerations for Congress
Funding. Congress has supported Leahy vetting through
The Leahy Laws are a key element of U.S. human rights
directed Diplomacy and Consular Programs funds for DRL.
policy and one of several ways in which Congress has
Congressional appropriations for vetting have trended
placed human rights conditions on U.S. foreign assistance.
upward over time, particularly in the years since FY2014,
The laws are seen as a tool to disassociate the United States
when $2.75 million was appropriated for such purposes.
from objectionable security forces, while also incentivizing
Most recently, for FY2022, DRL received $15 million for
good behavior among governments wishing to access and
vetting, an increase from $11 million in FY2021, and $10
benefit from U.S. security assistance. Policymakers have
million in both FY2020 and FY2019. Expanded resources
nonetheless debated whether the Leahy Laws risk inhibiting
the United States’
may help support a vetting workload that, according to the
capacity to pursue U.S. national security
DOS OIG, increased by 42% between 2011 and 2017.
interests. Key policy issues for Congress may include the
Congress may consider evaluating how DRL is making use
following:
of the comparatively large increase for FY2022 relative to
Scope of Prohibited Behavior. The Leahy Laws do not
prior years and assess the implications if funding
require DOD or DOS to withhold assistance due to
allocations were to be further modified.
activities that are not related to a GVHR. In practice, the
Congressional Reporting. Department of State, Foreign
executive branch may—as a matter of policy—choose to
Operations, and Related Programs Appropriations Acts in
bar assistance in cases when there is information about a
recent years have required that the Secretary of State submit
human rights issue that does not constitute a GVHR, or
a report to the appropriate congressional committees on the
about other activities such as terrorism or corruption. Some
use and outcome of Leahy vetting pursuant to the DOS
Members may consider the implications of expanding the
Leahy Law during the prior fiscal year. A similar annual
statutory scope of Leahy vetting to address human rights
report requirement for the DOD Leahy Law was terminated
violations beyond GVHR, or to address other activities of
effective December 31, 2021, in accordance with Section
concern. Some additional existing provisions seek to
1061 of the NDAA for FY2017 (P.L. 114-328). Congress
prohibit certain U.S. security assistance to individual units
may consider the desirability of requiring both departments
on the basis of other human rights issues, such as sexual
to report on Leahy Law implementation and of permanently
exploitation or abuse (Section 303 of P.L. 114-323) and
codifying such reporting requirements. In general, Members
excessive force to repress peaceful expression or assembly
may weigh the additional resource burdens that reporting
(most recently, Section 7035(c)(3) of P.L. 117-103). How
requirements place on the executive branch against the
such provisions are applied and how, if at all, they are
oversight value of the reports.
integrated with Leahy Law application is unclear.
Scope of Prohibited Assistance or Support. The Leahy
Michael A. Weber, Analyst in Foreign Affairs
Laws do not apply to all forms of U.S. support to foreign
IF10575
security forces. They are not applied to foreign military


https://crsreports.congress.gov

Global Human Rights: Security Forces Vetting (“Leahy Laws”)


Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF10575 · VERSION 5 · UPDATED