In July 2022, Representative Sara Jacobs and Senator Chris Van Hollen proposed an amendment to the National Defense Authorization Act (NDAA) for fiscal year 2023 that would have required human rights vetting for assistance provided by US special operations forces under Section 127e of Title 10, US Code. While the Department of Defense Leahy law effectively requires human rights vetting of other kinds of DoD assistance to foreign security forces, DoD has unilaterally determined that these strictures do not apply to assistance provided under 127e. The proposed amendment, which was intended to close this loophole, did not make it into the final version of the NDAA. Understanding this failure could help guide future legislative attempts to require human rights vetting of this DoD authority.
“127 echo,” as it’s referred to within DoD, authorizes the secretary of defense, with the concurrence of the relevant chief of mission, to spend up to $100 million each fiscal year “to provide support to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating authorized ongoing military operations by United States special operations forces to combat terrorism.” Under the proposed Jacobs-Van Hollen amendment, support under 127e would have been prohibited from going to units of foreign security forces if, after vetting, there is credible information that the intended recipient unit committed a gross violation of human rights.
The Jacobs-Van Hollen amendment passed in the House version of the NDAA. Yet after weeks of deliberations in the Senate, the amendment did not make it out of conference (in full or in part) and into the recently concluded NDAA. Opponents of the amendment argued that the bill’s sponsors did not identify a specific problem that would require Congress to mandate human rights vetting of the assistance provided under 127e. That perspective, coupled with objections by both legislators and DoD that human rights vetting would restrain the counterterrorism operations of US special operations forces, felled the amendment.
I served four years in the Office of the General Counsel at DoD. During that time, I participated in many rigorous interagency discussions on issues related to security assistance and human rights vetting. From my perspective, a lack of mandated human rights vetting for Section 127e reflects a significant gap in consistently considering human rights and rule of law values in US security engagements. At the moment, there are already concerning transparency issues with respect to the use of 127e and accompanying barriers to oversight. Jacobs and Van Hollen were correct in trying to resolve the human rights vetting gap; the Senate made a mistake in failing to, at the very least, legally require human rights considerations before the Pentagon provides assistance to units of foreign security forces under 127e.
A Gap in Human Rights Vetting
The Leahy laws, which I have written about in the context of Ukraine and Israel, require the Department of State and DoD to prohibit assistance to a unit of a foreign security force when the departments have credible information that the unit has committed a gross violation of human rights—the worst kinds of human rights violations security forces can commit, including extrajudicial killings; torture; cruel, inhumane, or degrading treatment or punishment; or other flagrant denials of the right to life, liberty, or security.
Before 2014, the DoD Leahy law only applied to authorities that allowed DoD to train foreign security forces. In 2014, Congress expanded the DoD Leahy law to apply to “training, equipment, or other assistance.” After the law was amended, DoD determined that 127e’s predecessor, a recurring NDAA provision, was not subject to the DoD Leahy law. This interpretation means that DoD assistance provided to units of foreign security forces under 127e could legally go to units that DoD and the Department of State have credible information committed a gross violation of human rights (for instance, a unit that extrajudicially killed civilians or tortured detainees).
Current policy under US Special Operations Command (USSOCOM) requires that, before providing support under a 127e program, special operations forces must vet the intended recipients for counterintelligence and force protection purposes. The policy does not explicitly require human rights vetting. However, in briefings with Congress, according to congressional staffers I have spoken to, DoD officials assert that they in fact do conduct human rights vetting, even if it is not written directly into the USSOCOM guidance for relevant commands.
At the same time, DoD officials have been resolute in pushing back on a Leahy law–like human rights vetting process for 127e, claiming there are no current human rights–related issues with units of foreign security forces receiving support under 127e and that it would be too cumbersome to vet through the State Department, inhibiting special operations forces’ ability to execute programs in a timely manner. They have made the common strategic argument to sympathetic lawmakers that, to be effective in great power competition, the US military will have to work with unsavory partners, and extending human rights vetting in this instance would tie their hands. These arguments have left the Senate resistant to changing the law.
The same arguments have been tested more broadly in the context of the Leahy laws regarding security cooperation and security assistance programs. In general, US officials who work on these assistance programs, whether they be at a combatant command, at a US embassy, or in Washington, tend to oppose any potential roadblocks to building a military partnership. The officials’ priority is executing the program. When faced with human rights vetting under the Leahy laws, these officials often make the same arguments that congressional staffers say DoD is making to Congress—that vetting is time consuming, that it is sometimes detrimental to the relationship, and that US partners already comply with human rights law, so there is no need for rigorous vetting.
But when the Leahy laws are applied, these enduring criticisms of human rights vetting fail. First, DoD is often hard-pressed to provide the Department of State—which conducts all human rights vetting for implementation of the State and DoD Leahy laws—with specific cases in which vetting prevented a security cooperation or assistance activity from taking place in a timely manner (outside of contexts where there is credible information of gross violations of human rights). And second, there are cases every year that require prohibition of assistance to units of foreign security forces due to credible information of gross violations of human rights—cases that would not have been identified but for the State Department vetting process.
Bad Partners Make Bad Policy
There are other strong arguments that support application of the Leahy laws, even in the context of great power competition, many of which the laws’ architect, Senator Patrick Leahy, himself has made. The laws are intended to prevent US complicity in human rights violations and to encourage accountability among US security partners and allies. They prevent US taxpayer money from going to predatory forces—forces that often undermine the goal of long-term stability, especially in fragile states, as reflected in Patricia Sullivan’s research, or serve repressive governments, as described by Kristen Harkness. And the laws work to institutionalize a US value—respect for human rights—on both sides of security partnerships when expediency and biases might otherwise drive the decisions of US policymakers.
These arguments also apply to 127e programs. Indeed, 127e should already be subject to the DoD Leahy law. Section 127e authorizes DoD-funded support to units of foreign security forces. However, DoD has told Congress that support under 127e is not in their view “assistance” because the end result is operational support by the foreign partner unit to US special operations forces—an interpretation that some staffers on the Hill I have spoken with agree is too clever by half. With this interpretation, what DoD avoids detailing to Congress are the tangible benefits the partner units receive, sometimes in direct payments. The DoD-funded support of $100 million each fiscal year increases the capacity and capability of these units to operate successfully against terrorist threats—which is why the support is given. There is no justifiable reason not to consider this assistance under the Leahy laws.
What’s more, when some lawmakers rejected the idea that there could be a problem with the specific partners who benefit from the 127e program, they did so simply by relying on DoD’s assertion that no such problems exist. To disprove this, details of past behavior of 127e foreign security forces would be needed to show that there are issues with current or past partners under the program. But programs executed under 127e are classified, meaning the recipients of 127e assistance are unknown to the public and most members of Congress. Any real oversight is impossible: there is no effective mechanism for transparency and no way to know about problems when they arise, unless sitting in the relevant office at USSOCOM. One US special forces operator, for example, told me of past issues with security partners in West Africa who were known to often commit gross human rights violations but continued to receive assistance. Although it’s unclear whether these units were supported under a 127e program, incidents like this underscore why it is critical to vet recipients before partnering and to require the prohibition of assistance once credible information of gross human rights violations is available.
And it is far better to require human rights vetting in statute as a matter of law than via policy guidance alone. Section 127e currently requires notification to the defense committees of use of the authority with a list of detailed information, including steps taken to ensure that the recipients of support have not engaged in human rights violations. But this is not a requirement for vetting through the State Department, nor does it prohibit assistance to units when credible information of gross violations of human rights is discovered. DoD argues that it is current policy that USSOCOM must take into account human rights considerations before a 127e program is approved. But the 127e vetting policy itself does not explicitly require vetting. Since such a vetting requirement is not in the written policy, it is difficult to imagine vetting for human rights violations is a consistent practice across all 127e programs, if it’s even a practice at all. And recent serious ethical issues within special operations forces reinforce real limitations to relying on their discretion alone.
If human rights vetting for 127e occurs as DoD describes to Congress, dozens of cases tested by the Leahy laws show that even when there is overwhelming credible information of violations, and assistance is prohibited as a matter of law, it is still difficult for policymakers to accept such conclusions given the strong policy incentives not to restrict assistance (for instance, out of a reluctance to upset a partner). In many instances, assistance is only restricted because it was a matter of law to do so. Having an institutionalized mechanism to override individual policy preferences helps to make upholding human rights consistent across US security policy. It should be no different for a US special operations forces authority.
The State Department’s Bureau for Democracy, Human Rights, and Labor (DRL) is the most well-equipped component of the US government to conduct human rights vetting of security forces. DRL holds the expertise and manpower to conduct human rights vetting and has proven it can do the work in a timely, and even classified, manner for all relevant security cooperation and security assistance programs. There is no equivalent vetting entity at the Department of Defense.
Finally, as a matter of getting the law right, the Department of State’s Office of the Legal Adviser should be consulted on questions of law related to gross violations of human rights. Although DoD judge advocates and civilian counsel have extensive training, they do not have the same human rights law expertise that resides in the legal adviser’s Office of Human Rights and Refugees. The law is clear in many cases, which can make advising straightforward, but in other cases, determining the appropriate legal standards and whether the facts meet them can be technically demanding, even for experts. The Office of Human Rights and Refugees has a team of lawyers who focus on human rights law and who have been critical in guiding Leahy law determinations at both State and DoD. Bypassing their expertise could mean missing critical legal analysis of potential gross human rights violations.
The Way Forward
While efforts to mandate vetting might have failed, some members of Congress managed to include helpful language in the Joint Explanatory Statement, a nonbinding document that accompanies the NDAA. In that statement, Congress requests the assistant secretary of defense for special operations and low-intensity conflict and the USSOCOM commander to review and update written guidance for 127e, to include “vetting of supported groups and individuals, to the extent practicable, for human rights.” In the same section, Congress also requests two briefings from both officials, one on the updated written guidance and another on monitoring and evaluating the programs under 127e.
The requests in the Joint Explanatory Statement are a start, but they should not be the final acts of Congress. Implementation of the Leahy laws has proven that institutionalizing human rights considerations in security partnerships is necessary to prevent individual policymakers from taking shortsighted actions that embolden bad actors and undermine security initiatives in the long run. The administration of President Joe Biden could reassess the 2014 statutory interpretation and conclude that the plain language of both statutes indicates that security forces that receive assistance under 127e are covered by the DoD Leahy law. Given the administration is unlikely to take that step since it would require reversal of a long-standing DoD position, legislators should act again to require human rights vetting.
The absence of Leahy vetting is just one element of the broader structural design of 127e that cuts the State Department out of the loop. Section 127e requires only concurrence by the relevant chief of mission to execute a program in a foreign country, leaving out input from State Department officials in Washington. Another step Congress should take to strengthen 127e would be to require secretary of state concurrence. This would help improve oversight and coordination within the executive branch and ensure foreign policy decisions sit with the department in charge of foreign policy making.
A divided 118th Congress creates challenges for sponsors of a new bill and old obstacles will persist, mainly in the relevant committees. The House and Senate Armed Services Committees too often act as an arm of DoD instead of as its oversight bodies. When faced with efforts to apply the Leahy law or require concurrence above the level of chief of mission at the State Department, the defense committees accepted at face value what they were told by operators when they should have made a concerted effort to more carefully scrutinize and regulate 127e. US special operations forces should not be allowed to provide assistance without the same legal limits as other security assistance programs and without more scrutiny across the executive branch. It is especially because their work is so highly secretive that these mandates are necessary.
Sarah Harrison is a Senior Analyst in the U.S. Program at the International Crisis Group. Before Crisis Group, Sarah served for more than four years as Associate General Counsel at the Department of Defense’s Office of General Counsel, International Affairs. From 2020 to 2021, Sarah taught international law as an adjunct professor for the Georgetown University Law Center. From 2015 to 2017, Sarah served as Counselor to the Secretary of Homeland Security. Sarah has also worked for the International Committee of the Red Cross, The White House Office of Legislative Affairs, Human Rights First and the American Civil Liberties Union.
All information provided in this article has been provided by third parties since the author’s departure from the Department of Defense.
The views expressed are those of the authors and do not reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.