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Pentagon Allowed to Keep Congress in the Dark Over Afghan Human Rights Abuses

Commanders in Afghanistan can use a loophole in the face of credible allegations.

Military officials are legally sidestepping rules that would otherwise force them to disclose human rights abuses by US allies in Afghanistan to Congress.

The so-called Leahy Law prohibits foreign assistance to known abusers of human rights, with numerous exemptions. According to a watchdog report released on Tuesday, top brass overseeing the War in Afghanistan have been repeatedly citing one of those exemptions “that does not require formal Congressional notification.”

The Department of Defense “has interpreted this clause to allow the Secretary to ‘forgo implementation of the Leahy Law in specific cases, or more broadly if necessary,” the report stated. It was issued by the Special Inspector General for Afghanistan Reconstruction (SIGAR).

The exemption — called the notwithstanding clause — was first cited under the Obama Administration in 2014 by then-Defense Secretary Chuck Hagel. The next year, Ash Carter, Hagel’s successor, formalized the policy in a guidance.

Pentagon officials say they haven’t been keeping Congress totally in the dark, according to SIGAR. Briefing materials for meetings with legislators have included the military’s use of the notwithstanding clause in Afghanistan, and one DOD official told Congressional staffers via phone, in 2015, when the clause was first formally invoked.

The Leahy Law, named after now-Sen. Patrick Leahy (D-Vt.), was first passed in the late 1990s. According to Carter’s 2015 guidance, officers in Afghanistan could cite the notwithstanding clause to circumvent the law for a number of national security-related reasons.

Commanders in Afghanistan can use the loophole in the face of credible allegations of human rights abuses, but they must make a formal request and offer rationale. Pentagon officials and the Secretary of Defense then determine if aid should continue to flow.

The notwithstanding clause only applies to the implementation of the Leahy Law in Afghanistan through a fund established by Congress in 2005. This fiscal year alone, the Pentagon has asked the legislative branch for $4.9 billion for that fund.

The Pentagon can cite national security or natural disaster exemptions to Leahy Law requirements anywhere in the world, but Defense officials must notify Congress of the move within 15 days of offering assistance.

Tuesday’s report was published after The New York Times exposed American tolerance of Afghan officials sexually abusing and assaulting boys — as part of a local tradition known as bacha bazi. The paper’s reporting caused 93 members of Congress to write SIGAR to ask for an investigation.

SIGAR concluded that while US soldiers weren’t “told to ignore human rights abuses or child sexual assault,” official training did not explicitly prepare servicemembers to deal with bacha bazi.

Moreover, SIGAR found that there was no explicit channel to report allies human rights abuses until November 2011. Prior guidance only focused on the Law of Armed Conflict, human trafficking, and detainee abuse.

The Departments of State and Defense commonly cite a definition of “gross violations of internationally recognized human rights” that was first established in 1961, as SIGAR noted. That includes “torture or cruel, inhuman, or degrading treatment or punishment.”

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