Human Rights Law and Military Aid Delivery: A Case Study of the Leahy Law



Explicitly prohibiting US military counternarcotics assistance to foreign military units facing credible allegations of abuses, Leahy Law creation and implementation illuminates the epistemological challenges of knowledge production about violence in the policy process. First passed in 1997, the law emerged from strategic alliances between elite NGO advocates, grassroots activists, and critically located Congressional aides in response to the perceived inability of Congress to act on human rights information. I explore the resulting transformation of aid delivery; rather than suspend aid when no “clean” units could be found, US officials convinced their Colombian allies to create new units consisting of vetted soldiers. I use the implementation of the law in Colombia to explore how the vetting process exposed the knowledge practices inherent in policy implementation, the social production of credibility, and ways in which some forms of political violence were made visible while others were erased.

Human rights activists often turn to the law as a means of enshrining the social changes they seek. Yet the epistemological issues raised by knowledge production and evidentiary standards during policy implementation complicate these processes, leading to unanticipated outcomes. Human rights advocates’ efforts to ensure that aid was not delivered to foreign abusive military forces though US legislation requiring vetting is an important case study of such efforts. The Leahy Amendment to the foreign appropriations bill was first passed in 1997, prohibiting US counternarcotics assistance to foreign military units facing credible allegations of abuses unless that government was taking effective measures to address the allegations. Over the next decade, the amendment was expanded to cover all US military assistance and was written into permanent law. The law is applied through vetting programs that screen military units for credible allegations of abuses, administered in US embassies abroad. To date, the provision has been applied in high-profile cases to freeze assistance to countries including Turkey, Bolivia, Mexico, and Colombia. This case study addresses some of the central issues raised by this law. Given the central role of US military assistance in US foreign policy, how did this law come to be passed? What have been the consequences to US military aid delivery? How can we understand the intersection of government action and human rights rhetoric in specific policy processes? What can this case illuminate about the epistemological issues involved in producing knowledge about violence, and attempting to use that knowledge to shape aid delivery? While the creation of the Leahy Law demonstrates what can be achieved through strategic alliances between elite nongovernmental organization (NGO) advocates, grassroots activists, and critically located Congressional aides, the law's implementation exposes the limits of legal evidentiary standards when applied to military assistance delivery.

I am interested in exploring how domestic law is created and applied transnationally, analyzing the intersection of the growing body of literature that considers human rights practice, governance, and policy making. Much of the literature exploring human rights focuses on social movements and NGOs working across cultural and political fields, examining the multiple ways in which distinct groups localize human rights concerns (Allen n.d.; Englund 2006; Goodale 2009; Goodale and Merry 2007; Merry 2006d; Speed 2007). Sally Engle Merry, in her pioneering work examining the articulation of legal systems with human rights activism (2003a, 2003b, 2006a, 2006b, 2006c, 2006d), has documented how international human rights law can be employed by activists in particular historical moments and political locations to spur transformations in domestic law (Merry et al. 2009). An extensive literature explores human rights mechanisms such as truth commissions and trials adopted during exceptional moments of democratic transition or postconflict accounting (Clarke 2009; Hinton 2010; Ross 2002; Shaw and Waldorf 2010; Theidon in press; Wilson 2001, 2011), while a small but growing literature examines the ways in which state institutions employing human rights rhetoric and techniques have altered the political terrain of human rights activism (Mertus 2004; Sikkink 2004; Tate 2007). These efforts are embedded in daily state bureaucratic practices (Anders 2009; Feldman 2008), and as such are subject to the policy-making process shaping institutional mandates and frameworks. These policy-making processes are themselves increasingly becoming objects of ethnographic study (Greenhalgh 2008; Mosse 2004; Wedel et al. 2005). This article builds on the central insights from the anthropology of policy, including the multiple ways in which policy creation and implementation remain embedded in fraught political fields that respond to and produce cultural norms, procedures, and practices, as well as insights from truth commission scholarship and the anthropology of human rights that insists on the limitations of legal processes and evidentiary requirements for articulating accountability in cases of state-sanctioned violence.

Colombia is a particularly useful place to consider the implementation of the Leahy Law for several reasons. The activists who were instrumental in the initial passage of the law were focused on human rights abuses by Colombian military units receiving US assistance. The law was passed as the United States prepared to begin a massive influx of military assistance to Colombia, totaling approximately $5.4 billion dollars from 2000 to 2007 as part of Plan Colombia, 80 percent of which went to the security forces. Efforts to apply the law in Colombia have resulted in the largest vetting program of any embassy in the world, while shifting military strategy and forms of political violence complicated efforts to implement the law.

This article is part of a larger project examining the origin and impact of Plan Colombia involving fieldwork in Washington, DC; Miami, Florida; and Putumayo and Bogotá, Colombia. I employed diverse research methods in response to my limited access to policy-making practices. As a Visiting Research Fellow at the National Security Archive, I analyzed embassy cables and government documents gained through Freedom of Information Act requests, the majority of which are highly redacted; many remain unreleased. I interviewed policy makers involved in the Plan Colombia Interagency Task Force, State and Defense Department officials, members of Congress and their staff, embassy personnel, current and retired military officers, and activists. Many of the individuals requested anonymity, in some cases because they are still employed within government bureaucracies. I have honored such requests, indicating civilian (noted as “officials”) or military (noted as “officers”) status, and the institution where employed (State, Defense, Congress). I also draw on notes, contacts, and analysis from my experience as a participant in these debates. From 1998–2001, I was the analyst on Colombia at the Washington Office on Latin America, a progressive advocacy organization that opposed the military assistance component of the package. This case study, like many efforts to produce ethnographies of policy-making processes, demonstrates the need to employ multiple methodologies while emerging from an existing embeddedness in the process being analyzed (Greenhalgh 2008; Mosse 2004; see Tate 2007:13–20 for a discussion of embeddedness).

Creation of the Leahy Law as Policy Assemblage

While the Leahy Law bears the name of the Senate's primary spokesman for human rights concerns, Senator Patrick Leahy (D-Vt.), the law was the product of a complex field of alliances between Washington-based human rights advocates, grassroots activists, and supportive Congressional staff. The necessary policy assemblage, defined as “the collection of heterogeneous, often incommensurate elements that come together for a period of time, sometimes quite fleeting, to produce a policy construct” (Greenhalgh 2008:13), included the conflux of these actors, as well as reports by human rights activists at Amnesty International and other human rights NGOs, critically positioned legislative aides, and post–Cold War NGO professionalization and growing acceptance of human rights rhetoric among foreign policy institutions.

The decision of human rights groups to attempt to intervene directly in the policy-making process must be understood in the context of post–Cold War, prewar on terror expansion of increased rhetorical commitment by governmental agencies to human rights agendas. At the same time, Latin America was widely viewed as a continent characterized by transitions toward democracy, and the human rights community was focused on issues elsewhere, including the Balkans and Africa (Mertus 2004; Sikkink 2004). This period was also characterized by increasing professionalization of human rights groups, many of which emerged as NGOs with paid staff—not as volunteer appendages to social movements—trained in human rights law, with many focusing on advocacy within the policy-making process. These groups ranged from small organizations with between 5 and 15 paid staff to transnational institutions with multimillion dollar budgets; while some like Human Rights Watch focused on reporting, the majority made an effort to link their work with grassroots volunteer activists. Despite efforts by these NGOs to promote expanded grassroots mobilization on Colombia, such activism was extremely limited when compared to the broad movement against US military aid to Central America two decades prior (Smith 1996). The domestic drug war politics of the United States, combined with the lack of a political solidarity with the Colombians, guerrilla movements, contributed to the reluctance of many activists to get involved. The United States did not have as many as direct connections with Colombia; there was not a significant refugee population, nor were many of the religious, academic, or volunteer ties between the two countries as had existed with Central America, which had served as the foundation for activist connections decades previous (Tate 2009).

Amnesty International (AI) advocates developed a new strategy focused on producing legislation that would target aid to specific military units because of their frustration with the inability to implement earlier broader human rights legislation. The first generation of explicitly human rights–focused legislation was passed in the 1970s; these laws mandated a complete cut-off of aid if abuses occurred, but they were never enforced. When Pentagon representatives and other supporters of military aid argued that cutting off all military aid to a country because of specific abuses carried out by particular units was unfairly punishing an entire institution “for the work of a few bad apples, we decided to turn the argument on its head, and go after the few bad apples,” according to Carlos Salinas, then Latin America advocacy director (interview, Washington, DC, July 1, 2008). They capitalized on their human rights reporting to raise awareness of the issue, including a 1994 study of abuses by the Colombian military and national police, many of which were receiving US counternarcotics assistance. The AI Washington-based advocates mobilized their grassroots membership, particularly targeting Congressional districts represented by a cohort of Republican, self-proclaimed “drug warriors,” in an effort to counterbalance their commitment to funding for militarized counternarcotics programs. Senator Leahy also worked to assuage politicians concerns about the impact of the legislation, including sending letters to National Security Advisor Sandy Berger and Representatives Hastert and Gilman, assuring them that the law would not be used to improperly withhold aid (legislative aide interview, Washington, DC, January 8, 2008).

The original amendment was developed in close collaboration between Congressional staff and AI staff, buttressed by the critically positioned long-time AI supporter Tim Rieser. The language was written by a Senate staffer, passed to AI for revisions, and circulated to Rieser (Stephen Rickard interview, Washington, January 23, 2006). As senior staff for Patrick Leahy, the ranking Democrat on the Senate Appropriations Committee, Rieser was able to place the language in the bill without open debate on the floor. According to one former Congressional aide involved in the process, “The amendment itself was not publicly debated but inserted into the bill during conference, [in] the closed door negotiations to reconcile House and Senate versions of legislation. There were a lot of people who would have fought it, if they had known about it, but Tim put it through quietly, under the radar” (Senate aide interview, Washington, October 14, 2008).

Transnational Agreements

As a new requirement for the delivery of foreign assistance, the Leahy Amendment (and later law) involved intense negotiation with foreign governmental agencies to establish formal agreements with each foreign government that stipulated how they would meet the requirements of the Leahy Law, called end-use monitoring. Many officials involved viewed human rights concerns within the context of their domestic interagency power disputes, as well as a manifestation of ongoing neo-colonial US–Latin American relations characterized by the unilateral imposition of human rights standards the US government failed uphold in its own policies (Mertus 2004). Efforts to negotiate an agreement that would satisfy all parties demonstrated the distinct political agendas between and among US and Colombian government agencies, and revealed the weakness of Colombian civilian power structures in the face of military institutions. These negotiations also demonstrated significant disagreement over the policy process among US officials, some of whom objected to the imposition of such requirements on an ally. In one of the most notorious examples, declassified embassy cables revealed that during a May 1997 trip to Colombia, Speaker of the House Dennis Hastert told Colombian military officers he would work to “remove conditions on assistance” and complained about the previous years of “leftist” influence in the US Congress that “used human rights as an excuse to aid the left in other countries.” Hastert promised to promote counternarcotics assistance, and recommended that Colombian officials should “bypass the U.S. executive branch and communicate directly with Congress.”1 Throughout these debates, the amount of US assistance was never in doubt, only the recipient. During tense moments of stand-off between US and Colombian officials, the United States never threatened to reduce assistance, but merely to shift the aid from one institution (the military) to another (the police).

The Colombian military's debates over the acceptance of the Leahy provisions must be understood in the context of their broader objections to civilian oversight by Colombian government agencies, including the delegitimized president, as well as their view that the United States was displaying both hypocrisy and left-wing bias in their demands.2 Efforts to finalize the end-use monitoring agreement occurred during the worst modern crisis of US–Colombian relations. The United States revoked President Ernesto Samper's visa and decertified Colombia following revelations (publicly released by the US Drug Enforcement Administration) that he had accepted campaign contributions from the Cali Cartel.3 Colombian military officers, long accustomed to significant administrative independence, chaffed under what they perceived as civilian corruption (Aviles 2006). At the time, US assistance was concentrated on the Colombian National Police, which enjoyed a stellar reputation among Congressional Republican supporters, in large part due to the charismatic leadership of General José Rosso Serrano (Crandall 2002). The military, in turn, felt marginalized from the exclusively counternarcotics-focused assistance packages and maligned by accusations of corruption and incompetence from many US counterparts. Despite a history of close US–Colombia military relations dating from the Korean War (Coleman 2008), Colombian military officers generally viewed human rights concerns as politically motivated slander, even coming from US officials (Tate 2007).

The Leahy Law required a new process certifying that no credible allegations existed for any military unit receiving US assistance. Previously, the United States had accepted a biyearly “good faith certification” from the Colombians, simply stating that they met all the US requirements for legal transfer.4 Two of the major points of contention was the issue of what to do with accused individuals while they awaited the outcome of their cases and the concern that the Leahy provisions would increase the number of accusations against the Colombian security forces.5 On April 30, 1997, the US embassy reported that an end-use monitoring agreement had been signed with the Colombian Air Force and Navy, but that the Army had refused. Negotiations over the end-use monitoring agreement came to a head during frustrated talks during the summer of 1997 as Colombian Army lawyers argued that any sanction (including removal from US-supported units) required a “completed judicial process.”6 Army Commander General Harold Bedoya complained of State Department bias against the Colombian army. The cable reporting on one of the many meetings in which the end-use monitoring requirements were discussed concluded by recommending sending “all equipment possible originally destined for the armed forces to the police.”7 At this point, events were transformed by the internal dynamics of Colombian politics. Bedoya was forced to resign after a showdown with the president over proposed negotiations with the guerrillas in July 1997. His replacement, General José Bonnett, signed the end-use monitoring agreement on July 30, 1997.

Limits of the legal

The Leahy Law is implemented by embassy personnel charged with vetting proposed soldiers and military units by checking their names against available records, including a human rights database maintained by the US embassy that contains information from Colombian government agencies such as the federal prosecuting agencies, NGO reports, and media accounts. According to US embassy officials, the Colombia vetting program is the largest in the world. More than 30,000 names have been vetted; for comparison, the same program in Saudi Arabia has processed approximately 300 names (embassy personnel interviews, Bogotá, June 4, 2008). According to embassy officials, the Colombia program goes “above and beyond the law,” including vetting civilians and contractors to prevent training or assistance going to retired military personnel with outstanding complaints. Officials note, however, that the embassy cannot prevent training from being provided. Rather, they issue their judgment, and then “the marines have ten days … to go to Congress to explain why they went ahead with the training” (embassy interviews, Bogotá, June 4, 2008).

What constitutes a military “unit” has been fiercely debated. The idea of a military unit is not easily transferrable into the logic of accountability that the authors of the Leahy Law attempted to establish. Military personnel are organized into a range of military units, including patrol, platoon, company, battalion, brigade, and division, ranging in size from 6 to 10 people to thousands. These units are administrative fictions; they are set in a permanent hierarchy and relatively stable organizational structure but with their membership in constant flux. Through personnel rotation, injuries, and command promotions, the specific individuals within the structures vary widely and are difficult to trace. These administrative divisions are used as the receptacles for assistance, equipment and training, as well as operational deployment, with missions assigned to particular divisions by geographic location. Critics of the Leahy provision used this administrative instability to argue against the vetting process and as evidence that the Leahy language was inadequate, urging institutional reform be the prerequisite for eligibility for US funding and support. The State Department settled on vetting the smallest “unit” possible. According to a 1999 General Accounting Office (GAO) report, “in a May 8, 1999 cable to all overseas embassies, the State Department defined the unit to be trained as the unit to be vetted. Thus, for individual training, the individual will be vetted. For unit-level training, the unit itself will be vetted” (1999:53). According to this interpretation, individual soldiers from abusive units can participate in training as long as they are not linked by name to a credible allegation (Amnesty International and the Fellowship of Reconciliation 2008:7–8).

The majority of allegations in the vetting process in Colombia originate from NGOs and investigations conducted by Colombian law enforcement agencies, which are notoriously corrupt, frequently favoring military officers in cases of human rights abuses, and under-staffed and –funded (Human Rights Watch 2002; Tate 2007). US embassy personnel are not able to conduct independent verification of allegations because of lack of personnel, investigative training, and lack of mandate in foreign countries. Centralized information management systems do not exist, making following cases extremely difficult.8 In addition, some governmental institutions have resisted the vetting process, particularly the military forces.9

Assessing what constitutes credible allegations is one of the thorniest issues in Leahy Law implementation. The vetting process is one of many areas where human rights advocates face escalating demands for institutional transparency and the production of evidence meeting legal standards, including identifiable and credible witnesses and supporting documentation and expert knowledge about weaponry, troop movements, and identities, all extremely difficult to procure in complex conflict situations. Anthropologists and others have explored the ways in which “credibility,” as an epistemological category, is culturally produced and how the measurement of violence is itself a contested process (Andreas and Greenhill 2010; Comaroff and Comaroff 2006; Rosga and Satterthwaite 2009). Anthropologists examining the role of truth commissions have explored the multiple ways in which public accusations of wrongdoing are socially produced, including the critical space of silences (Coxshall 2005; Ross 2010), the gendered dimensions of such pronouncements (Theidon in press), and the role of postconflict fear shaping public discourses about histories of violence. In this case, credibility functions as a kind of social capital that is achieved through specific varieties of knowledge practices or accrued through institutional positioning. Some NGOs are known to have more sophisticated, standardized, and rigorous reporting practices, and are thus more credible than other NGOs. To the US government, Colombian government agencies are considered inherently more credible than NGOs, with governmental reporting and judicial investigations—and dismissal of such investigations—weighted more heavily than NGO reporting. Of the NGOs, hierarchies of credibility include national groups over regional, professional over volunteer, and international over national (Tate 2007). These hierarchies of credibility also apply among and within governmental agencies; US governmental agencies are more credible than Colombian agencies; for officials from both governments, human rights-focused agencies (such as the Bureau of Democracy, Human Rights and Labor, [DRL] the State Department, and the Colombian Human Rights Ombudsman) are less credible than other agencies (embassy interviews, Bogotá, June 4 and 6, 2008; State Department official interviews, Washington, DC, April 22, 2008, July 5 and 6, 2011).

Different bureaus within the State Department and different agencies within the US government have different assessments of the human rights performance of the Colombian military. In one case, US officials praised a Colombian military regional commander as “tough, disciplined …[and] more in the mold of US counterparts.”10 Five months later, however, US embassy officials “strongly opposed” his appointment as head of the Colombian joint military intelligence, given the “numerous” credible links between the officer and paramilitary groups, making him “wholly unsuitable for this highly sensitive position.”11 Some government officials explained the Colombian government's removal of particular officers for human rights abuses as the result of political infighting rather than evidence of abuses. Within the US State Department, these divisions are often expressed as conflicts between the regional and thematic bureaus (in this case, the Western Hemisphere bureau and the Colombia desk, and DRL). For example, one Foreign Service officer told me, “DRL sees their constituency as US NGOs, they have a specific audience in mind.” He said that many US officials viewed them as “in their own little world” (embassy personnel interview, Bogotá, June 4, 2006) A former Congressional staffer recalled that “part of it comes down to who is a better judge of what is credible, DRL or the other bureaus. If it is a local NGO, the regional bureaus may try to argue that they are in a better place to know if the allegation is credible or not” (interview, Washington, DC, January 23, 2006). Similarly, in Bogotá interviews during the early years of Plan Colombia, journalists covering Colombia said visiting US officials left markedly different human rights messages for Colombian officials. “A CODEL [Congressional delegation] comes down and tells the military, don't do this. Then the Pentagon comes down and says, we love what you are doing,” (interview with senior reporter, daily US newspaper, Bogotá, March 12, 2003). These differences are central in the application of the Leahy Law, depending on which agency makes the final call on the status of particular units. In particularly controversial cases, the final decision is sent from the embassy to higher-ranking bureaucrats in Washington.12

An additional controversy over Leahy implementation involved the issue of what constituted “effective measures” taken by the state to address the credible allegations. While the activists involved in the creation of the Leahy Law imagined that effective measures would necessarily involve the investigation and prosecution of accused officers, implementation of the law has not led to any such efforts. During the initial conversations between US and Colombian officials over implementation, their reluctance to involve the legal system was made clear. One example is a 1998 conversation with the US ambassador and Colombian Minister of Defense Rodrigo Lloreda, who concluded that “a culture of impunity prevails in Colombia,” and called the civilian judicial system “woefully ineffective” and expressed “a lack of confidence in the military judiciary.” He “discounted the likelihood of improving the current situation in the short term for cultural reasons,” including that long-term incarceration for any crime seems “unfair” to many people.13 In some of the cables describing the vetting process, embassy officials appear to endorse the view that simply preventing tainted soldiers from participating in US-supported units is sufficient. One April 1999 cable suggests that simply preventing soldiers with accusations of violations from being rotated into these supported units is sufficient to meet the “effective measures” standard established by the Leahy Law.14 The 1999 GAO report described the US Defense Department's policy guidance as considering “adjusting the planned activity or participants” to be the required “corrective action to address situations where there is credible information of gross human rights violations by a member of a unit” (GAO 1999:55). Rather than insisting that investigations led to a trial, the individual was simply removed for the duration of the training. Embassy personnel stated in interviews that the Leahy vetting process resulted in some cases of senior officials being arrested and others forced out of the military because they could not get the training required for promotion. Certainly there is considerable diplomatic pressure brought to bear on specific cases of military officers linked to human rights abuses. However, the specific link between this pressure and the efforts to fulfill the Leahy Law requirements is not clear. There is no public record available documenting such cases and no evidence of systematic pressure brought to bear in the cases of individuals found to have credible allegations against them.

The focus on implementation overlooks broader issues in vetting of soldiers as a framework for conditioning aid. The focus on individuals within units erases the ways in which military equipment and training is fungible, as people and goods circulates freely within military networks. Any aid sent to military institutions benefits the entire force, as it frees resources for reassignment, including to abusive units. Everyone who is trained benefits the entire military institution, as there is no tracking of location or performance posttraining, so that individuals can be returned to abusive units or be transferred into abusive units to use their improved skills to bad ends. Much of US assistance is nonmaterial, in forms that cannot be restricted, such as knowledge and intelligence, which circulates freely throughout the units, vetted and unvetted alike. By focusing on individual military perpetrators, the vetting process also ignores the military logics of command responsibility, an established legal tenant that holds officers responsible for crimes committed by troops under their command. In the history of cases of soldiers legally tried for atrocities, very few are higher-ranking officers. The stress on individual responsibility also erases the role of economic and political structural relationships in generating political violence. Over time, many police officers, government prosecutors, and retired military officers stressed that the strength of criminal networks in certain areas, such as in Medellín, made not participating in corruption and political violence extremely difficult (interviews, Bogotá, 1998–2004).

The vetting process is also not responsive to shifts in the forms and practices of violence in Colombia. Since Leahy was first passed in 1997, many analysts observed what some called the privatization of political violence, as human rights groups tracked a decline in the direct participation of military forces in abuses while the number of such attacks attributed to paramilitary forces rose dramatically (Tate 2010).15 Military supporters, including within the US military and the Clinton administration, claimed that the reduction in direct military attribution of abuses was the result of genuine reform within the military. Critics pointed to the evidence of collaboration between military and paramilitary forces, arguing that the military had not reformed but had replaced direct action with collusion. Paramilitary forces also resorted to new modalities of violence, apparently designed to allow perpetrators to escape the scrutiny of international human rights reporting. Paramilitary documents circulating on the Internet began discussing the need to obey human rights standards, and their webpages contained links to communiqués on human rights issued from paramilitary “political advisors.” Small town officials told me of hearing from paramilitary commanders that they had learned to avoid human rights scrutiny by not committing outright massacres. Instead, paramilitary groups now killed their targets one by one, scattering the bodies in different places or keeping the bodies for several days: these murders were now called “multiple homicides” by human rights groups (interviews with town officials, Bogotá, 2005). Such incidents are not tracked by international organizations that focus on massacres as a significant human rights indicator. Similarly, as internal forced displacement attracted the attention of a number of international organizations, paramilitary forces began a new practice—called “confinement—of refusing to let rural inhabitants leave their communities; this practice was much more difficult to document in remote regions (US Office on Colombia 2005). Some emerging forms of violence are particularly difficult to link to individual soldiers or even to particular units, including the practice of “false positives,” in which young men are disappeared from their homes and presented by the military in distant states as guerrillas killed in combat (Haugaard and Nichols 2010).

The Leahy Law places the burden of proof on victims of violations to recognize and name members of particular units involved in the atrocities committed against them. Eyewitnesses often cannot distinguish individual soldiers by name because of the military's institutional emphasis on uniformity. Human rights reporting rarely identifies soldiers individually, instead focusing on military operations in the areas where abuses occur. These factors are issues in all efforts to use legal standards as a basis for establishing human rights-based criteria, and point to the larger epistemological challenges of translating human rights knowledge production into particular policies.

Leahy Law Implementation and the New Military Strategy

The Leahy Law end-use monitoring agreement set the stage for a major increase in US assistance to the Colombian military, starting with a new military-to-military cooperation agreement signed in December 1998 prior to the massive influx of aid through the Plan Colombia package in 2000. Part of this expanded military cooperation included the creation of a series of US-trained and US-equipped counternarcotics battalions in the Colombian army. US officials soon realized that, given the widespread allegations of military misconduct, it was practically impossible to find Colombian military units that could pass the Leahy Law vetting requirements. Faced with the difficulty of vetting existing units, US officials and their Colombian counterparts soon developed a new military strategy that would resolve the vetting problems through the creation of new, “clean” units. Made up of vetted individuals, these units would be eligible for all US assistance and training because, as new units with no existing record, they would be instantly cleared.

In March 1998, the first unit to be vetted and cleared for US assistance was the Eastern Specified Command (CEO), and it proved an inspiration for the creation of other units. As noted in a March 1998 cable to Washington, the unit “didn't really exist.” As a unified military unit that had been converted into an army unit in 1996 for “contingencies in the border area,” the command did not actually exist as a fully constituted military unit, but had only a “minimal number of full time [sic] troops,” so “battalions from other units [were]‘op-conned’ to the CEO.”16 While the CEO was recommended for immediate aid, the vetting process exposed “problems”: credible allegations of abuses committed by all the other units proposed for US assistance.17

By October, the proposal to create a new, clean counternarcotics battalion was supported by the Colombian military and executive. According to a 1998 embassy cable, the “unit to be designated would probably be relatively new and “clean” of significant human rights problems.”18 The Colombians viewed this as a concession to US pressure, asking “in return” for US funding for equipment. Military officers also reported “understanding” that making such units focused on counternarcotics would “maximize ready access to US intelligence.”19 The issue of the Leahy Law and vetting lead the embassy to propose “starting out with ‘clean’ units.” In order to ensure that they were legally able to deliver military aid, US embassy personnel described their plan to discuss the “possibility of standing up ‘clean’ new units comprised of pre-screened troops,” concluding that “in the context of a major boost in designated assistance (e.g. counternarcotics battalion) the colar [Colombian Army] might be willing to consider such a move.”20 A cable dated the next day described a meeting between the ambassador and the minister of defense, in which, after pointing out problems with existing units proposed for US assistance, the ambassador proposed, in order to facilitate supplying aid, “the raising of “new” units made up of pre-screened troops untainted by human rights abuses.”21

Policy makers involved in the design of the Plan Colombia package emphasized the importance of creating new units that could receive the massive influx of assistance. According to Ambassador James Mack, the coordinator of the Plan Colombia InterAgency Task Force, “the vetting was probably one of the reasons that we decided to start all over again, from scratch, with a new unit. We wanted to train them up to US standards” (interview with James Mack, Washington, January 17, 2008). Similarly, officials with the US Southern Command reported that the Leahy Law requirements were “why we did not use an existing battalion” (interviews with SouthCom officials, Miami, January 11, 2009).

We went down there, with Special Forces trainers, and figured out how to make things work with the State Department vetting. We made sure that none were from other units, that they were individuals that were new to the military, that they were brand new with no possibilities of problems (interviews with SouthCom officials, Miami, January 22, 2009).

Maintaining the artificial separation between new “clean” and existing abusive units proved difficult on the ground, particularly given the US focus on improved military operational integration and coordination. The clean counternarcotics units operated in joint campaigns with local units, including those facing allegations of abuse, such as the 24th Brigade in Putumayo, which was part of the US strategy titled “Push into Southern Colombia.” While the brigade had been decertified for aid, it continued to work in concert with the expanding military presence in the region. Among the talking points for the ambassador was the fact that “the participation of the 24th Brigade [was] critical for counternarcotics operations and the success of Plan Colombia,” but that there were “persistent reports that the 24th Brigade, and the 31st Counterguerrilla Battalion in particular, [were] cooperating with illegal paramilitary groups … increasingly active in Putumayo.”22 During the time period that these cables were sent, the human rights situation in the region was described as extremely serious by a number of human rights organizations. Human Rights Watch (2001) devoted a chapter to the 24th brigade in their report, The Sixth Division: Military-paramilitary Ties and US Policy in Colombia. The title referred to allegations that paramilitary forces in Colombia operated as a “sixth division” of the army, which was divided into five regional commands. In the report, Human Rights Watch wrote of the relationship between paramilitaries and military forces in Putumayo from 1999–2001, concluding that “the Twenty-Fourth Brigade maintained a close alliance with the paramilitaries, resulting in extrajudicial executions, forced disappearances, and death threats” (2001:16). Similarly, the Office of the United Nations High Commissioner for Human Rights in Colombia presented repeated reports to the Colombian government of links between paramilitary and military forces in the Putumayo region during this time period, to no effect (2001).

Conclusion: Implementation of the Leahy Law and the Silencing of Policy Debates

In assessing the consequences for US military aid delivery, the views of the activists focused on the issue are divided. Congressional aides who supported the law claim it sent the message that “human rights [are] important to the US Congress” (Senate aide interview, Washington, October 14, 2008). They used other political mechanisms, such as the confirmation process for ambassadors, to bring pressure to ensure compliance. One supporter explained:

[The law is a tool for] allies in the State Department … . It gets the lawyers in the room for the discussions of US policy, because a bureaucracy wants to argue to provide aid as a matter of policy. In Leahy, there is no waiver, no balancing test. So in this kind of bureaucratic context, you can't do any better to empower a weak bureaucrat than to say, to deliver aid in this condition is illegal. [Interview with Stephen Rickard, Washington, DC, January 23, 2006]

However, other human rights advocates point out the degree to which the focus on the Leahy Law has shifted the terms of the debate and political action to efforts to support and assess its implementation rather than to articulate and organize against inhumane or unjust policies. Vetting practices reflect the legal focus on individual responsibility, but silence larger debates over the causes and consequences of political violence. According to Lisa Haugaard, of the Latin America Working Group (a coalition of human rights NGOs and humanitarian agencies that focus in part on Colombia), “You can get lost in the technicalities of the Leahy Law” (interview with Haugaard, Washington, DC, July 3, 2008). She argued, “The less technical something is, the more useful it can be in terms of policy” (interview with Haugaard). The human rights debate over the Leahy Law has become focused on providing documentation for implementation, rather than pushing for more systemic reforms, or developing an activist strategy based on the critiques of military assistance or broader capitalist and imperial systems. Some groups, particularly those located outside of Washington that function as grassroots membership organizations, focused on opposing all military aid to Colombia, finding the focus on implementing conditions such as the Leahy Law a divisive distraction.

The creation of human rights law does not simply involve translation, in which the aspirations of activists are translated into the idiom of legislation. Law opens up space for new bureaucratic practices as institutional players promote distinct political projects while employing the same rhetoric of rights. An ethnographic approach illuminates such efforts by tracking human rights rhetoric and practices across contested political fields and legislative forums and highlights implementation. In this case, bureaucratic practices of implementation opened space for powerful institutions, such as the US military and State Department, to impose their interpretation of specific elements of the legislation, including what constitutes a unit, a credible allegation, or an effective measure to address an allegation of abuse. These debates over vetting practices demonstrate the distinct political projects in play as some institutions focused on avenues to maximize military aid in the face of activists’ insistence that human rights safeguards should prevail.

This analysis of the Leahy Law reveals the multiple ways in which the implementation, as well as the creation, of the law is embedded in particular historical and political processes. Shaped by the transnational diplomatic context of a growing US military presence in Colombia, the law shifted US policy, but not in the ways that the activists and policymakers who designed the law originally intended. Rather than suspend aid when no “clean” units could be found, US officials convinced their Colombian allies to create new units consisting of vetted soldiers and did not implement a wider push for the investigation and trial of accused officers as part of the law's mandate despite clear language in the law requiring “effective measures” following abuses. Debates over how to construct the vetting process itself exposed the knowledge practices inherent in law enforcement, the social production of credibility, and ways in which some forms of political violence were made visible while others were erased. As government action increasingly intersects with and employs the rhetoric of human rights, tracking the multiple state effects of such practices is critical for understanding the political terrain of human rights.


  • 1

    US State Department Embassy Colombia cable, “CODEL [Congressional Delegation] Hastert's May 24–27 Visit to Colombia,” May 28, 1997, Secret, 28.

  • 2

    US State Department Embassy Cable, “Ambassador's June 13 Conversation with Defmin Echeverri”[Folder: Sec asst.], June 16, 1997; and US State Department Embassy Cable 05740, “Ambassador's June 13 conversation with defmin echeverri,” June 16, 1997. Confidential.

  • 3

    US Congress requires that the State Department issue a yearly certification of foreign governments, assessing their degree of cooperation with US counternarcotics operations. Failure to be certified results in the suspension of nonmilitary aid, in addition to other sanctions.

  • 4

    April 28, 1997 – US State Department Bogota cable, “506 and 614: Best and Final Offer to MOD”[Sec asst.], April 28, 1997.

  • 5

    April 29, 1997 – US State Department Bogota Cable, “Ambassador's April 28 Meeting with President Samper”[EUM], April 29, 1997.

  • 6

    US State Department Embassy Cable 06461, “Bedoya Lawyers blocks EUM accord,” July 8, 1997. Confidential.

  • 7

    US State Department Embassy Cable 006705, “EUM talks with Defmin at Dead End; Recommendation,” July 14, 1997. Confidential.

  • 8

    Colombian legal institutions have made significant advances in important human rights investigations. However, these legal cases have rarely resulted in completed trials and sentencing, and these institutions follow a pattern of initial success in investigating human rights cases followed by institutional weakening; they have contributed to the US-maintained databases kept for vetting purposes.

  • 9

    In the initial efforts for the Colombia certification, the Colombian Ministry of Defense failed to provide appropriate information (US State Department Embassy Cable 00272, “Colombian EUM Update: Embassy Lights a Fire Under MOD,” January 15, 1998. Confidential). Subsequent cables reported that the issues had been resolved (“For Ambassador meeting with Minister Lloreda Drafter WSRowland,” US State Department Embassy Cable, April 22, 1999. Confidential).

  • 10

    US State Department Embassy Cable 1998 [excised]“[excised] hr visit to colar second division and 5th brigade in Bucaramanga – a tough region with lots of bad guys of all types,” June 11, 1998. Confidential.

  • 11

    US State Department Embassy Cable, “Demarche Request on Appointment of Brigadier General Luis Fernando Millan As Head of Joint Military Intelligence,” November 25, 1998. Confidential.

  • 12

    One cable describing a dispute over funding concluded that “we leave it to Washington” (US State Department Embassy Cable 002520, “Colombia EUM: Analysis of Specific Human Rights Cases,” March 6, 1998. Confidential).

  • 13

    US State Department Embassy Cable 011674, “Ambassador and Minister Lloreda on Leahy Amendment,” October 16, 1998. Confidential.

  • 14

    Ambassador meeting with Minister Lloreda Drafter WSRowland April 22, 1999. Confidential.

  • 15

    Prior to the mid-1990s, the Colombian security forces were generally considered to be the worst perpetrators of abuses, with approximately 55 to 60 percent of the abuses catalogued by NGOs attributed to the military and the police; by the end of the 1990s, abuse allegations had fallen to less than 4 percent, with the majority of such violence attributed to paramilitary forces (Comisión Colombiana de Juristas 2005). For more on the political debates surrounding these statistics, see Sanchez (2001) and Tate (2007).

  • 16

    US State Department Embassy Cable 002520, “Colombia EUM: Analysis of Specific Human Rights Cases,” March 6, 1998. Confidential.

  • 17

    US State Department Embassy Cable 002520, “Colombia EUM: Analysis of Specific Human Rights Cases,” March 6, 1998. Confidential.

  • 18

    US State Department Embassy Cable 11602, “Colombian Army Counter-Narcotics Battalion Proposed for USG Assistance,” October 15, 1998. Confidential.

  • 19

    US State Department Embassy Cable 11602, “Colombian Army Counter-Narcotics Battalion Proposed for USG Assistance,” October 15, 1998. Confidential.

  • 20

    US State Department Embassy Cable 11602, “Colombian Army Counter-Narcotics Battalion Proposed for USG Assistance,” October 15, 1998. Confidential.

  • 21

    US State Department Embassy Cable 011674, “Ambassador and Minister Lloreda on Leahy Amendment,” October 16, 1998. Confidential.

  • 22

    U.S. State Department Cable, “Approach to MOD [Minister of Defense] on 24th Brigade” July 5, 2000. Confidential.