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An Open Letter to the Department of State, in Response to the U.S. Human Rights Report

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March 17, 2011

Michael Posner Assistant Secretary, Democracy, Human Rights and Labor
United States Department of State

Dear Secretary Posner,

I thank you for guiding the U.S. participation in the U.N.'s Universal Periodic Review process. I also wish to acknowledge the assistance of the Government of Norway in their willingness to bring forward the Rebuilding Alliance's questions and recommendations pertaining to the U.S. Leahy Laws, an important model for the world community. I am writing to provide comments on the U.S. response to the Norwegian recommendation [pdf].

The Government of Norway advanced the following recommendation:

92.227. That the model legal framework expressed by the Leahy Laws be applied with respect to all countries receiving US's security assistance, and that the human rights records of all units receiving such assistance be documented, evaluated, made available and followed up upon in cases of abuse (Norway)

This is the United States' response to the Norwegian recommendation:

227. This recommendation enjoys our support except for the last part regarding making our decision-making publicly available. We apply the Leahy laws (which impose human rights-related restrictions on assistance to foreign security forces) to all countries receiving U.S. security assistance, and we respond appropriately in cases of abuse. However, to do so, we consider information from all sources, including classified sources, and cannot make our decision-making public.

Please note there is no call for the revelation of confidential sources and clearly relevant information may need to remain classified. Rather, those of us in the human rights community require greater transparency in the process leading to the decision to apply the law to a specific military unit. Our experience at the Rebuilding Alliance shows there must be a way to monitor the Leahy evaluation process and outcome to assure public safety and compliance with the law. This is also important information for the foreign government which, under the Leahy Laws, is encouraged to take effective measures to bring the individuals responsible to justice.

Specifically, the Rebuilding Alliance proposes a clearer way to bring cases to the State Department's attention and a way for human rights monitors to continue to participate in the Leahy investigation process by providing additional information as it becomes known. Based on our experience, we request the following specific steps be made by the State Department in developing Leahy Law investigations:

• When it is determined that there is creditable evidence that a gross violation of human rights has been committed by any military unit, name that unit specifically along with the incident in the State Department's annual Human Rights Report for that country. If the individual unit cannot be identified, the violation should be attributed to the smallest military unit that can be identified in the State Department's annual Human Rights Report for that country;

• Create a procedure to be used by human rights' groups or individuals who seek to invoke the Leahy Laws. Describe to what extent the human rights' records of all units receiving U.S. military assistance are documented, evaluated, made available and followed up upon in cases of abuses;

• Acknowledge receipt of all requests to invoke the Leahy Laws that are accompanied by documentation of a credible allegation of a gross violation of human rights. Request more information if necessary;

• Confirm with sources provided in the request that an entry has been created in the ACES database, as required by State Department procedure: "Compliance with the State and DOD Leahy Amendments: a Guide to the Vetting Process;"

• Where appropriate, use diplomatic channels to express concern about and request further information regarding the unit involved. Please note, this may be the most important step as denial of aid and training (including denial of visas for travel to the U.S.) can change the behavior of the unit to avoid continued gross violations of human rights;

• Review the schedule of upcoming U.S. military aid and training provided to that unit;

• Update the organization responsible for putting forth the allegation to the State Department regarding the overall status of the investigation of their request to invoke the Leahy Laws;

• Following investigation, defer further aid and training to that unit as required by the Leahy Laws; and

• Notify the Senate Appropriations Committee and the requesting organization accordingly.

The Leahy Laws offer the United States the opportunity to put forth a visionary human rights model to the world, one based on already existing United States' law. But, if we are to hope for replication in other countries, we must strengthen the integrity of U.S. implementation by clarifying the mechanism of the law here. The Rebuilding Alliance respectfully offers these recommendations recognizing that timely and transparent process is a cornerstone of efficient justice and deterrence of future abuses of human rights.

Sincerely,

Donna Baranski-Walker Founder and Executive Director