WASHINGTON – The Obama administration has asked Congress repeatedly to exempt its military effort against the Islamic State from a longstanding ban on U.S. assistance to torturers and war criminals, highlighting doubts about finding "clean" American allies in a region wracked by ethnic animosity and religious extremism.
The latest proposal is included in a Nov. 10 request to Congress for $1.6 billion to train Iraqi and Kurdish forces to fight IS as part of a $5.6 billion request to expand the U.S. mission in Iraq. The proposal sets up a fight with key Senate Democrats, who blocked two earlier requests for such an exemption, according to documents and interviews.
The 1997 Leahy Law, named after Democratic Sen. Patrick Leahy of Vermont, bars the U.S. from funding military units suspected of "gross human rights violations," which include murder, torture and extrajudicial imprisonment. Top military officers have long complained that the law slows their work with local forces, while human rights activists call it an important safeguard against U.S. complicity in abuses by unsavory allies.
The Obama administration's written proposal includes a blanket exemption from the Leahy provisions and related constraints as it trains and equips Iraqi and Kurdish forces to fight IS.
A spokesman for the National Security Council, Alistair Baskey, said the waiver was designed to cut through procurement red tape but "is not intended to alter our practices with respect to human rights-related laws, including the Leahy law." However, the language allows the defense secretary to waive "any" provision that would "prohibit, restrict, limit or otherwise constrain" the war spending. Senate aides say there is no doubt it would waive the human rights requirements.
Iraqi government forces – the main intended recipients of the new aid – were notorious for human rights abuses under the previous prime minister, Nouri al-Maliki. In July, a United Nations human rights report documented allegations of atrocities by the government, including shelling civilians and executing Sunni detainees.
The Associated Press reported this week that Shiite militias backed by Baghdad are engaging in brutal acts as they battle IS, a Sunni Muslim group, and there are allegations of mass killings of Sunnis.
Leahy and other Democrats will oppose a blanket waiver, said aides who declined to be quoted by name.
"It would be short-sighted, irresponsible and harmful to our interests not to do everything feasible to prevent the misuse of U.S. assistance when it can mean the lives and deaths of innocent people," Leahy told the AP.
Two similar exemption requests were quietly rebuffed by Congress in a defense bill passed in September, Senate aides said. That bill provided $500 million to train the Syrian rebels and a $1 billion counterterrorism fund for the Middle East.
In both cases, the Obama administration sought to exempt the funding from all human rights restrictions, records show.
Administration officials say they have and will continue to vet any recipients of military training and aid, whether the government of Iraq, Kurdish forces or Syrian rebels. But they say the various legal restrictions imposed by Congress over the years — bans on assistance to people involved in terrorism and drug dealing, as well as human rights abuses — bring with them a bureaucratic process that will slow down American efforts against the Islamic State group.
The Leahy law applies only to military units of nations, but other restrictions apply more broadly.
Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, spoke of speed, not human rights, when he backed the exemption at a House Armed Services Committee hearing Thursday.
"We think that a national security waiver in the hands of the secretary of defense allows us to move with the pace we believe we need to move," Dempsey said.
Retired Lt. Gen. Michael D. Barbero, who travels frequently to Iraq, said the military can do its own vetting.
"There aren't a whole lot of Mother Teresas running around Iraq," he said. "But we know who some of the most serious perpetrators are, and we can go to the Iraqi government and demand that they be removed."
It's true, said Patrick Skinner, a former CIA case officer with experience in the Middle East, that there are no "good guys in this fight." But it's not true that "only thugs can fight thugs," he said.
"You don't build a credible, acceptable opposition with war criminals," he said. "I understand why people want to ignore our standards and laws for the sake of doing 'something.' But that doesn't make it the smart move."
The Leahy Law is a crucial "insurance policy against either complicity in abuses or alliances with very abusive people," added Sarah Margon, Washington director of Human Rights Watch.
Sen. Dick Durbin, D-Ill., who chairs the subcommittee that funds the military, helped kill two previous Leahy Law exemptions the administration sought, said a Senate aide who refused to be quoted.
In his statement, Leahy pointed out that U.S. weapons already have fallen into the wrong hands in Iraq and have been used against civilians and U.S. troops.
"Vetting foreign security forces for involvement in serious crimes, and monitoring the use of U.S. equipment, is important to our national security interests in successfully pursuing our goals and in upholding our values," he said.