Pentagon Maintained Aid for Afghans Accused of Rights Abuses, Watchdog Says

January 25, 2018
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by Leila Miller Tow Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

An Afghan National Army soldier stands guard in Kabul, Afghanistan in 2014. (AP Photo/Massoud Hossaini)

A government watchdog has found that the United States military provided assistance to Afghan security force units implicated in human rights abuses, despite a federal law designed to cut off aid in such instances.

In a previously classified report released this week, the Special Inspector General for Afghan Reconstruction (SIGAR) says the Defense Department has made use of an exception to the law that the Pentagon says is crucial to meeting national security objectives.

Under the Leahy Law, the Defense Department and the Department of State are prohibited from providing assistance to any unit of a foreign security force if there is evidence to suggest the unit has committed human rights violations, including the Afghan practice of “bacha bazi,” or “boy play.” While bacha bazi was banned under the Taliban and remains illegal in Afghanistan, the practice has been quietly revived. (Bacha bazi’s return was the focus of the 2010 FRONTLINE documentary The Dancing Boys of Afghanistan). 

As of August 2016, the Pentagon had been tracking 75 alleged incidents of “gross violations of human rights” by allied forces in Afghanistan, according to the SIGAR report. At least seven of those incidents involved child sexual assault. The inspector general found that even though some of the allegations under review were deemed credible, the Pentagon continued to provide “select training, equipment, and other assistance to some of the Afghan security forces units implicated in those incidents.”

To do so, the Defense Department used an exception to the Leahy Law known as the “notwithstanding clause.” The Secretary of Defense can invoke the exception for national security reasons, or if after consultation with the Secretary of State, he determines that corrective measures have been taken by the foreign government. Since 2002, the U.S. has appropriated more than $71 billion in assistance for Afghan security forces.

“Continuing to provide assistance to units for which the department has credible information of a gross violation of human rights,” the report said, “undermines efforts by U.S. government officials to engage with the Afghan government on the importance of respect for human rights and rule of law.”

In a statement to FRONTLINE, the law’s namesake, Sen. Patrick Leahy (D-Vt.), called its circumvention “inexcusable.”

“Given the daily sacrifices of our troops, the purpose of the Law is to shield them from associating with criminals, and to encourage our Afghan partners to prevent such abuses and to punish those responsible,” he said. “If they do that, our aid can continue. Otherwise, no American would condone giving U.S. taxpayer aid to foreign forces who commit such crimes with impunity, whether in Afghanistan or anywhere else.”

The SIGAR investigation, requested by Congress in 2015, followed a New York Times report that found that a U.S. “policy of nonintervention” was intended to preserve positive relations with Afghan forces in the fight against the Taliban and other extremist groups. It said that the sexual abuse of children by Afghan forces has long been “rampant,” and that multiple American soldiers faced disciplinary action after disobeying what some described as an unofficial policy to ignore abuse.

Lt. Col. Mike Andrews, a Pentagon spokesperson, said in a statement to FRONTLINE that the Defense Department has never used the notwithstanding clause in order “to continue assistance to a member of the Afghan forces or an Afghan unit as a result of a determination that allegations of child sexual assault were credible.” He also emphasized the U.S. Army’s support for a new Afghan policy that seeks to protect children from the effects of armed conflict, including violence towards children by the Afghan National Army.

“The SIGAR report acknowledges that there is no evidence the DoD condones gross violations of human rights by Afghan Security Forces, or provided guidance telling service members to ignore any instances,” he said.

The report highlighted ongoing challenges for U.S. forces around the reporting of human rights violations. SIGAR’s investigators, who interviewed 16 former and current service members, said the Defense Department, as well as the Department of State, lacks “sufficient guidance on reporting alleged incidents, for determining whether there is credible information that a unit committed a gross violation of human rights, and for tracking reported incidents.”

“One [service member] said he reported an alleged incident to his commanding officer, but he did not know what came of the report. Another told us that after he and his fellow service members witnessed inappropriate behavior involving Afghan security forces and children, they thought it would be best to ‘leave it alone’ rather than report it to a higher authority,” the report said.

The extent to which child sexual assault was committed by Afghan forces, the report warned, “may never be known.”

“DOD and State only began efforts to address this issue after it was raised by The New York Times,” said SIGAR’s Inspector General John F. Sopko in a statement to FRONTLINE. “And even after that story, the sufficiency of policies they’ve put in place and the resources they’ve committed seem questionable. When Congress passed the Leahy laws they prioritized the issue of gross human rights violations. As our report clearly shows, both agencies failed to live up to that task.”

In its report, SIGAR said Congress might consider prohibiting the Department of Defense from applying the notwithstanding clause to the Leahy Law, a move the Pentagon has disputed. In a May 2017 response included in the report, Jedidiah Royal, a Pentagon official, wrote that any such step would “remove the Secretary of Defense’s flexibility to balance the implementation of the DoD Leahy law in Afghanistan with national security objectives and the protection of U.S. forces.”

Pentagon investigators released their own report in November, which also did not identify any official guidance that “discouraged” American personnel from reporting allegations of child sex abuse. Despite the Leahy Law, the investigation found there was still no policy to determine the accuracy of information supporting a gross human rights allegation, including child sexual abuse.

For over a decade, U.S. forces in Afghanistan did not receive proper training on reporting allegations of child sexual abuse by American allies there, the report said. American forces invaded Afghanistan in 2001, but according to the Defense Department’s inspector general report, U.S. military personnel “may not have known to report allegations of child sexual abuse” up the chain of command until September 2015.

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