Israel is the largest cumulative recipient of U.S. assistance—benefiting from $124 billion in U.S. taxpayer dollars over the last seven decades. Despite the mounting reports of potential gross violations of human rights committed by units of Israeli security forces since last October, the Biden administration has not prohibited a single unit from receiving U.S. assistance under the Leahy laws—continuing a consistent trend among presidents. Still, the reports of violations should at the very least be triggering internal reviews within the Defense and State Departments, and if they are, incidents at Sde Teiman prison are likely among them.
I drafted this model “action memo” to illustrate for the public what, in my view, a faithful application of the Department of Defense (DoD) Leahy law to Israel would look like based on the publicly available facts of a recent incident at Sde Teiman prison.
I served in DoD’s Office of General Counsel for four years. During that time, I advised DoD policy clients on the DoD Leahy law, working closely with attorneys and policymakers at the Department of State, which has its own, similar Leahy law (both laws are named for the legislator who championed them, retired Senator Patrick Leahy). The DoD Leahy law, Section 362 of Title 10, U.S. Code, is a statutory mandate that requires the Secretary of Defense to prohibit assistance to a unit of a foreign security force when he/she has credible information such unit committed a gross violation of human rights.
As I explained in a 2022 article on application of the Leahy Law in armed conflict settings:
The question of what constitutes “gross violations of human rights” is central to the question of whether the Leahy laws restrict assistance in any particular case. Successive administrations have interpreted the term to include, most commonly, extrajudicial killings, rape under the color of law, torture or cruel, inhuman, or degrading treatment or punishment, and the flagrant denial of the right to life, liberty, or the security of person. If the conduct in question occurred during war time and was lawful under international humanitarian law – as would be the case with, for example, the intentional battlefield killing of uniformed enemy combatants – then it is not considered a gross violation of human rights. The departments’ interpretative approach draws from the definition of “gross violations of internationally recognized human rights” in Section 502B(d)(1) of the Foreign Assistance Act.
Even if the prohibition on assistance applies, the prohibition can be lifted if “appropriate remediation measures” have been taken with respect to the unit. The DoD-State joint policy on remediation explains the standard for remediation in more detail, but it generally requires that the perpetrators of the gross violation of human rights have been held accountable in a court of law or administrative tribunal and sentenced proportionate to the crime committed.
This model memo relies on public information about a recent case of torture (which is unlawful during either war and peacetime) caught on camera at Sde Teiman. While the implicated unit of the Israel Defense Forces (IDF) is likely not currently receiving DoD assistance, all units of the IDF are assumed to receive U.S. assistance via the State Department. Because of this, it is important for the departments to conduct a Leahy law analysis in tandem so the unit is not unlawfully funded by the State Department or in the future by DoD (i.e., it is added to a list of “tainted” units that are not eligible for assistance and that would, in theory, be communicated to Israel). More broadly, given the amount of publicly available information about the allegations at issue, this case helpfully illustrates how the law would faithfully be applied when credible information of a gross human rights violation is received by the departments.
I included annotations in red text to walk the reader through the model action memo and offer additional background information. While this is a case the Departments of Defense and State might be reviewing, the offices and roles listed in this model memo and the recommendations and actions ascribed to them are notional and not based on their actual positions related to this incident. To state the obvious, this model memo is not a U.S. government document and should not be treated as such.
The model action memo follows: