IG says Pentagon backed Afghan units involved in ‘gross violations of human rights’

The Pentagon has used a loophole in law to continue training, equipping and otherwise assisting Afghan security force units that have committed “gross violations of human rights,” according to a previously classified report released Tuesday.

A law known as the Leahy Law bans the U.S. government from assisting foreign forces that have been found to commit gross human rights violations, but exceptions can be made for national security reasons under the so-called notwithstanding clause.

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“Although DOD [Department of Defense] and State have confirmed that some units of the Afghan security forces have committed gross violations of human rights, the Secretary of Defense has used the notwithstanding clause in the DOD Appropriations Acts to continue providing [Afghanistan Security Forces Fund] funding for select training, equipment, and other assistance to some implicated units in Afghanistan,” the Special Inspector General for Afghanistan Reconstruction (SIGAR) wrote in the report released Tuesday.

SIGAR’s investigation was requested by 93 members of Congress after news reports alleged a Pentagon policy kept U.S. troops from reporting when Afghan police and militia officials sexually assaulted children in a practice known as “bacha bazi” — or “boy play.”

U.S. troops were allegedly punished when they did report the abuse. The SIGAR investigation was completed in June, but classified until this month.

In December 2015, according to the report, the undersecretary of Defense for policy approved using the notwithstanding clause to allow the Pentagon to continue providing assistance to 12 Afghan security force units implicated in 14 reported gross violations of human rights incidents in 2013.

None of those incidents involved allegations of child sexual assault, according to the report.

Despite the exception, the Pentagon did withhold $212,120 for U.S.-based training, site improvements, minor construction and transportation for trainees, the report added. Those activities were deemed “not essential to U.S. force protection, U.S. mission and national security objectives, and potential [Afghan forces] investigations into further” violations, according to the report.

For another nine units implicated in human rights violations in 2014, the commander of U.S. Forces-Afghanistan recommended the Pentagon use the notwithstanding clause to continue providing funding except for U.S.-based professional training, minor site improvements and construction and transportation services.

The report recommends Congress consider eliminating the notwithstanding clause, which the Senate Appropriations Committee has proposed doing in the fiscal 2018 appropriations bill.

But the Pentagon pushed back, saying it would take away “flexibility” in balancing the Leahy Law with national security objectives.

“The draft report does not fully convey the unique and difficult challenges of implementing the Leahy law in Afghanistan consistent with both the U.S. commitment to human rights and U.S. national security objectives in Afghanistan,” Pentagon official Jedidiah Royal wrote in a response included in the report. “In particular, the draft report does not reflect an understanding of the challenges faced by U.S. forces in Afghanistan in developing and sustaining the Afghan National Defense and Security Forces.”

Outside of the implementation of the Leahy Law, the report notes that investigators found no evidence that U.S. forces were told to ignore human rights abuses or child sexual assault. But, it added, U.S. Forces-Afghanistan did not issue clear guidance and require training on reporting child sexual abuse until a September 2015 New York Times report on the issue. 

The Pentagon’s inspector general likewise investigated the issue, and in a November report, said it found no formal guidance discouraging reporting child sexual abuse.