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Conditioning U.S. Security Assistance on Human Rights Practices

Published online by Cambridge University Press:  27 February 2017

Stephen B. Cohen
Stephen B. Cohen*
Affiliation:
Georgetown University Law Center
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Extract

The level of parliament depends on whether it does not merely discuss great issues, but decisively influences them; in other words, its quality depends on whether what happens there matters, or whether parliament is nothing but the unwillingly tolerated rubber stamp of a ruling bureaucracy.

Max Weber

In the United States, with its government of separated powers and functions, it is the executive branch, and in particular the Department of State, that bears responsibility for implementing legislation on foreign relations. The success of implementation will depend on political decisions, involving competing national interests, as well as on institutional and personal considerations of the officials concerned. Inevitably, there is a gap between legislation and execution, especially when the Executive is not wholly sympathetic to the law. The gap may even devour legislated policies as the Executive refuses "to take Care that the Laws be faithfully executed," and bureaucratic and personal considerations distort judgments, exploit the generality and uncertainty of language, and lead to abuse of discretion. A notable instance of this problem has been executive implementation of legislation on international human rights.

Type
Research Article
Information
American Journal of International Law , Volume 76 , Issue 2 , April 1982 , pp. 246 - 279
Copyright
Copyright © American Society of International Law 1982

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References

1 Weber, M., Parliament and Government in a Reconstructed Germany, in 2 Economy and Society 1392 (1978)Google Scholar.

2 U.S. Const, art. II, §3.

3 See Lillich, R. & Newman, F., International Human Rights: Problems of Law and Policy (1979)Google Scholar; Sohn, L. & Buergenthal, T., International Protection of Human Rights (1973)Google Scholar.

4 At the same time, Congress also enacted legislation to establish human rights criteria for programs of economic aid. For example, under section 116 of the Foreign Assistance Act of 1961, the President may not provide development assistance “to the government of any country which engages in a consistent pattern of gross violations of internationally recognized human rights.” 22 U.S.C. §2151n (Supp. III 1979). For a comprehensive review of all the human rights legislation enacted since 1973, see Weissbrodt, , Human Rights Legislation and U.S. Foreign Policy, 7 GA. J. Int’l & Comp. L. 231 (1977)Google Scholar. For a catalog of all statutes on human rights and foreign policy, see R. Lillich, U.S. Legislation Relating Human Rights to U.S. Foreign Policy (1980) (available from International Human Rights Law Group, Washington, D.C.).

5 Congressional Research Service, United States Arms Transfer and Security Assistance Programs: Prepared for the Subcomm. on Europe and the Middle East of the House Comm. on International Relations, 95th Cong., 2d Sess., at xi (Comm. Print 1978) [hereinafter cited as CRS, Security Assistance Study].

6 See UNITED Nations Association, United States Foreign Policy and Human Rights 68 (1979); CRS, Security Assistance Study, supra note 5, at 6.

7 See Newsom, , Our Arsenal Must Include Our Values, Wash. Star, April 2, 1981, at A13 Google Scholar, cols. 2–3; Whitaker, , Rights and Realpolitik, N.Y. Times, Feb. 24, 1981, at A19,Google Scholar col. 4; Cohen, , Wrong on Human Rights, New Republic, Marc 28, 1981, at 13ߝ14 Google Scholar.

8 See Syrkin, , Can a Human Rights Policy Be Consistent?, in Human Rights and U.S. Foreign Policy 200, 202, 212 (Brown, P. & MacLean, D. eds. 1979)Google Scholar.

9 22 U.S.C. §2304 (Supp. III 1979).

10 Id. subsection (a)(2).

11 Id. subsection (c)(1)(C).

Section 502B contains, in addition to the basic rule, a number of other provisions:

1. Subsection (a)(1) states that “a principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries.”

2. Subsection (a)(2) also prohibits the sale of certain equipment to the police of a government engaged “in a consistent pattern of gross violations of internationally recognized human rights.”

3. Subsection (a)(3) directs the President to formulate and conduct programs of military aid and arms sales in a way that “will promote and advance human rights and avoid identification of the United States . . . with governments which deny to their people internationally recognized human rights.”

4. Subsection (b) requires the Secretary of State to submit to Congress each year a report on human rights conditions in each country to which the United States proposes to give military aid or sell arms.

5. Subsection (c) establishes a specific procedure by which Congress may reverse an executive decision to provide military aid or sell arms to a particular government.

6. Both subsections (b) and (c) state that, in implementing section 502B, the Secretary of State is to consult with a designated Department of State official, the Assistant Secretary for Human Rights.

7. Subsection (d) defines a number of terms, including the phrase “internationally recognized human rights.”

8. Subsection (e) provides that the President may furnish security assistance “to any country with respect to which the President finds that such a significant improvement in its human rights record has occurred as to warrant lifting the prohibition on furnishing such assistance in the national interest of the United States.”

9. Subsection (f) requires the President in allocating funds under chapter 22 or the Arms Export Control Act to “take into account significant improvements in the human rights record of recipient countries.”

12 For the best available account of the role of human rights in the foreign policies of the Nixon, Ford, and Carter administrations, see Cohen, R., Human Rights Decision-Making in the Executive Branch: Some Proposals for a Coordinated Strategy, in Human Rights and American Foreign Policy 212 (Kommers, D. & Loescher, G. eds. 1979)Google Scholar [hereinafter cited as R. Cohen, Human Rights).

13 For the two seminal works in this area, see Allison, G., Essence of Decision (1971)Google Scholar; Halperin, M., Bureaucratic Politics and Foreign Policy (1974)Google Scholar. In explaining policymaking in the bureaucratic process, Allison argues that “what happens is not chosen as a solution to a problem but rather results from compromise, conflict, and confusion of officials with diverse interests and unequal influence.” G. Allison, supra, at 162.

14 In recounting the implementation of section 502B, this report draws in part on the experience of the author in the Department of State during the Carter administration as one of those responsible for enforcement of section 502B. Although every effort has been made to check his recollections with those of others, the history inevitably reflects his own views and bias. It would not be possible to write on this subject without relying to a significant degree on the personal accounts of those who served in the executive branch. Information that indicates how section 502B was applied to specific questions is, in general, not available to the public. The decisions were made in private within the Department of State, they were rarely publicized by the executive branch, and only on occasion did Congress use its oversight role to elicit detailed explanations of them. The internal Government documents that do furnish a written record will not be publicly available for a number of years, and at any rate, this record is incomplete and to some extent misleading. Some decisions were never recorded at all and the record of others was designed, not to describe accurately the decisions or how they were made, but to place them in the best possible light.

Allison provides a good account of the problem:

Information about the details of differences in perceptions and priorities within a government on a particular issue is rarely available. Accurate accounts of the bargaining that yielded a resolution of the issue are rarer still. Documents do not capture this kind of information. What the documents do preserve tends to obscure, as much as enlighten. . . . As a master of this style of analysis has stated, “If I were forced to choose between the documents on the one hand, and late, limited, partial interviews with some of the principal participants on the other, I would be forced to discard the documents.”

Allison, supra note 13, at 181 (quoting Richard Neustadt).

15 R. Cohen, Human Rights, supra note 12, at 220–21; T. Franck & E. Weisband, Foreign Policy by Congress 85 (1979); Congressional Research Service, Human Rights and U.S. Foreign Assistance: Prepared for The Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 84–85 (Comm. Print 1979) [hereinafter cited as CRS, Human Rights Study].

16 Nomination of Henry A. Kissinger: Hearings Before the Senate Comm. on Foreign Relations, 93d Cong., 1st Sess. 117 (1973).

17 Foreign Assistance Act of 1973, §32, 87 Stat. 733 (1973).

18 Ibid.

19 Fiscal Year 1975 Foreign Assistance Request: Hearings Before the House Comm. on Foreign Affairs, 93d Cong., 2d Sess. 280–81 (1974).

20 Letter from Robert S. Ingersoll to the Honorable Thomas E. Morgan (June 27, 1974), reprinted in id. at 284–86.

21 See generally International Protection of Human Rights, The Work of International Organizations and the Role of U.S. Foreign Policy: Hearings Before the Subcomm. on International Organizations and Movements of the House Comm. on Foreign Affairs, 93d Cong., 1st Sess. (1974).

22 See Generally Subcomm. on International Organizations and Movements of the House Comm. on Foreign Affairs, Human Rights in the World Community: A Call for U.S. Leadership, 93d Cong., 2d Sess., at 9–11 (Comm. Print 1974) [hereinafter cited as Fraser Report].

23 See generally Fraser Report, supra note 22. at 17–45.

24 Id. at 9–10.

25 Id. at 11.

26 Foreign Assistance Act of 1974, §46, 88 Stat. 1815 (1974) (current version at 22 U.S.C. §2304 (Supp. III 1979)).

27 Ibid.

28 Under the 1974 version of the statute, security assistance was defined to include “assistance under chapter 2 (military assistance) . . . [and] sales under the Foreign Military Sales Act.” Foreign Assistance Act of 1974, §46, 88 Stat. 1816 (1974) (currently codified at 22 U.S.C. §2304(d)(2) (Supp. III 1979)).

29 Id. §46, 88 Stat. 1815 (currently codified at 22 U.S.C. §2304(a)(1) (Supp. III 1979)).

30 International Security Assistance Act of 1976: Hearings of the House Comm. on International Relations, 94th Cong., 1st & 2d Sess. 207–08 (1976) [hereinafter cited as 1976 Act Hearings].

31 U.S. Dep’t of State, Report to the Congress on the Human Rights Situation in Countries Receiving U.S. Security Assistance (1975), reprinted in Foreign Assistance Authorization Arms Sales Issues: Hearings Before the Subcomm. on Foreign Assistance of the Senate Comm. on Foreign Relations, 94th Cong., 1st Sess. 377 (1976). Representative Fraser is quoted as having found “the report to be primarily a defense of the State Department’s apparent intention not to comply with the law.” Gwertzman, U.S. Blocks Human Rights Data, on Nations Getting Arms, N.Y. Times, Nov. 19, 1975, at 1, col. 1, 14, col. 4.

32 See 1976 Act Hearings, supra note 30, at 498–500.

33 122 Cong. Rec. 9587–88 (1976).

34 H. R. Rep. No. 94–848, 94th Cong., 2d Sess. 15 (1976).

35 President’s Message to the Senate Returning S. 2662 Without His Approval, 12 Weekly Comp. of Pres. Doc. 826, 828 (May 7, 1976).

36 International Security Assistance and Arms Export Act of 1976, §301, 90 Stat. 748 (1976) (current version at 22 U.S.C. §2304 (Supp. III 1979)).

37 S. Rep. No. 94–876, 94th Cong., 2d Sess. 14–15 (1976).

38 Foreign Relations Authorization Act, Fiscal Year 1978, §109, 91 Stat. 846 (1977) (current version at 22 U.S.C. §2384 (Supp. III 1979)). The statute provides in part:

(f)(1) There shall be in the Department of State an Assistant Secretary for Human Rights and Humanitarian Affairs who shall be responsible to the Secretary of State for matters pertaining to human rights . . . in the conduct of foreign policy. The Secretary of State shall carry out his responsibility under section 502B . . . through the Assistant Secretary.

(f)(2) The Assistant Secretary of State for Human Rights and Humanitarian Affairs shall maintain continuous observation and review of all matters pertaining to human rights . . . in the conduct of foreign policy, including—

. . .

(c) making recommendations to the Secretary of State . . . regarding compliance with . . . section [502B].

22 U.S.C. §2384 (f)(1)–(f)(2) (Supp. III 1979). In its report on this legislation, the Senate Foreign Relations Committee explained the rationale for revising the statute:

Human rights issues . . . have clearly acquired an increased importance in the conduct of U.S. foreign policy, and this provision will serve to give additional stature to the State Department official charged with primary responsibilities in this area. The committee would expect this new Assistant Secretary to be supported by such Deputy Assistant Secretaries and staff as are commensurate with the rank of Assistant Secretary.

S. Rep. No. 95–194, 95th Cong., 1st Sess. 16 (1977), reprinted in [1977] U.S. Code Cong. & Ad. News 1625, 1638.

39 See Foreign Assistance Legislation for Fiscal Year 1978 (Part 1): Hearings Be/ore the House Comm. on International Relations, 95th Cong., 1st Sess. 27 (1977) (remarks of Rep. Fraser) (committee expects that, if it refrains from intervening, new administration will not lapse into business–as–usual approach of predecessors); id. at 29 (remarks of Rep. Harrington) (administration must support rhetoric with action).

40 22 U.S.C §2304(a)(2) (Supp. III 1979).

41 H. R. Rep. No. 95–1546, 95th Cong., 2d Sess. 27 (1978), reprinted in [1978] U.S. Code Cong. & Ad. News 1868, 1874.

42 On some occasions, Congress has passed amendments that name specific countries. When the amendment does not name targeted countries, Congress reduces the overall aid request by a specific dollar amount and explains in committee reports how the cut is to be applied to specific countries.

43 In 1976 Congress amended section 502B to establish yet another method for it to reverse executive decisions to “provide security assistance” to a specific country. Under section 502B(c)(1), Congress initiates the reversal by requesting a report from the Secretary of State that indicates the country’s human rights practices and whether extraordinary circumstances require a continuation of security assistance to it. Section 502B(c)(4)(A) provides that after receiving the report, “Congress may adopt a joint resolution terminating . . . [or] restricting security assistance for a country.”

Curiously, this additional procedure is so cumbersome and ineffective that it has been initiated only rarely and never has it been carried beyond the opening steps. Not once during Carter’s term did Congress use section 502B(c) to challenge an executive decision. The procedures were invoked only in 1976 during the last year of the Ford administration. At that time, the House Foreign Affairs Committee requested reports for six countries (Argentina, Haiti, Peru, Iran, Indonesia, and the Philippines), but took no additional steps once the reports were received. Thus, no joint resolution to terminate security assistance has ever been proposed or voted on under section 502B(c)(4). See U.S. Dep’t of State, Human Rights and U.S. Policy: Argentina, Haiti, Indonesia, Iran, Peru, and the Philippines, Reports Submitted to the House Comm. on International Relations, 94th Cong., 2d Sess. (Comm. Print 1976) (setting forth congressional requests and State Department’s responses).

44 Foreign Assistance Act of 1974, §25, 88 Stat. 1802 (1974).

45 Congress provided that South Korea could receive only $145 million in military aid in fiscal year 1975 unless the President provided a report to Congress “stating that the government of South Korea is making substantial progress in the observance of internationally recognized standards of human rights.” Id. §26(a). If the President submitted the report, South Korea could receive an additional $20 million in military aid. Id. §26(b).

46 International Security Assistance and Arms Export Control Act of 1976, §406, 90 Stat. 758 (1976). At the end of 1981, the embargo was replaced with a directive that no security assistance be provided to Chile unless the President first certifies, inter alia, that the Government has made “significant progress in complying with international human rights.” International Security Development Cooperation Act of 1981, Pub. L. No. 97–113, §726. A similar provision was enacted for Argentina. Id., §725.

47 Pub. L. No. 94–441, 90 Stat. 1473 (1976).

48 Under the appropriations bill for military aid for fiscal year 1978, Congress prohibited the Executive from providing military sales credits to Argentina, Brazil, El Salvador, Guatemala, and Uruguay. Pub. L. No. 95–148, §503, 91 Stat. 1239 (1977).

49 Under the International Security Assistance Act of 1978, Congress also eliminated military training assistance to Paraguay and Nicaragua, but in doing so it did not name them specifically in the legislation. The conference report explained:

The Committee of conference agreed (1) to avoid naming specific countries in the statute, and (2) to cut the international military and education training account by $300,000—the exact amount which had been programmed for both Nicaragua and Paraguay.

The elimination of references to specific countries should not be interpreted as approval of the human rights practices in either Nicaragua or Paraguay. This bill already contains a clear and concise prohibition on grant military training to any country which engages in a consistent pattern of gross violations of internationally recognized human rights.

H. R. Rep. No. 95–1546, supra note 41, at 31, [1978] U.S. Code Cong. & Ad. News at 1878.

50 See note 48 supra.

51 Under the appropriations bill for security assistance for fiscal year 1978, Congress appropriated $18.1 million in military aid grants, $1.85 million in military sales credits, and $700,000 in military training funds for the Philippines. Pub. L. No. 95–148, supra note 48, §503C. The administration had requested $20 million in military sales credits and $800,000 in military training funds. U.S. Dept of State, Congressional Presentation for Security Assistance Program FY 1978, at 4 (1977).

52 International Security Assistance Act of 1977, §11, 91 Stat. 619–20 (1977), as amended by International Security Assistance Act of 1978, §12(c)(1), 92 Stat. 737 (1978). The embargo was repealed at the end of 1981. See note 46 supra.

53 Under the International Security Assistance Act of 1979, which provided the security assistance authorization levels for fiscal year 1980, Congress reduced the funds available to Zaire for military sales credit guarantees to $8 million from the $10 million requested by the administration. H. R. Rep. No. 96–495, 96th Cong., 1st Sess. 21 (1979), reprinted in [1979] U.S. Code Cong. & Ad. News 1682, 1688. Under the International Security and Development Cooperation Act of 1980, which established the authorization levels for security assistance for fiscal year 1981, Congress further reduced to 86 million the military sales guarantees for Zaire. See H. R. Rep. No. 96– 1471, 96th Cong., 2d Sess. 42 (1980), reprinted in [1980] U.S. Code Cong. & Ad. News 10,881, 10,886.

54 Morgan, , Panel Rebuffs U.S. Bid To Relax a Rights Sanction, Wash. Post, March 23, 1979, at A2, col. 3Google Scholar.

55 See Drew, , A Reporter at Large: Human Rights, New Yorker, July 18, 1977, at 36 Google Scholar.

56 Inaugural Address of President Jimmy Carter, 13 Weekly Comp. of Pres. Doc. 87, 88 (Jan. 24, 1977).

57 See generally M. Halperin, supra note 13, at 28–40.

58 See generally Silberman, , Toward Presidential Control of the State Department, Foreign Affairs, Spring 1979, at 872 CrossRefGoogle Scholar; Krizay, , Clientitus, Corpulence, and Cloning at State: The Symptomatology of a Sick Department, Policy Rev., Spring 1978, at 39 Google Scholar. Krizay states: ‘“Good relations’ or ‘warm relations’ are often thought of as an objective to be protected from the threat of domestic interest rather than as an instrument for furthering them.” Krizay, supra, at 42.

59 See Silberman, supra note 58, at 882. Silberman states:

Inevitably . . . a Foreign Service officer has a tendency toward what is referred to in the State Department as “clientism,” a term which suggests overemphasizing the interests of a foreign country (as defined by the governing elite) vis-a-vis the broader interests of the United States. “Good relations” between the host country and the United States (often at our expense) become an end in themselves without sufficient regard to U.S. geopolitical and geostrategic interests.

Ibid. Another author prefers the term “clientitus.” See Krizay, supra note 58, at 43. In Krizay’s view, “[c]lientitus is widely recognized as one of the State Department’s most unfortunate characteristics. Simply defined, it refers to a tendency to look upon the country or countries within an office’s geographic responsibilities as ‘clients’ deserving special attention.” Ibid.

60 See M. Halperin, supra note 13, at 62. In Halperin’s view, “[c]areer officials . . . often develop their position largely by calculating the national interest in terms of organizational interests of the career service to which they belong.” Ibid.

61 See Silberman, supra note 58, at 883. Silberman states: “The other kind of risk typically eschewed by career officers is too vigorous a defense of American interests because such behavior can lead to relative unpopularity with the nation or group of nations in which the officer specializes. . . .” Ibid.

62 See M. Halperin, supra note 13, at 85–86. Halperin states: “The desire for promotion will lead a career official to support the interests of the organization of which he is a member, since he recognizes that promotion will, in large measure, depend on the individual being seen as advancing the interest of his organization.” Ibid.

63 W. Macomber, Diplomacy for the 1970’S: A Program of Management Reform for the Department of State 21–22 (1970). Krizay makes the same point: “The annual Officer Evaluation Report, virtually to the exclusion of all else, determines the officer’s career. As a consequence, each officer goes to great lengths to please his superior. . . . A kind of blind loyalty results, reinforcing and exacerbating all the evils of the Department’s organization.” Krizay, supra note 58, at 49.

64 Halperin indicates that, in general, “when . . . legal requirements are not compelling, participants will obey the rules if they feel that the advantages of disobeying or ignoring the rules . . . will in the long run be outweighed by the adverse consequences of having once ignored the rules.” M. Halperin, supra note 13, at 110.

65 In Halperin’s view, “[c]oncern with organizational interests inclines participants to refuse to report or to concede facts. . . .” Id. at 144. See also CRS, Human Rights Study, supra note 15, at 92.

66 Kamm, , The Silent Suffering of East Timor, N.Y. Times, Feb. 15, 1981, §6, at 35 Google Scholar; Kohen, , Invitation to a Massacre in East Timor, The Nation, Feb. 7, 1981, at 136 Google Scholar.

67 In its 1979 human rights report, the State Department described attempts to estimate the number killed by Argentine security forces, often referred to as the “disappeared”:

The most carefully recorded and documented list of unexplained disappearances, compiled by the Permanent Assembly for Human Rights in Buenos Aires, contains about 6,500 cases for the period 1976 to 1979. Some estimates, however, run considerably higher. The Mission of the New York City Bar Association . . . considers a figure of 10,000 as more accurate, while Amnesty International asserts that 15–20,000 persons have disappeared.

U.S. Dep’t of State, Country Reports on Human Rights Practices for 1979, Report Submitted to the Senate Comm. on Foreign Relations and the House Comm. on Foreign Affairs, 96th Cong., 2d Sess. 239 (Joint Comm. Print 1980). See generally Human Rights and the Phenomenon of Disappearances: Hearings Before the Subcomm. on International Organizations of the House Comm. on Foreign Affairs, 96th Cong., 1st Sess. (1979).

68 See Cohen, S., Who Lost Iran: Revising Revisionist History, Wash. Post, Sept. 20, 1980, at D2 Google Scholar, cols. 3–4 [hereinafter cited as S. Cohen, Who Lost Iran].

69 See ibid.

70 Ibid.

71 In 1981, the State Department’s annual human rights report to Congress noted that the Zairian legislative assembly, which was “[q]uite active during 1979 and early 1980, . . . has since been reined in by the President.” U.S. Dep’t of State, Country Reports on Human Rights Practices: Report Submitted to the Senate Comm. on Foreign Relations and the House Comm. on Foreign Affairs, 97th Cong., 1st Sess. 310 (Joint Comm. Print 1981). Instead of merely reining in the assembly members, President Mobutu actually indicated to the members that if they continued to discuss forbidden subjects, he would silence them forever.

72 As a representative of the Department of State, the author attended a conference of American Philippine scholars held at Eastern Michigan State University in May 1980. At that conference, he interviewed many of these scholars, all of whom expressed great surprise upon learning that some policymakers considered Marcos’s threat credible.

73 In one notable case, career officials in the Bureau for the Near East did question a plan to offer the Pakistani regime of Marshal Zia nearly a half–billion dollars in military aid. They were concerned about the extensive repression practiced by Zia and the resulting disaffection of large numbers of his people. Their sensitivity to the human rights factor had been heightened by the fall of the Shah of Iran a few months earlier and the intense hostility of Iranians toward the United States for supporting the Shah. These officials did not want to support yet another highly unpopular regime, this time in Pakistan, and produce a repetition of the Iran fiasco. Notwithstanding these qualms, the Carter administration ultimately decided to provide Pakistan with $400 million in economic and military assistance. Oberdorfer, , Pakistan Offered $400 Million Aid, Wash. Post, Jan. 15, 1980, at A1 Google Scholar, col. 1. President Zia, however, dismissed this proposed assistance as “peanuts.” Auerbach, , Pakistan Seeking U.S. Guaranties in Formal Treaty, id., Jan. 18, 1980, at A1 Google Scholar, col. 6 (quoting President Zia).

74 Cf. Crs, Human Rights Study, supra note 15, at 66 (predisposition of many officials in some regional bureaus to downplay human rights violations has made it important for human rights office to develop its own sources of information).

75 See Fraser Report, supra note 22, at 13. Additionally, Fraser recommended that a human rights officer be assigned to each regional bureau and that an Assistant Legal Adviser on Human Rights be appointed in the Legal Adviser’s Office at the State Department. Ibid.

76 International Security Assistance and Arms Export Control Act of 1976, §301 (a), 90 Stat. 750 (1976) (current version at 22 U.S.C. §2384 (Supp. III 1979)).

77 R. Cohen, Human Rights, supra note 12, at 219–20.

78 See note 38 supra (describing change in statute and rationale underlying it).

79 During the Carter administration, the bureau, which began with a small staff, gradually expanded to about 20 persons, including 3 Deputy Assistant Secretaries and 12 human rights officers. Each human rights officer had primary responsibility for either a region, such as Africa, or a functional area, such as security assistance.

80 Congress specifically acted to increase the stature of the head of the Human Rights Bureau. See S. Rep. No. 95–194, supra note 38, at 16, [1977] U.S. Code Cong. & Ad. News at 1638.

81 Cf. CRS, Human Rights Study, supra note 15, at 2 (regional bureaus often argued against direct use of foreign assistance leverage but were generally opposed by Bureau of Human Rights).

82 In its efforts, the Bureau of Human Rights was aided by the requirement of section 502B(b) that the Secretary of State submit to Congress each year “a full and complete report . . . with respect to practices regarding the observance of and respect for internationally recognized human rights in each country proposed as a recipient of security assistance.” 22 U.S.C. §2304(b) (Supp. III 1979). In theory, the reports provide information concerning human rights practices in foreign countries, upon which Congress can evaluate the extent to which security assistance conforms with section 502B(a)(2). In practice, however, members of Congress have access to information from an array of outside sources on which they rely.

The more important function of the reports was that they forced the career bureaucracy to pay attention to human rights issues and thus mitigated, to a limited degree, its clientist tendencies. Foreign Service officers had to focus on human rights abuses that they might otherwise have chosen to overlook. In the process of gathering information, they sometimes had to speak with political dissidents and victims of repression, which exposed them to other points of view and helped to counteract their tendency to associate only with high officials in power.

83 M. Halperin, supra note 13, at 245.

8 4 M. Eccles, Beckoning Frontiers 336 (1951).

85 See generally Drew, supra note 55.

86 See generally Kirkpatrick, , Dictatorships and Double Standards, Commentary, Nov. 1979, at 34–45 Google Scholar.

87 Walsh, , Carter Asserts Human Rights Is “Soul of our Foreign Policy,” Wash. Post, Dec. 7, 1978, at A2 Google Scholar, col. 4.

88 Cf. CRS, Human Rights Study, supra note 15, at 2, 6. The Congressional Research Service concluded that “there was great reluctance formally to identify governments that engaged in consistent patterns of gross violations of . . . human rights. . . . The administration has avoided identifying countries as gross and consistent violators of human rights. . . . “ Ibid.

89 Halperin makes this point clear:

At the top levels of the American government the belief is held that anything of importance . . . will be leaked to the press by some participant unhappy with the drift of presidential decisions. Because this belief is so widely held, it tends to influence significantly the way issues are handled in the executive branch. Often an option under consideration will be rejected on the grounds that it could not be implemented before it was leaked and not successfully implemented unless put into effect before it leaked.

M. Halperin, supra note 13, at 192–93.

90 The Congressional Research Service concluded: “Specificity with respect to principles guiding human rights initiatives . . . has been seen by some as threatening to unduly limit flexibility in application of policy. Indeed, strong arguments can be made for the benefits of vagueness in policy definition where policy evolution and change seem likely.” CRS, Human Rights Study, supra note 15, at 49.

91 Cf. ibid, (explicit identification of specific countries strongly resisted at high levels within Department of State).

92 In 1978 Congress acquiesced in this practice of refusing to make public such a list. The conference report on the 1978 legislation transforming section 502B into a binding legal requirement also explained that Congress did not “intend to require the executive branch to publicly identify those countries which it considers to be consistent violators.” H.R. Rep. No. 95–1546, supra note 41, at 27, [1978] U.S. Code Cong. & Ad. News at 1874.

93 The Congressional Research Service concluded on the basis of extensive interviews with Carter administration officials that “each case . . . seemed to be reviewed on its own merit, and individual decisions did not seem to produce principles on which subsequent cases could be decided.” CRS, Human Rights Study, supra note 15, at 2. It further noted that “[t]he case-by-case approach followed by the Administration, combined with the reluctance to articulate—indeed, apparently even to formulate—principles of sufficient specificity to guide individual decisions, contributed to congressional concern.” Id. at 3.

94 By the end of 1978, in the view of the Congressional Research Service, “[o]ur interviews suggest that the most intense period of bureaucratic conflict over human rights has now passed and that ways have recently been sought for reducing the amount of time and attention required for managing human rights decisions.” Id. at 67.

95 In the view of the Congressional Research Service, “these patterns have evolved out of a continuing—and often highly contentious—set of incremental policy struggles between competing elements of the foreign policy decisionmaking structure.” Id. at 66.

96 In addition, there is a statutory bar. Except in exceptional circumstances, the President may not provide Communist countries with security assistance. 22 U.S.C. §2370(f) (1976).

97 International Security Assistance and Arms Export Control Act of 1976, §406, 90 Stat. 758, as amended by International Security Assistance Act of 1978, §§10(b)(5), 12(c)(5), 92 Stat. 735, 737 (1978).

98 Under General Assembly Resolution 2624, the United Nations called upon its member nations to implement fully the provisions of Security Council Resolution 282 in light of the apartheid practices of the Government of South Africa. GA Res. 2624 (XXV) (1970). Under Resolution 282, the Security Council called upon the member states of the General Assembly fully to embargo the supplying of arms, spare parts, and any forms of military assistance to the Government of South Africa. SC Res. 282, 25 UN SCOR at 12, UN Doc. S/INF/25 (1970). The United States had already instituted such an embargo, prior to 1970. In 1963, President John F. Kennedy announced that the United States unilaterally would not sell arms to South Africa as long as it practiced apartheid. A. Schlesinger, Jr., A Thousand Days 583 (1965).

99 22 U.S.C. §2304(d)(1) (Supp. III 1979) (emphasis added). Under the International Security and Development Cooperation Act of 1980, Pub. L. No. 96–533, §701(b), 94 Stat. 3156 (1980), Congress added a clause on “disappearances” because “[disappeared persons currently constitute one of the most serious gross violations of human rights and of the principle of the Universal Declaration of Human Rights.” H.R. Rep. No. 96–884 (pt. 1), 96th Cong., 2d Sess. 54 (1980), reprinted in [1981] U.S. Code Cong. & Ad. News 10,815, 10,870.

100 Under Representative Gross’ amendment, security assistance could not be provided or defense articles sold to a country until “the President certifies to the Congress that such country is satisfactorily observing internationally recognized standards of human rights with respect to its citizens.” 120 Cong. Rec. 39,135 (1974). The House of Representatives rejected the amendment by voice vote. Id. at 39,137.

101 U.S. Dep’t of State, Report on Human Rights Practices in Countries Receiving U.S. Aid: Report Submitted to the Senate Comm. on Foreign Relations and the House Comm. on Foreign Affairs, 95th Cong., 2d Sess. 360–63 (Joint Comm. Print 1979).

102 See supra note 66.

103 In response to a specific congressional inquiry, the Department of State asserted that the new Government in El Salvador was attempting to curb human rights violations by the military. See Letter from J. Brian Atwood, Assistant Secretary for Congressional Relations, to the Honorable Matthew F. McHugh (Oct. 22, 1980) (copy on file with the author). For a critique of this position, see Americans for Democratic Action, Security Assistance and El Salvador: What the Law Says (unpub., copy available from Americans for Democratic Action, Washington, D.C.).

104 Cf. CRS, Human Rights Study, supra note 15, at 39 (most officials seem to agree that countries such as Korea, the Philippines, and Iran have violated certain internationally recognized human rights); id. at 58–59 (governmental policies of widespread killings and torture are widely seen as repugnant; such conditions have existed in Chile, Argentina, Uruguay, and Nicaragua at times during past 5 years).

105 See 80 Dep’t State Bull., No. 2042, Sept. 1980, at 71 (statement of Edmund S. Muskie, Secretary of State) (United States terminating military assistance to emphasize concern about recent coup d’état in Bolivia).

106 Early on, Secretary of State Vance announced that the administration would continue to provide security assistance to South Korea, the Philippines, and Indonesia, despite section 502B, for reasons of national security. Gwertzman, , U.S. Cuts Foreign Aid in Rights Violations; South Korea Exempt, N.Y. Times, Feb. 25, 1977, at A1 Google Scholar, col. 6.

After Ronald Reagan won the presidential election in November 1980, the Human Rights Bureau compiled a report on the statutory human rights provisions and the policies and procedures under which they had been implemented during the Carter administration. In the security assistance section, the report stated: “Military assistance including weapons sales is denied to countries whose governments torture, summarily execute, and/or arbitrarily imprison appreciable numbers of their citizens, unless national security interests nonetheless dictate such assistance. Examples of the latter exceptions: Indonesia, the Philippines, South Korea and Zaire.” U.S. Dep’t of State, Project Legacy, Tab F, at 3 (1981) (emphasis added) (copy on file with the author).

107 Cf. Anderson, , Argentina Is No Ally, N.Y. Times, Aug. 2, 1980, at A21, cols. 1–3 Google Scholar.

108 See generally Cohen, S., Who Lost Iran, supra note 68 Google Scholar.

109 See generally Cohen, S., Keeping An Unpopular Despot at Arm’s Length, Wash. Post, Feb. 22, 1981, at C4, cols. 1–6 Google Scholar.

110 Fraser Report, supra note 22, at 9 (emphasis added).

111 See 22 U.S.C. §2304(c)(1)(C)(ii) (Supp. III 1979).

112 Under 22 U.S.C. §2304(d)(2) (Supp. III 1979), security assistance is defined to include grant military aid “sales of defense articles or services, extensions of credits . . . , and guarantees of loans under the Arms Export Control Act.”

113 See Foreign Assistance Legislation for Fiscal Year 1978 (Part 1): Hearings Before the House Coram, on International Relations, 95th Cong., 1st Sess. 1–34 (testimony of Cyrus Vance, Secretary of State); Oberdorfer, , In Rights Push, Vance Asks Cuts– in 3 Nations’ Aid, Wash. Post, Feb. 25, 1977, at A6 Google Scholar, col. 4. In response, Argentina’s military Government denounced the Carter administration’s decision to reduce the military aid package. De, Onis, Argentina Says Carter Interferes, N.Y. Times, March 1, 1977, at A6 Google Scholar, col. 1. The Government of Argentina ultimately decided to reject the proposed military assistance. De, Onis, Argentina and Uruguay Reject U.S. Assistance Linked to Human Rights, id., March 2, 1977, at A10 Google Scholar, col. 5.

114 Each year prior to Congress’s consideration of the authorization and appropriation bills for military aid for the upcoming fiscal year, the Department of State submits to Congress a “Congressional Presentation Document,” which details the administration’s request for military aid grants and military sales credits. To review the Carter administration’s requests in fiscal years 1978 through 1981, see U.S. Dep’t of State, Congressional Presentation for Security Assistance Program FY 1978 (1977); Congressional Presentation for . . . FY 1979 (1978); Congressional Presentation for . . . FY 1980 (1979); Congressional Presentation for . . . FY 1981 (1980).

115 See note 105 supra.

116 Hoge, , Repression Increases in Guatemala as U.S. Is Seeking to Improve Ties, N.Y. Times, May 3, 1981, at 1, cols. 2–3 Google Scholar. See also Hoge, , Guatemala Keeps a Step Ahead of Rights Gunmen, N.Y. Times, May 4, 1981, at 2, col. 2 Google Scholar.

117 Morgan, , Panel Rebuffs U.S. Bid to Relax a Rights Sanction, Wash. Post, March 23, 1979, at A2 Google Scholar, col. 3.

118 See 22 U.S.C §2794(3) (1976).

119 Id. §2794(3)(A)–(B).

120 Id. §2794(4) and (7).

121 See U.S. Dep’t of State, A Review of U.S. Human Rights Policy and Application of Laws Affecting Security and Economic Assistance in Latin America (unpub. document on file with the author). The Assistant Secretary of State for Human Rights and Humanitarian Affairs, Patricia Derian, also confirmed this decision in a speech at Dade Community College in Miami, Florida, on Oct. 7, 1980.

122 See note 121 supra.

123 To review the levels of arms sold to Argentina, El Salvador, Guatemala, Paraguay, and Uruguay, see Defense Security Assistance Agency, Dep’t of Defense, Foreign Military Sales and Assistance Facts 1980, at 6, 34 [hereinafter cited as Military Sales And Assistance Facts].

124 See note 67 supra.

125 De, Young & Krause, , Our Mixed Signals on Human Rights in Argentina, Wash. Post, Oct. 29, 1978, at C1 and 2 Google Scholar, cols. 4–5, 1–2.

126 See supra note 67.

127 Military Sales and Assistance Facts, supra note 123, at 6, 34.

128 See text accompanying and note 52, supra. In its initial draft, the embargo legislation was to have become effective 1 year earlier, on Oct. 1, 1977. The congressional sponsors agreed to defer the effective date for 1 year after the Department of State complained that a statutory ban (which could be changed only by new congressional action) would destroy its ability to respond quickly to changed conditions. The Department promised, in return, that no arms sales would be approved in the interim unless Argentina first demonstrated significant human rights progress. The approval of a large volume of sales during the year before the cut–off date, without any such progress, violated this explicit understanding between the Executive and members of Congress.

129 See, e.g., Human Rights in the Philippines, Recent Developments: Hearings Before the Subcomm. on International Organizations of the House Comm. on International Relations, 95th Cong., 2d Sess. (1978).

130 See International Security Assistance Act of 1978, §6(a), 92 Stat. 731 (1978).

131 T. Franck & E. Weisband, supra note 15, at 32–33.

132 Ibid.