Prohibitions on assistance in the FAA and AECA:

"Security assistance" means defense articles, training or services provided under the FAA and AECA.

Most U.S. security assistance carries legal prohibitions that can prevent the U.S. government from providing military and police aid to particular countries. The most rigorously conditioned security assistance programs are those governed by the Foreign Assistance Act of 1961 (P.L. 87-195), as amended (hereafter referred to as the "FAA") and the Arms Export Control Act (P.L. 90-269), as amended (hereafter called the "AECA"). These programs, most of which make up what is traditionally known as "security assistance," include:

• Sales of defense articles, training and services under the Foreign Military Sales (FMS) and Direct Commercial Sales (DCS) programs (Section 524 FAA; Sections 21-40A, AECA);
• Funding of FMS purchases through the Foreign Military Financing (FMF) program (Section 23 AECA);
• Drawdowns of defense articles, training and services (Section 506 FAA);
• Grants and sales of Excess Defense Articles (EDA) (Section 516 FAA);
• Leases of defense articles (Sections 61-64 AECA);
• Funding of training through the International Military Education and Training (IMET) program (Sections 541-546 FAA);
• Counternarcotics assistance through the State Department's International Narcotics Control (INC) program (Sections 481-490 FAA); and
• Economic-aid grants under the Economic Support Fund (ESF), which is often placed within the "security assistance" category (Sections 531-534 FAA).

Overall Eligibility:

Not surprisingly, the law forbids the provision of security assistance that would do harm to U.S. interests. In order even to be considered for security assistance under the FAA and AECA, a country must pass a few basic tests.

1. The President must determine that assistance to the country "will strengthen the security of the United States and promote world peace" (Section 503 FAA, Section 3(a) AECA);
2. The President must also find that the country does not have "sufficient wealth to enable it ... to maintain and equip its own military forces at adequate strength without undue burden to its economy" (Section 503 FAA);
3. A country cannot receive more than $3 million in defense articles in one year unless the President determines that:
   • The country "conforms to the purposes and principles of the United Nations Charter";
   • The country will use the assistance for its own defensive strength;
   • The country "is taking all reasonable measures" to develop its own defense capacities; and
   • The country's ability to defend itself is important to U.S. security (Section 505(b) AECA);
4. The country must agree to keep the assistance from being used by anyone who is not an officer, employee, or agent of that country. It must agree not to transfer the assistance to a third country or to use the assistance for purposes other than those for which it was provided (Section 505(a) FAA);
5. The country must agree to guard the assistance it receives, guaranteeing "substantially the same degree" of security that the U.S. government provides its own articles and services (Section 505(a) FAA);
6. The country must agree that it will continuously allow the U.S. government to observe and review the country's use of the assistance, making necessary information available to U.S. officials;
7. Unless the U.S. government says otherwise, the country must agree to return assistance that is no longer needed for the purposes for which it was provided (Section 505(a) FAA);
8. The country's official policies or governmental practices must not prevent U.S. personnel from participating in the provision of assistance on the basis of race, religion, national origin or sex; and
9. If the U.S. government has determined that the country seriously violated the requirements listed above, sales and leases cannot go forward until the U.S. government certifies that:
   • Stopping the sale or lease would harm U.S. security; or
   • The violation has stopped, and the country has given "satisfactory" assurances that it will not happen again (Section 503 FAA, Section 3(c) AECA).

Narcotics Certification:

Since 1986, countries deemed eligible for security assistance can still be barred from receiving several forms of aid if they are "decertified" for failing to cooperate with counternarcotics efforts. 

Congressional notification of major drug-producing and drug-transit countries

Countries that the law classifies as "major illicit drug producing" and "major drug-transit" states are subject to certification decisions each year, as mandated by section 490 of the FAA. Countries with these classifications can avoid sanction if the U.S. government decides they have fully cooperated with U.S. counternarcotics efforts or have taken steps on their own against drug trafficking.

The law defines "cooperation" as:

• Meeting the goals and objectives of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances;
• Accomplishing the goals laid out in bilateral or multilateral counternarcotics agreements involving the United States, usually the result of diplomatic exchanges in late spring or early summer of the year before the certification decision; and
• Taking legal and law enforcement measures against government corruption -- especially that involving senior state officials -- which aids narcotics production and trafficking.

Presidential determination of certification

A country not defined as "cooperating" is "decertified." The President announces certification and decertification decisions on or before March 1 of each year. Sanctions against decertified countries include the following:

• Most forms of U.S. assistance for that country are cut off, and previously-granted assistance can be frozen. Humanitarian aid and counterdrug assistance managed by the State Department’s International Narcotics Control (INC) program are not cut off. Security assistance through the following programs may be suspended, though aid regarded as necessary for counternarcotics is generally delivered:
  • Direct Commercial Sales (DCS);
  • Emergency drawdowns of defense articles;
  • Excess Defense Articles (EDA);
  • Foreign Military Financing (FMF);
  • Foreign Military Sales (FMS);
  • International Military Education and Training (IMET);
  • Leased Defense Articles; and
  • Economic-aid grants under the Economic Support Fund (ESF).

  The law is not very specific about which aid programs must be cut off. This caused trouble after Colombia was decertified in 1996. The State Department and other Executive Branch agencies, citing "interagency legal concerns as well as differences within the State Department," took about eight months to decide what aid could and could not be provided to Colombia.

• The U.S. representatives at multilateral development banks (World Bank, Inter-American Development Bank, and others) must automatically vote against all loans or grants to that country.
• The President also has the option of exercising "discretionary" trade sanctions, such as the removal of trade preferences and suspension of quotas.

National interest waiver

These punishments may be waived, however, if the U.S. government determines that the national interest depends on delivery of the assistance. A "national interest waiver" must be accompanied by:

• A written description of the vital national interests that would be placed at risk by decertification; and
• A statement weighing the risk to national interests against that posed by the country's failure to combat narcotics trafficking.

Congressional power to overturn certification decisions

Within thirty days, Congress may approve a joint resolution to overturn the President’s certification decision.

These sanctions remain in effect until a country is recertified. Decisions to recertify a country must be accompanied by a description of improvements made since the original decertification decision. These improvements may include either a change of government in the country in question, or a fundamental change in conditions since the original decertification decision was made.

Many Latin American leaders and analysts strongly criticize the certification process, citing its unilateral nature and its failure to acknowledge the lack of U.S. progress in controlling domestic demand for drugs.

Human Rights:

Section 502B of the FAA, enacted in 1974 and strengthened in 1976, seeks to block security assistance to governments that engage "in a consistent pattern of gross violations of internationally recognized human rights." After first requesting a State Department report on the human rights situation in a given country, Congress may terminate security assistance to that country by approving a joint resolution.

Programs affected by section 502B include:

• Direct Commercial Sales (DCS);
• Emergency drawdowns of defense articles;
• Excess Defense Articles (EDA);
• Foreign Military Financing (FMF);
• Foreign Military Sales (FMS);
• International Military Education and Training (IMET);
• Leased Defense Articles;
• Economic-aid grants under the Economic Support Fund (ESF); and
• Peacekeeping and antiterrorism assistance.

Section 502B is rarely invoked to cut off assistance.

Exceptions

If the President certifies in writing to the Speaker of the House and the Senate Foreign Relations and Banking, Housing, and Urban Affairs Committees that "extraordinary circumstances" exist, section 502B permits the following types of assistance to be delivered despite a congressional ban:

• Security assistance to police, domestic intelligence, or similar law-enforcement forces;
• Licenses for the export of crime control and detection equipment; and
• International Military Education and Training (IMET).

Process for reversal

A country whose aid was suspended under section 502B can have the suspension reversed if the President finds that its human rights situation has improved significantly. When doing so, the President must report the following to Congress:

• The country involved;
• The amount and kinds of assistance to be provided; and
• The justification for providing the assistance, including a description of the significant improvements in the country's human rights record.

Police training:

Section 660 of the FAA prohibits the use of security-assistance funds to train, advise or offer financial support to foreign police forces, prisons, internal intelligence programs other law enforcement forces. Programs which cannot pay for police training include the following:

• International Military Education and Training (IMET);
• Foreign Military Financing (FMF);
• Emergency drawdowns;
• Economic-aid grants under the Economic Support Fund (ESF); and
• Peacekeeping and anti-terrorism assistance.

Note that the above programs may provide equipment to police forces; the prohibition only applies to training.

Exceptions

Numerous exceptions to section 660 exist. The following types of police training are permitted:

• Training in maritime law enforcement and other maritime skills;
• Training of police forces participating in the regional security system (RSS) of the Eastern Caribbean;
• Training related to the monitoring and enforcement of sanctions;
• Training provided to help rebuild civilian police authority in post-conflict societies;
• "Professional public safety training," which includes training in human rights, the rule of law, anti-corruption, and "the promotion of civilian police roles that promote democracy";
• Training in countries which have longstanding democratic traditions, do not have standing armed forces, and do not engage in consistent patterns of gross human-rights violations; and
• The Justice Department's International Criminal Investigative Training Assistance Program (ICITAP), authorized by section 534(b)(3) of the FAA. ICITAP carries out the following:
  • Training in investigative and forensic functions;
  • Assistance in the development of law-enforcement instruction and curricula;
  • Programs to improve administrative and management capabilities; and
  • Multilaterally-managed programs to improve prisons.

Foreign police may also be trained by programs authorized by laws other than the Foreign Assistance Act. Defense Department counternarcotics training for foreign police forces, for instance, is authorized by section 1004 of the 1991 National Defense Authorization Act.

Property claims:

Section 527 of the 1994 Foreign Relations Authorization Act prohibits assistance to the government of a country that has confiscated the property of U.S. citizens, unless that government has taken certain "remedial steps." In Latin America, this measure has been applied to Nicaragua, where the Sandinista government of the 1980s confiscated some properties belonging to U.S. citizens (many of whom were Nicaraguan citizens when the confiscations took place). Section 527 has never cut off aid to Nicaragua, though; every July since the measure's inception, before it would take effect for the following year, the Secretary of State has issued a national interest waiver allowing aid -- most of it economic aid -- to continue flowing.

Other Prohibitions in the FAA and AECA:

The FAA and AECA contain several other measures that can prevent a Latin American or Caribbean country from receiving security assistance.

• The present government of Cuba cannot receive any assistance. Before assistance can go to a future Cuban government, Cuba must compensate U.S. citizens who were at least one-half owners of expropriated property -- unless the U.S. government finds that it is in the U.S. interest to provide assistance (Section 620 (a)(1-2), FAA);
• No assistance can go to countries which do not pay money owed to U.S. citizens for goods and services, in cases where (1) the country does not deny or contest that the debt exists and (2) all legal means for pursuing retribution have been exhausted (Section 620(c), FAA);
• Countries are ineligible for assistance if, after 1962:
  • They nationalized, expropriated, or seized property owned by U.S. citizens or corporations without payment; or
  • They broke agreements or contracts with U.S. citizens or corporations without compensation (Section 620(e), FAA);
• Communist countries cannot receive assistance unless the President finds that:
  • The assistance is vital to U.S. security;
  • The country "is not controlled by the international Communist conspiracy"; and
  • The assistance will promote the country's independence from international Communism (Section 620(f), (h), FAA);
• Countries which have severed diplomatic relations with the United States are ineligible for security assistance until relations resume (Section 620(t), FAA);
• Countries are excluded from receiving assistance if they support international terrorism, assist the governments of countries that support terrorism, or provide military equipment to the governments of countries that support terrorism. These prohibitions can be overturned by Presidential national interest waivers (Section 620A, 620G and 620H, FAA);
• Countries that restrict the delivery of U.S. humanitarian assistance cannot receive aid unless the President submits a national interest waiver (Section 620I, FAA); and
• Arms sales and licenses are not to be granted to governments that engage "in a consistent pattern of acts of intimidation or harassment directed against individuals of the United States" (Section 6 AECA).

The following are not prohibitions, but issues that must be "considered" or "taken into account" when making security-assistance decisions:

• A country's seizure or penalization of U.S. fishing vessels in international waters (Section 620(o) FAA);
• The country's defense budget as a proportion of total budget and foreign-exchange revenue (Section 620(s) FAA); and
• The status of the country's dues and arrears with the United Nations (Section 620(u) FAA).

2001 Foreign Operations Appropriations:

Congress assigns funds for the security-assistance programs in the FAA through a yearly appropriations bill. The "Foreign Operations, Export Financing, and Related Programs of [Year] Act," as the appropriations bill is always named, contains its own eligibility requirements. These are in effect only during the fiscal year for which aid is appropriated.

Eligibility requirements in the 2001 appropriations bill (Foreign Operations, Export Financing and Related Programs Appropriations Act, 2001, November 6, 2000 [H.R. 4811, Public Law 106-429; incorporates H.R. 5526]) which affect Latin American or Caribbean countries include the following.

IMET and FMF for Guatemala:

The 2001 Foreign Operations law renews a prohibition on Foreign Military Financing (FMF) and International Military Education and Training (IMET) assistance for Guatemala’s security forces in 2001. Guatemala remains eligible, however, to receive Expanded IMET assistance, which is open to civilians and funds courses in defense resource management, doctrine, civil-military relations, human rights and related topics.

Sections 507 and 523 (Cuba):

Cuba appears on a list of seven countries worldwide (along with Iran, Iraq, Libya, North Korea, Sudan and Syria) prohibited from receiving direct or indirect assistance from any program funded through the Foreign Operations bill. (The People’s Republic of China appears in place of Iran on the list of countries that cannot receive indirect funding.)

Section 508 (Military Coups):

No assistance can be given to countries which have had their elected head of government ousted by a military coup or decree. Aid may resume once the President reports to the appropriations committees that a democratically-elected government has taken office.

Section 512 (Limitation on Assistance to Countries in Default):

Any country which is in default for more than a year on loans made under the FAA is barred from receiving assistance. However, this prohibition does not apply in 2000 to counternarcotics assistance to Colombia, Bolivia and Peru. (This prohibition is also known as the "Brooke Amendment," after its original sponsor, former Senator Edwin Brooke (R-MA). It is very similar to section 620(q) of the FAA.)

Section 527 (Countries That Support Terrorism):

Section 527 prohibits the provision of aid to countries which the President determines to be granting sanctuary to terrorists or otherwise supporting international terrorism. The President may waive this prohibition, notifying the Appropriations Committees fifteen days in advance, if he determines that it is necessary for national security or humanitarian reasons.

Section 530 (Peru)

The Secretary of State must issue a report every 90 days during 2001 determining “whether the Government of Peru has made substantial progress in creating the conditions for free and fair elections, and in respecting human rights, the rule of law, the independence and constitutional role of the judiciary and national congress, and freedom of expression and independent media.” The report, first due on February 4, 2001, must be submitted to the House and Senate Appropriations Committees.

If the report finds that substantial progress has not been made, section 530 prohibits further assistance to the Peruvian government.

Section 558 (Haiti)

Aid to Haiti is prohibited until the Secretary of State reports to the House and Senate Appropriations Committees that

(1) Haiti has held free and fair elections to seat a new parliament, and
(2) The director of the White House Office of National Drug Control Policy (or “Drug Czar”) reports to the committees that Haiti’s government is fully cooperating with U.S. drug interdiction efforts.

Section 564 (Limitation on Assistance to Security Forces):

Frequently referred to as the "Leahy Law" after its sponsor, Sen. Patrick Leahy (D-VT), this provision was first included in the 1997 Foreign Operations bill (P.L. 104-208).

The Leahy Law prevents a unit of a foreign security force from receiving U.S. assistance if:

• Credible evidence exists that the unit's members have committed gross violations of human rights; and
• Effective measures are not being taken to bring the responsible members of the unit to justice.

A similar provision was added to the 2001 Defense Appropriations bill, applying the Leahy language to foreign military training programs funded through the defense budget (such as "section 1004"-funded training or Special Forces deployments).

Assistance not restricted by the FAA and AECA:

The executive branch has means at its disposal to avoid the above-mentioned prohibitions. The FAA gives the President a broad power to waive its provisions. Furthermore, programs authorized by Defense Department funding bills are legally separate from the FAA and AECA -- the prohibitions in the FAA and AECA do not apply.

"614 Waiver"

Section 614 ("Special Authorities") of the FAA allows the President to override any of the prohibitions discussed in the preceding sections. The President may furnish security assistance without regard to FAA and AECA restrictions after notifying the Speaker of the House and the Chairman of the Senate Foreign Relations Committee "that to do so is important to the security interests of the United States."

The 614 waiver carries weak limitations. Deliveries resulting from its use cannot exceed $750 million in sales and $250 million in grants in a single fiscal year. No single country may receive more than $50 million in grants unless it is a victim of active aggression, in which case it may not receive more than $500 million in sales and grants.

Activities of the Department of Defense

Section 8092 of the 2001 Defense Appropriations Bill (Training and Other Programs)

The prohibitions found in the FAA and AECA do not apply to programs funded through the defense budget. However, section 8092 of the 2001 Defense Appropriations bill contains a version of the "Leahy Law" included in the past few years' Foreign Operations Appropriations bills. The "Leahy Law" restricts assistance to units of foreign security forces that abuse human rights with impunity.

Section 8092 prohibits the use of defense-budget funds to train foreign military units whose members have committed gross violations of human rights, unless "all necessary corrective steps" have been taken. The State Department is to provide the Defense Department with information about abusive foreign units.

Unlike the Foreign Operations version of the Leahy Law, however, the Defense Appropriations version applies exclusively to training programs, excluding other forms of military assistance such as equipment transfers.

Programs funded through the defense budget, and subject to Section 8092, include:

• Counternarcotics programs. The Defense Department provides counter-drug assistance to foreign countries through accounts authorized by section 1004 of the 1991 National Defense Authorization Act and section 1033 of the 1998 National Defense Authorization Act.
• Training funded by Defense Department accounts. The defense budget pays for some training of Latin American and Caribbean security forces. U.S. Special Operations Forces, for instance, conduct training activities throughout the region using their own resources. The choice of countries in which they operate is not circumscribed by legislation.
• Center for Hemispheric Defense Studies. The CHDS, a newly-established facility at the National Defense University, offers education in defense management and civil-military relations to civilian and military officials with defense responsibilities. As part of the National Defense University, the CDHS is not affected by FAA and AECA restrictions.
• Joint Combined Exchange Training. Though the primary purpose of the Special Forces' JCET program is to train the U.S. units involved, current policy calls for vetting of unit members with whom the training is to take place.

As Section 8092 only applies to training programs whose primary purpose is to train foreign forces, the following activities are exempt from its limitations.

• Exercises and deployments. The U.S. Southern Command deploys about 56,000 troops a year to Latin America and the Caribbean, while carrying out 20-25 major exercises. While training is not technically given through these activities, no limitations exist to prohibit countries or units from participating.
• Military-to-military contact programs. Latin American and Caribbean militaries, regardless of their eligibility for security assistance, participate in regular "foreign military interaction" activities, including exchanges, conferences, defense attaché activities, and less formal contact.
• Defense Export Loan Guarantee program. The DELG program, which insures private lenders who finance sales of defense articles, is authorized by section 2540 of Title X, U.S. Code. Western Hemisphere countries cannot currently participate in the DELG program. The law does, however, permit the participation of countries that were major non-NATO allies as of March 31, 1995. In mid-1997, Argentina became the first country in the hemisphere to be granted major non-NATO ally status; a small change in the law would permit Argentina and future hemispheric non-NATO allies to participate in the DELG program.