US special forces are not required to investigate past human rights abuses by foreign troops they arm and train as surrogates, newly declassified documents show.
While the loophole in the rules governing review of an anti-terrorism program has previously reported based on anonymous sources, the documents provide official confirmation. Under the program, US commandos pay, train and equip foreign partner forces and then send them on kill-or-capture operations.
The documents, including two sets of directives obtained by the New York Times through a Freedom of Information Act lawsuit, also show a similar gap in another Pentagon surrogate force program for so-called irregular warfare. It aims to disrupt nation-state rivals via operations that fall short of full armed conflict—including sabotage, hacking, and information campaigns such as propaganda or covert efforts to shape morale.
While the Pentagon is more open about security cooperation where it helps allies and partners expand their own capabilities, it rarely discusses its use of surrogates, or the foreign troops that special operations forces work with to achieve specific U.S. goals. The documents open a window on how the programs work and what rules govern them.
Proxy forces are an increasingly important part of American foreign policy. Over the past decade, the U.S. has increasingly relied on supporting or replacing local partner forces in places like Niger and Somalia, moving away from deploying large numbers of U.S. ground troops as it did in Iraq and Afghanistan.
While the strategic shift is intended to reduce the risk of American casualties and blowback from being seen as occupiers, training and arming local forces creates other dangers.
The revelations underscored a need for stricter rules on proxy powers, argued Representative Sara Jacobs, D-Calif. “We must ensure that we are not training abusive units to become even more lethal and fuel the conflict and violence that we seek to resolve,” she said. “And that starts with universal human rights review.”
Last year, she and Senator Chris Van HollenDemocrat of Maryland, sponsored an amendment to a defense bill to require human rights review of surrogate forces passed the House but not the Senate. She said she planned to introduce a more comprehensive bill to tighten such rules.
A senior Defense Department official, speaking on condition of anonymity to discuss sensitive operations, said all members of a proxy force were already subject to extensive screening to ensure they would not attack or spy on US forces. The official argued that vetting was sufficient to weed out bad actors.
Lt. Col. Cesar Santiago-Santini, a Pentagon spokesman, said in a statement to The Times that the department had found “no verifiable gross violations of human rights” by participants in any of the proxy programs.
Katherine Yon Ebrightan advisor at the Brennan Center for Justice at New York University’s law school who has written critically about both programsaid Pentagon officials have sent mixed signals about whether surrogate forces are being scrutinized for past human rights abuses, with current and former officials sometimes contradicting each other.
“It’s very helpful now to have these internal policies in hand that definitively show that human rights review is not required,” Ebright said. “It’s been frustrating, the more you know about this, because of the mixed messages and the opacity.”
The Pentagon is very secretive about its proxy forces.
In February, the National Accounting Office made a report titled “Special Operations: Comprehensive Guidance Needed to Monitor and Assess the Use of Surrogate Forces to Combat Terrorism,” but everything about it beyond its title is classified. (The Times is requesting a declassification review under the Freedom of Information Act.)
The Pentagon also will not disclose a comprehensive list of partner forces and the countries in which they operate. The Defense Department official said the list is classified primarily because of its sensitivity to partners, referring to situations where a foreign government has agreed but wants to keep its participation quiet for its own domestic policy reasons.
The documents obtained by The Times include directives for two programs named after the laws that authorize them. The Section 127e program, commonly referred to as “127 Echo,” can spend up to $100 million a year on counterterrorism proxies. The Section 1202 program is authorized to spend up to $15 million per year on surrogates for irregular warfare.
The rules outline the process by which special operators propose the development of a new partner force, which is ultimately up to the Secretary of Defense. The State Department’s chief of mission in the affected country — if there is one — must also agree, but the rules do not require consulting the secretary of state in Washington. The programs cannot be used for covert operations.
The laws creating the two programs do not provide independent operational authority, the documents say. They do not describe the scope and limits to which the programs can be targeted.
For the counterterrorism program, the proxy force must be used against an adversary deemed subject to the authorization for the use of military force passed by Congress after the Sept. 11, 2001, attacks, the senior Defense Department official said. The executive branch has interpreted that law as a legal basis for waging an armed conflict against Al Qaeda, the Islamic State and the Somali militant group Al Shabab.
It is unclear whether the program has always been limited to groups covered by the force authorization. Reporting by The intercept and Politico have suggested the Pentagon may have used the program to support a force in Cameroon fighting both an ISIS affiliate and Boko Haram, a group not considered covered by the authorization. However, some Boko Haram members also have ISIS links.
The irregular warfare program has provided training to allied forces in countries facing the threat of invasion by larger neighbors, the senior Defense Department official said. Washington Post have reported that an irregular warfare proxy program in Ukraine ended shortly before the Russian invasion, and that some officials want to restart it.
The directives also outline the vetting that allied partners must undergo before US taxpayers pay their salaries and put weapons and specialized military equipment, such as night vision goggles, into their hands.
Screening includes collecting people’s DNA; analyze phone call logs, travel history, social media posts and social contacts; check local and national registries for defamatory information; and conduct security interviews. Leaders who come into greater contact with U.S. troops and learn more about their plans must also undergo behavioral health interviews and lie detector tests.
But the purpose of this review is to detect counterintelligence risks and potential threats to US forces. The directive does not mention violations of human rights – such as rape, torture or extrajudicial killings.
The Irregular Warfare Directive is less detailed in terms of review. But it expressly states, “The provision of support under section 1202 is not contingent upon successful claims for human rights as defined in” a statute with a rule known as the Leahy Law.
Leahy Law, named after former Senator Patrick Leahy, Democrat of Vermont, prohibits security assistance to units of foreign militaries or other security forces that have a history of gross human rights abuses. (The law does not cover non-state forces, such as a tribal militia.)
Still, Col. Santiago-Santini, the Pentagon spokesman, said in his statement that the department was “confident that our vetting system for Section 127e and 1202 programs would reveal any potential human rights concerns of potential recipients.”
At first, the Pentagon’s version of the Leahy Act applied only to training. But in 2014, Congress expanded that to provide equipment and other assistance. But in a memo that year signed by Defense Secretary Chuck Hagel and obtained by The Times separately from the intelligence document, the Pentagon declared that the Leahy Act did not apply to counterterrorism surrogates.
The memo said that enabling proxy forces to help special forces fight terrorism is “not helpful” to the foreigners. This purported distinction—building proxy forces to help the United States achieve its goals is legally distinct from helping foreign partners build their own security capabilities—is contested.
One critic of that theory is Sarah Harrison, who worked as a Pentagon lawyer from 2017 to 2021 and is now at the International Crisis Group, where she has called for human rights review of surrogate forces. She argued that the Pentagon’s narrow interpretation of the Leahy Act is “a dishonest reading of the plain text and intent of Congress.”