This week, Vermont Senator Bernie Sanders used a little-known, decades-old law to force the Senate to vote on whether to request an investigation of potential human rights abuses by Israel in its war against Hamas. The obscure process that Sanders used is known as Section 502B of the Foreign Assistance Act. The law allows Congress to request a mandatory human rights report from the State Department on a specified country. And if the State Department does not provide a report within 30 days of the request, U.S. security assistance to the target country stops.
While the resolution ultimately failed on January 16, it shows that Section 502B has the potential to become a powerful tool for forcing public discussion about alleged human rights and the United States’ role in facilitating them.
Joining the show to unpack how Section 502B works, along with its history and new efforts to use it, is John Chappell. John is an Advocacy & Legal Fellow at the Center for Civilians in Conflict (CIVIC). He’s an expert on Section 502B.
Show Notes:
This week, Vermont Senator Bernie Sanders used a little-known, decades-old law to force the Senate to vote on whether to request an investigation of potential human rights abuses by Israel in its war against Hamas. The obscure process that Sanders used is known as Section 502B of the Foreign Assistance Act. The law allows Congress to request a mandatory human rights report from the State Department on a specified country. And if the State Department does not provide a report within 30 days of the request, U.S. security assistance to the target country stops.
While the resolution ultimately failed on January 16, it shows that Section 502B has the potential to become a powerful tool for forcing public discussion about alleged human rights and the United States’ role in facilitating them.
Joining the show to unpack how Section 502B works, along with its history and new efforts to use it, is John Chappell. John is an Advocacy & Legal Fellow at the Center for Civilians in Conflict (CIVIC). He’s an expert on Section 502B.
Show Notes:
Paras Shah: This week, Vermont Senator Bernie Sanders used a little-known, decades-old law to force the Senate to vote on whether to request an investigation of potential human rights abuses by Israel in its war against Hamas. The obscure provision that Sanders used is known as Section 502B of the Foreign Assistance Act. The law allows Congress to request a mandatory human rights report from the State Department on a specified country and, if the State Department does not provide a report within 30 days of the request, U.S. security assistance to the target country stops.
While the resolution ultimately failed on January 16, it shows that Section 502B has the potential to become a powerful tool for forcing public discussion about alleged human rights abuses and the U.S. government’s role in facilitating them.
This is the Just Security Podcast. I’m your host, Paras Shah.
Joining the show to unpack how Section 502B works, along with its history and new efforts to use it, is John Chappell. John is an Advocacy & Legal Fellow at the Center for Civilians in Conflict (CIVIC). He’s an expert on Section 502B.
Hey, John, welcome to the show. Thanks so much for joining us today.
John Chappell: Thank you for having me. Really glad to be here.
Paras: Before we get into exactly how Section 502B works, can you help us to understand some of the history behind it? When did Congress pass this law, and what were some of the concerns that lawmakers were thinking through when they did so.
John: Yeah, absolutely. Thanks for this question. So, it's important to think to go back to the post-Vietnam War and post-Watergate era. This was a period where we saw a lot of congressional pushback to what some dubbed the “imperial presidency” — different aspects of presidential overreach, as Congress saw it, when it came to national security and foreign affairs. And so it was at this point that you started to see Congress passing framework legislation around national security powers, things like the War Powers Resolution, Case-Zablocki Act and the Arms Export Control Act and National Emergencies Act — all of this legislation that kind of today forms the basis for U.S. national security law and foreign affairs law.
And at the same time, the other big thing that was happening was that the antiwar movement that was in the streets and in the public sphere, during the Vietnam War, and also the other U.S. secret bombing campaign in Southeast Asia, basically came to Capitol Hill, and they contributed to this new prioritization of human rights in Congress. One place where that showed up in particular was a member of Congress named Don Fraser, was a Minnesota Democrat, and he had a long series of hearings on U.S. foreign policy and human rights that resulted in a lengthy report called Human Rights in the World Community. And the recommendations in that report ended up becoming the basis for Section 502B, which Congress passed and then strengthened over the years. And it was really a landmark accomplishment of this human rights revolution on Capitol Hill, and a big part of the reassertion of congressional oversight in the 1970s.
Paras: Okay, so as you mentioned, Section 502 was passed in this high watermark of concern for human rights and the implications of what a lot of people saw as a very muscular presidency. And fast forwarding several decades, why is it important that Congress exercises oversight of U.S. arms sales?
John: Well, the United States is the world's top arms exporter. The United States sells more weapons abroad than the next four countries combined. And unfortunately, a lot of the time, arms transfers pose high risks of civilian harm. And so, we've seen just in recent years U.S. weapons causing devastation for civilians and being used in possible war crimes in places like Yemen and Gaza.
And that's not the only negative consequence either. We also see that often governments use U.S. origin weapons to commit human rights abuses, contribute to corruption and armed violence and really act against U.S. interests in a lot of cases when it comes to unauthorized transfers or diversion. And so, because of that, it's really important that Congress pays attention to how and where U.S. weapons are used, and also exercises oversight when it has concerns about the negative consequences of U.S. arms transfers.
Paras: So Section 502B is part of that oversight process. How exactly does it work?
John: Sure. So, Section 502B has a few different tools that are included in it. And so, I'll run through the main ones. One that is familiar to a lot of folks who work on these issues is what I call the central prohibition of Section 502B, which says that the United States won't provide security assistance to any country the government of which engages in a consistent pattern of gross violations of human rights. And that applies to all countries that receive U.S. security assistance.
Gross violations of human rights is a defined term in the law. It's something that they lay out to include things like unjust attention and extrajudicial killings, and also other denial of the right to life or security. And so that's one part of Section 502B, but it also created — and not a lot of people know this — the annual Country Reports on Human Rights Practices that the State Department has to put out every year. So, this is one of the landmark pieces of research that the Department of State compiles each year. It was originally just applied to the recipients of U.S. security systems. But now, these are done for every country in the world, and that also came from Section 502B.
And then the last part, and the part that I think is most relevant to the recent vote on Senator Sanders’s resolution in the Senate, is Section 502B(c). I like to think of this as both a way to get more information, to follow up on the country reports, and also as a way to enforce U.S. legal standards when it comes to providing security assistance in arms sales, including that central prohibition in 502B that I mentioned.
Paras: Yeah, and for those who don't make a habit of reading the State Department's human rights Country Reports, these are dense documents. They're heavily footnoted, they use a lot of resources from the U.S. government's diplomats around the world and a lot of available data. So, they're nothing to sneeze at, right? These are extremely detailed reports that make factual conclusions about human rights around the world. How are these reports typically used? How do they inform U.S. policy?
John: Well, these reports are often the go-to resource when anyone in the U.S. government is looking to find out more about the human rights situation in a particular country. And they're put out every year. And so, it lets decisionmakers kind of establish trends and figure out what the issues of most concern are.
What we see in Section 502B(c) is this opportunity for Congress to dig in and ask more information about a country of particular concern. And so, that kicks off a process that's laid out in Section 502B, where first, Congress can request a report on human rights in a particular country, and that's a mix of elements that are that are laid out in this request and also aspects that are kind of universal boilerplate to every 502B(c) report. And so, a report can be requested either through a committee chair — the House Foreign Affairs Committee or the Senate Foreign Relations Committee chairs — or through a privileged resolution. So, privilege is an important thing to talk about here, because generally, when legislation is introduced, you have to wait in line, you have to wait your turn to get on the floor if you're a member of Congress. Privilege means you can actually force a vote without having to go through a committee, without having to do as much negotiation with leadership. And so, it really allows for a fast track to a spotlight on the floor to deal with an issue.
And then, after the request goes through, the State Department has 30 days to provide a report as requested. If a report isn't provided, then there's an automatic pause on security assistance to the target country until the report is provided. And this was established, kind of, as an enforcement mechanism for a Congress that was really concerned about hostility to human rights oversight, especially from Henry Kissinger, who played a really outsized role in U.S. foreign policy at the time. But, it's unlikely that this would be triggered these days, because of the ways that norms have changed.
Then, after reports provided the last possibility, is for a joint resolution disapproval. And that joint resolution of disapproval could make changes to U.S. security assistance to the target country, whether that's by making restrictions or conditions, cutting off certain aspects of aid, or even continuing assistance if it would otherwise be in violation of a U.S. law.
Wow. So, in theory, this part of Section 502 is a tiny provision that could carry a big punch. It both allows Congress to obtain information about potential human rights violations and actually to impose restrictions if they want to.
So, the last time the State Department actually provided a report under this section, under 502B(c), was all the way back in 1976 during the Ford administration. But this week, Senator Sanders introduced a resolution that was brought to the floor and voted on. Ultimately, it failed. But it was the first time this process of using a resolution to try to request a country report has ever been used. What do you think is the significance of that? What should we make of the fact that this tool has now been used, even if it was unsuccessful?
John: This is a really significant moment in Congress's exercise of its human rights oversight responsibilities. And so, what do I make of this? Well, I think that first, there was kind of a decline in awareness of Section 502B, starting in the 1980s. Like we talked about earlier, there was a lot of significance attached to the initial passage of Section 502B. It was a really important time in Congress's engagement in the human rights issues and foreign policy. And then it fell off the map.
So, there are a lot of tools that Congress has in the toolbox when it comes to arms transfers, human rights and civilian harm. Section 502B is one of those. It's been underused, especially powerful. But sometimes there are questions of, well, why can't Congress use one of the other tools that it has, that it’s used in recent years?
One example of that is the Leahy Law. The Leahy Law actually was kind of a successor to Section 502B’s central prohibition on security assistance to countries the government of which engaged in a consistent pattern of gross violations of human rights. Senator Leahy in the 1990s saw that this provision wasn't being enforced, and then decided to have a more kind of granular approach to a similar provision that said that no security assistance from the United States will go to any unit of foreign security forces that has engaged in a gross violation of human rights. And so, what we have with the Leahy Law is a unit by unit determination based on whether the unit has in the past committed a gross violation of human rights. And, it's also meant to promote accountability, because there is a process called remediation by which a unit can again receive assistance if the perpetrators of the human rights abuses have been brought to justice.
And then, the other tool is the Arms Export Control Act that comes up often, and the Arms Export Control Act was kind of the mechanism of choice when it came to congressional efforts to halt U.S. arms sales to the U.A.E. and to Saudi Arabia, when the Saudi-led coalition in Yemen was engaged in a bombing campaign that resulted in widespread civilian harm and possible war crimes. And so, at that point, many senators drew on this mechanism in the Arms Export Control Act that allows for a joint resolution of disapproval to block an individual arm sale. That's only possible for individual arm sales that are above a certain value threshold. That means that they have to be notified to Congress. And so, there are many below threshold sales.
Another challenge here is that because of a 1980 Supreme Court decision, it requires, basically, super majorities — two-thirds majorities in both chambers of Congress — to overcome an expected presidential veto for efforts to block an arm sale the president has approved. And so, we have the Leahy Law, which is unit specific and so it doesn't get at the large scale of U.S. security assistance to a particular country, and also the Arms Export Control Act, which while it is privileged, meaning that there is also a fast track to a vote, only applies to individual sales, and so doesn't have the same forward-looking impact that a resolution under Section 502B could have.
Because of that, I think there's a real gap when it comes to congressional oversight on human rights and civilian harm issues, and Section 502B can help fill that gap.
Paras: When it comes to Gaza, what are some of the concerns that analysts and experts who you've been talking with are seeing around the use of weapons provided by the United States?
John: Well, when explosive weapons are used in populated areas, about 90% on average of the victims are civilians, and there are far reaching consequences for civilian lives, including because of the destruction of things like hospitals and schools, sanitation facilities, objects that are necessary to sustain civilian life. And unfortunately, the Israeli military is extensively using explicit weapons in Gaza, which is one of the most densely populated places on earth. And that's contributing to the humanitarian catastrophe that we are witnessing today. And many of the explosive weapons being used in Gaza by the Israeli military are from the United States. They’re apparently being provided without substantial conditions, and we're seeing continued transfers of things like tank shells, artillery, shells, bombs, all of which are being used, it appears, in urban areas.
And so, in December, the Biden administration twice bypassed congressional review, using an emergency waiver that's available in the Arms Export Control Act. But this was a real concern, because it's the first time that the emergency has been used twice in quick succession like this since the Trump administration did emergency transfers to Saudi Arabia and the United Arab Emirates in the context of the war in Yemen. And so, because of that, congressional oversight to protect civilians in Gaza has never been more urgent, and the 502B vote that happened this week will hopefully just be the beginning.
Paras: This has been so helpful. We really appreciate your expertise on this. And we'll be tracking all of these issues at Just Security. John, thanks again for joining the show.
John: Thank you so much for having me. It's always a pleasure.
Paras: This episode was hosted and produced by me, Paras Shah, with help from Clara Apt. Our theme song is “The Parade” by Hey Pluto.
Special thanks to John Chappell. You can read all of Just Security’s coverage of the Section 502B and Congressional oversight, including John’s analysis, on our website. If you enjoyed this episode, please give us a five star rating on Apple Podcasts or wherever you listen.