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Ensuring Effective Democratic and Human Rights Benchmarks for U.S. Foreign Aid

A more effective and consistent approach would be if Congress establishes a commission made up of human rights and democracy experts, half chosen by the administration and half chosen by Congress, with the entire group subject to Senate confirmation, to judge whether countries have met the benchmarks.

In recent decades, there has been a tug of war between the executive and legislative branches of the U.S. Government on conditionality of foreign aid.

The executive branch, regardless of political party, usually wants no conditionality so as not to encumber bilateral relationships, whereas Congress often wants to add benchmarks as a way of steering countries toward more democratic paths. Congress, which has been given the “power of the purse” under the U.S. Constitution, also wants to safeguard its prerogatives and adding conditionality to foreign aid appropriations is an example of this power.

The problem is that one person’s interpretation of what constitutes progress (or lack thereof) on democratic or human rights benchmarks can be another person’s opposite conclusion. In the contact sport that is Washington politics, this means that the executive branch can cherry pick certain policies of a foreign government that it favors to claim that a particular country is meeting the benchmarks.

In the 1980s, for example, when Congress imposed conditionality on military aid to El Salvador, requiring the president to certify every six months that the Salvadoran government was implementing “essential economic and political reforms” and was “holding free elections” among other requirements for aid to be disbursed, it was highly controversial. According to the scholar James Lindsay in his book Congress and the Politics of U.S. Foreign Policy, President Ronald Reagan “repeatedly provided the required certification, even though many observers doubted whether El Salvador had met any of the conditions.”

Concerning some MENA countries in more recent years, Congress has frequently applied conditionality on part of the military aid package to Egypt, for example, only to see it flouted by the administration. This comes in two forms. One, the administration pressures Congress to add a “national security waiver” to the legislation having conditionality, or two, the administration stretches its interpretation of a country’s progress on human rights and democracy to claim the country in question has met the benchmarks.

Neither of these tactics is satisfactory. The inclusion of the national security waiver in essence negates the will of Congress to impose conditionality on aid because the administration can always find some argument to say a particular country is important for U.S. security. And given the authoritarian nature of most Middle Eastern regimes, an administration’s claim that a friendly country is “progressing” on the democracy and human rights front is often incredulous given that the “evidence” flies in the face of what human rights organizations, as well as the State Department’s own human rights bureau, has been reporting.

If one looks at U.S. military aid to Egypt (usually 1.3 billion USD annually) in recent years, Congress has often applied human rights and democracy benchmarks to the aid, in addition to other conditions. In the FY 2019 Omnibus Act, there was a provision that the U.S. would withhold 300 million USD of the 1.3 billion until the Secretary of State certified that Egypt was taking effective steps to advance democracy and human rights. But the act also included a national security waiver.

Because of the blatant repression in Egypt, the State Department took the “national security waiver” approach this year. In justifying the use of the waiver, Secretary of State Mike Pompeo notified Congress in August that it needed to do so because of Egypt’s “war on terror” and other strategic considerations like access for U.S. Navy ships transiting through the Suez Canal. But even Pompeo’s State Department acknowledged that “Egypt continues to restrict the right of peaceful assembly, freedom of association, and freedom of expression.”

Friendly authoritarian countries like Egypt thus have been reassured that, even though benchmarks are an annoyance, they can be overcome by these measures. Hence, there is little incentive to reform.

A more effective and consistent approach would be if Congress establishes a commission made up of human rights and democracy experts, half chosen by the administration and half chosen by Congress, with the entire group subject to Senate confirmation, to judge whether countries have met the benchmarks. The initiative would have to come from Congress, and there would surely be pushback from the administration, but there is precedent for the idea of such a commission.

With the end of the Cold War, U.S. military officials and thoughtful members of Congress understood that it was a waste of resources to keep many military bases open in the United States. However, whenever a base was recommended for closure, the member of Congress from that district would strongly object and use whatever maneuvers he or she could muster to block the closure.

To overcome this problem, in 1990 Congress passed what became known as the BRAC (Base Realignment and Closure) process. It goes like this: the Secretary of Defense makes recommendations to a commission (nine members appointed by the White House and confirmed by Congress), on the closure of bases. The commission then reviews the recommendations and accepts or amends them and sends its findings to the President who then reviews them, and either sends them back to the commission for additional work or forwards them to Congress. After a short window of time, the recommendations then go into effect unless disapproved by a joint resolution of Congress.

In the case of human rights and democratic benchmarks tied to aid, the proposed commission would evaluate whether a particular country is meeting them or not, and send its assessment to the president. Although the president would have the prerogative of sending the assessment back to the commission, any aid money to a particular country would not be disbursed until the commission and the president agree. This would pressure the administration, as opposed to Congress, to bend to the consensus of the commission, as the president would usually not want to hold up aid to a country indefinitely. With the commission in place, Congress would then have more backbone to resist pressure from the administration to add a national security waiver to foreign aid legislation.

The commission proposal would also have the benefit of putting authoritarian governments on notice that conditionality on foreign aid must be taken seriously. In other words, if such governments want U.S. aid to continue in full, then they must take meaningful steps to address human rights and democracy deficits.

Creating such a commission would not be easy, but the end process will reflect more of the will of Congress which has ultimate authority on appropriations, including foreign aid.