Note: This is not an official U.S. Government Document.

This is an example of what a Department of

Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

MODEL MEMORANDUM FOR UNDER SECRETARY OF DEFENSE FOR POLICY

FROM: Notional Deputy Assistant Secretary of Defense for Global Partnerships [None of the
positions in this memo reflect actual positions taken by U.S. government components or
officials.]

SUBJECT: Department of Defense (DoD) Leahy Law and Israel Defense Forces Unit “Force
100”

 Purpose. The Notional Deputy Assistant Secretary of Defense for Global Partnerships is
responsible for application of Title 10, U.S. Code, Section 362, also referred to as “the DoD
Leahy law” (TAB A). [Defense Department memos that require principals to make a decision
are called “action memos” and often have multiple tabs to provide the principal with all
relevant information. A typical DoD Leahy law memo would attach the full text of the law
and all relevant Defense Department guidance and policy on implementation of the law.]
There is credible information the Israel Defense Forces (IDF) unit “Force 100”, while
operating in Israel’s Sde Teiman prison, committed a gross violation of human rights, which
implicates the DoD Leahy law and prohibits DoD-funded assistance to this unit.

 Background. The Secretary of Defense’s August 18, 2014 (TAB B) and February 10, 2015
(TAB C) memoranda provide departmental guidance on the application of the DoD Leahy
law to units of foreign security forces that receive or could potentially receive DoD-funded
assistance. [These two Secretary of Defense guidance memos set out Department of Defense
procedures to implement the DoD Leahy law, including detailed procedures on application of
the law’s well-known remediation exception.] Our assessment, with input and agreement
from the Office of General Counsel and the Joint Staff and based on the available facts, is
that the DoD Leahy law and DoD policy (TAB A-TAB C) require the Notional Secretary of
Defense to prohibit DoD-funded assistance to “Force 100” unless an exception in the law or
the waiver is applied. [Although this memorandum asks for the Under Secretary of Defense
for Policy to apply statutory law, it would be presented for decision by policy officials rather
than lawyers in the Office of General Counsel. Setting aside debate about whether this is the
correct approach, while departmental lawyers provide legal advice before and during
coordination of action memos, in the executive branch it is generally policy officials who
ultimately decide how and whether to apply the law to any given set of facts.]

 The DoD Leahy law requires that no DoD funds be used for training, equipment or other
assistance for a unit of a foreign security force if the Secretary of Defense has credible
information that the unit has committed a gross violation of human rights. [The phrase
“training, equipment or other assistance” is statutory language that Congress did not define.
The Department defines it for purposes of the Leahy law in an attachment to the 2014
Secretary of Defense Memo, TAB B.]

 Credible information is a lower standard than what is required for civil or criminal
liability. The Department can look to the reliability of the source, the level of detail in

1
Note: This is not an official U.S. Government Document. This is an example of what a Department of
Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

the allegation, whether publicly available and classified information confirms or

contradicts the information, and the extent to which the security unit in question has
engaged in patterns of past abuse. [The Department of Defense uses this definition of
“credible information,” originally drafted by the Department of State, which is
provided at the link.]

 For the purposes of the DoD Leahy law, gross violations of human rights have the
same meaning as the definition provided in section 502B(d)(1) of the Foreign
Assistance Act of 1961. The definition includes torture or cruel, inhuman, or
degrading treatment or punishment, prolonged detention without charges and trial,
causing the disappearance of persons by the abduction and clandestine detention of
those persons, and other flagrant denial of the right to life, liberty, or the security of
person. DoD and the Department of State interpret this definition to include rape
under the color of law. [The Department of State has a separate Leahy law that
applies to assistance under the Foreign Assistance Act of 1961 and the Arms Export
Control Act. It is much older than DoD’s Leahy law. In order to maintain a consistent
practice of applying the similar laws, DoD has followed the Department of States’
lead in interpreting the text of the law and so also refers to subsection 502B(d)(1).]

 The DoD Leahy law is applicable during peace and times of armed conflict. If there is
credible information an incident occurred in the context of an armed conflict, and it is
determined that the incident is both a violation of the law of war and a gross violation
of human rights, then the DoD Leahy law applies. [The lawyers at the Departments of
State and Defense adopted this analysis to appropriately apply the different
frameworks of international human rights law and international humanitarian law/the
law of war.]

 There is credible information that several members of the Israel Defense Force unit “Force
100” raped and tortured a detainee in their custody. Leaked surveillance footage from late
July 2024 appears to show several members of the unit “Force 100” raping and torturing a
detainee in their custody in Sde Teiman prison—a prison with a reputation for maltreatment
of detainees, including by members of unit “Force 100,” as detailed by Israelis who worked
there and prisoners detained there; U.S. Embassy Jerusalem previously submitted a request
for information to Israel concerning several incidents at Sde Teiman. [Video footage of a
gross violation is never required to determine information is credible. In practice, however,
the Departments of State and Defense have imposed a high bar for credible information of a
gross violation of human rights if a unit of an Israel security force is involved. Separately,
evidence of a unit’s pattern of past abuse is helpful in determining whether information about
a gross violation of human rights is credible, which is why that information is provided here.]

 The victim was taken to a nearby hospital where doctors confirmed his injuries,
including a ruptured bowel, severe injuries to his anus, lung damage and broken ribs.
A medical official said the rectal injury was life-threatening and showed signs of a
foreign object being deeply inserted in the victim. On July 29, 2024, the Israel

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Note: This is not an official U.S. Government Document. This is an example of what a Department of
Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

Defense Forces held nine members of the unit for questioning related to the alleged
rape and torture of the detainee. There are charges against several of the members of
“Force 100,” but no indictment yet. The accused are reportedly trying to negotiate a
lesser charge.

 The rape and torture of a detainee held during an armed conflict are both violations of the
law of war and gross violations of human rights. Due to credible information that “Force
100” in the IDF committed a gross violation of human rights, DoD-funded assistance to that
unit should now be prohibited in accordance with the DoD Leahy law.

 “Force 100” is currently not receiving DoD-funded assistance. However, due to the nature of
the evolving conflicts in which Israel is a party, it is possible that more IDF units will be
identified for DoD training or other DoD-funded assistance. “Force 100” should be
considered a tainted unit—a unit prohibited under the DoD Leahy law from receiving DoD-
funded assistance—and that decision should be communicated to the components of DoD
responsible for ensuring no DoD-funded assistance goes to “Force 100”: the Notional
Commander of U.S. Central Command, through the Notional Chairman of the Joint Chiefs of
Staff, and the Notional Director of the Defense Security Cooperation Agency.

 Once a unit is prohibited from receiving assistance, it must meet an exception in the law to
regain eligibility. TAB C provides Secretary of Defense guidance on the exception in the
DoD Leahy law commonly referred to as the “remediation exception,” which is implemented
through a joint remediation policy between DoD and the Department of State.

 The DoD Leahy law remediation exception applies if, after consultation with the
Secretary of State, the Secretary of Defense determines that the government of such
country has taken “all necessary corrective steps.” This is a lower remediation
standard than what is required in the State Department Leahy law.

 However, under the joint remediation policy with the Department of State, DoD
agreed to instead require “appropriate remediation measures” that meet the standard
of the State Department Leahy law, which requires “taking effective steps to bring the
responsible members of the security forces unit to justice.” Generally speaking, this
would require an impartial and thorough investigation, judicial or administrative
adjudication, and appropriate sentencing or comparable administrative actions
proportionate to the misconduct committed. [The remediation standard in the
Department of State Leahy law is a high standard and it is often the case that
countries do not sufficiently hold individuals accountable in a way that is
proportionate to the gross violation of human rights committed. Until recently, basic
administrative measures—such as a reprimand and removal from the unit—have
never been sufficient to determine appropriate remediation measures have taken place
under the Department of State law or the joint remediation policy. Only the DoD
Leahy law exception allows for removal of perpetrators from the unit as sufficient, as
stated in the joint remediation policy and described under the next bullet point.

3
Note: This is not an official U.S. Government Document. This is an example of what a Department of
Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

However, Secretary of State Blinken departed from that interpretation and practice in
order to find the IDF’s Netzah Yehuda unit, notorious for committing gross violations
of human rights, remediated.]

 In accordance with the joint remediation policy, for unique and exceptional
circumstances only, the Department of Defense can determine a unit is remediated
after removal of the perpetrators from that unit. [DoD has a long-standing history of
applying the same remediation standard as the Department of State to maintain a
consistent approach towards partner forces and encourage accountable behavior of
partner nations’ security forces as key to DoD’s long-term success.]

 At this time, the remediation standard, in both the DoD Leahy law and joint
remediation policy, is not met for “Force 100.” [Despite the Department of State’s
assertions that Israel has a robust military justice system, when crimes are committed
against Palestinians, Israel Defense Forces are often neither prosecuted nor sentenced
proportionate to the gross violation committed. In response to the arrests of unit
members alleged to have committed this particular violation, far-right politicians and
hundreds of others gathered outside two military bases in protest. While several high-
level Israeli officials condemned the protests, at least one member of the Knesset in
Prime Minister Netanyahu’s party argued that every action the IDF takes is legitimate
against Israel’s enemy, reflecting deep divisions over how—and even whether—to
hold members of the IDF accountable. Regardless, until an impartial and thorough
investigation, credible adjudication with due process, and sentencing or comparable
actions proportionate to the misconduct committed, the actions taken to date should
not be considered sufficient to achieve remediation for “Force 100.” Only for cases
where investigations have commenced and there are sufficient indicators of
credibility and the implicated individuals do not remain in the operational service of
the unit may the departments determine the unit eligible for continued assistance.]

 The DoD Leahy law allows for the application of a waiver to a unit prohibited from receiving
DoD-funded assistance in “extraordinary circumstances.” Given DoD’s conservative practice
in using the waiver and communications with Congress concerning the intent behind the
waiver, we do not recommend its application for this unit. As stated, this unit is not up for
DoD assistance and therefore, in my view, there is no extraordinary circumstance that exists
to allow any DoD assistance to this particular unit until the perpetrators of the gross violation
are held to account. The U.S. Government should instead use its influence to encourage
accountability for the perpetrators involved in the violation. [DoD considers application of
the waiver a last resort measure for truly extraordinary circumstances. The Department is
cautious about application of the waiver to avoid appearing to abuse the authority, which
could result in a repeal by Congress.]

 We will monitor Israel’s next steps in this case. If Israel takes steps to remediate the unit that
meet the standard in the joint remediation policy, then DoD could apply the remediation
exception. If so, the Under Secretary would then need to send a report to the appropriate

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Note: This is not an official U.S. Government Document. This is an example of what a Department of
Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

congressional committees no later than 15 days after the application of the remediation
exception (TAB A and TAB C). [In accordance with law and policy, the Department of
State’s Leahy law prohibition on assistance is lifted only once the Secretary of State submits
a report to the appropriate congressional committees that describes the Department’s
determination that the foreign government “is taking effective steps to bring responsible
members to justice.” In practice, when the Secretary of State has credible information of a
gross violation of human rights committed by a unit of an Israeli security force, the
Department sits on that information and waits months, or sometimes years, until members of
the unit are held accountable. Only then does the Secretary make a formal determination that
credible information exists and simultaneously sends a report to the appropriate committees
of Congress that the unit has been remediated. This way, the Department of State avoids
having to cut assistance to any Israeli unit. This is not what the drafters of the law intended
and the process does not work this way for other countries.]

 This memo was formally coordinated within the Notional Office of the Secretary of Defense
and with the Notional Joint Staff. The Notional Deputy Assistant Secretary of Defense for
Middle East non-concurred. In interagency discussions, the Notional Department of State’s
Bureau of Democracy, Human Rights and Labor and the Notional Office of Legal Adviser
concurred that “Force 100” should be prohibited from receiving assistance under both the
DoD and State Leahy laws; the Notional Bureau of Near Eastern Affairs and Notional U.S.
Embassy Jerusalem disagree with this assessment. [These positions do not reflect actual
positions of anyone in the U.S. government, but are provided here to show how positions
taken could unfold during a decision-making interagency process and to reflect what a memo
like this would look like. Action memos must be coordinated with relevant offices
throughout the Pentagon. The Office of the Secretary of Defense includes the Office of
General Counsel and offices in the Under Secretary of Defense for Policy. Determinations
about credible information of a gross violation of human rights are initially discussed at the
working level with relevant Department of State offices.]

RECOMMENDATION: That you approve the determination that there is credible information
that “Force 100” of the IDF while operating in Sde Teiman committed a gross violation of
human rights and is therefore prohibited from receiving DoD training, equipment or other
assistance until the perpetrators in the unit are brought to justice in accordance with TAB C by
initialing below and signing the memo at TAB D. [If the Under Secretary approves an action
memo like this, the determination would have to be communicated to U.S. Central Command,
through the Chairman of the Joint Chiefs of Staff, and the Defense Security Cooperation Agency
so that these components of the Department are aware that the security assistance they oversee is
not legally available for this particular unit.]

Approve _____________ Disapprove _____________ Other _____________

Attachments:
TAB A – 10 U.S.C. 362, “the DoD Leahy law”

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Note: This is not an official U.S. Government Document. This is an example of what a Department of
Defense (DoD) memo applying the DoD Leahy law to a unit of Israel’s security forces could look like. In
red text, the author offers background on DoD and State Department interpretations and practice relating
to the application of the Leahy laws.

TAB B – Implementation of Section 8057, DoD Appropriations Act, 2014 (Division C of Public
Law 113-76) (“the DoD Leahy law”), August 18, 2014
TAB C – Additional Guidance on Implementation of Section 8057(b), DoD Appropriations Act,
2014 (Division C of Public Law 113-76) (“the DoD Leahy law”) and New or Fundamentally
Different Units, February 10, 2015
TAB D – Model Memorandum to the Joint Staff, U.S. Central Command and Defense Security
Cooperation Agency