Foreign Relations of the United States, 1977–1980, Volume II, Human Rights and Humanitarian Affairs

4. Memorandum From Jessica Tuchman of the National Security Council Staff to the President’s Assistant for National Security Affairs (Brzezinski)¹

Washington, January 24, 1977

SUBJECT

• Human Rights

Attached is an initial summary of policy options in the area of human rights. It pretty well covers the ground of those actions recommended by members of congress and by various interest groups, and of course, those deadlines set by law which the Administration must meet in the near future. There is virtually nothing innovative in it, but it does contain enough substance so that if Administration action were taken on some or all of these options it would amount to a very major initiative on the President’s part.

On rereading it, I find one major weakness which concerns South Africa. I am very concerned that in the process of making major decisions on resolving the crises in Rhodesia and Namibia, that the U.S. not become locked into a South African policy which precludes us from exerting major pressures on that nation. Our past support of South Africa in the UN is viewed by many as our single most repugnant policy in the area of human rights. Continuing that posture—particularly if the violence in South Africa continues to escalate—might negate every other human rights initiative the Administration takes. This issue obviously requires much more thought—soon.²

Attachment

Memorandum From Jessica Tuchman of the National Security Council Staff to the President’s Assistant for National Security Affairs (Brzezinski)³

Washington, January 24, 1977

SUBJECT

• Human Rights

Background

The pattern of Congressional–Executive relationships in the area of human rights is probably the best example of what happened during the last Administration when congressional concern met executive disdain—with results that satisfy no one. When all other efforts to influence Administration policy proved useless, Congress used its ultimate weapon and attempted to write into law human rights guidelines for military and economic foreign assistance. Recognizing the Executive’s prerogative in this area, Congress attempted to keep its language flexible enough for appropriate diplomacy, with the result that the Administration completely ignored it. Forced to the wall, the Congress responded by limitations or outright prohibitions of aid to certain nations.

Kissinger was then free to make the case that the only alternative to his own quiet and effective diplomacy was ineffective and inflexible Congressional action. At no time in the past eight years, could Congress elicit from the Administration any action on—or even recognition of—the policy alternatives that lay between these two extremes, including: restricting the amenities of normal diplomatic intercourse; public statements by American Ambassadors, the Secretary of State, or the President; initiatives taken in international forums and support by the U.S. of initiatives taken by others; and Sense of the Congress Resolutions supported—rather than undercut—by the Administration.

International human rights is an issue on which the new Administration has one of its best opportunities to radically improve executive–congressional relations. Any action which the Administration takes in the direction of Congressional concerns will be warmly welcomed, particularly by the House and Senate Foreign Relations Committees, which fully recognize the inappropriateness of congressional attempts to manage foreign policy.

Possible Early Actions

1. Military Aid.

The Administration will have to submit its Fiscal ’78 budget request for military aid under the Security Assistance Act in March. Section 502(b) of this Act (enacted last summer),⁴ requires that no security assistance be provided to any government “which engages in a consistent pattern of gross violations of internationally recognized human rights” except under extraordinary circumstances. Because of this provision, and the last Administration’s flagrant violation of it, the content of these budget requests will be taken as the single most important signal of this Administration’s policies on human rights.

In Fiscal ’77, Congress cut off all military aid to Chile and Uruguay, and attention is now focused on a total prohibition of military aid to Argentina (current level: $49 million) and a cutback for South Korea, as well as on Iran, Indonesia and the Philippines. Although time is extremely short, if decisions can be reached quickly enough, there is some opportunity for quiet diplomacy to show results by March, or at least before Congressional action occurs. For example, a government’s willingness to allow field visits by representatives of international organizations and non-governmental organizations and to provide all data requested by them, might be taken to weigh significantly in favor of continuing security assistance.

Another option—going one step further—would be to cut from the requests of the worst violators, anything that might be directly used for maintaining a repressive regime in power. In other words, to distinguish between items necessary to maintaining internal security and those used for external defense.

Simultaneous with the budget request, the State Department is also required by Section 502(b) to send up reports on the status of human rights in each country for which a budget request is made. In the past, these reports have become another bone of contention because they have been intentionally incomplete and evasive. If this Administration is serious about human rights, a major effort should be taken to see that these reports are as honest, complete and unclassified as security requirements allow.

In sum, Congress—if kept informed—will welcome a gradual implementation of Section 502(b) as long as the Administration shows its clear intent to support the spirit of the language. On a case-by-case basis (no attempt should be made to establish global guidelines) the Administration can request signals from the more extreme violators which would indicate their willingness to improve the human rights situation. Congress will understand that because time is so short, little concrete evidence of change can be expected, but the Administration can make clear its intention to monitor the situation in the coming year, and its determination to take more serious action next year if there is no improvement.

2. Economic Aid.

The situation is very similar to that outlined above. Budget requests must be submitted in March for economic aid under the Development Assistance Act, and this Act contains language similar to Section 502(b).⁵

In the case of more extreme violators, the Administration might recommend that no new programs be initiated unless there is an overriding humanitarian consideration, and that existing programs be phased out unless they can be shown to (a) be directly beneficial to people in need, and (b) provide minimal support to maintaining a repressive government in power. In a more positive sense, priority can be clearly assigned to those governments in the third and fourth worlds which respect international standards of human rights.

3. Food Aid.

Under the past Administration, the Food for Peace program (PL–480, Title 1)⁶ was frequently used to bolster the foreign exchange positions of several extremely repressive governments through the congressional loan program. The worst instances were South Korea and Chile which received disproportionate amounts of Title 1 aid. A thorough review of this program, whose purpose purports to be humanitarian, is needed.

4. International Organizations.

There are some immediate steps the United States could take in the UN to signal its intent to take serious action on human rights. The first would be ratification of the Genocide Convention of 1949,⁷ and the second would be ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.⁸ Both of these covenants were written in 1966, and have now acquired more than the required number of 35 ratifications to bring them into force. All of these actions require a two-thirds vote by the Senate which in turn requires active support and lobbying by the Administration to push them through.

The UN Commission on Human Rights will meet in February–March, 1977. If possible by that date, consideration should be given to U.S. initiatives to strengthen the working procedures of the Commission and other UN affiliated bodies concerned with human rights, as well as substantive initiatives on international efforts to prevent torture, and arrest and detention without charge or trial.

Finally, to bring the U.S. into line with established UN policy, the Administration should work for repeal of the Byrd amendment,⁹ and consider a change in U.S. policy toward South Africa, particularly concerning U.S. investment there.

5. Multilateral Banks.

Currently the multilateral banks show small regard for human rights in deciding on financial support to particular countries. The Inter-American Bank, (which greatly increased its support for the Chilean junta over what had been given to the Allende government) is particularly at fault here. The Harkin amendment to the Inter-American Bank Authorization Act¹⁰ requires the U.S. delegate to the Bank to vote against loans to repressive regimes. However in practice the Administration has flouted this requirement by making sure that a particular loan has enough votes to pass, even while the U.S. delegate formally votes against. Also, the Latin states are strongly opposed to U.S. actions to influence the Bank’s actions in this way. In the World Bank, however, many of the European delegates have been actively pressing for greater consideration of human rights. Therefore one policy option for the Administration would be to take an active supporting role of European efforts in the World Bank, and an initiating role in exploring with Latin American delegations how human rights considerations can become an integral factor in the Banks’ decisions.

7. Executive Branch Organization and Personnel.

The greatest need in this regard is for the appointment of individuals who will act as strong advocates for human rights. In particular, the office of the Coordinator for Human Rights and Humanitarian Affairs in the State Department should be given department-wide influence and direct access to the Secretary, and be filled with an individual of recognized commitment to these concerns.¹¹ A list of possible nominees is attached.¹² Interest in human rights should be a consideration in the appointment of ambassadors to countries which take the lead on international human rights actions (UK, Sweden, Tanzania, Netherlands) and to countries which have serious human rights problems (South Korea, Philippines, Haiti, Chile, Argentina, South Africa, Iran, etc.).

8. Influencing Communist Nations.

While one can make a convincing case of our right as a nation to decide how we are going to spend our money in assisting other nations, the situation becomes much more complicated when we consider those nations—particularly in the Communist bloc—which we do not support, and over whom we exercise very limited influence. The more the Administration pushes its concern over violations of human rights by rightist regimes, the stronger will be the reaction in Congress (and outside it) over what will be pictured as an emerging double standard, and Administration “countenancing” of massive violations of human rights by Communist nations. In this regard, the Administration must make two important decisions:

—There is strong sentiment in Congress that the Jackson-Vanik amendment¹³ has been counter-productive, and that something should be changed, although no one knows exactly what. I hear phrases like: “step-by-step dismantling”.

—The administration must also decide what it intends to do by way of implementing “Basket III” of the Helsinki Agreement.¹⁴ This decision must balance the need to avoid a double standard, with a realistic appraisal of what we can in fact accomplish.

9. Presidential Speech.

Because this is an issue on which Administration policy may differ radically from past policies, President Carter may want to consider making a major speech on this issue in the near future. Such a speech would not only serve as a signal to the Congress, the federal bureaucracy, and the American public of the President’s new policies, but would also be an important tool in informing foreign governments of the Administration’s serious intention to see that human rights are served by more than rhetoric.

10. Congressional Coordination.

The Administration will enjoy much greater flexibility and cooperation from Congress if efforts are made from the very beginning to undo past damage and to keep the key Congressional leaders on this issue fully informed. They are, in the House: Democrats Fraser, Lee Hamilton, Koch and Drinan; and Republicans Buchanan and Whalen. In the Senate: Jackson, Humphrey, McGovern, Cranston and Kennedy and Republicans Percy and Javits.

1. Source: Carter Library, National Security Affairs, Staff Material, Global Issues—Bloomfield Subject File, Box 17, Human Rights: Policy Initiatives: 1/77–10/78. No classification marking. Another copy is in the Carter Library, National Security Affairs, Staff Material, Global Issues—Mathews Subject File, Box 7, Human Rights (HR): 12/75–1/77.
2. Brzezinski added a handwritten note at the end of the memorandum: “re: # 9 Could he say anything he hasn’t said in his B’nai B’rith speech? You might organize a meeting with your interagency counterparts to discuss this memo—or to develop a program or a PRM. Let me know by mid-next week. ZB.” Reference is to Presidential candidate Carter’s September 8, 1976, speech at the National Convention of B’nai B’rith, held in Washington, wherein he commented that the United States “cannot look away when a government tortures people, or jails them for their beliefs or denies minorities fair treatment or the right to emigrate.” (Charles Mohr, “Carter Suggests That U.S. Foster Rights Overseas: Sees Foreign Policy as Lever to Aid Others,” The New York Times, September 9, 1976, p. A–1)
3. Limited Official Use. Tuchman did not initial the memorandum.
4. See footnote 5, Document 1.
5. Presumable reference to the International Development and Food Assistance Act of 1975 (P.L. 94–161) and Section 116; see footnote 4, Document 1.
6. The Agricultural Trade Development and Assistance Act (P.L. 480), signed into law by Eisenhower on July 10, 1954, established the Food for Peace program. Under the provisions of the law, the United States could make concessional sales of surplus grains to friendly nations, earmark commodities for domestic and foreign disaster relief, and barter surplus for strategic materials. Title I authorized concessional sales.
7. Reference is to the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on December 9, 1948. (A/RES/260(III)A)
8. The UN opened both covenants, which were first presented to the General Assembly in 1954, for signature on December 19, 1966. The first covenant commits signatories to respecting the civil and political rights of individuals, including the right to life; freedoms of speech, religion, and assembly; and right to due process and fair trial. The second covenant upholds an individual’s economic, social, and cultural rights (ESCR), including self-determination, participation in cultural life, and the right to work. (A/RES/2200(XXI)A) For additional information, see Foreign Relations, 1964–1968, volume XXXIII, Organization and Management of Foreign Policy; United Nations, Documents 381 and 393.
9. The Byrd Amendment, Section 503 of the 1971 Military Appropriations Authorization Act (H.R. 8687; P.L. 92–156; 85 Stat. 423–430), prohibited the President from refusing to import strategic materials from non-Communist countries. The Amendment thus permitted the United States to import Rhodesian chrome and other strategic materials, thus circumventing UN trade sanctions instituted in 1966 against Southern Rhodesia. (Congress and the Nation, Volume, V, 1977–1980, p. 47)
10. See footnote 3, Document 1. Public Law 94–302 funded the U.S. replenishment of the Inter-American Development Bank (IDB) at $2.25 billion through fiscal year (FY) 1979. (Congress and the Nation, Volume IV, 1973–1976, p. 888)
11. Wilson, former Deputy Assistant Secretary of State for East Asian and Pacific Affairs, served as the Department’s Coordinator for Humanitarian Affairs from April 1975. (Memorandum drafted in D/HA, March 1976; Department of State, Bureau of Human Rights and Humanitarian Affairs, 1976–1977 Human Rights Subject Files and Country Files: Lot 80D177, AMGT—Establishment of Office (HA) ) In November 1976, pursuant to P.L. 94–329 (see footnote 5, Document 1), Wilson’s title became Coordinator for Human Rights and Humanitarian Affairs; he served in this position until his retirement on April 28, 1977. In a January 26, 1977, memorandum to Vance, Christopher recommended that Patricia Murphy Derian serve as Coordinator upon Wilson’s retirement: “I believe she would serve with great imagination and distinction, with high appreciation for the importance of human rights in foreign policy decisions, but also with an understanding that other considerations may sometimes prevail.” (National Archives, RG 59, Office of the Deputy Secretary: Records of Warren Christopher, 1977–1980, Lot 81D113, Box 16, Human Rights—Early Efforts)
12. Attached but not printed. Tuchman listed the following names: Don Ronard, John Salzberg, Don McHenry, Leonard Meeker, and Goler Butcher.
13. During the spring of 1973, the House Ways and Means Committee initiated hearings and markups on the Nixon administration’s trade legislation. The House version of the legislation (H.R. 10710) contained an amendment introduced by Vanik, which prohibited most-favored nation (MFN) status to Communist nations unless the President certified to Congress that the recipient nation had not imposed restrictive emigration policies. Jackson introduced similar legislation in the Senate. On October 18, 1974, the Ford administration and the Senate reached a compromise. Jackson offered an amendment to the bill that allowed the President to waive the ban on MFN and export credits for 18 months if Ford could report to Congress that the Soviet Union had made progress in relaxing emigration curbs. Both houses of Congress approved the Trade Act of 1974 (H.R. 10710; P.L. 93–618; 88 Stat.178) on December 20, 1974. Ford signed the bill into law on January 3, 1975. (Congress and the Nation, Volume IV, 1973–1976, pp. 129, 131, and 133)
14. Reference is to the Conference on Security and Cooperation in Europe (CSCE) Final Act, or Helsinki Accords, comprised of four “baskets” or categories. For the text of the Final Act, signed on August 1, 1975, see Department of State Bulletin, September 1, 1975, pp. 323–350. Basket III emphasized humanitarian cooperation, human contacts, freedom of information, and cultural and educational exchanges.