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S. 1875 (114th): Afghanistan Accountability Act of 2015

The text of the bill below is as of Apr 28, 2016 (Passed the Senate).


114th CONGRESS

2d Session

S. 1875

IN THE SENATE OF THE UNITED STATES

AN ACT

To support enhanced accountability for United States assistance to Afghanistan, and for other purposes.

1.

Short title

This Act may be cited as the Afghanistan Accountability Act of 2015.

2.

Defined term

In this Act, the term appropriate congressional committees means—

(1)

the Committee on Foreign Relations of the Senate;

(2)

the Committee on Appropriations of the Senate;

(3)

the Committee on Armed Services of the Senate;

(4)

the Select Committee on Intelligence of the Senate;

(5)

the Committee on Foreign Affairs of the House of Representatives;

(6)

the Committee on Appropriations of the House of Representatives;

(7)

the Committee on Armed Services of the House of Representatives; and

(8)

the Permanent Select Committee on Intelligence of the House of Representatives.

I

Effective Afghanistan assistance and accountability

101.

Findings

Congress makes the following findings:

(1)

Following the terrorist attacks of September 11, 2001, the United States launched Operation Enduring Freedom, and since then the United States Armed Forces and the Afghan National Security Forces have made countless sacrifices in defending Afghanistan against the threat of terrorism and insurgency and by extension the United States and the wider world.

(2)

Since 2001, the United States has worked with a broad coalition of nations that has helped to dramatically improve numerous development indicators within Afghanistan, including—

(A)

a dramatic increase in the number of girls enrolled in primary education from an estimated 5,000 under the Taliban to 2,400,000 girls as of 2010;

(B)

an increase in the percentage of individuals above the poverty line from 25.4 percent in 2002 to 35.8 percent in 2011;

(C)

an increase in the percentage of individuals who now have access to an improved water source in rural areas from 22 percent in 2001 to 56 percent in 2012;

(D)

a precipitous decline in maternal mortality from 1200/100,000 births in 1995 to 400/100,000 births in 2013; and

(E)

an expansion of women’s rights.

(3)

Numerous research studies have shown that government corruption is a driver of conflict and particularly so in Afghanistan, where it has served as a powerful recruitment tool for the Taliban.

(4)

Since the first democratic transfer of power in the history of Afghanistan in 2014, President Ashraf Ghani and Chief Executive Officer Abdullah Abdullah have led a National Unity Government that has identified key security and development challenges in order to make Afghanistan a full and productive member of the community of democratic nations.

(5)

The National Unity Government has renewed specific focus on addressing corruption within the country as a driver of instability, including reopening a fraud case involving high level officials and the Kabul Bank that resulted in the disappearance of an estimated $1,000,000,000.

(6)

In its report Realizing Self Reliance: Commitments to Reform and Renewed Partnership, the Government of Afghanistan committed to the international community in London in December 2014, to address the main drivers of corruption in Afghanistan, including collusive procurement practices, weak rule of law and abuse of the legal system, and arbitrary regulations that build in incentives to pay bribes. Government of Afghanistan commitments included—

(A)

forming an independent anti-corruption commission with time-bound prosecutorial powers;

(B)

implementing recommendations by the Monitoring and Evaluation Committee on a national action plan to reduce corruption;

(C)

requiring all government officials to provide public declarations of their assets;

(D)

meeting all Financial Action Task Force (FATF) requirements to further limit and investigate illicit fund flows;

(E)

forming a national procurement board staffed by qualified professionals who will manage all large value contracts using internationally recognized standards and procedures; and

(F)

delineating the roles, responsibilities, and jurisdiction of anti-corruption institutions such as the High Office of Oversight and Anti-Corruption (HOO) and the Attorney General to restrict them to focus on their core function of enforcement instead of oversight.

(7)

The December 2014 Government of Afghanistan report Realizing Self Reliance: Commitments to Reform and Renewed Partnership, expressed a commitment to enhancing productivity, growth and revenues by—

(A)

developing natural resources through public-private partnerships that bring in rents, taxes, and profits;

(B)

removing obstacles to trade and transit and ending smuggling that diverts revenue away from the treasury;

(C)

negotiating expanded market access in regional and global markets;

(D)

gradually formalizing the informal economy and changing the compact between the state and citizens to one where citizens pay taxes for services they tangibly benefit from; and

(E)

transferring government payments electronically to eliminate losses in transit.

(8)

In 2012, international donors and the Government of Afghanistan agreed to the Tokyo Mutual Accountability Framework (TMAF) which committed to provide $4,000,000,000 in economic assistance per year from 2012–2015 and sustain assistance at or near the same levels of the past decade through 2017, while the Government of Afghanistan committed to meet benchmarks related to democracy and governance, public finance and revenue generation, and economic development.

(9)

At the end of 2014, under the TMAF, the Government of Afghanistan had fallen short in meeting benchmarks related to: revenue collection, the enhancement of women’s rights, corruption and the illicit economy, and the protection of human rights.

(10)

In the Joint Declaration following the London Conference on Afghanistan of December 4, 2014, the international community and the new Government of Afghanistan agreed to refresh the existing TMAF and associated commitments at the 2015 Senior Officials Meeting based on the reform program and priorities as laid out by the Government of Afghanistan.

(11)

Afghanistan faces great difficulties in making progress in countering illegal narcotics and remains the leading global illicit opium poppy producer.

(12)

The illegal narcotics trade results in the transfer of illicit funds and encourages and also requires corrupt financial transactions, and, if minimized, could have beneficial impacts on trade and reduce overall levels of corruption.

(13)

The international community has endorsed Afghanistan’s longer-term development following the war and identified the criticality of the transformation decade from 2015–2024 outlined by the Government of Afghanistan and has acknowledged that the Government of Afghanistan will seek continued international assistance in order for it to become a stable, self-sustained partner in the community of democratic countries.

(14)

As development assistance from the United States and broader international community gradually diminishes in the coming years, the accelerated development of the Afghan private sector and governing institutions becomes even more necessary to maintain the gains of the past decade and to enhance our mutual goals of Afghan security and stability.

(15)

While Afghan National Security Forces (ANSF) have taken over lead combat responsibilities, they continue to operate in close coordination with, and with significant resources from the international community, under the Resolute Support Mission and in coordination with ongoing counter-terrorism operations. Development of civilian oversight institutions for the security sector has lagged. Such oversight will be important for ensuring that Afghan security forces are accountable and do not abuse their powers.

102.

Sense of Congress on United States assistance and accountability in Afghanistan

It is the sense of Congress that—

(1)

the National Unity Government of Afghanistan has made a substantial commitment to reform that should be supported but also subject to heightened scrutiny by the Afghan people and international donors given past failures and persistent challenges in the country;

(2)

Afghanistan is at a critical inflection point, having gone through political and security transitions as the international community draws down its military forces. The international community should work closely with the new government in supporting development priorities for the rest of the transformation decade that translate into producing concrete development results for the Afghan people;

(3)

sustainable accountability and reform of Afghan governing institutions will not come from the international community but from a commitment by the Government of Afghanistan and society reinforced by domestic watchdog groups and internal government accountability monitoring mechanisms;

(4)

the United States Government should deepen its dialogue on anti-corruption efforts with the Government of Afghanistan to develop effective oversight mechanisms to ensure large donor contracts do not contribute to corruption;

(5)

the United States should encourage Afghanistan’s participation in the Open Government Partnership, a multilateral initiative in which government and civil society collaborate to promote transparency, fight corruption, and use technologies to strengthen government;

(6)

the United States should urge the Government of Afghanistan to build upon existing anti-money laundering and countering terrorism financing legislation by developing effective regulations and institutions to implement reforms;

(7)

the United States should urge the Government of Afghanistan to broaden personal asset disclosures to include members of the covered officials’ immediate families or households and develop effective mechanisms for verifying disclosed information;

(8)

in the event of future egregious cases of corruption in Afghanistan, the President should impose visa bans and asset freezes on those responsible, especially in instances where United States assistance is stolen or misappropriated;

(9)

the United States Government should cooperate with the Government of Afghanistan and with international donors to develop a series of strict accountability benchmarks based on the refreshed Tokyo Mutual Accountability Framework and the Government of Afghanistan’s own Realizing Self Reliance report commitments that will condition levels of assistance and the amount of on-budget assistance on anti-corruption performance acceptable to donors;

(10)

the United States should support the Afghan Parliament to refine and strengthen the legal framework of anti-corruption and anti-money laundering laws to address beneficial ownership, countering bid-rigging and other contracting and procurement fraud, criminal investigations of financial transactions, complementary banks, personal asset or other financial declarations and disclosures as required by law or regulation, efforts to meet FATF requirements, and other areas to further inhibit the illicit flow of money;

(11)

the commitment by the Government of Afghanistan to strengthen its nascent private sector should be supported and sustained using the full array of tools of the United States, including technical and legal assistance;

(12)

United States assistance to the Afghan judicial system and other Afghan legal institutions that enable and empower private sector development by instilling greater investor confidence should be prioritized to ensure the protection of private property, the sanctity of contracts, and effective dispute resolution mechanisms for businesses and investors;

(13)

the United States Government should identify opportunities for the United States to introduce trade facilitation as part of the economic relationship between the 2 countries;

(14)

the Governments of the United States and Afghanistan should work together to identify more Afghan products and raw materials to be included on the United States Generalized System of Preferences (GSP) treatment list;

(15)

the American University of Afghanistan is an emerging pillar in Afghanistan’s education system and has provided a unique opportunity for higher education for Afghan youth, especially women; and

(16)

the United States should encourage the Government of Afghanistan to implement with urgency electoral reforms in accordance with the Agreement between the Two Campaign Teams Regarding the Structure of the National Unity Government.

103.

United States assistance policy for Afghanistan

It is the policy of the United States—

(1)

to conduct assistance programs that result in highly effective, impact driven development outcomes for the people of Afghanistan while maintaining the highest standards of accountability for United States taxpayers;

(2)

that all United States Government agencies and entities working in Afghanistan coordinate, plan, and regularly review plans in a coherent, well-informed process to develop United States policy and assistance programming;

(3)

to support the development of effective Government of Afghanistan oversight institutions and domestic watchdog civil society organizations;

(4)

subject to significant evident progress made in meeting TMAF accountability and improved governance as it relates to development, to abide by resource commitments made as part of the Tokyo Mutual Accountability Framework;

(5)

to provide incentivized assistance to Afghanistan’s governing institutions based upon verifiable and measurable development outcomes and on-budget assistance based upon demonstrated capacity improvements that are mutually agreed to by the Government of Afghanistan and Government of the United States;

(6)

to support the development of democratic governing institutions in Afghanistan, promote the development of a growing private sector, and strengthen civil society in Afghanistan;

(7)

to recognize that Afghanistan’s sustainable development is grounded in growing the regional economy, and to support the efforts of the Government and people of Afghanistan to build strong regional economic connectivity with the country's neighbors;

(8)

to support, where appropriate, proven programs that promote private sector job creation in Afghanistan; and

(9)

that assistance programs in direct support of Afghan women and girls remain a priority for the United States, including specific efforts to support women and girls education, meaningful engagement in political and reconciliation processes, training and recruitment of Afghan female police and security forces, advancement of women’s legal rights, economic development, and efforts to increase the overall health and well-being of Afghan women and girls.

104.

Effective Afghanistan assistance and accountability

(a)

Strategy To combat corruption in Afghanistan

(1)

In general

The Secretary of State, in consultation with the Secretary of Defense and the Government of Afghanistan, shall develop a comprehensive interagency strategy for United States assistance that is sustainable and is not counter-productive to combating corruption in Afghanistan.

(2)

Elements

The strategy developed under paragraph (1) should include the following elements:

(A)

Multi-year goals, objectives, and measurable outcomes for targeted activities to strengthen selected Afghan official institutions and nongovernmental organizations to prevent, investigate, deter, and prosecute corruption.

(B)

An operational plan incorporating all United States Government programming to implement the anti-corruption goals and objectives.

(C)

A summary of United States efforts to coordinate with other international donors to ensure that anti-corruption advice or programming provided to the Government of Afghanistan is not contradictory.

(D)

A focus on the development of governmental and nongovernmental Afghan capacity to ensure accountability and combat corruption.

(E)

An evaluation of Afghan civil society anti-corruption capacities that includes their ability to use technology to combat corruption.

(b)

Afghanistan anti-corruption fund

Subject to the availability of funds, the President is authorized to provide technical and financial assistance to official Government of Afghanistan anti-corruption and audit institutions and Afghan civil society watchdog groups in support of the anti-corruption priorities identified by the Government of Afghanistan and the United States Government. Subject to careful consideration by the United States Government of the legitimacy, efficacy, and direct impact and influence of such entities and individuals, offices, and organizations that are funded under this subsection could include—

(1)

the Supreme Audit Office;

(2)

the Attorney General;

(3)

the Ministry of Justice;

(4)

Inspectors General within key ministries;

(5)

the Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC);

(6)

the major crimes task force, Technical Investigative Unit, and the Sensitive Investigative Unit;

(7)

the High Office of Oversight and Anti-Corruption;

(8)

the Anti-Corruption Tribunal;

(9)

the Financial Transactions and Reports Analysis Center of Afghanistan;

(10)

the proposed procurement board; and

(11)

civil society organizations engaged in oversight, anti-corruption advocacy, and support of good governance.

(c)

Promotion of human rights, press freedom, and security sector accountability

(1)

In general

Subject to the availability of funds, the Secretary of State, in consultation with the Secretary of Defense, is authorized to provide support for efforts of the Government of Afghanistan to improve oversight and accountability of the Afghan National Security Forces, including the Afghan National Police, and Afghan local police, and strengthen Afghan civil society and investigative journalists to provide watchdog oversight of these institutions. Subject to due consideration of the legitimacy, efficacy, and direct impact and influence of such entities and individuals, these efforts could include—

(A)

supporting the ANSF to strengthen the capacity, independence, and power of its internal Inspector General to collect and investigate all credible reports of abuse by armed forces;

(B)

supporting the Office of the Attorney General and the Ministries of Defense and Interior to be better capable to investigate and, if appropriate, criminally prosecute police, military, intelligence, and militia personnel, regardless of rank, found responsible for human rights abuses and war crimes;

(C)

considering establishing a special independent mechanism to investigate government officials and security force officers implicated in abuses;

(D)

supporting the Ministry of Interior to establish a centralized register of all detainees held in police and National Directorate of Security custody, and ensure that it is accessible to independent monitors and is updated regularly and in a transparent manner;

(E)

supporting implementation of the Access to Information Law and the 2009 Mass Media Law, particularly provisions of the latter that would disband the Media Violations Investigation Commission and replace it with a Mass Media Commission;

(F)

supporting the Attorney General’s Office to undertake prompt, impartial, and thorough investigations into all attacks on journalists and media organizations and bring prosecutions as appropriate; and

(G)

supporting the further establishment of civil society organizations to provide essential watchdog oversight of the police and armed forces; as well as efforts to strengthen and improve coordination among civil society organizations, such as the Afghan Independent Human Rights Commission.

105.

Reports

(a)

Reporting on corruption in Afghanistan

Not later than 1 year after the date of the enactment of this Act, and annually thereafter through 2024, the Secretary of State shall submit to the appropriate congressional committees a report listing each individual who the President determines, based on credible evidence—

(1)

is a Government of Afghanistan official, a senior associate, or close relative of such an official, who is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions; or

(2)

has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, an activity described above.

(b)

Report on civilian-military assistance efforts in Afghanistan

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Comptroller General of the United States shall submit a report to the appropriate congressional committees that describes civilian-military assistance efforts in Afghanistan.

(2)

Elements

The report required under paragraph (1) shall include the following elements:

(A)

A description of lessons learned from conducting development programming in Afghanistan to include recommendations on how to improve coordination between United States development agencies and the United States Armed Forces.

(B)

An assessment of the ability of the United States Agency for International Development to advance development goals within Afghanistan, operating alongside providers of United States military assistance.

(C)

An assessment of whether funding under the Commander’s Emergency Response Program achieved the program’s counterinsurgency goals, including force protection, and whether this program had any long term development impact, including any negative unintended consequences.

Passed the Senate April 28, 2016.

Secretary