July 3, 2013 was a momentous day for Egyptians, but its impact has been far broader than just Egypt, or even North Africa. One of the more intriguing legal repercussions of the latest transition of executive power in Egypt has been the focus on the 1961 Foreign Assistance Act (and its various subsequent amendments). Specifically, Section 508, which calls for the suspension of any assistance under the act (i.e. foreign aid) in the event of a military coup d'état or decree, or following a coup in which the military plays a "decisive role" has generated a heated debate, with politicians and legal scholars voicing their opinions and even the White House referencing the need to clarify the status of Egyptian President Morsi's ouster from office.
With $1.5 billion dollars in annual aid and a bi-national relationship key to American foreign policy interests, to say nothing of the more than 80 million Egyptians suffering from an economy whose growth rate has sputtered in the last two years, this is more than an esoteric legal fine point. Whether the circumstances which saw Morsi replaced by Constitutional Court President Adly Mansour constitute a coup will determine whether, under American law, the US can legally continue to provide the aid it had pledged and intended to supply the Egyptian government.
Notable figures, such as Republican Senator John McCain and Democratic Senator Patrick Leahy, have already vocalized their belief that aid should be cut. As some have argued, regardless of the policy implications whether one likes the outcome, the law is the law, and if it looks, sounds and smells like a coup, then it is a coup. I believe that the situation is more nuanced than that. The July 3 case falls into a gray area not well covered by the existing legislation, and thus the application of Section 508 (and its 2012 manifestation in Section 7008 of the 2013 Foreign Appropriations Bill) is questionable. There are compelling arguments for both constructive and substantive interpretations of the Foreign Assistance Act to allow aid to Egypt to continue. In such a case, the situation in Egypt should be seen as simultaneously sui generis, and yet paradigmatic of a series of related cases triggered by the Arab Spring uprisings beginning in 2011.
American foreign policy has long since chosen the disingenuous approach in abiding by the Foreign Assistance Act, providing aid to numerous regimes despite poor human rights records and dubious electoral processes. Given that reality, it remains to be considered whether the ousting of an elected leader which is initiated by a substantial proportion of the population and supported by a clear majority, fits the letter or the spirit of the law (i.e. Section 508).
From the formalistic interpretative perspective, there are several points to be made. Firstly, the key question is whether the head of government can be said to have been deposed by the military. While some have claimed that is a straight-forward affirmative, the situation may be more complicated when, as in Egypt, it is the people themselves who initiate the ouster, and the military acts in response to a devolution of control. Even the 2011 addition of "a coup d'état or degree in which the military plays a decisive role" requires additional clarification as to the precise meaning of a "decisive" role. Certainly the military played an important and arguably key role in Morsi's removal, but was it "decisive?" Considering the last few years in Egypt and the region, is it certain that the public protests themselves would not have sufficed to remove Morsi from power? That is unclear. What is certain, is the ordinal and causal nature of Morsi's fallthe military's involvement was both preceded and triggered by a massive mobilization of the Egyptian population, including an online petition, record-setting attendance protests, and an unthinkable convergence of the Christian, Muslim, liberal, youth and Islamist leadership. In fact the event which occurred immediately prior to the removal of Morsi from office was actually a non-event, the failure of Morsi's Brotherhood-led government to reach an agreement with its opponents and put an end to the massive nation-wide protests. In light of those facts, and the fact that the military first offered a two-day window for the political forces to reach an understanding, there is a strong argument to be made that the army merely acted to stabilize what was devolving into a conflict between the people and its central government.
In addition to the claim that Egypt does not constitute a case of the military playing a decisive role in a coup, there are two other loopholes which might be exploited to continue aid. Firstly, as Section 7050 of the 2013 bill supports, it is possible to continue aid in the event of a coup by distributing the aid directly to nationals and local businesses and NGOs, essentially bypassing the central government. In Egypt's case this would have a relatively limited effect given that the overwhelming majority of US aid to Egypt is military. A more expansive case hinges on the clause which adds that "provisions of this section shall not apply to assistance to promote democratic elections or public participation in democratic processes." Depending upon how this clause is interpreted, aid to the Egyptian military could be justified under the argument that Egyptian security is vital to facilitating new elections, the rise of a democratically elected government and a constitutional committee, by providing the necessary stability and support for such a process.
Additionally, assistance itself may be resumed "if the President determines and certifies to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office." Thus the temporary suspension (or termination) of aid followed by immediate elections, even for a transitional government, would allow the White House to reestablish aid.
Notwithstanding the aforementioned claims, the strongest arguments lie in a more substantive interpretation of the Foreign Assistance Act. Section 508 is quite clearly designed to prevent the US from aiding or supporting anti-democratic regimes, and in so doing is consistent with other limitations imposed (and often ignored) by the act. From that perspective, the better argument lies with the anti-coup position. President Morsi had repeatedly breached constitutional limitations on his own power as president, most notably preventing the courts from reviewing his actions. The opposition allegedly collected signatories from more than a quarter of the population, well more than had voted for Morsi, and protests to Morsi's rule were unprecedented in volume. Opposition to Morsi's Muslim Brotherhood included virtually all cross-sections of Egyptian society. And as previously noted, it was in response to a looming confrontation between protesters and the Morsi-led government that the military acted, and even then, not to hold control over the country, but to transfer it to the head of the judiciary with the intent to hold new elections.
The situation in Egypt challenges the typical understanding of a coup. While some have argued that a military ouster of an elected leader is a straightforward coup, the particular details and the manner and order in which Morsi was removed from power belie such a simplistic conclusion. If this is a coup, it could be the first time that the military seized power from an executive leader acting ultra vires only to cede power to the judiciary branch. The stronger claim in this author's opinion is that Egypt constitutes a sui generis situation, one for which Section 508 was neither drafted, nor should be applied.
Steven Aiello holds a BA in Economics (NYU) and MA in Government (IDC Herzliya). He is currently completing his LLB from the University of London. Steven has interned for a human rights organization in Cairo (AIC) and a policy think-tank in Jerusalem (JCPA) and headed the Middle East desk for Wikistrat, an internet-based geopolitical analysis firm. Steven lives in Israel with his wife Eliana and has spent time in the last four years visiting Egypt, Jordan, Morocco, Bahrain, the UAE and Turkey.
Suggested citation: Steven Aiello, In Egypt, Coup or Not Coup: the 1.5 Billion Dollar Question, JURIST - Dateline, July 24, 2013, http://jurist.org/dateline/2013/07/steven-aiello-egypt-aid.php.
This article was prepared for publication by Elizabeth Imbarlina, the Section Head of JURIST's Student Commentary service. Please direct any questions or comments to her at firstname.lastname@example.org