Recent politics in Egypt have left US political leaders and White House lawyers quibbling over whether to call President Morsi's removal from office a "coup" and the broader legal and policy implications that such a declaration would entail. Section 508 of the 1961 Foreign Assistance Act and its 2013 manifestation (Section 7008 of the 2013 Foreign Operations and Related Programs Appropriations Act) prevent the US State Department from continuing aid to countries whose "duly elected" leader "is deposed by military coup d'etat or decree or, after the date of enactment of this Act, a coup d'etat or decree in which the military plays a decisive role." The 1.5 billion dollar question has been whether the US will find that the Egyptian Armed Forces role in removing Morsi from power constituted a coup. The better legal question is how the Foreign Assistance Act can be reformed so as to allow US foreign policy goals and interests to be advanced while still respecting and adhering to the rule of law.
Some recent reports on the act have implied that the age of the statute (passed in 1961) is at fault. There is some merit to this argument. In 1961 the US, and American foreign policy were focused on the Cold War. The Cold War mindset is hardly suitable for addressing policy challenges in 2013. On the other hand, the 2011 addition of "a coup d'etat or decree in which the military plays a decisive role" indicates that the passing of a half century is not the only issue with this statute.
This is certainly not the first time that the US has found itself in a tricky situation due to the Foreign Assistance Act requirements, nor will it be the last, at least until the act is amended. It is hardly reasonable to expect US foreign policy to reverse itself solely on the basis of whether a coup has taken placecertainly not when we continue to work with dictatorial regimes and provide aid to governments who care little for human rights. The fact that the aid agreement with Egypt was a vestige of the oppressive, dictatorial Mubarak regime lends a clue as to how rigidly Section 508 has been adhered to in the past.
There are two main challenges to the restrictions of Section 508. Firstly, while the ostensible goals of abiding by its commitment to liberal democratic values are laudable, they are equally impractical. By setting standards which the executive branch has neither intent nor the political will to keep, Congress makes a mockery of the law. The law is either ignored or stretched beyond any reasonable point. In the Middle East and North Africa alone, dictatorial regimes were given US foreign aid despite consistent human rights abuses. Having sham elections were a show for despots including Mubarak in Egypt, Ben Ali in Tunisia and Saleh in Yemen who each ruled for decades. It can also be argued that the prevention of all aid to those living under oppressive regimes harms civilians with little say in their government's affairs. Regardless, it is clear that the ideals of the statute present a standard which the government cannot live up to; it would be more prudent to amend the law to something that the state department could actually adhere to rather than making a mockery of our justice system.
The second challenge comes from the US foreign policy perspective. US aid should be a foreign policy tool. It is reasonable to expect that US aid is used in a way that seems to advance American national interests best; the American government is answerable to its citizens as a national government, not a charitable organization. As such, placing these limitations on whom we can provide aid to significantly prejudices and hinders the advancement of US foreign policy interests and the efficiency of how we use our foreign aid. Once again Egypt is a good example of a situation in which a strict adherence to the Section 508 could seriously undermine American national interests, but
there are many other such examples, and sans statutory changes we can expect future examples as well.
The combination of these two arguments is clear. Section 508 sets a wonderful ideal, at the expense of pragmatism. It is wholly unrealistic to expect the US State Department to set aside all American foreign policy interests on the basis of who is in power and how they came to power. There are decades of American foreign policy to prove this; the recent debate and continuation of aid to Egypt bear this out. At the same time, by failing to acknowledge this reality, the act harms the US's reputation for adherence to its own laws, domestically and internationally.
The act requires more than a simple amendment. It requires a complete overhaul; an utter shift in the legal and policy paradigm by which American aid is viewed and measured. Rather than setting strict, un-nuanced and impractical bars on aid to countries on the basis of "democratic" or "non-democratic," the statutory requirements of aid should be based upon trends and American national interests. If it is truly to promote liberal democratic values, then the act should call for evaluations of each potential aid recipient as to their trendswhich national governments have shown improvements and taken clear steps to improve their civil and human rights levels and which have not. Both official US data and metrics provided by credible non-governmental organizations might be useful towards this end. At the same time, the act should include clauses recognizing that there would still be exceptions and loopholes for certain situations in which American national interests could be seriously undermined by the complete withdrawal of aid. It is reasonable to expect to provide more aid to countries which are progressing towards more liberal democratic governance, and to penalize those which are regressing.
It is reasonable to call for reduced military aid (as one example) to a country which has undergone a coup. But the absolute, un-nuanced measures of Section 508 in its current formall aid must be completely stopped once a coup has occurred, is of little benefit and arguably, is in fact detrimental. A coup is one of the least expectable events in international relations, and to expect the US government to summarily suspend all aid, of any kind, to a post-coup country, is impractical. It harms American interests as well as making a mockery of the law. A systematic change to the Foreign Assistance Act's Section 508 would address all of these concerns and could pave the way for a more effective US foreign policy, one simultaneously conscious of American policy needs and respectful of the credibility of the law.
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, Reforming the FAA Section 508, JURIST - Dateline, July 29, 2013, http://jurist.org/dateline/2013/07/steven-aiello-legislation-reform.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 email@example.com