There are many good reasons to maintain U.S. aid to Egypt under current circumstances, but American law presents a problem: under the Foreign Assistance Act, “none of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to finance directly any assistance to any country whose duly elected head of government is deposed by a military coup or decree.”
That is very clearly what happened in Egypt: Mohammed Morsi was “duly elected,” and he was deposed by a military coup. He was not impeached, nor did he resign, and the law does not say “unless we think he has done a really bad job” nor “except where the guy has become very widely unpopular.”
I am no fan of the statute because it lacks flexibility. There are cases, such as Mali, where we might wish to aid a government that came to power in a coup because it was fighting Al Qaeda. So what the Obama administration should have done was clear: ask Congress for an immediate national security waiver, or some other amendment giving greater flexibility.
Instead it has decided simply to ignore the law. A “senior official” told the New York Times that:
The law does not require us to make a formal determination as to whether a coup took place, and it is not in our national interest to make such a determination. We will not say it was a coup, we will not say it was not a coup, we will just not say.
Now, the Foreign Assistance Act also states that “no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.”
It also says that no assistance may be provided when a country “engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.”
And “No assistance may be provided to any government failing to take appropriate and adequate measures, within their means, to protect children from exploitation, abuse or forced conscription into military or paramilitary services.”
But no administration, after this, really needs to enforce such provisions. Some senior official can just say “the law does not require us to make a formal determination.” There are many human rights statutes, and one has to assume that they are all rather a dead letter after this.
Think of it this way: now, after this Obama action–or better put, this Obama refusal to act or to enforce our law–American officials can no longer tell foreign officials that gross abuses of human rights will automatically lead to suspension of aid. Nor, if aid is suspended, can they tell foreign governments that U.S. law required this. Everyone will know that enforcing such laws is a matter of whim. This will reduce our ability to prevent or stop human rights abuses, and harm our relations with foreign officials.
Worse yet, what exactly do we say now about their need to become nations where laws, not just the views of “senior officials,” guide the nation?