On the Restoration of Aid to Egypt

Combat operations against ISIS, civil war in Syria, and nuclear negotiations with Iran have crowded out coverage of another important development that factors prominently in America’s Middle East strategy: the changing status of military aid to Egypt. Although the U.S. has consistently supplied Egypt with F-16 fighter jets and M1A1 Abrams tanks for decades, the Obama Administration suspended most of this aid from October 2013 until March.  These actions raise two important questions: (1) why did the President disrupt aid in the first place, and (2) why did it take him 17 months to release it? The answer to the first question originates with the events of July 2013, when Egypt’s military leadership, the Supreme Council on the Armed Forces (the SCAF), ousted Mohammed Morsi, the former Muslim Brotherhood aligned and democratically elected president of Egypt. According to § 508 of the Foreign Assistance Act, the U.S. must suspend aid to any country where the “duly elected head of government is deposed by military act or decree.”  On its face, the application of § 508 seems fairly straightforward: Morsi was duly elected by the people, the SCAF overthrew him, ergo, the U.S. must suspend all aid.  After all, the Act was designed to prevent U.S.-backed militaries from doing precisely what the SCAF did: installing military dictators by overthrowing democratically-elected civilian leaders. But this analysis overlooks a key legal debate that took place back in 2013. The Administration’s lawyers seemingly found a way around § 508 by claiming that the law does not require the President to make a formal determination as to whether a coup took place.  According to this argument, § 508 did not compel the President to instantaneously freeze all aid; instead, he retained full discretion to halt none, some or all of it.  Indeed, it was not until after Egyptian security forces killed hundreds of Muslim Brotherhood supporters that the Administration decided in October 2013 to put a stay on the transfer of F-16 aircraft, M1A1 tank parts, Harpoon anti-ship missiles, and Apache helicopters to the SCAF. Then Congress got involved.  It restricted the President’s discretion by conditioning the delivery of any aid in 2014 on the Secretary of State’s verification that Egypt was transitioning toward democracy and meeting other human rights and civil society benchmarks. These constraints resulted in most of the aid being withheld in 2014 (albeit with few exceptions). However, Egypt also has strong allies in Congress that pushed back in 2015, especially Kay Granger, the Chairwoman of the House State and Foreign Operations Subcommittee who helped reinsert presidential flexibility into the aid determination.  Congress’s 2015 aid authorization contained the same provisions on U.S. assistance to Egypt as the 2014 version, but with one significant exception: the Secretary of State could waive these restrictions if he or she certified that doing so is “important to the national security interest of the United States.”  Thus, by making it easy for the Administration to circumvent the democracy-verification requirements, the Congress did an about-face and essentially fully restored the President’s ability to exercise his unrestricted discretion over the aid. Indeed, the President did exactly that, invoking the national-security waiver less than two months ago to clear the way for the delivery of various platforms and weapons systems to Egypt. However, the President tempered the resumption of aid by simultaneously canceling a cash-flow financing system that allowed Egypt to buy American arms on credit from future foreign aid, a prerogative that formerly signaled Cairo’s privileged relationship with Washington.  He also restricted Egypt’s acquisition options by requiring that all aid be channeled to either counterterrorism, or border, maritime or Sinai security. This in-between solution underscores the dilemma that Egypt has posed to the Administration since Morsi’s ouster: should the U.S. refuse the new Egyptian government aid until it follows a more democratic course, or is it an important regional partner that should be supported despite its poor human rights record?  On the whole, it appears that the Administration and most members of Congress (Patrick Leahy is a notable exception) support the latter view—at least for now.  The U.S. government has been pleased because the SCAF has been fighting ISIS in its own backyard in the Sinai and neighboring Libya, and the Administration probably wants to shore up its traditional Middle Eastern alliances leading up to a potential nuclear deal with Iran.  Furthermore, withholding aid did little to mitigate the SCAF’s repression, as Egypt began turning to France and Russia for its defense needs, diminishing Washington’s clout in the process.  Lastly, the withholding proved to be problematic to American defense contractors, such as Lockheed Martin and General Dynamics, who have been awarded multi-billion dollar contracts to deliver the aid.  As a result, the U.S. is now obliged to look past the fact that, since the release of the aid alone, the Egyptian government has sentenced nearly 40 political protestors to life in prison (including an American citizen), condemned 22 people to death, and has continued to perpetuate a crackdown on political and civil society that has been labeled “worse than Mubarak.” There is no simple Goldilocks solution to the trade-off between the American security interests that the aid achieves in fact and the image of complicity in repression that it promotes in the eyes of Egyptians.  After Morsi was ousted, the pendulum swung in the direction of the latter, but today, concern over ISIS and maintaining Middle Eastern allies amid nuclear negotiations with Iran swings it back towards the former.  What is clear is that Congress—at least for now—has decided to give the President full discretion to determine where the pendulum should lie in managing this tension.