In the last week, the Egyptian military has unleashed a brutal onslaught against mostly peaceful protesters who are seeking the restoration of the elected president, Mohamed Morsi. With nearly a thousand people dead, many more wounded, and the regime’s critics increasingly silenced or detained, the optimism of the 2011 Arab Spring has given way to the mere hope that normal life will someday resume in Egypt and the rest of the Middle East.
Yet since the July coup d’état that brought General Abdul-Fattah el-Sisi to power in Egypt, the United States has mostly stepped gingerly, working behind the scenes to urge Sisi to compromise with Morsi’s Muslim Brotherhood, rather than making a clean break with the Egyptian military and the unelected civilian government that it installed.
As a matter of realpolitik, that approach is understandable. The United States has a strong strategic interest in the stability of Egypt and—in light of the extensive financial support for Sisi from Saudi Arabia and the United Arab Emirates—a complete cutoff of aid to Egypt by the U.S. would only be symbolic, and would leave the Obama Administration with even less ability to urge moderation upon the Egyptian military.
But the matter should not be governed solely by considerations of realpolitik. U.S. law clearly forbids direct military “assistance to the government of any country whose duly elected head of government is deposed by military coup d’état or decree or . . . a coup d’état or decree in which the military plays a decisive role.” According to a story published earlier this week in The Daily Beast, the most recent bloodletting in Egypt persuaded the Obama Administration to withhold military aid temporarily—but the Administration still has not publicly stated that it believes that such aid is legally forbidden due to the July coup.
Why not? In the balance of this column, I will suggest that the Obama Administration’s dubious legal position with respect to Egyptian aid fits a recent pattern of American presidents’ acting as though law provides little or no constraint on how they conduct foreign policy.
The Obama Administration’s Positions on Egypt and Libya
Although the Obama Administration has not formally stated that General Sisi came to power in a coup, at least it has not made the opposite declaration—that his July coup was not a coup—either. This deliberate silence probably reflects the Administration’s conclusion that if it were to ask what happened in Egypt, the only honest answer is that there was a coup.
To be sure, although President Morsi was elected, by July he had lost the support of many Egyptians. General Sisi acted in cooperation with crowds of Morsi opponents who sought his ouster. Still, that only tells us that the coup was popular, not that it wasn’t a coup.
The best that can be said for the Obama Administration’s silence on the question of whether the coup was really a coup is that it reflects a backhanded respect for the rule of law. At least the Administration does not openly say that it is entitled to ignore the law.
One might say roughly the same thing about the position that the Obama Administration took with respect to Libya in 2011. The Administration originally cited U.N. authorization and the urgency of the situation as authorizing the President to use force without prior congressional approval. Although many people, including myself (in a blog post) criticized that initial commitment as arguably unconstitutional, the Administration’s position became even more tenuous as time went by. The President and his lawyers claimed that the War Powers Resolution did not apply to the Libya conflict because it did not rise to the level of “hostilities.” That hyper-technical parsing of words was uncomfortably reminiscent of President Bill Clinton’s quibbling over the meaning of “is” and, more ominously, of President George W. Bush’s creative definition of torture.
Precedents for Presidential Lawbreaking in the International Arena
As those comparisons suggest, President Obama is not uniquely a lawbreaker. Indeed, judged by the pattern set by his recent predecessors, he is about average when it comes to following the law—especially with respect to foreign affairs and national security. Consider a brief recounting:
President Reagan unilaterally authorized an invasion of Grenada that violated both international and domestic law—unless one takes the highly contestable view that the potential danger to American medical students there amounted to an act of war against the United States. Reagan Administration officials also violated laws when they used the profits from secret arms sales to Iran to fund Contra rebels in Nicaragua.
President Clinton acted unconstitutionally, and probably in violation of international law as well, when he committed U.S. troops to the NATO mission in Kosovo—without authorization either from Congress or the U.N. Security Council. The only reason why I say that the action “probably” violated international law, rather than that it definitely violated international law, is that some supporters of the military intervention argued that it was authorized pursuant to an emerging norm of customary international law that permits armed humanitarian interventions.
President George W. Bush received prior congressional authorization for the invasions of both Afghanistan and Iraq, but the latter invasion violated international law (as I explained in a column at the time) and the congressional authorization for the use of force in Iraq was obtained through the selective presentation of faulty evidence of Iraq’s supposed nuclear program. Moreover, in the conduct of both wars, the Bush Administration sought to evade domestic and international law norms regarding the detention and treatment of alleged enemy combatants through highly dubious readings of the relevant legal rules.
Thus, of the last five presidents (including President Obama), only one has a clean record with respect to the conduct of foreign affairs and national security: George H.W. Bush. He sought and received both U.N. and congressional approval for the first Gulf War, and he conducted the war within the limits of his legal mandate—ceasing active combat after Saddam Hussein’s forces were pushed out of Kuwait.
Why Do Presidents Circumvent Legal Limits?
What explains the bipartisan tendency of recent presidents to circumvent or outright ignore legal limits on their authority? It is certainly not malice. Each of the actions described above sought to advance what the respective presidents who took them no doubt honestly believed were the national interests and values of the United States.
Nonetheless, each president (with the exception of Bush I) came to see legal limits on his authority as standing in the way of his higher calling: to defend the interests and values of the United States wherever they are challenged. Each saw himself as sometimes needing “to act his own opinion with vigor and decision,” as Alexander Hamilton famously wrote in Federalist No. 71.
Indeed, in the age of the plebiscitary president, the People expect such unilateral action from their presidents. Those presidents—especially Democratic presidents—are as likely to be criticized for weakness if they fail to act, as they are to be criticized for overreaching if they act in violation of the law.
Accordingly, I agree with many of the descriptive claims that law professors Eric Posner and Adrian Vermeule make in their book, The Executive Unbound: After the Madisonian Principle. They argue that given the demands placed on the president in the modern era, it is unrealistic to expect the president to be bound by law when conducting the foreign policy (and much domestic policy) of the United States.
But I part company with Posner and Vermeule when it comes to evaluating the empirical reality. They say that we need not fret that without legal constraint, the president will act as an unconstrained tyrant, because politics constrains the president. To my mind, this analysis misses how closely tied politics is to law in the United States. As early as the1830s, when Alexis de Tocqueville made the observations that would form the basis for Democracy in America, Americans have conducted much of our politics through debates about the law. When we loosen the restraints of law, we therefore also loosen the restraints of politics.
Seen in this light, the Obama Administration’s decision to cut off military aid to Egypt—even temporarily, and without formally acknowledging that a coup occurred—may be understood as responsive to the law through politics: in particular, the complaints by members of Congress and the media who challenged the Administration’s approach as illegal.
If hypocrisy is the tribute that vice pays to virtue, then legal rationalization may be the tribute that sophistry pays to honest legal analysis. It falls short of the rule of law, but it may be the best we can expect, given the conflicting demands that we Americans place on our presidents.
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