People are still debating whether the recent ejection of the elected government in Egypt meets the definition of a "coup." This debate has arisen because U.S. law requires a suspension of aid to a country whose democratically-elected government has been ousted following military intervention -- a condition that seems to clearly apply in this case.
However, perhaps more important than the "coup" question, this Egypt aid predicament illuminates how the U.S.
Congress -- in its eternal tussle with the executive for foreign policy dominance -- handcuffs the president in the
conduct of foreign policy, sometimes to the detriment of America's own interests. Members of Congress, no doubt
with good intentions, have annually passed the anti-coup legislation based on the straightforward principle that
the United States supports democratically-elected governments. Life, however, sometimes throws up situations that
are not so black-and-white. Egypt in the summer of 2013 presents an example of a complex reality that demands
complex policy options -- options that the existing law forecloses.
Understanding why the situation isn't black-and-white requires, perhaps, a review of some basic facts. First, U.S. assistance is a tool of foreign policy, not a gift or an entitlement. Second, promoting democracy is an important goal of U.S. foreign policy, but not the only goal. Third, turning assistance "on" to reward democratic behavior and "off" to punish anti-democratic behavior is one way of using aid as a foreign policy tool, but not the only way. And fourth, Egypt is and will remain a country of vital geostrategic importance to the United States, by virtue of its location, size, and influence in the region.
In this context, it seems clear that critically important policy decisions regarding Egypt should be based on an assessment of what is best for U.S. interests, rather than on a rigid law that, while grounded in a laudable principle, is immune to the complexities of the situation at hand. Such an assessment might lead the president to decide to suspend aid. It might, alternatively, lead him to conclude that U.S. interests and policy goals are best served through continuing aid, albeit with conditions and benchmarks to ensure that such aid preserves U.S. leverage and is incentivizing and pressuring Egypt's interim authorities to speedily return the country to a democratic path.
With respect to the Egypt aid conundrum, some members of Congress seem to be taking the approach of "sorry, the law is the law" -- implying that, despite the U.S. interests at stake, nothing can be done. Others seem to suggest that the president should circumvent the law to continue aid. The former is a cowardly or lazy abandonment of responsibility; the latter is a breathtaking abdication of authority by those entrusted with making laws.
The truth is: Congress isn't a powerless onlooker, forced to stand by in mute frustration as the law compels the president to pursue policies that conflict with U.S. interests. Congress can, and sometimes does, grant the president legal authority to put U.S. interests first, in what's known as a "national security waiver." This provision permits the president to waive the operative clauses of a given law if he deems it important to U.S. interests. Such language often includes extensive reporting and accountability requirements, ensuring that it is not simply an oversight-free escape clause allowing the president to ignore Congressional will.
This is what Congress should do in the case of the anti-coup language and in other cases in which it is using the power of the purse strings to legislate foreign policy. Politically, it is an elegant solution: members of Congress retain the moral high ground, the president gets the necessary authority to be a responsible guardian of U.S. interests, and when things go from black-and-white to gray, it is the president who must expend political capital to bridge between the moral high ground and the exigencies of realpolitik.
It should be underscored that this Egypt quandary is not a one-off: it is only the latest example of Congress legislating the United States into self-defeating foreign policy choices. Not long ago another law -- one passed not to promote a principle but to pander -- forced the United States to cut funding to the United Nations Educational, Scientific, and Cultural Organization (UNESCO) after the body voted for Palestinian membership. The general response from Congress was: sorry, the law's the law. As a result, UNESCO programs went unfunded, U.S. global soft power was weakened, and the United States looked like a bully -- largely because of a rigid, anachronistic law (passed in the 1980s).
Finally, it's worth noting that in some cases in which national security waivers do exist, they are coming under attack -- in what appears to be undisguised pandering at the expense of U.S. interests. One example of this phenomenon is the current efforts by some members of Congress to strip out presidential waiver authorities from existing Iran-focused sanctions laws or to add additional, non-waivable sanctions. If successful, these efforts would ensure that, should Iran be willing at some point to come to the table to negotiate in good faith over the future of its nuclear program, the president would have little power to negotiate and deliver on a deal -- despite the vital U.S. interests involved.
Another striking example is the Jerusalem Embassy Act of 1995, a law that compels the president to move the U.S. Embassy in Israel to Jerusalem or forfeit substantial State Department funding. The law permits the president to waive the embassy relocation if he determines that "it is necessary to protect the national security interests of the United States." Since the law was enacted, Presidents Bill Clinton, George W. Bush, and Barack Obama have made such determinations. Since Obama took office, however, there have been repeated efforts by members of Congress to remove the waiver authority from this law and force the president to move the embassy -- U.S. national security interests be damned.
Coup or not, whether to suspend or continue aid to Egypt is a weighty policy question with profound implications for U.S. national security interests and goals -- just like a decision to cut off U.S. aid to a major U.N. agency, to foreclose U.S. negotiating options with Iran, or to move the U.S. embassy to Jerusalem. Such questions demand serious, sober consideration and answers that are firmly grounded in the aforementioned interests and goals, not knee-jerk policies mandated by rigid legislation. To act otherwise defies common sense and flies in the face of the most basic notions of good governance. Congress will no doubt continue to pass foreign policy legislation, both principled and pandering. Minimally responsible lawmaking, however, demands that such legislation leave the president sufficient flexibility to ensure that U.S. interests are always at the core of U.S. foreign policy.
Lara Friedman is director of policy and government relations for Americans for Peace Now.