When the Egyptian army overthrew Egypt’s elected president on July 13, it was crystal clear that American law required a suspension of aid. This is what the Foreign Assistance Act says:
SEC. 7008. None of the funds appropriated or otherwise made available pursuant to titles III through VI of this Act shall be obligated or expended to finance directly any assistance to the government of any country whose duly elected head of government is deposed by military coup d’e´tat or decree or, after the date of enactment of this Act, a coup d’e´tat or decree in which the military plays a decisive role.
The Obama administration ignored the law, saying it was studying, and studying, and studying whether what happened in Egypt was "really" a coup. What it should have done was obvious: state publicly that section 7008 ties its hands in emergency situations, as we had seen in Mali. There, a government that came to power in a coup needed and deserved our help in combating Al Qaeda--but we were unable to give it due to section 7008. The administration should have followed the law, and called upon Congress to legislate waiver authority immediately--as Congress had done in 2001 with respect to Pakistan. Instead, the White House and State Department mumbled and evaded.
Nor was this the first time: as former State Department Legal Adviser John Bellinger pointed out, the administration’s meanderings here are "not unlike the White House conclusion in 2011 that the U.S. was not engaged in ’hostilities’ in Libya, which would have triggered the War Powers Resolution." In Libya, U.S. action involved about a dozen ships, a Marine Expeditionary Unit, and about 100 aircraft, and all personnel involved received "imminent danger pay." But to the White House, this did not suggest "hostilities."
Where does this kind of gamesmanship lead? Nowhere: friends in Congress inform me that the administration is now deciding, after almost four months, that legislative relief is needed to continue aid to Egypt. But they are apparently still playing games down in the White House, saying they need not actually make a coup determination to admit that section 7008 applies--and has always applied. A tangled web, to be sure, and one spun due to the insistence on not telling the truth about events in Egypt.
My point here is not that the July coup was good or bad, or that aid to Egypt should be suspended or continued. Far more important is the administration’s refusal to enforce a very clear statute, something indefensible in itself. And by so doing, it has undermined human rights laws that have been on the books for years. Practically speaking, when next this administration or (more realistically) its successor seeks to avoid a coup somewhere by arguing that an aid cut-off must inevitably follow, what they will hear back is "Naaah, why must you cut aid? Obama didn’t--remember Egypt?" And there goes a large part of our persuasive power.