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Would Egypt Coup Sanctions Apply to Military Aid?

John Bellinger
Wednesday, July 17, 2013, 11:47 PM
Senate Armed Services Committee Chairman Carl Levin said today that any cut-off of foreign assistance to Egypt that might be required by U.S.

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Senate Armed Services Committee Chairman Carl Levin said today that any cut-off of foreign assistance to Egypt that might be required by U.S. coup sanctions legislation would not apply to the annual $1.3 billion in military aid provided to Egypt. I share Senator Levin's desire not to cut off aid to Egypt, but unless I am missing something, I don't think he is right about the law.  Most aid to Egypt, including the $1.3 billion in military aid and roughly $250 million in economic support funds, is provided in the State and Foreign Operations Appropriations bill.   Section 7008 of the Consolidated Appropriations bill for FY12 (which includes the appropriations for Egypt in the State and Foreign Operations appropriation) provides:
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.
This restriction has been continued in the Consolidated and Further Continuing Appropriations for FY13. As I have previously noted, the State Department will continue to study whether the ouster of Morsi in Egypt constituted a military coup, and this may take some time.   It is possible that, in order to avoid triggering a cut-off of aid, the State Department might conclude that the change in government was not a military coup because Morsi has been replaced by another civilian government rather than a military government.  But this would be a legal stretch to reach this conclusion (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). A better legal and policy resolution for both Congress and the Executive branch would be for Secretary Kerry to conclude that a military coup did in fact occur in Egypt and for Congress (where there seems to be broad support not to cut off military assistance to Egypt) to pass legislation giving the President authority to waive the Section 7008 sanctions, similar to the "Pakistan Waiver Act" that Congress passed in October 2001, which gave President Bush authority to waive the coup sanctions on Pakistan, and to provide foreign assistance to Pakistan after the 9-11 attacks.

John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.

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