Paul Pillar

Eroding the Rule of Law

I have spent much time around government lawyers, and nearly all of the ones I have known have consistently conducted themselves with a couple of important objectives in mind. One is to apply legal analysis fully and fairly to whatever subject is at hand, not shying away from noting legal requirements even when they become policy inconveniences. Another is to support the larger missions of those they are advising by pointing out legal ways, if they exist, to accomplish those missions.

Against that background it is disconcerting to read that the issue of the most recent Egyptian military coup and its ramifications for U.S. aid is being side-stepped in Washington by just not offering any legal opinion about the nature of the Egyptian generals' move. A senior administration official said, “We will not say it was a coup, we will not say it was not a coup, we will just not say.”

Setting aside the legal issue about characterizing the coup, whether any suspension of U.S. aid to Egypt at this time makes sense is a question about which reasonable people can and do disagree. It is not a clear-cut policy call. I happen to believe that suspension would be an appropriate response to the overthrow by the military of a freely elected president. If the generals' promises about moving back in the direction of democracy are to be believed, such a suspension need not last long. There is good reason to believe a suspension would increase the likelihood the generals will keep their promises. The appropriateness of a suspension is made all the greater by indications since the military ousted Mohamed Morsi that so far the generals are moving less toward democracy than toward a replay of initial installation of military rule six decades ago.

The fact that there is a legal issue, given a statutory requirement to suspend aid in such circumstances, makes the costs of not recognizing the reality of the Egyptian coup all the greater. Failure to recognize this reality is an act of hypocrisy, which fosters additional foreign cynicism about anything the United States says concerning democratic or other values. It also is a staining of our own political culture. It is a compromise of our respect for the rule of law, even when it is our own law. The rule of law represents one of the most fundamental differences between the United States and the least desirable polities of the world. We cannot afford to treat it casually.

To be sure, there is a problem of Congress using legislation to tie the hands of the executive branch in unhelpful ways that can impede effective foreign policy. Congress does too much of this; it ought to do less, especially when doing so is essentially political posturing, as it often is. At a minimum, Congress ought to incorporate more consistently than it does in legislation related to foreign policy the possibility of an executive branch waiver. But this is all a larger problem that is not solved by simply flouting whatever law is, for better or for worse, on the books.

There have been in recent American history too many other indications of an erosion in respect for the rule of law, from those within government whose functions are all about making or executing the law. There has been, for example, the ignoring of judicial review requirements on a matter that, as we see in current debate about electronic surveillance, is controversial enough even when the law is observed. There have been presidential signing statements, which are a way of explaining an interpretation of a law but at times have been used instead to declare an intention not to obey a law. There is the falling into disuse of the Congressional declaration of war, replaced by Congressional expressions that are outdated or unclear regarding the legal basis for the use of military force. If these things are all part of a coherent pattern, we ought to be worried.