Academic journal article Harvard Law Review

Congressional Control of Foreign Assistance to Post-Coup States

Academic journal article Harvard Law Review

Congressional Control of Foreign Assistance to Post-Coup States

Article excerpt


On July 3, 2013, General Abdul Fattah al-Sisi, head of the Egyptian Armed Forces, announced that he had removed Mohamed Morsi--Egypt's first-ever democratically elected president--from power. (1) In the following days, the Egyptian military installed a new government, arrested Morsi supporters, and drastically restricted the civil liberties of Egyptian citizens. (2) These events triggered a conundrum in Washington, D.C. The U.S. government provides approximately $1.5 billion in foreign assistance to Egypt each year (3) as part of a strategic partnership that began after the Camp David Accords in 1978. However, the government is also subject to section 7008 of the Consolidated Appropriations Act, 2014, (4) which forbids most kinds of direct foreign assistance to countries in which a democratically elected government has been deposed by a military coup. (5) How would the U.S. government balance its obligation to comply with the law, its commitment to assist Egypt, and its commitments to human rights and democratic rule that the al-Sisi coup seemingly threatened?

The Obama Administration's dilemma in Egypt was the latest example of the choices the executive branch regularly makes in connection with congressional restrictions on foreign assistance to post-coup states. For many years, Congress has included, in its appropriations acts funding U.S. foreign assistance operations, a provision now known as section 7008. (6) In its most recent iteration, section 7008 provides that:

   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'etat or decree or, after the date of enactment of this Act, a
   coup d'etat or decree in which the military plays a decisive role.
   ... (7)

The language and location of this provision (the "coup provision") have changed slightly over the years, but some version has been included in foreign assistance appropriation bills since 1986, and it has been reauthorized numerous times. (8) Put simply, the coup provision prevents many (though not all) forms of "direct" foreign assistance after a democratically elected government is deposed by a coup in which the military has played a decisive role. (9) Unlike many other restrictions on U.S. foreign assistance, the coup provision does not include a waiver; if the provision applies, aid must be cut.

Although issues related to the coup provision frequently arise, there has been little scholarship on how the law is applied and how it is affecting the Executive's conduct of U.S. foreign policy. Aiming to answer these questions, this Note proceeds in four parts. Part II examines a number of recent case studies involving states receiving U.S. foreign assistance that experienced military coups, and it identifies an unexpected trend in recent U.S. responses to such coups: increasingly, the U.S. government complies either fully or partially with the coup provision's requirements in situations that implicate the statute, but does so only after asserting that it is not required to make a determination as to whether the coup provision applies. Part III explains that this trend of statutory avoidance is actually a logical response from the Executive, given the differences between the incentives the Executive faces when choosing whether to comply with and whether to invoke the coup provision. Part IV argues that this discrepancy is normatively undesirable. Although the coup provision has likely had positive effects on executive conduct of U.S. foreign policy, the statute could be improved if it were modified to include a requirement that the Executive make a conclusive determination as to whether the statute applies, as well as a "fast track" mechanism for waiver requests. Part V concludes. …

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