Douglas Kmiec Headshot

Should the U.S. Take Sides in Egypt? Yes, for Freedom -- the 'Common Ground'of McCain, Graham and Obama

Posted: Updated:

The high Holy Days have concluded and the opposing sides in Egypt are anxious of course to secure a governing position for their favored side. There is nothing neither nefarious nor disreputable in that. It is this passion to have one's conception of the good guide law and policy that animates the democratic process. In this respect, that there are deep divisions between the pro and anti Morsi partisans should not distress the Egyptian people or us. It might bother Egyptians because they may still be nourishing the idea that there will be only one limited opportunity in a generation to take power. These stark divisions may trouble the U.S. insofar as it suggests no means of resolution short of violence. These worries fail to apprehend fully the difference between democracy and dictatorship. They fail to grasp the implications of freedom.

The announcement that Secretary of State John Kerry has recommended that Robert S. Ford to serve as the next American ambassador to Egypt is a welcome development. It should move us out of the bystander category. Ford, who is fluent in Arabic, has had a number of ambassadorial appointments, most notably, to Syria and Iraq that will give him the kind of stature and grounding needed to have an impact in the nation that will either wildly succeed or disastrously become a failed state with regional consequences that really can't be known, other than they are all negative and destabilizing of Arab-Israeli perceptions of security and unhelpful to the restart of Arab-Israeli negotiations. Should the president concur in the secretary's nomination, which is almost certain, the Senate will hopefully approve Ambassador Ford quickly and by large margin.

What should we expect of Ambassador Ford? Just this: a clear statement of a principled, rather than solely pragmatic or self-interested, foreign-policy. The absence of a Chief of Mission in Cairo has confused both sides, especially since Senators McCain and Graham pronounced recent events to be a coup -- a determination they expressly noted was for themselves and not the administration -- but that nuance was quickly lost in the spread of Egyptian rumor anxious to claim the United States for President Morsi or the military.

Some in the White House thought the president overly permissive to allow the senators interventions at a time when the administration is quietly, through the skilled behind the scene diplomatic efforts of Bill Burns, the Deputy Secretary of State, attempting to get all sides to return the Egyptian process to the democratic track. Indeed, it is reported that the senators' "personal remarks" confused and angered Egyptian leaders on both sides.

There is no reason to be so fretful. The senators remarks illustrate the nature of democratic governance in America where powers are divided to preserve freedom. There is no more cherished freedom in the US than the articulation of political speech of which Senators McCain and Graham and the President are masters. As a matter of formal constitutional law, of course, the President is the organ or voice of US foreign policy, but when monies are involved, the Congress, especially the Senate, has a duty as well to investigate whether foreign aid monies are being properly allocated. So there were over 1.3 billion reasons the senators could and did decide it to be prudent, to drop by Cairo and express their assessment. (I confess myself not to know whether the senators were formally announcing their prospective votes against continued aid or not. I would speculate not, but it remains to be seen.) One suspects that at times like this former Senator Dick Lugar whose savvy and moderate voice was respected worldwide and managed to perform senatorial due diligence without stepping on presidential direction is greatly missed.

So what might Dick Lugar have said? Just this: America and Egypt are allies; it is not for us to favor one candidate over another, but we have every right to expect that whomever prevails will work to secure the long-term democratic structures in Egypt that will allow fairly conducted electoral competition. To "say" much more would be unhelpful and simply provide grist for ever watchful partisans to turn the words to their favor even though not meant to give endorsement. But even as Senator Lugar would have been entirely circumspect not to have a favorite candidate, he would be "outspoken" in favor of a constitutional structure fully capable of sustaining the freedom of the Egyptian people to choose -- in matters of politics, religion, and economics.

It is commonly said Facebook facilitated the Arab spring and there is some truth to this. But Facebook and other forms of virtual reality can't get democracy across the finish line. Fashioning a constitution and forming a government necessitates that the United States voice be heard clearly (in conjunction with that of the EU as well) -- not in the sense of dictating, but in the sense of proposing ways in which government excess can be checked, even to the point of conceding that whatever anyone calls the present military removal of a democratically elected leader, it needs to be conceded by all to be a one-off to establish democratic means thereafter. This pre-incorporation tweaking has happened before in history to start democratic machinery, as our own failed Articles of Incorporation reveals, but if constantly indulged, it will sap the democracy of all meaning. The Egyptian people understand this, and insofar as the Egyptians are also an honorable people who can be counted upon to observe international obligation, there is every reason to believe that once constitutional structures are in place that the Egyptians will keep this agreement with each other as well. Egypt is a friend deserving of the best advice we have discovered for ourselves. To withhold that which we think vital to democratic participation is to invite the opposite and create opportunities for the views of other nations with contrary ideologies. Policy vacuums do not stay unfilled for long.

Much of our foreign policy in the 20th century was based upon the specious notion that the enemy of my enemy is my friend; for the most part, the approach failed because it depended upon a ranking of lesser evils, but evils nonetheless -- and it is questionable whether the resulting evils turned out to be of a more benign nature. This expedient foreign-policy thinking has rationalized and tolerated a generation or more of petty tyrants in the Middle East and adjacent regions. If the Facebook abetted Arab Spring tells us anything, it is that the general population in this geo-politically sensitive area has had enough. Their passion for freedom is great and while the present al Qaeda rivalries unquestionably pose severe challenges to our national security, we cannot underestimate how hypocrisy in international diplomacy plays into the manipulating ideologies of al Qaeda factions as well.

Unfortunately, the general passion for freedom can be inarticulate, rendering it vulnerable to the more concrete and sweepingly didactic posture of Islamic practice. The inarticulateness is felt worldwide, but it is especially acute in Egypt, where Coptic-Muslim divisions have been sharp and violent, and work is required to promote mutual understanding and respect among all religious traditions. A democratic constitution aligns well with a tradition of religious pluralism that is observant of public order and that does not deploy either law or intimidation to deny like freedom to others. This does not presently exist in Egypt. It can be nurtured. Yet it is essential that democracy should not be declared unreachable because there is difficulty achieving common ground over a set of principles, processes and substantive boundaries on human power. Moreover, as the president and secretary realize, difficulties cannot be patched by awkward silence failing to offer advice consistent with the role of interfaith understanding and respect that President Obama called for in Cairo in 2009.

Getting down to specifics, when Ambassador Ford reports for duty, it would be useful to have already drawn on the reservoir of constitutional theory to have a template sketch for mitigating divisiveness within Egypt. Constitutions reflect human nature, and while no Constitution is transferable from place to place, our common humanity in terms of strength and weakness informs structural drafting everywhere. With all due respect it is more important to prepare this template for governance than it is for Congress to debate, rather pedantically, whether or not to withdraw its billion plus of foreign aid and development assistance solely on the question of what is a coup? -- in the abstract.

In diplomacy, abstract questions are nonsense questions. Would we think it a coup if the military suddenly took over the executive and judicial branches in the United States? Of course. Yes because of the radical break with our tradition of civilian control of the military. In Egypt, the military has obviously and contemporaneously been playing a different role. In this light, it can be credibly contended that Morsi's advocacy of a weak constitutional draft that gave a favored position to some Egyptians over others was in need of course correction. The U.S. cannot indefinitely see military intervention as a do-over, but it need not reflexively see it as a coup. If reasonable minds differ over whether the withdrawal of foreign aid is demanded by our own statutory language, as Rand Paul, John McCain and other Republican leaders insist, that statutory language should be followed so long as it exists, but let us not overlook that it can also be modified or repealed. The legislative decision to amend is every bit as much in conformity with the rule of law as is a funding cutoff. Discernment of context and lawful process are indispensable. To advocate that the Egyptians adopt a system of government that observes the rule of law while we flout our own is to deprive any advice we give of credibility.

Yet, beyond the formal compliance or repeal or amendment of our own statutory language, what else should we propose to the Egyptians as essential structural elements or understandings for constitutional governance? This is a subject that merits special envoy attention directly in conversation with civilian and military Egyptian leaders. In case the President is reading, I volunteer, but I know there would be many, and here are a few preliminaries any serious constitutional scholar would recommend:

The new Egyptian Constitution, like that of all other participatory democracies, must acknowledge fundamental human rights, including:

a. the freedom of speech, press and association, including for Islamic parties; freedom of religion for all faiths; equality before the laws of the state, with an enforceable principle of nondiscrimination observed with respect to race, religion, ethnicity; gender; sexual orientation; due process of law before any citizen is deprived of life, liberty or property;

b. Democratically elected executive and an independent judiciary, and given the uniquely friendly nature of Egyptians and their desire to be of service to each other, attention to lower levels of government that can take account of the needs of the human person by name and that can accomplish municipal and other service tasks more efficiently and effectively.

This was not the Constitution that was being drafted or promulgated in Egypt under Mr. Morsi, which is too bad, since Mr. Morsi in promising such impressed many in his UN appearance and his helpful calming of frayed nerves in the region working with former Secretary Clinton.

There is an expression: "as the twig is bent, so shall the tree grow." The constitutional draft Mr. Morsi rushed through had this malformation. It established Islam as the law of the state and sharia as the guiding principle of that law. Nonbelievers or believers of different traditions were given a minor provision that seemingly guaranteed the right to pray freely and not much more. in backing that horse, Mr. Morsi reduced his stature from national, indeed international leader, to local pol. That is ordinary constituent politics; ask any precinct captain in Chicago. This should be seen as neither diabolical nor prudent, but there is no denying that its internal logic was favoring the friends of the house.

The break came when the side skeptical of Morsi rejected the favoritism in a manner and with arguments that understandably alarmed President Morsi's supporters. The localized favoritism was sought to be rooted out with a more categorical rejection of Islam in terms of human rights. In this regard, Islam had been denied by the European Court of Human Rights (ECHR), wrongly in this author's perspective, the right to organize as a political party. The decision was unfortunate and driven more by Turkey's experiment with secularism than a scholarly or diplomatic consideration of Islamic belief or ways in which it could be accommodated within democratic structures. How might this be? Just as other faith are accommodated wherever religious freedom exists throughout the world, including in the United States; namely, by exemption of believers from civic imposition whenever a generally applicable rule is an unnecessary or substantial burden on religious practice. Catholics still had wine during Prohibition and Quakers were assigned noncombatant service in war time. Grants and refusals of exemption can be contentious (ask the President vis a vis contraception and affordable health care), but a well drafted constitution is sufficiently pliable to allow matters to work.

The Muslim Brotherhood would understandably wonder if reliance on this exclusionary ECHR ruling meant that democracy was proving for them not to be an embrace of freedom, but its opposite. Morsi's favoritism engendered over-reaction, and the people of Egypt have been waiting patiently for a responsible proponent of democracy to untie the Gordian knot. There is little reason for U.S. foreign-policy or its constitutional consulting to accept bald-facedly what informed and distinguished European scholars have been hesitant to declare: namely, that a hollow secularism is preferable to the cultural richness of spirituality and good will that is infused among a nation's people who understand themselves as motivated by a love for higher things beyond mere economic prosperity. The mistake of the ECHR in declaring categorically that democracy and sharia could never be compatible indulges an understanding of religious belief that governments everywhere are poorly positioned to make -- government officials not being theologians -- and even on pragmatic grounds the unthinking endorsement of secularism accepts a level of censorship that strains freedom of expression. As reflected in a book length study entitled "secularism crucified?" Which I presented at the invitation of the Institute for Catholic Studies" at the University of Southern California, to accept the isolated ECHR decision would just swing the Morsi pendulum to the opposite extreme.

To the contrary, freedom of religion does not mean that any general system of sharia is incompatible with Democratic governance or with the acknowledgment of constitutional rights; it is only made incompatible when the coercion of law is used to impose sharia-dictated outcomes on those who believe differently. This is true for any faith and it is essential to affirm. To suggest that wisdom of sharia or any other religious precept cannot be observed as wise within a culture without legal imposition is to disrespect and trivialize the effect of belief on individual lives.

To help Egyptians secure structural elements that protect individual rights as well as the protection of the rights themselves, the United States as a matter of its diplomacy should be perceived as taking neither the side of the military nor the Muslim Brotherhood but rather the side of freedom. This is befitting of a nation that has elected a constitutional law professor as its president, and also of a nation that traces the inalienable rights due all peoples, men or women, believer or nonbeliever, to a Creator and views its own constitution, as a great Chief Justice once said, as the fulfillment of the promise made in that historic Declaration.