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The Military, the Courts, and the Struggle for Control in Egypt: A Conversation With Khaled Abou El Fadl

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Khaled Abou El Fadl is Omar and Azmeralda Alfi Professor of Law at UCLA, and an internationally recognized expert in Islamic law and human rights. Since the ouster of Hosni Mubarak, he has consulted regularly with leading members of Egypt's judiciary on constitutional issues. He is the author of numerous books, including his decorated 2005 book "The Great Theft: Wrestling Islam from Extremists" and most recently "Islam and the Challenge of Democracy," co-authored with Joshua Cohen and Deborah Chasman.

We spoke on June 28, at the end of two weeks that were tumultuous even by the standards of post-revolutionary Egypt: an elected parliament dissolved, a seizure of power amounting to a "soft coup" by the military council, a run-off election that soon turned into a stand-off between the military and the Muslim Brotherhood, and all before Mohamed Morsi of the Brotherhood's Freedom and Justice Party was declared Egypt's first freely-elected president.

In our conversation, we discussed the role the courts had played in these events, the foreign pressures weighing on the military council, and the future of political Islam in the wake of the Arab Spring. His comments confirm many of the facts now emerging on the relationship between the military, the Supreme Constitutional Court, and the parliament.

The following is an excerpt. Our full conversation will appear on the website of Dissent Magazine.

FM: Let's begin with the decision of the Supreme Constitutional Court on June 12, which declared December's parliamentary elections unconstitutional and paved the way for the military council to dissolve parliament and regain full political control in Egypt, and that at the moment when they had promised a handover to civilian authorities. When you heard of what the court had done, did it strike you as a valid legal decision or as pure politics?

KAF: I wasn't surprised, but let me fill in some details. The legal background to this is that after the military council had issued the regulations for conducting the parliamentary elections, the language of the regulations was not tight and left a lot of gaps and a lot of problems. Like everything the military council has issued since it has come to power, their drafting skills give pause to a proficient lawyer, or someone who knows how it's supposed to be done. But in this case it wasn't just their regulations, and I want to emphasize this: There took place several meetings between the military council and the heads of the parties, and in these meetings there were members of the judiciary including the head of the Egyptian constitutional court. And they all signed off on that language, the language of the electoral law that the supreme court later knocked down.

Several things are odd here: that the issue was fast-tracked to the supreme court; second, that the head of the supreme court played a role in drafting the electoral laws with the military council and parties and at the time raised no objections to the language; third, this decision could simply have left it with the administrative courts, which could have allowed the fellow who initially brought this lawsuit to have invalidated the elections in his district, and ordered a new election for that seat. If the supreme court wanted to make a point that this is unconstitutional, they could have invalidated the one third alone.

Why did the Egyptian supreme court issue this decision at this time and in this fashion? What I know is that the military council right before the elections, when they were backing up Shafiq with all of their might, were confronting a lot of foreign pressure to make sure that certain conditions and situations in Egypt do not change, not just Camp David, but the oil agreement with Israel, which is a windfall for them, a lot of anxiety about Islamists coming to power, and so on.

FM: When you say 'foreign pressure,' I imagine you mean American pressure?

KAF: American, Saudi, and Israeli. These were the ones who exerted the greatest pressure on the military council, basically saying you can do whatever you want in Egypt, but here are vital interests that the army must guarantee for us. The army is the one that is responsible for guaranteeing these interests.

FM: So the army's attempts to become a state-within-a-state do not reflect the intentions of the army alone, but also reflect its role as salaried guardian of foreign interests.

KAF: Yes, absolutely. This leads me to the supreme court decision. What the military council did was speak to the chief justice, who remember was present when these electoral rules were drafted. The military council gave the supreme court a doomsday scenario: If the Islamists win the presidency and control the parliament, this country is going to collapse, Saudi and American investors are going to run away -- and here they pointed to the stock market, which happened to lose a lot of points when it was reported that the Ikhwani person was likely to win. Egypt, they said, is in danger of becoming another Iran or worse, or we're really worried about the Israelis invading.

In our countries, unfortunately when you say "pressure," it's never domestic. The United States says democracy is fine, but you, the Egyptian army, have to guarantee the security of Israel, and this democracy, however you play it, cannot result in an unsafe situation for Israel. Democracy is fine, but you can't touch Camp David. Democracy is fine, but you can't touch Israel's oil deal -- the irony of which is that Israel gets a good portion of its gas from Egypt practically for nothing, but Egyptians hardly get any and they constantly have gas shortages. Democracy is fine but even lifting the blockade on Gaza -- on this I was surprised, I thought they would have some leeway on this -- if you lift the blockade, we're not responsible if Israel decides to strike you, and you're going to be in a very uncomfortable position: you'll have to strike back against Israel or take the insult, but striking back against Israel will mean the destruction of the Egyptian army and its privileges, and so on.

FM: In other words, democracy is fine so long as you do everything Mubarak was doing for us.

KAF: Actually that's a pretty good sum of it. The other issue worth mentioning is the budget. When they were talking to the supreme court, the military council made it sound as though it would be the end of the world if the parliament puts together the budget because these people are going to get into all sorts of things that will have severe repercussions. When the budget did come out it turned out to be Mubarak's budget again, where for instance education was minimally funded and public works received practically nothing, again the same old corruption. Which is like saying to the new president, "Here's the presidency but you cannot change any of the rules that would actually enable you to do anything in the country."

FM: So this is not just the military budget but the entire budget?

KAF: The whole budget. Everything. So they used the fact the fact that the parliament was dissolved as an excuse for drawing up the budget. And they set the budget and then in the constitutional declarations they made it so that the president wouldn't be able to touch or alter it. This is why some of the justices of the supreme court thought that they were tricked, because it had the air of a trick to dissolve the parliament and then put in unchallenged the same financial privileges that the army enjoyed under Mubarak. So the budget that was just set is identical. And it is shameful, because in a country like Egypt you have less than a billion dollars for education, and you have a very nominal amount for technological development, I think two million dollars for technological development. It's a joke.

FM: One final and more general question, on the kind of political Islam that you see emerging in Egypt and other countries of the Arab Spring. Can Egypt strike out in the direction of a modern, democratic political Islam, or is the influence of the Gulf too strong?

KAF: I'm generally optimistic. These battles over the soul or the theology, or the intellectual heritage of a tradition, whether it is Christianity, or Judaism, or Islam, or whatever, they often take periods to develop but there are good indicators and bad indicators.

What's good in this situation is first that Saudi Arabia had done everything possible to prevent the sentencing of Mubarak. If you remember initially they had threatened to withdraw all investments in Egypt if Mubarak was tried. Second, Saudi Arabia really backed the Jama'a al 'Islamiya. These are their favorite folks who are truly Wahhabi. What you're going to see is a lot of tension and friction forcing the Ikhwan to distinguish themselves from the Wahhabi and Salafi types. I think they're going to draw closer to the model of [Tunisia's] Ghannoushi and the Islamist party in Turkey. Among the Ikhwan themselves, no one is in any mood to talk about whether music is halal or haram, or whether women should be banned from this or that, or all that social stuff, while the Jama'a al-Islamiya are fantasizing about it. And I think there's going to be a lot of friction, and ultimately the Ikhwan are going to be forced away from the Wahhabis. It's very difficult to work with the Wahhabis or live with the Wahhabis long term, because they lack flexibility in their thought.

Another positive indicator in terms of political Islam. I personally was surprised in this whole process how very few Egyptians even contemplated the idea of living in a state resembling the Iranian or Saudi model. Even those who voted for the Ikhwan believe that personal piety might make people less corrupt, but I haven't encountered any substantial numbers who say, "We vote for the Ikhwan because they will rule in the name of God and apply God's law, which is infallible." I definitely think this whole experience in Tunisia, and Egypt, and Syria is a return to authenticity in the sense that no one is denying their Islamic identity. But at the same time they are re-structuring that identity in a way that is entirely consistent with ideas of democracy. It's remarkable to me how many mosques I attended in Egypt where the sheikh would say, "God has given you the right to decide who will rule you, and no one can take that away." That has to be positive. It's very different from the years I spent in Kuwait or Saudi Arabia, where all you're told is basically that you have to obey the ruler if he beats you or oppresses you. It's a really different discourse, so yeah I'm optimistic.

I think the real issue is the military and foreign intervention. That's quite clear. This is not the first constitutional awakening in this part of the world. There have been several in the past, and some quite enlightened ideas, and every time foreign intervention aborts the project. But I think it's not going to be at all easy, because of the level of education and because of the modern means of exchanging information, which provide multiple sources so that no one relies on state TV. It's not going to be easy to just control and steer people as happened in the past.