Egyptian officials announced on Saturday that the state's emergency laws might be lifted in six months. We'll see. Since 1967, Egypt has spent all but five months under a declared "state of emergency" by which the regime has rationalized the outlawing of demonstrations, the use of indefinite detentions without trial, the extensive use of "security courts" that afford little or no due process or transparency as compared with civilian courts, the endowment of presidential decrees with the power of law, among other things.
Surely the overthrow of the Egyptian government by popular uprising was fueled by long-simmering grievances in almost every sector of Egyptian society, and many of those sectors are now gaining media and political attention, most notably workers and labor unions. But few people are familiar with the degree to which the Mubarak regime used the persecution of gay men and lesbians -- or people called out for being gay or lesbian -- as a tool by which to fortify and expand the scope and cruelty of the national security state.
In May 2001, the police and State Security Intelligence personnel raided a party held aboard the Queen Boat, a floating nightclub, moored on the Nile in Cairo's Zamalek district. Fifty two men were arrested for "habitual debauchery" and "obscene behavior" and charged under the Egyptian prostitution law, as Egypt did not have a law criminalizing sodomy. (The prostitution law was a relic of English colonial rule, not the product of indigenous or Muslim social norms). The detainees were subjected to forensic examinations, apparently in order to determine whether they had engaged in anal intercourse, and were forced to "say my name, my job, my address and say 'I am gay.'"
They were tried before an Egyptian Emergency State security court -- a creation of President Mubarak in 1981 after the assassination of President Anwar Sadat. In November, 2001, the defendants were brought into court and were promptly placed in a cage in the courtroom where they stood wearing masks and hoods they had constructed out of their shirts and underwear in order to disguise their identities from the media present in the court. Indeed, only the media was allowed in the courtroom when the judge read out the verdicts and sentences. Families and friends of the accused were not permitted to be present, and their cries from the hall and banging on the courtroom doors rumbled in the courtroom as the judge began the proceedings. The judge read the court's verdict in a whisper that no one in the room could hear, indeed for some days many defendants did not know whether they had been found guilty or what sentence they had been given.
Six moths later, the ruling was overturned on the grounds that the men's alleged crimes did not merit their prosecution in a security court. The retrial took place in the Qasr Al-Nil misdemeanours court -- a civilian criminal court -- however the judge held no hearing, took no testimony, refused to permit the defense lawyers to cross examine the arresting officers, nor allowed them to submit written memoranda or oral arguments to the court. Relying entirely on the forensic evidence and coerced confessions of the defendants, in March of 2003 the civilian judge again found the 21 defendants guilty of "habitual debauchery." He then issued harsher sentences than had the state security court.
Why is the arrest and prosecution of the Queen Boat 52 relevant today to the post-Mubarak transition to greater democracy and freedom in Egypt? For a couple reasons.
First, it's important to remember that Mubarak was able to degrade civilian criminal court procedures -- denial of due process, a right to cross-examination etc. -- and render them more like the national security courts by and through the prosecution of an unpopular minority: gay men. Mubarak knew that little public outcry would result when a bunch of habitual debauchers were tried without respecting their basic constitutional rights. Once these new low standards for due process in criminal detention and trials were established with gay -- or supposedly gay -- defendants, the Mubarak government went on to prosecute through similar means other dissidents and members of the media whom it disfavored. Reestablishing the integrity of the Egyptian court system today, outside the tyrannical structure of the State of Emergency, must keep in mind how easy it is to use a disfavored minority -- whether it be gay people or Nubians -- to dilute a commitment to due process and basic civil, political and human rights.
Second, much has been said about the role of the Muslim Brotherhood in post-Mubarak Egyptian politics. It is now entirely unclear how Islam, of whatever sort, will shape the new Egypt, but if past is in any way prologue in this case, Mubarak's manipulation of religion for both domestic and international audiences is worth remembering. The Emergency Security Courts in which the Queen Boat 52 were tried were originally set up to try Islamic fundamentalists. Since 1992 hundreds of civilians, mostly alleged members or supporters of al-Gihad (Holy Struggle, known abroad as Egyptian Islamic Jihad), al-Gama'a al-Islamiyya (Islamic Group), or Al-Ikhwan Al-Moslemoon (the Muslim Brotherhood), had been referred to military courts. These trials, sometimes held en masse, were criticized by Human Rights Watch and other human rights organizations for failing to meet international fair trial standards. Basic rights, such as the right to appeal, had been routinely violated, even in cases where the defendants faced and were punished with the death penalty. The well-publicized prosecution of the Queen Boat 52 in the very same courts sent a message to an international audience that the security courts did not exist exclusively to harass and persecute the religious opposition. Indeed, these courts can be used to prosecute the very groups that the Islamists hate the most.
Of course the rights of sexual minorities deserve attention for their own sake in the new, freer Egypt, as they do anywhere. But as Egypt and its supporters begin to dismantle the decades-old institutionalization of the State of Emergency, it is important to bear in mind the ways in which the denial of basic civil and human rights for sexual minorities can be used to undermine larger projects of democratization that seem not to "be about" gay rights at all.
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Katherine Franke is a Professor of Law and Director of the Center for Gender and Sexuality Law, Columbia Law School. She writes for the Gender and Sexuality Law Blog.