Egypt’s New Terrorism Law

The original can be found at the Atlantic Council here.

Egyptian president Abdel Fattah al Sisi approved a new terrorism law earlier this month. While disturbing, the law is not surprising when viewed in the context of Egypt’s consistent rhetoric of its war against terror. With the Egyptian militant organization Ansar Bayt al-Maqdis recently pledging allegiance to the Islamic State of Iraq and al-Sham (ISIS), the threat is real. The recently passed law, however, comes at a high cost. 

First, the terrorism law is deeply flawed, as it is overly vague and allows legal culpability for constitutionally-protected actions. According to Article 1 of the new law, “a terrorist entity is any group which disrupts public order or threatens the safety, security or interests of society, or harms or frightens individuals or threatens their lives, freedoms, rights or security or harms national unity…” Here, any organization that the Egyptian government claims has ‘disrupted public order,’ ‘threatens the interests of society,’ ‘frightens individuals,’ or ‘harms national unity’ can be labeled a terrorist organization. In reality, any organization which publicly expresses displeasure with the social or political status quo in Egypt could foreseeably fall into one of these categories. 

The Cairo Institute for Human Rights Studies criticized the potential designation as a terrorist entity any group which calls “through any means to stop a specific law or overturn a court verdict,” noting that such wording could include peaceful political expression. Free expression is guaranteed in Article 65 of Egypt’s constitution. This law, however, empowers the government to label organizations which peacefully and constructively express political or social opposition as terrorists. In practice, this law could be used to silence, for example, organizations calling for protests against the verdict in which charges were dropped against ousted president Hosni Mubarak.

Second, the law gives the executive branch of the Egyptian government potentially damaging power over the rights of Egyptians with no or insufficient due process. The government first has the right to dissolve, freeze the assets of, and arrest the members of an organization designated as a terrorist entity in a manner discussed above. Under Article 74 of the Egyptian constitution, a political party can only be dissolved by a court judgment. The government can also create a listof terrorist entities (Article 2) and a list of national security threats (Article 5). In short, the executive branch, security forces, and the public prosecution are empowered to identify and eliminate terrorist organizations by ending the organizations’ activities and seizing their property. 

Missing from the bill is any judicial or legislative involvement, and no requirements of evidence are to be submitted to any independent reviewer. While groups areallowed to appeal decisions labelling them terrorist entities, the label itself allows wholesale removal of all political, property, and monetary rights, which would only be restored if the appeal were successful—a process which the law itself allows to take up to three years. Effectively, the Egyptian government can unilaterally remove all functional rights from any organization without having to present any evidence of its claims for three years, potentially violating constitutional Article 54’s due process requirements for restricting rights and freedoms.

When considering the political context of this law, is important to remember that Egypt does face legitimate terrorism threats, primarily but not exclusively in Sinai. Ansar Bayt al-Maqdis has been a thorn in the side of every Egyptian government since 2011 and shows no sign of stopping. The Egyptian people have legitimate fears of violence which any government would have to address. 

However, laws which combat terrorism but still allow for free political expression exist both within Egypt and around the world. Article 237 of Egypt’s constitution, for example, allows the government to combat terrorism, but cannot logically be inferred to violate the free expression guarantees of the same document while maintaining consistency. The removal of all rights from peaceful and lawful organizations will not defeat Ansar Bayt al-Maqdis, and the Muslim Brotherhood has already been prevented from functioning, had its assets frozen, and has been declared a terrorist organization. The terrorist entities law is yet another example of legislation passed by the Egyptian authorities which aim to restrict public space. It joins the so-called NGO law, which has given the Egyptian state regulatory authority over NGO funding and activity, and a restrictive protest law requiring that the ministry of interior receive prior notification of all demonstrations.

In the context of these previous legal actions, the goal of Egypt’s new terrorism law appears to be to suffocate the country’s civil society by granting the government the ability to eliminate any group it sees fit without providing evidence or reasoning. The ambiguous wording also affords it the opportunity to silence critics, activists, and journalists. This will chill any attempts to present alternatives to the political or social status quo, which is a key function of civil society and a free media in a liberal democratic society. 

Explaining America: #BlackLivesMatter and CIA Torture

One of the hats I wear is a teacher of English as a new language, mostly to new Americans. They all came here for a reason—for a better shot at happiness—and as such generally have a personal stake in the American Dream not only being a reality, but having room for them and their children, as well.

In order to present a full picture of the United States, however, I try to allow the students to draw their own conclusions from the country’s past: our relations with Native Americans, our Founding, our reactions to the various waves of immigrants, the history of slavery and its role in our governmental development, and the Women’s Rights, Civil Rights, and Gay Rights movements. The 2000 presidential election, for example, is a great lesson on our respect for governance institutions. I try to highlight the pressures and interests which explain what seems bad about American history and note the asterisks which often follow what seems good about American history.

In previous months, I have been asked questions which lead to teachable moments. An individual burning a Quran in Florida leads to a wonderful discussion of free speech and the path of 1^st Amendment litigation during the 20^th Century and where it stands today. A discussion on curbing climate change leads to a mention of the Kyoto Protocol, and therefore a lesson on the concept of dualism in international law. The controversies surrounding the Affordable Care Act can lead to an important lesson on federalism.

This past month has been different. Sure, the grand jury verdict regarding the death of Michael Brown led to a discussion about evidence and the presumption of innocence, but the verdict following the death of Eric Garner made the previous lesson feel hollow. Of course the CIA Torture Report can bring to the fore the separation of powers, but the existence of such programs which are so obviously “contrary to our values” is difficult to present in a non-judgmental way.

I love my country. I view America as a good literary protagonist: she has a complex past and she does make mistakes, but she’s affable and fundamentally good. These terrible news stories, however, have made explaining America more difficult and more troubling. Are Jim Crow and Korematsu really just skeletons in America’s closet, or are they examples of her deep flaws which she refuses to address? December 2014 suggests the latter.

The beauty and frustration of a federal republic is that no single institution can address these flaws alone. But America’s story is not over: We The People must actively engage in all levels of governance in order to write the chapter that we wish to read. Looking forward to 2015, I hope we write for America a better future, so when it eventually becomes the past itself, the job of explaining America will be an easy one.

A Constitution Day Plea against NSA Surveillance

This was posted on the Tully Center for Free Speech's blog Free Speech Zone, and can be found here.

Today is Constitution Day, which marks the 226th anniversary of the ratification of the document which forms the legal outline of our society. This document includes values such as limited government powers, inter-branch checks and balances, and the personal right to be secure in one’s effects. Today is the day to reflect on how poorly we have done to maintain these values.

While government surveillance and opacity are not wholly new, the recent revelations of NSA metadata collection and activity exceeds the scope of all previously known examples of government overstepping. The National Security Administration (NSA)  routinely engages in the compilation of information on both domestic and foreign communications, acting inconsistently with the Foreign Intelligence Surveillance Act (FISA). More importantly, in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” To do this, the NSA has not only created an array of data collection technologies, but has also co-opted private data collected by complicit corporation. The NSA has hacked into the United Nations and has given your private information to the Israeli government. How can any American feel secure in his or her personal effect?

One might respond that we are in a time of war, exempting us from Constitutional limits on the grounds of necessity. However, the horrors of war were just as real to those who fought the Revolutionary War and created our founding documents as it is now for those who witnessed the horrors of 9/11 and face endless threats to domestic tranquility. We must remind ourselves that those documents originate from the cauldron of war by people who surely faced death if their revolution proved unsuccessful. Their values remain as true today as they did over two hundred years ago.

Any law is only as good as its enforcement, and the Constitution is no exception. We must  stand and assert our fundamental rights if we fear their erosion. Earlier this month the Associated Press reported that nearly 60% of Americans oppose the NSA’s metadata program. But without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure. As such, action is required to show Congress our disagreement of these programs. I call on all Americans to join the Stop Watching Us Coalition and Restore the Fourth in Washington, D.C. during  the weekend of October 26th for a day of action against the NSA’s mass surveillance. This day marks the anniversary  of the USA PATRIOT Act, legislation passed in response to the 9/11 terrorist attacks aimed at shaking our great nation’s strong foundation.

America is indeed an exceptional nation, full of amazing people and unthinkable potential. But if we the people don’t hold our government to its Constitutional limits of power, our liberty will be irreparably eroded by the fear of a possible enemy at the gates. As such, we must realize now that the true enemy of liberty comes from within–our own complacency.

The Future of the Authorization of the Use of Force

This post earned an honorable mention in the Center for International Policy's Rethinking National Security blog contest. It will discuss the authorization of the use  of U.S. force beyond our nation's borders. While this issue doesn't often explicitly grab headlines, it is at the heart of many power struggles, political debates, and legal battles in Washington.

The U.S. Constitution first established a balance of power in this area. Art. I, Sec. 8 states, “The Congress shall have Power... To declare War...” This statement is supplemented with the later statement in Art. II, Sec. 2 that, “The President shall be Commander in Chief of the Army and Navy of the United States...” which is supported by the president’s authority to take care that the laws of the United States are faithfully executed. These lines are where power struggles between Congress and the President originate over the authority to use military force. It is clear that at a minimum the majority of the Constitutional Framers wanted to ensure that no individual could bring the United States to war.

However, history and circumstance have given a broad mandate of power with respect to foreign relations to the president; Congress began to become powerless in the realm of the external use of US force. During the Vietnam War public opinion ran against the foreign affairs preferences of the executive. This led to Congress passing the War Powers Resolution in 1973. This legislation requires the president to “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Moreover, the president must notify Congress with the details of military action within 48 hours of the commencement of hostilities. Hostilities cannot last longer than sixty days without express consent of Congress, with a possible extension of thirty more days. The intent of this legislation was to require Congressional approval to military actions abroad where large numbers of American forces are in harm’s way.

This background shows a historical movement away from the formally declared ‘perfect wars’ of the past between states which existed in a dichotomous paradigm of foreign relations: war or peace. The reality of modern warfare is now moving toward a more subtle paradigm, which doesn’t fit neatly into categories of war or peace, but instead creates a continuum from total war to total peace, and which often involves non-state actors. The most recent large-scale U.S. military actions have been executed pursuant to specific enabling Authorizations for the Use of Military Force (AUMFs). However, many smaller actions have no explicit Congressional authorization. For example, the American involvement in the N.A.T.O.-led military intervention in Libya in 2011 did not result from any Congressional action. Legitimate arguments have been made regarding not only the Constitutionality of such an action, but also the wisdom of the unilateral authorization of the use of force abroad by one branch of the government.

This modern patchwork approach of legislation, utilizing the War Powers Resolution, various Court holdings, and AUMFs, does not offer predictable guidelines for any of the branches of government for creating policy, determining action possibilities, or judging either policy or action. At present the use of force is no longer a property of war but a tool of foreign policy. And in the post-9/11 environment of a desperate need for security, the executive branch has been given all the power it could desire in the realm of military action and national security.

As the present AUMFs fade into history, America continues to face challenges. Questions of the use drones, the use of force toward new terrorist organizations, humanitarian interventions in conflicts such as the one present in Syria, and resource protection in the face of global climate change will dominate the future of U.S. foreign policy and military action. All of these instances undoubtedly include the use of force, but fall short of formally declared war. However, the grand structures of law—the U.S. Constitution, The Hague Conventions, and the UN Charter—continue to only recognize the black and white dichotomy between war and non-war which has not been relevant since WWII. The problem that has needed to be solved for almost fifty years now is that there needs to be a comprehensive overhaul of how we use force beyond our borders. These challenges would be best addressed by a uniform and informed national security policy. Such a uniform policy must be created to maintain citizen oversight over governmental action while continuing to protect our nation from the evolving threats of the future.

A categorical policy of the use of force should include measurable variables such as: theatre, resources, time, possible ‘collateral damage’, and mission. Different stages of force application would have different requirements within each category—with perhaps ‘war’ having the most flexible standards. While writing a law is above my job description and pay grade as a law student, the lowest category  could be something like this: Category I: 1 country involved (must go to Congress to expand), no more than 1,000 US troops mobilized or $100 million used, completed within 3 months, no congressional advice or consent required to begin. As I have no military experience I fully recognize that these numeric limitations may have little bearing on reality, but I’m merely trying to illustrate the concept. The last category would just be war, where a full Congressional vote is needed. The WPR has a similar idea, but has too few options and is wholly too vague. At times law must be vague to allow flexibility, but I feel the past fifty years of foreign relations shows that flexibility has become too great to allow for predictability or constitutionally required consent of both branches.

While of course this is possibly unconstitutional, the Constitution specifically erects shared powers of war and war making. This is merely updating that sharing. In this context it remains important to understand the values and reasoning behind our Constitutional system: the president must have the ability to act quickly when needed, and Congress must agree to large-scale actions on behalf of the American people and to consent to the use of their money. Unfortunately law and policy change like a punctuated equilibrium—with very few punctuations. Moreover, Americans are generally afraid of drastic policy change, and thus won’t demand wholesale reform in these areas. This is partly why the Constitution has been amended so few times. However, this is a deeply important issue in both constitutional law and national security policy. It is my hope that the conversation on this topic continues to evolve. 

Are Obama’s Drones Coming For Americans?

This post was written for PolicyMic and can be found here.

Earlier this week, NBC News released a leaked Justice Department white paper which makes a legal case for drone strikes on Americans. Organizations such as the American Civil Liberties Union and the Center for Constitutional Rights have since denounced the document.

The white paper itself is 16 pages of unsurprising legal argumentation, echoing the reasoning that Obama administration lawyers, such as Eric Holder and Harold Koh, have been putting forth for years. Basically, it is a legal memo which says that the U.S. government can kill a U.S. citizen in a foreign country if:

1) the person is a senior leader of Al-Qaeda or an associated force,

2) an informed, high-level official of the U.S. government has determined that the person poses an imminent threat of violent attack against the U.S.,

3) capturing the person is continuously infeasible, and

4) the operation to kill the person is conducted consistent with applicable laws of war.

These words bring forth obvious and important questions: who qualifies as a “high-level official,” what constitutes an imminent threat, and at any stage is another branch of government involved?

While these questions remain unanswered, the memo mentions the usual suspects of national security law: the Fifth Amendment of the U.S. Constitution, the 2001 Authorization for the Use of Military Force (AUMF), Common Article 3 of the Geneva Conventions, Hamdi v. Rumsfeld, Mathews v. Eldridge, Ex Parte Quirin, etc. Thus, the arguments are not legally thin and are not wholly unfounded — which is perhaps most worrisome part of the memo.

The expanse of executive power in the field of national security can be traced back to Abraham Lincoln. And yet neither Bush nor Obama have shut down domestic newspapers (as Lincoln did) nor placed thousands of Americans in concentration camps based on no evidence whatsoever (as FDR did). However, one could reasonably argue that America has witnessed a new period of executive power in national security law since the terrorist attacks of September 11, 2001.

The past two administrations — with due credit given to the generally complicit Congress and Supreme Court — have written executive orders, pushed through legislation, and successfully argued legal cases which has created an extensive body of national security law. At times, this is partially due to practicality (as you cannot have 100 senators conducting a war) and partially due to constitutional law (the president is the commander in chief). But the result is a new legal regime which is frighteningly deferential to the judgment and sole power of the executive branch.

While I don’t think Obama will send drones into U.S. airspace or to attack vacationing Americans abroad, I feel the legal determination presented in this white paper has gone far enough to threaten the constitutional protections of due process of U.S. citizens. Remember that no court convicted U.S. citizenAnwar al-Aulaqi of any crime; he had no opportunity to appeal the predator drones which eventually took his life while he was in Yemen.

As a country of laws, we must find a way to protect our liberties without giving them away in the process.