Crisis of Command
America’s Broken Civil-Military Relationship Imperils National Security
Egypt is not the first country in the world to declare a “war on terror,” but it is one of the only nations to have written counterterrorism into its constitution. Last month, an overwhelming 98.1 percent of voters approved Egypt’s new charter in a referendum marred by a heavy-handed military campaign to stifle dissent. The new constitution further marginalizes Islamists from political life and enhances the powers of the military and security services by, among other things, banning all political activity based on religion and giving the military veto authority over the president’s choice of defense minister for the next eight years. But as problematic as those measures are, one of the constitution’s most alarming sections has been overlooked: an unprecedented counterterrorism clause that lays the legal foundation for a police state that is a military dictatorship in all but name.
Buried on page 62 of a rambling document that most Egyptians admit they have not even read is Article 237, the most sweeping counterterrorism mandate in any Egyptian constitution. It obligates the state to “fight all types and forms of terrorism and track its sources of funding within a specific time frame in recognition of the threat it represents to the nation and citizens.” Article 237 doesn’t define “terrorism” or the scope of the powers it grants the government, deferring them to future legislation. But for now, Egypt has no parliament. The military dissolved it last summer as part of its overthrow of former President Mohammed Morsi. With new parliamentary elections not expected until later this year, legislative authority rests solely in the hands of the military-appointed interim president, Adly Mansour.
Since his appointment in July, Mansour has been the civilian face of de facto military rule, but even this veneer of civilian oversight will soon be brushed aside. Shortly after the constitutional referendum, Mansour announced that presidential elections would take place by April, before parliamentary polls, reversing the sequence originally outlined in the transitional roadmap issued in July and clearing the way for the widely anticipated victory of Field Marshal Abdel Fattah al-Sisi, whose presidential candidacy the Supreme Council of the Armed Forces blessed last month. If elected president, Sisi would be able to promote the military’s legislative agenda through executive decrees at a time when there is no sitting parliament to challenge his authority.
In the meantime, Mansour has lost little time pushing the military’s interests and a maximalist interpretation of the terrorism clause through new legislation. He announced that his cabinet had started drafting a counterterrorism law that, exploiting the vagueness of Article 237, would authorize extensive state surveillance of social media Web sites, including Facebook and Twitter, and create special courts tasked with prosecuting terror-related crimes. A draft of the law, circulated by the Interior Ministry, adopts an incredibly broad, roundabout definition of terrorism as “every use of force, violence, threat, or intimidation with the purpose of seriously disrupting public order or endangering society’s interests and security whenever such use would injure people or terrorize them.”
The law will likely pass, given the lack of any meaningful opposition, and allow Egyptian authorities to further silence and intimidate their critics by accusing them of terrorism. State prosecutors have already invoked terrorism, defined as a crime under Egypt’s penal code, in one of four cases against Morsi. Along with 30 other Brotherhood leaders, Morsi is charged with “conspiring with foreign organizations to commit terrorist acts” and forming an alliance with the Palestinian militant group Hamas and Lebanon’s Hezbollah. The penal code has also been used to justify the targeting of non-Islamists, including 20 jailed Al Jazeera journalists who are charged with collaborating with a terrorist group and, in the words of the state prosecutor, broadcasting false images to portray “a civil war that raises alarms about the state’s collapse.”
In an environment where state television has broadcast jingoistic news programming under the banner of “Egypt fighting terrorism” and where a popular puppet on television was even accused of sending coded messages over the air to Brotherhood sympathizers, the fact that 98 percent of voters approved the new constitution should not be taken as evidence of consensus. Instead, it is an alarming indication of the military’s success in its campaign to neutralize opponents. Those include Islamists and, more and more, a growing number of liberal and secular activists. The military and its supporters have celebrated the new constitution as a milestone on Egypt’s path to democracy. But the document envisions a distorted democratic system in which the military-backed regime is entitled to define the rules of the game and handpick its participants.
THE PHANTOM MENACE
The constitution is a sign of the times: it was written during a relentless propaganda campaign against the Muslim Brotherhood by the military and state media after last summer’s coup. Following months of ultranationalist rhetoric blaming the Brotherhood for armed attacks on government personnel and institutions across Egypt and an increasingly violent insurgency in the Sinai Peninsula, the military officially designated the Brotherhood a terrorist organization last December, after a deadly car bombing at a police headquarters in the Nile Delta city of Mansoura. The legal designation criminalized the Brotherhood’s activities, as well as those of any group even loosely associated with it, including a network of charitable hospitals that serves millions of patients every year.
A militant group in the Sinai Peninsula known as Ansar Beit al-Maqdis claimed responsibility for that attack, in addition to the assassination of an Interior Ministry official last fall and recent attacks on natural gas pipelines in the Sinai. But the government nevertheless blamed the Brotherhood for much of the violence. The Brotherhood was again vilified in state media after deadly bombings in central Cairo on the eve of the revolution’s anniversary late last month, even though Ansar Beit al-Maqdis also claimed responsibility for those attacks.
The campaign to stigmatize the Brotherhood as a terrorist organization may ultimately be self-fulfilling. Brotherhood leaders were long able to enforce a strict organizational hierarchy and adherence to the group’s official rejection of violence, going back to the 1970s. But with so much of its leadership now in jail or in hiding, the shattered organization is incapable of refuting the government’s propaganda and keeping lower-level members, intent on revenge against the military, from potentially joining more radical groups such as Ansar Beit al-Maqdis.
NOT IN GOOD COMPANY
Article 237 is not the first instance of an Egyptian constitution referring to the threat of terrorism, but it is by far the most forceful expression of the state’s duty to fight it. Although the 1971 constitution, which was the legal foundation for former President Hosni Mubarak’s authoritarian regime, compelled the state to “strive to protect security and public order by confronting the dangers of terrorism,” that mandate was explicitly limited by judicial oversight. The 2012 constitution, hastily drafted by an Islamist-dominated committee under Morsi, dropped the counterterrorism provision altogether. The new constitution has revived and strengthened the old provision by replacing the word “confront” with “fight” and substituting the 1971 requirement of judicial oversight with a vague guarantee of “public rights and freedoms.”
Like Egypt’s 1971 and 2014 constitutions, a few others around the world make reference to terrorism. But none so vigorously defines the state’s obligation to fight it and its sources of financial support as Egypt’s new charter. Some countries restrict the rights of citizens convicted on terrorism charges. Jordan’s constitution, for example, was amended in 2011 to allow civilians accused of terrorism to be tried in non-civilian courts. Brazil’s constitution identifies terrorism as one of the high crimes “not subject to bail, clemency, or amnesty.” And Turkey’s constitution bars citizens convicted on terrorism charges from election to the National Assembly. But rather than just limiting specific rights, Egypt’s new charter gives the state broad discretion to define its enemies as potential terrorists and target them accordingly.
Only a handful of countries -- Angola, Iraq, South Sudan, and Rwanda -- have enacted constitutions that explicitly refer to the state’s role in combating terrorism. And even the constitutions of these states -- none of them a model for good governance and respect for human rights -- are less aggressive on counterterrorism than Egypt’s. For example, Rwanda counts “combating terrorism” among the functions of the national police, but Egypt authorizes sweeping “state” action against terrorism by any branch of government in addition to the security services and armed forces. Although the constitutions of Angola and Sudan refer to “combating international and transnational organized crime and terrorism” as a matter of foreign policy, Egypt’s constitution requires the government to combat all terrorist activity threatening “the nation,” at home and abroad. The geographical vagueness of the mandate provides a constitutional basis for the state to wage war on its own citizens.
Among the countries that have enacted counterterrorism mandates in their constitutions, Iraq is the most democratic, but the country remains deeply divided and is increasingly threatened by a resurgent al Qaeda. Iraq’s 2005 constitution, which was drafted in the middle of a brewing sectarian war under U.S. occupation, contains a counterterrorism provision most similar to Egypt’s. It, too, requires the state to “combat terrorism in all its forms” and “work to protect its territories from being a base, pathway, or field for terrorist activities.” At the time of its ratification, the U.S. Commission on International Religious Freedom criticized that clause, warning that it could be invoked “to limit the exercise of the right to freedom of thought, expression, association and other fundamental rights and freedoms.” But Egypt’s constitution goes even further, requiring the state to target sources of terrorist funding. In the context of military rule, it’s another step toward a police state backed by the threat of martial law.
STATE OF EMERGENCY
When Egypt’s 31-year-old emergency law, which prohibited nearly any public gathering, allowed security officers to search and arrest anyone without probable cause, and permitted indefinite detentions without trial, finally expired in May 2012, many Egyptians hoped that the days of arbitrary arrests and crackdowns on dissent in the name of national security were over. The revolution had suggested the possibility of a more democratic and accountable system in which laws would protect citizens from their government instead of shielding the government from nearly any opposition. But that optimism quickly faded. Each of the three interim governments that have ruled since Mubarak’s overthrow in 2011 -- the military, Morsi, and now the military again -- has re-imposed a state of emergency at some point in its tenure.
Although the current military-backed government officially lifted a three-month state of emergency that was imposed after the violent dispersal of pro-Morsi sit-ins last August, the formal suspension means little in the presence of a constellation of rights-restricting laws and constitutional provisions. In addition to Article 237, those measures include a new law on public assembly enacted last November that bans gatherings of ten or more people and requires protesters to obtain seven different permits to hold public demonstrations -- or risk a jail sentence of up to five years.
The new constitution does little to limit the president’s power to declare a state of emergency; it may even expand it. Instead of requiring the approval of a referendum, as earlier constitutions did, the new one calls only for the approval of a majority of the members of parliament. Although the effects of this change will depend on the composition of future parliaments, in the short term, Egypt’s next president can evoke the specter of terrorism like never before to silence critics. The powers granted in Article 237 invite limitless interpretations and ensure that arbitrary and exceptional security measures remain the norm in Egypt. That is especially worrying, given Sisi’s expected victory, which would allow the military to consolidate its power in the absence of an elected parliament and return Egypt to the rule of a military president who is constitutionally authorized to govern by decree.
The government’s campaign to legitimize its war on terror through constitutional and legal reforms reinforces a political stalemate in which neither the pro-military coalition nor its Islamist opponents believes that the other side has a legitimate role to play in shaping Egypt’s future. One of the justifications for Morsi’s removal was his majoritarian style of governing, in which the Muslim Brotherhood believed that electoral victory entitled Islamists to dictate the terms of the transition and monopolize state institutions. But now the military is practicing the same winner-take-all politics.
The legalization of a de facto state of emergency in Egypt may ultimately backfire on the military. As the repression campaign targets everyone from Brotherhood members to the young revolutionaries who organized the first protests in Tahrir Square, the same Egyptians who took to the streets in 2011 could once again lose patience with their government’s use of the law as a tool of authoritarian control.