Former Rep. Jim Kolbe (R-Ariz.): Congress Should Not Weaken US Law on Military Coups

Guest Commentary

A recently introduced amendment to the Senate version of the National Defense Authorization Act would fundamentally alter the law requiring the suspension of U.S. aid in the event of a coup d’état against a democratically elected government. Were a coup d’état to occur anywhere in the world, it would give the administration new authority to waive the required suspension of aid without congressional approval. It is a puzzling development since Congress more often strenuously objects to the executive branch marginalizing its role in such foreign policy decisions. But in this case, given what lies behind the amendment, it is especially disheartening to see Congress taking the initiative to reduce its own role by ceding waiver authority to the executive.

I was part of the Congress that crafted that law more than two decades ago and worked to strengthen it as recently as 2002 because we believed that the default position of the United States should be in opposition to the overthrow of elected governments by militaries. The newly offered amendment was sparked by events in Egypt and aims to give the administration flexibility in continuing some aid programs to the Egyptian government. The language proposed, however, goes much further than simply addressing the case of Egypt. The amendment threatens to erode congressional power to influence U.S. foreign policy and to uphold American values and principles.

Historically, the role of Congress in foreign affairs is rather limited as compared with other areas of U.S. policymaking. One of its most important roles has been in providing foreign aid and setting conditions and priorities for that aid. The law in question, requiring a temporary suspension of aid following the overthrow of a democratic government, is an example of which we can be proud, in which Congress has effectively upheld American values and sent a strong signal in support of democratic principles. The law has been applied numerous times over the years, including in Guatemala, Mali, Thailand and Pakistan.

The existing law already has a mechanism for making exceptions to the requirement that aid must be suspended. For example, the law was invoked to suspend aid to Pakistan following its 1999 coup. Two years later, the Bush administration decided that U.S. national security interests required a resumption of aid to Pakistan’s government in order to ensure sufficient cooperation in Afghanistan. To do so, the administration asked Congress to pass legislation exempting Pakistan from the aid suspension in place. Congress acted swiftly by passing a waiver to resume aid to Pakistan within one month. If the Obama administration now believes that continued aid to Egypt is essential to U.S. national security interests, then the same procedure should be followed, with Congress passing an Egypt-specific exemption. 

Instead, the legislation currently proposed would allow the administration to waive the requirement for the suspension of aid in this and future cases without congressional approval. As we have seen from other laws containing national security waivers, the executive branch routinely exercises such waivers in a manner that effectively renders U.S. law meaningless.

If anything, this administration’s handling of aid to Egypt this summer only underscores the need for continued congressional oversight. Under Section 7008 of the fiscal 2012 appropriations bill, "the government of any country whose duly elected head of government is deposed by military coup d’état or … decree in which the military plays a decisive role" requires a suspension of foreign aid. Whether justified or not, it cannot be argued that President Mohamed Morsi’s removal as president of Egypt didn’t include a “decisive role” by the military.  The administration's unwillingness to invoke the law ignores its clear intent and has sown deep confusion in Egypt and Washington alike over the administration’s position. 

The sweeping change proposed is currently slated to be considered as one of dozens of amendments to the National Defense Authorization Act to be debated and passed this month. Such a dramatic move that would significantly reduce congressional authority should at least proceed through the proper channels, including an opportunity for public debate and discussion by the relevant committees.

Congress shouldn't be fast-tracking this legislation and avoiding this debate.  Rather, it should embrace the opportunity to assert its role in foreign affairs. Congress should refuse to use the case of Egypt as an excuse to rewrite the law globally, and instead continue to handle such decisions on a case-by-case basis. Existing law requiring the suspension of aid following a coup has served U.S. national interests well for decades and should not be dramatically weakened globally as an overreaction to events in one country.

Jim Kolbe is a Senior Transatlantic Fellow at the German Marshall Fund of the United States and a former member of the U.S. House of Representatives.