Posted By Josh RoginFriday, February 4, 2011 - 9:40 PM
As the Obama administration works to encourage the
Egyptian government and opposition groups to sit down together and chart a path
forward, they are grappling with problem of what to do about a legal system in
Egypt that is inherently unfair but that remains the law of the land.
The Obama administration's message is that the path
forward in Egypt must be negotiated between all of the stakeholders in Egypt rather
than imposed from abroad. However, the administration also has concrete ideals
and standards its wants to see included in that process and officials are
involved in discussing those details with the Egyptian government.
"The future of Egypt will be
determined by its people... That transition must initiate a process that respects
the universal rights of the Egyptian people and that leads to free and fair
elections. And the details of this transition will be worked out by Egyptians,"
President Barack Obama said Friday.
"What we can do, though, is affirm the core principles that are going to be
involved in that transition."
Behind the scenes, administration
officials are in fact getting into the details of the process. "[O]fficials from
both governments are continuing talks about a plan in which Mr. [Omar] Suleiman, backed by Lt. Gen. Sami
Enan, chief of the Egyptian armed forces, and Field Marshal Mohamed Tantawi, the defense minister,
would immediately begin a process of constitutional reform," the New York Timesreported.
The
details of that constitutional reform are crucial because they will determine the
transition of power and whether or not the coming presidential elections are
free and fair. Also, the process of constitutional reform will be the first
test of whether the regime led by President Hosni Mubarak is actually allowing opposition groups to participate
in a substantive manner.
The
Obama administration, which has placed itself somewhere between the positions
of the Egyptian government and the protesters by calling for a transition of
government now but not calling for Mubarak's immediate departure, is well aware
of these realities, according to experts close to top officials.
"The
White House recognizes that there's a legal nightmare looming and that the
establishment in Egypt is putting its bet on the fact that its fortunes rise
the longer those knots remain tied," said the New America Foundation's Steve Clemons.
He said that the White House would like to see the
immediate establishment of a governing council -- made up of a cross section of
groups representing various Egyptian political entities -- that would take
temporary stewardship of the government and be caretakers as the path forward
is determined.
"You either do government and legal reform in one
massive fell swoop, which none of the parties will agree to, or you basically
say that the current system is so broken, you must give super powers to an
anointed group of rivals and co-task them with the responsibility of getting
from here to there," Clemons said.
But it will be a Herculean task untangling the
Egyptian constitution and legal framework, seeing as so much is weighted toward
the regime. For example, Article 5 would need to be amended to allow
religiously based political parties to participate. Article 76 must be amended
if independent candidates are to be allowed. Law No. 40 for 1977 needs to be changed to ensure that the committee that
vets political parties is independent and not filled with government ministers.
Law No. 174 for 2005 would have to be
amended to allow monitors at election stations.
Voter registration in Egypt is also plagued with
problems. The emergency law in place since 1981 significantly constrains
political activity that could impact any future elections. Laws and regulations
on campaign finance have to be enforced. And the list goes on and on.
The
Brookings Institution's Robert Kagan said that basing the next round of
elections on exiting Egyptian law is a recipe for disaster. "You wouldn't
expect to have elections in Russia after communism based on Soviet laws, would
you?" he said in an interview with The Cable.
The Egyptian government can't be left to its own
devices to decide what those changes might be, Kagan said.
"This is a transition, there's going to have to be
some agreement on the rules of the road. Maybe some of it can be based on
Egyptian law," he said. "There's going to have to be agreement from the
government, the military and the opposition on how to move forward."
How
much of a role the U.S. can play in that process is not yet determined, but in
order to support democratic values as well as to try and promote an outcome
that protects U.S. interests of regional stability, the Obama administration
has to at least try, said Robert Satloff,
executive director of the Washington Institute for Near East Policy.
"What's most important is for us to have a set of
principles for an Egyptian government to support," Satloff said. "The U.S. has
a possibility to help Egypt build a new system that is democratic and stable.
Those things are not mutually exclusive and the U.S. should help them build
it."
Posted By Josh RoginThursday, November 5, 2009 - 6:05 PM
The
administration is pushing back against the latest Congressional effort
to thwart their plans to close the prison at Guantanamo Bay, Cuba, and
try the prisoners on U.S. soil.
The Senate will start debate today on the Commerce, Justice, and Science spending bill, and there will definitely be a vote on an amendment by Senator Lindsey Graham,
R-SC, that would prevent any money from being spent to try detainees
who had a hand in the 9/11 attack in federal civilian courts.
Among the most famous of these is Khalid Sheik Mohammed, the alleged mastermind of the attacks, who is sitting in Guantanamo now.
Graham's long-held position, with the support of John McCain, R-AZ, and Joseph Lieberman, I-CT,
is that military commissions are preferred. For one thing, if a
prisoner is acquitted in a civilian trial, he could be set free, Graham
argues. The Senator is a former Air Force lawyer.
Secretary of Defense Robert Gates and Attorney General Eric Holder wrote a letter last week to Senate leaders Harry Reid, D-NV, and Mitch McConnell, R-KY, with their opposition to the Graham amendment.
"Our
departments are currently involved in a careful case by case evaluation
of the cases of Guantanamo detainees... to determine whether they should
be prosecuted in a [civilian] court or military commission," the
officials wrote, warning it "would set a dangerous precedent, for
Congress to restrict the discretion of either department to fund particular prosecutions."
Of
course, Congress has been doing just that repeatedly since Obama took
office. A whole host of last year's spending bills included language
restricting the transfer of detainees, often with Democratic support. A
previous amendment offered by Sen. Daniel Inouye, D-HI, garnered 90 votes, showing just how reluctant Senate Democrats are to be seen as weak on the Guantanamo issue.
McConnell
has also been skilled in helping to craft such amendments to pass
easily and it's in his interest to have the Guantanamo issue debated as
much as possible because it plays for the GOP politically. As such, Republicans expect the
Graham amendment to pass by a wide margin.
The
Democrats' defense for yielding to Republicans on Guantanamo has been
that they are awaiting a detailed plan from Obama on how he plans to
close the facility. There is widespread acknowledgment that Obama's
promise to get it done by January will not be fulfilled.
An administration official, speaking on background basis, told The Cable that "much progress has been made and more details on plans to close the facility are expected in the coming weeks."
The
official also touted the reforms to the military commissions process
that were signed into law last week as part of the fiscal 2010 defense
policy bill.
There are some signs that Democrats are beginning to toughen on Guantanamo.
The Homeland Security Department funding bill that cleared
Congress at the end of October had a provision that would allow the transfer of
Guantanamo prisoners to U.S. soil, only for prosecution. Many Congressional
Republicans had wanted a complete ban.
Because of that, some on the Hill believe the Graham admendment won't go through.
We don’t expect that members
will vote to further tie the hands of the Administration as Graham amdt would
do," said one senior Democratic Senate aide, "We do not expect it to pass."
Meanwhile, alleged embassy bomber Ahmed Khalfan Ghailanihas already been transferred to the U.S. to stand trial in a federal civilian court.
"When
feasible, we will try those who have violated American criminal laws in
federal courts - courts provided for by the United States
Constitution," he said, "Some have derided our federal courts as
incapable of handling the trials of terrorists. They are wrong. Our
courts and juries of our citizens are tough enough to convict
terrorists, and the record makes that clear."
UPDATE: The Senate voted to table the Graham amendment late Thursday by a vote of 54-45. That pushes off consideration indefinitely.
Posted By Laura RozenWednesday, June 24, 2009 - 1:02 PM
A cloture vote on the nomination of Harold Koh will be held this morning at 11 a.m. ET, The Cable has learned. Koh, the dean of Yale Law School, was tapped to become the State Department's legal advisor nearly four months ago, but has faced criticism from conservatives for an alleged "transnational" approach to the law.
According to reporter Dave Wiegel of the Washington Independent, Senate Majority Leader Harry Reid (D-NV) said through a spokesman that he is confident he has the 60 votes needed to overcome conservative opposition to Koh's nomination.
Richard Lugar (R-IN), the ranking Republican on the Senate Foreign Relations Committee, released a statement Tuesday expressing support for Koh. "After reading his answers to dozens of questions, attending his hearing in its entirety, meeting with him privately, and reviewing his writings, I believe that Dean Koh is unquestionably qualified to assume the post for which he is nominated," Lugar said.
UPDATE: "Cloture passed on a 65-31 vote," a Congressional source relays at 11:30am. "There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow."
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