The Cable

Obama administration contemplates legal nightmare in Egypt after Mubarak

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 Times reported.

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."

The Cable

Odd on many levels: Kyl to speak in Munich on U.S. non-proliferation position

The crisis in Egypt is occupying the time and attention of top administration officials to such an extent that Obama foreign policy critic Sen. Jon Kyl (R-AZ) is now representing the United States on a non-proliferation panel at the Munich Security Conference in Munich this weekend.

Kyl replaces National Security Advisor Tom Donilon, who was originally scheduled to speak on Saturday afternoon to represent the U.S. perspective, on a panel entitled, "Nonproliferation, Arms Control and Disarmament: What's next?" Donilon will remain in Washington as the White House continues to work around the clock on the Egypt crisis. The conference organizers chose Kyl, who is in Munich already, to replace Donilon.

The choice is perplexing because Kyl, who led the vociferous GOP opposition to the New START nuclear reductions pact with Russia, has been the most active and effective critic of the Obama administration's non-proliferation agenda. He has also worked to raise concerns about the administration's missile defense plans, its civilian nuclear agreements, and he is promising to stand in the way of the administration's next arms control agenda item, the Congressional Test Ban Treaty.

The conference organizers bypassed top Obama administration arms control officials who will also be in Munich, including Undersecretary of State for Arms Control and International Security Ellen Tauscher, Assistant Secretary of State Rose Gottemeoller, and Secretary of State Hillary Clinton. They, along with Senate Foreign Relations Committee Chairman John Kerry (D-MA), will all be sitting in the audience as Kyl tells the assembled world leaders in Munich how he sees the future of arms control in the United States.

Many in the State Department are not happy with this turn of events, and wonder why the German organizers bypassed the administration officials. "We're floored," one State Department official said. "It's odd on many levels."

Requests for comment from the conference organizers and the National Security Council were not immediately returned.

So what will Kyl's message be in Munich? Here's an excerpt from his remarks on the topic last May at the Nixon Center:

Bottom line: there is no evidence our moral leadership in arms control and disarmament will convince countries to set aside their calculations of the impact of nuclear proliferation and nuclear terrorism on their national security, and help us address these threats.  

The Administration's security agenda is based on the notion of the U.S. making substantive changes to our national security posture in the hopes of persuading others to act, frequently contrary to their economic or security interests.  

But this good faith assumption that others will reciprocate is not supported by any evidence -- it is certainly not informed by any past experience....

As you can tell by now, I am not much impressed with the notion that we can achieve important U.S. security goals by leadership which stresses concession by the U.S.  Rather than change and hope, I adhere to the philosophy of President Reagan epitomized in the words -peace through strength.

A strong America is the best guarantor of a peaceful world that has ever been known.  And there is nothing immoral about strength that keeps the peace. 

 UPDATE: Tauscher was added to the billet and spoke on the panel alongside Kyl. Our sources report that the panel went were and there were no real fireworks between Tauscher and Kyl.

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