The legal opinion, submitted to the White House by lawyers from the State Department and other agencies, amounts to an escape hatch for President Obama and his advisers, who had concluded that cutting off financial assistance could destabilize Egypt at an already fragile moment and would pose a threat to neighbors like Israel.
The senior official did not describe the legal reasoning behind the finding, saying only, “The law does not require us to make a formal determination as to whether a coup took place, and it is not in our national interest to make such a determination.”
“We will not say it was a coup, we will not say it was not a coup, we will just not say,” the official said.
News of the administration’s legal determination began circulating on Capitol Hill after a deputy secretary of state, William J. Burns, briefed House and Senate members in closed-door sessions earlier on Thursday.
The White House said it would continue to use financial aid as a lever to pressure Egypt’s new government to move swiftly with a democratic transition. On Wednesday, the Pentagon delayed the shipment of four F-16 fighter jets to the Egyptian Air Force to signal the administration’s displeasure with the chaotic situation in Egypt.
Such case-by-case decisions, the official said, would be the model for how the United States disbursed aid in the coming months. The administration might also “reprogram” assistance to promote a transition, said the official, who spoke on the condition of anonymity to discuss the White House’s internal deliberations.
“We will work with the Congress to determine how best to continue assistance to Egypt in a manner that encourages Egypt’s interim government to quickly and responsibly transition back to a stable, democratic, inclusive, civilian-led government that addresses the needs and respects the rights and freedoms of all its people,” the official said.
Had the administration been forced to determine whether the tumultuous events of July 3 in Cairo were a coup d’etat, it is difficult to see how it could have avoided that conclusion.
Responding to days of antigovernment demonstrations, Egypt’s generals deposed Mr. Morsi; put him under arrest, along with other leaders of the Muslim Brotherhood; and suspended the Constitution.
Mr. Obama did not use the word “coup” in his initial statement about Mr. Morsi’s ouster, and he has not done so since. Rather, he warned the military to resist violence and to act swiftly to restore a democratically elected government, with a transition process that includes all elements of Egyptian society, including the Brotherhood.
The generals, citing the vast popular uprising against Mr. Morsi, disputed that it was a coup. They have installed a transitional government, led by a civilian judge, but they have declined to release Mr. Morsi and have rounded up other leaders of the Brotherhood. The exclusion of the Brotherhood, American officials said, is one of the factors that contributed to the decision to halt the F-16 shipment.
Shortly after Mr. Morsi was ousted, one of his senior advisers, Wael Haddara, accused the American administration of “verbal acrobatics,” and asked, “With the entire world calling this a coup, why isn’t the American administration calling it so?”
Under the terms of the Foreign Assistance Act, no aid other than that for democracy promotion can be given to “any country whose duly elected head of government is deposed by military coup d’état.” The law does not allow a presidential waiver, and stipulates that aid cannot be restored until “a democratically elected government has taken office.”
The State Department’s legal adviser, however, appears to have leaned heavily on a national-security rationale for arguing that the White House could continue to supply aid.
“Egypt serves as a stabilizing pillar of regional peace and security and the United States has a national security interest in a stable and successful democratic transition in Egypt,” the official said. “We believe that the continued provision of assistance to Egypt, consistent with our law, is important to our goal of advancing a responsible transition to democratic governance and is consistent with our national security interests.”
Among the potential dangers in the cut-off of aid is a reduction in the ability of the Egyptian military to halt smuggling of weapons to Hamas, which could use them against Israel. The aid program is also a pillar of the 1979 peace treaty between Egypt and Israel, and Israeli officials have urged the United States not to suspend it.
There is little appetite for cutting off aid on Capitol Hill. Senator Patrick J. Leahy, Democrat of Vermont, and the head of a foreign aid subcommittee, said he would “review future aid to the Egyptian government.”
But calls for the aid flow to be maintained have come from Senator Robert Menendez of New Jersey and Senator Bob Corker of Tennessee, the senior Democrat and Republican, respectively, on the Senate foreign relations committee.
______________________________________
The New York Times