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."