When a Coup is Not a Coup

The U.S. Foreign Assistance Act is pretty explicit about what the government must do in the event of a coup. Section 508 of the law states that the United States must cut off aid to any country “whose duly elected head of government is deposed by military coup or decree.”

That means the United States is legally obligated to cut the roughly $232 million in aid that’s set to go to Yemen this year, right? What happen there sure seems like a forcible overthrow of a legitimate government: Armed fighters overran the presidential palace of Abed Rabbo Mansour Hadi’s on Tuesday, and a day later, on Wednesday, Hadi agreed to give more power to the rebels. The Gulf Cooperation Council, an alliance of Middle Eastern nations, called what occurred Tuesday a government takeover. Yemeni Information Minister Nadia Sakkaf told CNN it was  “the completion of a coup.” Late Wednesday, a deal was announced that reportedly stripped Hadi of much of his power while giving Houthis a greater role in government.

Under American law, though, Sakkaf was wrong.

The key difference, put bluntly, has to do with whether the people doing the overthrowing are part of an organized military or a group of stateless fighters. According to legal experts, the State Department and the White House have extraordinary leeway in what they do and do not term an official “coup,” as well as if and how to the cut aid after formally designating one. Congress can disagree, but there’s not much lawmakers can do in response.

Even if U.S. money keeps flowing, a fragile power-sharing agreement reached by Hadi and the Houthis makes it difficult to know how it would be used and who would spend it. According to reports, the Houthis are set to gain a large chunk of power in Yemen, while Hadi is set to lose a significant amount. There are numerous provisions in federal law that prohibits assistance to countries that support terrorism. The White House could cut off the aid spigot if it decides that the Houthis control so much power that the new government effectively helps fund or conduct terror attacks.

For the moment, though, the State Department is proceeding cautiously. During a Wednesday afternoon briefing, State Department spokeswoman Jen Psaki was asked repeatedly about the ongoing chaos in Yemen, where armed Houthi guards replaced government guards outside the president’s home. She steadfastly refused to use the c-word to describe Hadi’s apparent overthrow.

“We don’t just throw out words just to make all of you feel better,” Psaki said.

According to Robert M. Chesney, a professor and associate dean for academic affairs at the University of Texas law school, Psaki could have relied on a strict reading of the Foreign Assistance Act. The bill’s language allows State to dodge the coup designation because the Houthis are a tribal alliance, not an organized state military.

“I’m pretty confident the purpose behind the legislation was to get at the formal military flipping on its own government. It wasn’t meant to encompass groups like the ones in Yemen,” Chesney said.

Chesney said this interpretation would also apply to revolutionary groups that overthrow governments. Here’s a hypothetical: Say the Irish Republican Army managed to overthrow the Irish government. U.S. law does not require the United States to call the IRA takeover a coup because the IRA is a revolutionary group, not a formal military.

The United States has tremendous latitude even in instances where the leaders of a nation’s armed forces move to take down a sitting government. The most-frequently cited example is Egypt in 2011, when the Egyptian military removed former Egyptian President Mohammed Morsi from office. At that time, the White House and State Department avoided designating it a coup because of what Harvard law professor Noah Feldman called the Ostrich Theory.

“The law says no aid if there has been a coup, but it never explicitly orders the administration to inquire whether a coup has occurred,” Feldman wrote at the time. “It also contains no trigger stating that when the government changes hands in a recipient country, the president needs to determine if it has been a coup.”

It’s also not a given that a formal coup designation would immediately suspend U.S. assistance. Last May, Secretary of State John Kerry called Thailand’s military takeover of the government a coup. However, while meetings and joint military exercises were canceled, only one-third of the military assistance funds scheduled to be sent there last year – about $3.5 million – was actually cut. (A similar thing happened after another coup in Thailand in 2006, when former President George W. Bush froze $24 million in military aid but kept money for public health programs to  prepare for a possible bird flu outbreak and stop the spread of AIDS continued flowing).

Short of passing new legislation — and avoiding a presidential veto — Congress lacks a formal way to challenge the administration’s decision on coups. The most lawmakers could do, according to Chesney, is “make political hay of it, but you’re not likely to see it litigated.”

Photo Credit: Anadolu Agency