By Andrew Miller, Opinion Contributor – The Hill –
On April 5, Egypt’s highest appeals court ordered a retrial in the 2012-2013 NGO foreign funding case, in which 43 U.S.- and German-based non-governmental organization employees were sentenced to up to five years in prison for illegally receiving foreign funds, operating without a license and performing prohibited activities. The fiasco known as Case 173 began in December 2011 when the Egyptian security services raided five prominent NGOs, including the National Democratic Institute and International Republican Institute. Travel bans were imposed against 17 Americans — including the son of a cabinet member/former congressman — who sought refuge in the U.S. embassy, plunging U.S.-Egyptian relations into a crisis.
NGO representatives described the ensuing trial as a “circus” that flagrantly flouted the most basic judicial standards, underscoring that the case was nothing more than a political show trial. A hyperbolic media campaign in state-owned press accompanied the hearings, which portrayed the defendants as U.S. agents bent on dividing Egypt into several smaller states. It is patently obvious that the trial — the first stage of a larger, ongoing investigation under Egypt’s draconian NGO law — was a plot by the Egyptian regime to reign in newly free political and social actors.
he full implications of the ruling remain murky, and there is no guarantee that the final verdict will go the defendants’ way. But it appears that all of the defendants, including the Americans, will have the option to participate in the retrial. As such, the April 5 decision is the most promising opportunity yet to rectify this injustice, freeing the defendants from the fear of Interpol arrest warrants while traveling abroad.
This is also an opportunity for President Abdel Fattah al-Sisi to prove his willingness to work for a better relationship with Washington. The 2013 verdicts continue to strain U.S.-Egyptian relations, owing in part to the issue’s salience in Congress, where many view Case 173 as an anti-democratic travesty and an anti-American affront from an ostensibly close ally. Al-Sisi knows that Congress has a say on issues important to Egypt, especially U.S. security assistance.
Congressional restrictions on military aid to Egypt and critical resolutions, statements and letters show that al-Sisi must work harder to win over the Hill. And the August 2017 decision to withhold $195 million in U.S. assistance was partly motivated by Egypt’s failure to resolve the case.
Arranging for the full exoneration of the 2013 NGO defendants is an easy step that al-Sisi could take to demonstrate his good intentions toward the United States. Egyptian officials tend to overstate the risk of such action on al-Sisi’s part, citing public opinion and legal obstacles. Popular opposition to foreign-funding of NGOs is largely driven by the Egyptian government itself. Given his domineering influence over Egyptian media, al-Sisi could easily contain fallout from overturning the verdicts.
Legal obstacles assume the Egyptian judiciary is genuinely independent, a claim belied by repeated regime interventions to obtain favorable verdicts and remove problematic judges. Regardless, al-Sisi could always pardon the defendants. While he claims a pardon must await a final verdict, al-Sisi used a similar tool in the case of a journalist before his appeal, despite having insisted for months that this was legally impossible.
If past is prologue, however, the Egyptians will drag their feet, testing whether Washington will settle for a partial solution. The United States should stand firm and continue withholding suspended aid until Cairo meets the following terms. First, all 43 defendants must be exonerated. The Egyptian regime is unlikely to do more than the minimum necessary to address U.S. concerns. If Cairo thinks it can get away with just acquitting the Americans or another subset of the defendants, it will stop there. Second, the defendants who remain in Egypt must have freedom of movement and receive guarantees they will not be harassed by security services during a retrial.
Finally, Washington should press the Egyptian government to close Case 173 completely. While no additional employees of U.S. organizations have been targeted, Egyptian NGOs continue to be harassed in this case. As long as the NGO investigation continues, the sword of Damocles will hang over Egyptian civil society activists and Americans who work with them. Al-Sisi can legally put a stake in the heart of this monster that has nearly broken U.S.-Egyptian relations by not renewing the investigative mandate, which is reviewed every six months.
While the United States should hold al-Sisi’s feet to the fire, the ball ultimately is in his court. If al-Sisi wants a better relationship with the United States, he can begin by repairing the damage caused by Case 173. Otherwise, it will be clear that al-Sisi’s Egypt is a poor partner.
Andrew Miller is deputy director for policy at the Project on Middle East Democracy (POMED), a nonpartisan, nonprofit organization that examines how the United States can support the development of democracies in the Middle East. He also is a non-resident scholar at the Carnegie Endowment for International Peace, and a former National Security Council official under President Obama.