I first read George Orwell’s novel Nineteen Eighty-Four when I was eleven, and it had a dramatic and lasting impact on me. I was especially taken by Orwell’s notion of “Newspeak,” in which the government manipulates language in an effort to subvert independent thought and to eliminate threats to the established political order, and by his related notion of “doublethink,” in which the government conditions people to use words to mean their opposite, “to be conscious of complete truthfulness while telling carefully constructed lies.” As I became more familiar with Orwell and his other works, I was also inspired by his unshakable commitment to avoiding self-delusion and to seeing things as they really are, even if it is politically inconvenient.  

I therefore am not surprised that critics of the Obama administration have invoked the specter of Orwell repeatedly over the past few months in blasting the administration’s refusal to label the ouster of Egyptian President Mohamed Morsi on July 3 as a “military coup d’état.” If such a determination were made, the administration arguably would be legally required to suspend US military aid to Egypt. Morsi was the duly elected President of the country and had been in office for little more than a year. The actions of the Egyptian military were decisive in deposing him, seeming to fit squarely within the dictionary definition of a “coup.” The refusal of the Obama administration to label this military ouster as a coup, in turn, may appear motivated by political and military expediency. A different decision might call into question the privileged status that the Egyptian government has accorded the US military in moving ships through the Suez Canal and planes through Egyptian airspace, as well as the cooperation of the Egyptian military and intelligence services in combating terrorism and in upholding treaty commitments with Israel. The conditions for Orwellian Newspeak, in which the meaning of words such as “military coup d’état” are conveniently changed or ignored to fit the political needs of the moment, thus seem to be satisfied.

A closer look at the statutory provision in question, and the context in which it is used, suggests, however, that such claims of Orwellian Newspeak in this matter may be premature. The statutory provision is set forth in Section 7008 of the Consolidated Appropriations Act of 2012 and states in relevant part:

"None of the funds appropriated or otherwise made available pursuant to titles III through VI of this Act [i.e., ”Bilateral economic assistance,” “International security assistance,” “Multilateral assistance,” and “Export and investment assistance”] shall be obligated or expended to finance directly any assistance to the government of any country whose duly elected head of government is deposed by military d'état or decree or, after the date of enactment of this Act, a coup d'état or decree in which the military plays a decisive role: Provided, That assistance may be resumed to such government if the President determines and certifies to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office . . . [emphasis added]."

The critical consideration in construing this language, and applying it to the present situation in Egypt, is to uphold the intent of Congress in adopting it.  There is good reason to think that Congress intended this language to apply to situations in which the military overthrows an existing government in order to consolidate power for itself or some other elite. That is to say, the concept of “military coup d’état” as used in the statute entails both the action of the military in ousting an established regime by force (in keeping with standard dictionary definitions of a coup) and the result that power is permanently transferred to a dictator or the like. Ozan O. Vasol develops this point in his article “The Democratic Coup d’État” published in the Summer 2012 issue of the Harvard International Law Journal. Since the article was published a year before the military ouster of Mohamed Morsi in Egypt, it clearly was not tailored to serve the present needs of the Obama administration. Vasol contends that instances in which the military overthrow of a government ultimately promoted or facilitated the democratic process are rare in the historical record. Consequently, such a situation would simply not have been considered as a possibility when Congress adopted the statutory provision about “military coup d’états” and would therefore not be one that this provision was intended to address.

The US courts have used similar reasoning about the intended scope or meaning of key terms in other federal legislation to reach decisions that may, at first glance, appear to deviate from the conventional definitions of the terms involved. In Dwomoh v. Sava, for example, a federal district court in New York ruled in 1988 that a former soldier fleeing persecution after taking part in a failed plot to overthrow the then-military dictatorship in Ghana was a “refugee” entitled to asylum in the United States. In order to qualify for refugee status under the applicable statute, the soldier needed to demonstrate that he was or would be subject to “persecution on account of . . . political opinion” in Ghana. On its face, it seems a serious stretch to think that actively participating in a military plot to overthrow a government constitutes a valid expression of “political opinion.” In granting the soldier refugee status in the US, however, the court noted that references to persecution on account of political opinion had a long history in international jurisprudence. It also pointed out that international forums had consistently interpreted the notion to cover persons who had sought unsuccessfully to overthrow regimes in which legitimate forms of democratic action were prohibited. Accordingly, when Congress later used similar language in the statutory definition of a refugee, it presumably intended that this language would be construed in a similar way, based on the history of the concept and on what it had been generally understood to include or cover. In an analogous way, the historical record concerning the nature and consequences of coup d’états is relevant to understanding what Congress intended in Section 7008 of the Consolidated Appropriations Act of 2012.

Hence, to the extent that the actions of the Egyptian military concerning Mohamed Morsi and the Muslim Brotherhood are ultimately directed at bringing about a truly functioning democratic government in Egypt (Vasol’s “democratic coup d’état”), these actions would not fall within the intended scope of Section 7008 of the Consolidated Appropriations Act. They would thus not require the Obama administration to cut off funds to Egypt. This determination is obviously highly fact-specific and could change as events unfold. There is good reason to think, however, that Morsi was moving the Egyptian government in a seriously undemocratic direction, in a way that would foreclose other factions within the country from effectively participating in the political process and that would ensure continued electoral victories for candidates aligned with the Muslim Brotherhood. His actions – which some pundits have described as a “creeping coup” – included restricting the rights of opposition groups to peacefully assemble, escalating threats and assaults against journalists, Coptic Christians, Shiites, and members of the secular opposition, and declaring by decree that his presidential decisions were immune to judicial scrutiny. Left unchecked, these measures might well have reduced Egypt to a democracy in name only, with the Muslim Brotherhood left in effective and unchallenged control of the country. The millions of Egyptians who took to the streets in late June and early July to protest these acts by Morsi and his government certainly felt that way, and his ouster by the military arguably served to preserve, rather than undermine, the possibly of a truly democratic government forming in Egypt.

Events in Egypt over the next few months or years may reveal that the intentions of the Egyptian military in deposing Morsi were likewise directed at consolidating or protecting its own power at the expense of the rest of the country and that its professed goal of promoting democracy, or the possibility of it, was just a sham. Up to this time, however, there is little reason to think that the Obama administration has been dishonest or hypocritical in not labeling the military’s action as a “coup d’état” for purposes of Section 7008 of the Consolidated Appropriations Act or that, as some have claimed, Orwell would be turning over in his grave over the administration’s failure to do so.