Egypt’s Uncomfortable Challenge: Balancing Security and Civil Liberties

On August 11, one day before Egyptian President Mohamed Morsi launched a civilian “counter-coup” and forced top military leaders into retirement, the privately owned al-Dustour newspaper published a now infamous editorial that took up the entire front page. Government authorities confiscated copies of the issue. Soon after, Morsi and the Muslim Brotherhood were attacked for clamping down on freedom of speech. The U.S. State Department zeroed in on the Dustour controversy, saying, “We are very concerned by reports that the Egyptian Government is moving to restrict media freedom and criticism in Egypt, including preventing the distribution of al-Dustour.”

The Brotherhood had made plenty of alarming moves — such as censoring critical articles in state-owned newspapers — and both Egyptian liberals and the international community were right to push back. Still, the Dustour controversy is more complicated. It brings into sharp focus questions of legitimacy, the limits of free speech, and the uneasy balance between civil liberties and national security in Egypt. There is also, of course, a more immediate question: do citizens have a constitutional right to agitate for the overthrow of their own government?

The Dustour editorial warned that if the Brotherhood had its way, Egypt would see “the destruction of the citizen’s dignity in front of his family and his children and the rape of his private property rights.” It warned that the result would be “killing and bloodshed.” Alarmist and offensive, to be sure, but not quite at the level of incitement. The most controversial part came in the final paragraph, which seemed to suggest the military might be encouraged to move against the government:

Saving Egypt from the coming destruction will not occur without the union of the army and the people and the formation of a national salvation front composed of political leaders and the army [which would announce] an explicitly civil state protected by the army, very much like the Turkish system. If this does not happen in the coming days, then Egypt will fall and be destroyed. … Taking to the streets in peaceful protest is imperative and a national duty until the army responds and announces its support for the people.

Is this protected speech? According to Article 174 of Egypt’s penal code, which dates back to the 1930s, citizens can be imprisoned for a period not exceeding five years for “incitement to overthrow the government.” According to this and other provisions, the government appears to have had legal grounds to confiscate copies of al-Dustour. But just because something is “legal” does not necessarily make it right. After all, a liberal reading of the penal code could render nearly any anti-government activity illegal.

Should Egyptians (or anyone else) be able to call, however peacefully, for the army to depose an elected president? According to the U.S. criminal code, to take an example, such calls are not generally protected under the first amendment.

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government.

Established democracies tend to have similar provisions, with European countries often being more restrictive than the U.S. on hate speech and incitement. There are also recognized practices, best exemplified by the “Johannesburg Principles,” which state that restrictions on free speech cannot be justified unless they are meant to protect “a country’s existence or territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force” including from an “internal source, such as incitement to violent overthrow of the government.”

But successful democracies depend not just on legal provisions but also on accepted norms. In the United States, far-right groups and individuals do, on occasion, speak of bearing arms and overthrowing the government. Americans, myself included, don’t tend to get too worried about this, because the vast majority of their fellow citizens accept the legitimacy of the elected government, no matter how much one might hate its policies. Moreover, civilian control of the military is a principle that virtually no one in America today objects to, so socialized has it been into the prevailing political culture.

Egypt, obviously, finds itself in a very different place, coming out of decades of effective military rule. There is a significant faction of Egyptians who, for a variety of reasons, do not recognize the legitimacy of their current government, which was elected in June. (The very fact that a leading newspaper would call for a coup is itself evidence of this.) Such questions over legitimacy are, in part, the result of a woefully mismanaged transition as well as the inherent conflict between revolutionary legitimacy and democratic legitimacy. Because Egyptians launched what was essentially an extra-legal overthrow of President Hosni Mubarak in February 25, 2011, there is a similar sense in certain quarters that the current president, Mohamed Morsi, can and should be removed from office outside the confines of normal politics. Of course, the major difference is that Mubarak was a dictator, and Mohamed Morsi, whatever his faults, certainly appears to have been freely elected by the Egyptian people.

The al-Dustour, no isolated incident, came in the context of worsening political polarization and growing rumors of an impending move to depose Morsi, possibly through a military coup. The most extreme example came when Tawfik Okasha, the sensationalist television commentator, called for violence against the Brotherhood and Mohamed Morsi, saying, “I make your blood permissible as well.” Meanwhile, a million-man “second revolution” against the Brotherhood was announced to take place on August 24. Interestingly, the protest does not seem to have a specific political aim but instead calls for the dissolution of the Brotherhood and its affiliated Freedom and Justice Party. As Hesham Sallam wrote in Jadaliyya, “These trends, coupled with the developments that followed, signal that some military leaders may have been prodding their allies among opinion shapers and friendly media outlets to promote the image of popular support for a coup d’etat against the Brotherhood.”

Fearing that the military might act against Morsi, the Brotherhood, in apparent coordination with a number of younger military officers, seem to have decided to take pre-emptive action and fire the presumed leader of any such coup: Hussein Tantawi, the head of the armed forces and Mubarak’s longtime defense minister. The Dustour editorial, on August 11, had warned that Morsi was preparing to “overthrow” the “current leaders” of the armed forces. Tantawi was fired the next day. Maybe it was just a coincidence, but in this atmosphere of suspected coups, pre-emptive coups, and counter-coups, national security concerns might take greater precedence than might otherwise be appropriate.

This lack of security, along with persistent questions over legitimacy, could perhaps blur the line between protected and punishable speech. There are possible policy responses to this — overhauling the obviously outdated penal code, for example — but, more importantly, it may require Egyptians to establish the limits of public dissent. Maybe the Dustour editorial falls outside of those limits, or maybe not, but the point is setting norms. Some Egyptian clerics, for example, have sometimes come perilously close to takfir (the practice of making a Muslim’s blood licit). Others have already crossed that line. Hashem Islam, a cleric from Daqahlia, declared that those who join the anti-Brotherhood protests on August 24 are guilty of committing “high treason” and suggested that their blood was licit.

Islamists, now that they’re in power, obviously have a strong interest in delegitimizing and criminalizing speech that calls for deposing an elected government, one that they happen, now, to dominate. Liberals have a similar interest since, presumably, one day, a liberal candidate may win the presidency. The last thing Egypt needs is a bunch of radical Islamists (or ordinary clerics) calling for the overthrow of a democratically elected, liberal head of state. 

Muslim Brotherhood critics have a strong case on the group’s worrying censorship, even if the al-Dustour confiscation could conceivably fall within the bounds of acceptable government behavior. But the Brotherhood’s aggressive majoritarianism and intolerance of criticism has undermined its own legitimacy and the legitimacy of Egypt’s institutions in the eyes of a significant number of Egyptians. If the Brotherhood wishes to institutionalize democracy as “the only game in town,” as they sometimes put it, then they need to play it fairly.