COURT RULES AGAINST MILITARY TRIBUNALS FOR MUSLIM

C O N F I D E N T I A L CAIRO 001361

SIPDIS

SIPDIS

NSC FOR WATERS

E.O. 12958: DECL: 04/29/2017
TAGS: PGOV KISL PREL KDEM PHUM EG
SUBJECT: COURT RULES AGAINST MILITARY TRIBUNALS FOR MUSLIM
BROTHERHOOD

REF: A. CAIRO 1128


B. CAIRO 1276

CLASSIFIED BY: MINISTER-COUNSELOR FOR ECONOMIC AND POLITICAL AFFAIRS
WILLIAM R. STEWART, FOR REASONS 1.5 (B) AND (D).


1. (SBU) SUMMARY: ON MAY 8, EGYPT'S SUPREME ADMINISTRATIVE
COURT OVERTURNED THE FEBRUARY PRESIDENTIAL DECREE THAT
ORDERED 40 MUSLIM BROTHERHOOD MEMBERS TO STAND BEFORE A
MILITARY TRIBUNAL, AND RULED THAT THE MB DEFENDANTS BE
RELEASED IMMEDIATELY. THE WIDESPREAD EXPECTATION AMONG OUR
JUDICIAL CONTACTS IS THAT THE GOVERNMENT WILL RAPIDLY APPEAL
AND OVERTURN THE MAY 8 RULING, AND THAT THE MILITARY
TRIBUNALS WILL PROCEED. THE MB DEFENDANTS CURRENTLY REMAIN IN
DETENTION. ALSO ON MAY 8, A PEOPLE'S ASSEMBLY COMMITTEE
DOMINATED BY THE RULING PARTY VOTED TO SUSPEND THE
PARLIAMENTARY IMMUNITY OF THE TWO MB MP'S WHO WERE ARRESTED
AND RELEASED LAST WEEK, SPARKING SPECULATION THAT THE TWO
WILL SOON BE RE-ARRESTED. MEANWHILE, THE GOE'S CAMPAIGN OF
DETENTIONS OF MB MEMBERS CONTINUES, WITH 21 ARRESTED IN THE
PAST TWO WEEKS. END SUMMARY.

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COURT RULES IN MB'S FAVOR; GOVERNMENT APPEAL EXPECTED
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2. (SBU) AS REPORTED REF A, SINCE PRESIDENT MUBARAK'S
FEBRUARY 6 DECREE THAT THE CASES OF 40 MB MEMBERS (INCLUDING
SECOND DEPUTY SUPREME GUIDE KHAIRAT AL-SHATIR, THE MB'S
THIRD-MOST SENIOR OFFICIAL) BE TRANSFERRED TO A MILITARY
TRIBUNAL, THE MB HAS FILED SEVERAL LAWSUITS DISPUTING THE
LEGALITY OF THE PRESIDENTIAL ORDER. (NOTE: THE MILITARY
TRIBUNALS BEGAN ON APRIL 26, BUT WERE IMMEDIATELY ADJOURNED
UNTIL JUNE 3. THE CHARGES INCLUDE MONEY LAUNDERING AND
PLANNING TERRORIST ACTIONS IN SUPPORT OF THE MB. END NOTE).
THE UNUSUAL MAY 8 DECISION OF EGYPT'S SUPREME ADMINISTRATIVE
COURT OF FIRST INSTANCE TO OVERTURN THE FEBRUARY 6
PRESIDENTIAL DECREE WAS IN RESPONSE TO ONE SUCH AN MB LEGAL
APPEAL. THE COURT REPORTEDLY RULED THAT THE PRESIDENTIAL
DECREE SHOULD BE CANCELED, AND THAT THE DETAINEES BE
IMMEDIATELY RELEASED AND COMPENSATED FOR THEIR TIME IN
DETENTION. AS OF COB MAY 9, THE DETAINEES REPORTEDLY WERE
STILL IN DETENTION, AND THERE IS LITTLE EXPECTATION THAT THEY
WILL BE RELEASED BEFORE THE GOVERNMENT FILES AN APPEAL OF THE
MAY 8 RULING. (NOTE: 33 OF THE 40 DEFENDANTS ARE IN CUSTODY,
WHILE THE OTHER SEVEN ARE BEING TRIED IN ABSTENTIA. END
NOTE).


3. (C) ACCORDING TO OUR JUDICIAL CONTACTS, THERE IS AN
APPEALS PROCESS FOR DECISIONS OF THE SUPREME ADMINISTRATIVE
COURT OF FIRST INSTANCE - EITHER THE COURT OF SECOND INSTANCE
OR THE STATE COUNCIL CAN OVERTURN THE COURTS RULINGS. THE
EXPECTATION AMONG THE EMBASSYS CONTACTS IS THAT THE
GOVERNMENT WILL APPEAL THE MAY 8 RULING TO THE STATE COUNCIL
(STAFFED BY STAUNCH PRESIDENTIAL ALLIES),WHICH WILL OVERTURN
THE DECISION, AND THE MB DETAINEES WILL ULTIMATELY FACE A
MILITARY TRIBUNAL. ONE LEGAL SCHOLAR CITED TO US A SIMILAR
1995 CASE, WHEN THE SUPREME ADMINISTRATIVE COURT RULED THAT
THE PRESIDENT'S REFERRING MEMBERS OF THE JAMA'A ISLAMIYYA
GROUP TO A MILITARY COURT WAS UNCONSTITUTIONAL. THE RULING
WAS SUBSEQUENTLY OVERTURNED BY THE SUPREME CONSTITUTIONAL
COURT, AND THE MILITARY TRIBUNALS WENT FORWARD.

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IMMUNITY OF MB PARLIAMENTARIANS
REPORTEDLY LIFTED
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4. (SBU) AS REPORTED REF B, IN AN ESCALATION OF THE GOES
CAMPAIGN AGAINST THE MB, SECURITY OFFICIALS ARRESTED TWO MB
PARLIAMENTARIANS ON APRIL 29. THE TWO, SABRY AMER AND RAGAB
ABU ZAID (BOTH FROM MENOUFIYAH),WERE RELEASED A DAY LATER.
HOWEVER, IN A LATE-NIGHT MAY 8 SESSION, THE LEGISLATIVE AND
CONSTITUTIONAL AFFAIRS COMMITTEE OF THE PEOPLE'S ASSEMBLY
(DOMINATED BY RULING PARTY MP'S),IN RESPONSE TO A REQUEST BY
THE MINISTER OF JUSTICE, REPORTEDLY VOTED TO LIFT THE TWO
MP'S PARLIAMENTARY IMMUNITY SO THAT THEY CAN BE INTERROGATED.
THE TWO MP'S HAVE APPARENTLY NOT YET BEEN RE-ARRESTED. THE
MB'S PARLIAMENTARY BLOC PLANS TO HOLD A LATE AFTERNOON PRESS
CONFERENCE ON MAY 9 TO PROTEST THE LIFTING OF THE MPS'
IMMUNITY.

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ARRESTS CONTINUE, BLOGGER'S
DETENTION RENEWED
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5. (SBU) MEANWHILE, THE GOVERNMENT CONTINUES TO DETAIN MB
MEMBERS, WITH AT LEAST 21 ARRESTED IN THE LAST TWO WEEKS
(NOTE: AT LEAST 300 MEMBERS OF THE BANNED ISLAMIST
ORGANIZATION HAVE BEEN DETAINED SINCE DECEMBER 2006. END
NOTE). ON MAY 8, THE STATE SECURITY PROSECUTOR EXTENDED THE
DETENTION OF PROMINENT MB BLOGGER AND CORRESPONDENT FOR THE
CAIRO-BASED AL HEWAR SATELLITE CHANNEL, ABDUL MONEIM MAHMOUD,
FOR ANOTHER 15 DAYS (REF A REPORTS ON HIS INITIAL APRIL 15
DETENTION). ON MAY 7, MAHMOUD AND 23 DETAINED STUDENTS
REPORTEDLY BEGAN A HUNGER STRIKE TO PROTEST THE "INHUMANE
CONDITIONS" OF THEIR DETENTION (INCLUDING ALLEGATIONS OF
"PSYCHOLOGICAL TORTURE" BY ALLOWING CRIMINAL PRISONERS TO
"SEXUALLY HARASS" THEM),AND DEMANDED THE DROPPING OF ALL
"FABRICATED CHARGES" AGAINST THEM, AND THEIR IMMEDIATE
RELEASE. AMNESTY INTERNATIONAL AND OTHER HUMAN RIGHTS GROUPS
HAVE CALLED FOR MAHMOUD'S RELEASE.

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COMMENT
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6. (C) THE UNUSUAL MAY 8 COURT DECISION OVERTURNING THE
PRESIDENTIAL DECREE IS A RARE INSTANCE OF PUSHBACK AGAINST
PRESIDENTIAL AUTHORITY, BUT WILL LIKELY BE SIMPLY A BUMP IN
THE ROAD OF THE GOE'S CAMPAIGN AGAINST THE MB. THE
GOVERNMENT APPEARS DETERMINED TO CRACK DOWN ON THE ISLAMIST
GROUP, AND HAS THE LEGAL AVENUES AT ITS DISPOSAL TO OVERTURN
THE SUPREME ADMINISTRATIVE COURT'S RULING AND SEND THE 40 MB
DEFENDANTS BACK TO A MILITARY TRIAL. TWO CIVILIAN COURTS HAD
PREVIOUSLY SEPARATELY ACQUITTED THE 40 MB DEFENDANTS
(REPORTEDLY ON THE BASIS OF A LACK OF EVIDENCE TO SUPPORT THE
GOVERNMENTS CHARGES),BUT MUBARAK EASILY OVERCAME THOSE
DECISIONS BY EXERCISING HIS PRESIDENTIAL PREROGATIVE TO
TRANSFER THE CASES TO A MILITARY TRIAL. THESE INCIDENTS
REFLECT AN APPARENT GAP BETWEEN THE JUDICIAL AND EXECUTIVE
BRANCHES, PARTICULARLY WHEN IT COMES TO THE MB, AND ARE STARK
REMINDERS OF THE EXTENT OF PRESIDENTIAL POWERS IN EGYPT.
RICCIARDONE