U.S. Vice President Mike Pence raised concerns over Mustafa Kassem's detention when he visited Cairo in January 2018. (Photo from the U.S. Embassy in Cairo)

Whose Lives Matter? An Equivocal Approach to American Detainees

01/29/2020 . By Allison McManus

On January 13, Mustafa Kassem died tragically of heart failure in a cold cell in Egypt’s Tora Prison. Kassem, a U.S. citizen and by all accounts an innocent man who spent six and a half years in prison, was subject to inhumane treatment and medical neglect that eventually killed him. He was stopped by police in the wake of the massacre at Raba’a al Adaweya in 2013, despite having taken no part in the sit-in or the political unrest surrounding it. His arrest, slowly at first but with increasing intensity in the past years, garnered public attention from his friends, family, and rights advocates, as well as across the aisle of Washington’s partisan divide; Vice President Mike Pence, among others, made strong public statements on his behalf.

Yet, despite the obvious fact that Kassem died of medical neglect in the prison of an American ally, Assistant Secretary David Shenker called his death “needless, tragic, and avoidable,” without assigning blame, and another State Department official stated that it was too soon to consider punitive measures. On the contrary, the Egyptian Minister of Foreign Affairs enjoyed an audience with Trump in the Oval Office the following day to solicit American support in negotiations with Ethiopia over construction of the Grand Ethiopian Renaissance Dam.

Two days after Kassem’s death, members of Congress from both parties, prominent former political prisoners Mohamed Soltan and Aya Hijazi, and advocates Andrew Miller and Diane Foley spoke out. Several of the speakers, including Democratic Senators Chris Murphy and Chris Van Hollen, underscored their concerns over asymmetry when it comes to Washington’s record on human rights and values-based policy. Representative Peter King, a staunch supporter of the current administration and the representative for Kassem’s district, called Egypt’s behavior in failing to provide treatment to Kassem, who had been on hunger strike, “unforgivable.” That the Egyptian government allowed an American citizen to perish, despite calls for his release from the highest levels of the American political system, signifies the high cost of the U.S.’s equivocal approach to rights in the region.

While the U.S. has used concerns over human rights to justify sanctions and military intervention against its foes (as is the case with Iran currently), egregious rights abuses on behalf of allies is often met with lenience. This paradox is not necessarily unique to the Trump administration, but the degree of tolerance, even support for those like Trump’s “favorite dictator” Abdel Fattah El-Sisi, has now impeded Washington’s ability to uphold its legal obligations to American citizens detained abroad, its ethical obligations as a democratic and ostensibly values-oriented power, and its national security obligations to protect American lives.

According to U.S. law, the president has a responsibility to demand reasons for detention, to demand release, and to use means outside of war to secure it. While the exact number of American citizens detained in the Middle East and North Africa is difficult to assess due to the sensitive nature of many of the cases (as often families are advised or choose to remain silent about their loved ones’ detention in the hopes of quiet resolution with detaining governments), Trump has often boasted of his track record in negotiating the release of American prisoners. However, reducing obligations to citizens detained abroad to deal-making neglects the state’s responsibility to its citizens and abdicates its role as a foreign policy leader.

In addition to demanding the release of those unjustly detained, the U.S. has an obligation to ensure that American citizens in detention abroad receive adequate medical care, a requirement that appears to have been impossible in Kassem’s case. Egypt’s detention conditions are abysmal, with hundreds of prisoners (including former elected president Mohamed Morsi) dying in prison last year alone. At January’s press briefing, Soltan raised the imperative to include oversight access for the International Committee of the Red Cross into Egyptian prisons as a condition for aid—a longstanding demand of civil society. Including such a measure in appropriations language (which should be discussed for the FY21 spending bill in the coming months) would provide an avenue for the U.S. to fulfill its obligations to the seven or more U.S. citizens that remain detained there, and also encourage better care for the tens of thousands of Egyptians imprisoned as well.

While the law does not outline specific sanctions for countries who fail to release prisoners, all of those present at the press briefing for Kassem called for measures of accountability for Egypt’s “unforgiveable” actions. The imposition of Magnitsky sanctions, targeted sanctions against human rights violators which have been more aggressively pursued in the region in recent years, and stricter conditionality on U.S. military assistance were raised at several points. Congress has appropriated around $1.3 billion annually to Egypt for military assistance, utilizing a waiver that deems it essential to U.S. national security interests in order to bypass a Congressionally-mandated certification of progress toward democracy and respect rights. Not once has that certification been made.

While important for accountability and prevention of future tragedy, bilateral measures mean little for an approach to foreign policy that has made clear that lives matter only to the degree they serve narrow interests. While Kassem’s death is shocking in that it crosses a red line that many believed should have protected him as a U.S. citizen, it is in keeping with an ongoing trend in which so many Egyptians have been extrajudicially killed, an Italian PhD student was tortured and killed, American, Mexican, and Egyptian members of a tour group were killed and grievously injured in a botched ambush, all with impunity on the international stage.

The normalization of these violations underscores the urgent need for strong measures to uphold standards of human rights as norms, rather than as political tools. Equivocal standards that allow for some allies to “get away with” rights abuses erode normative frameworks meant to establish security and rights for all—including Americans. In addition to reconsidering the parameters of assistance provided to authoritarian regimes, this provides an imperative for Washington to utilize whatever other means necessary, including the application of sanctions, such as those detailed in the Magnitsky Act for violators; for more active engagement from embassies in the region to ensure proper prison conditions and fair trial guarantees; and for strong, clear, and consistent messaging around rights priorities, particularly from the executive branch.

Such actions will not only advance values-based foreign policy that can over time reduce harm, but it also sets a clear U.S. policy for families and representatives of those detained abroad, so that they may formulate their own advocacy strategies based on an understanding of clear foreign policy priorities and trust in the U.S. government’s activity on behalf of their loved ones. To this end, while the U.S. government has made strides in communication with and protection for families of hostages abroad, including through the creation of an inter-agency mechanism, no such mechanisms currently exist for families of those unjustly detained (though at times similar protections are extended on an ad hoc basis, with no clear criteria). Expanding the mandate of the mechanism to include clear parameters for those detained unjustly, dedicating additional resources to those cases, could provide greater support and protection; at the very least, a thorough examination of U.S. engagement on detainee cases to ensure systematic and thorough efforts would be a constructive first step.

After all, Washington’s weakness in protecting American citizens is clear to those who may seek to do them harm. Kassem was not arrested despite his citizenship; he was arrested because of it, his passport thrown to the ground by the police who detained and abused him. In a moving testimony during the press conference following Kassem’s death, Hijazi recalled the threats of sexual assault and violence that she faced as the prison guard asked “what will your American passport do for you?”

Kassem death is a reminder that foreign policies rooted in the American ideals of protection of life, liberty, and the pursuit of happiness, as well as in the standards established by international laws to which the U.S. and its allies are signatory, must be unequivocally applied to allies and foes alike. This is an ethical imperative that not only protect the rights of those in the Middle East affected by U.S. policy, but also a national security imperative to protect American interests, first and foremost of which are the lives and safety of American citizens, an objective that should resonate with any policymaker.