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'Damascus Nancy' And Unlawful Diplomacy
Nancy Pelosi's recent bumbling foray into foreign policy with Syria shows why diplomacy should be left to that branch of government - the executive branch - that actually has the authority to conduct it. Pelosi conveyed a 'peace message' from Ehud Olmert to Bashar Assad that - woops! - the Israeli government says it never gave to Pelosi. Apparently Nuancy not only missed the shades of gray there, she missed the black and white as well.
Amateurish and embarassing, yes, but is it illegal also? There is a law called the Logan Act that forbids U.S. citizens from conducting diplomacy without approval from the government. The act, as amended in 2004, reads as follows:
18 U.S.C. § 953. Private correspondence with foreign governments.
Members of Congress are not immune from the Act, nor do members of Congress have any constitutional authority to conduct foreign policy. The role of the Senates in foreign policy is basically to ratify treaties and confirm ambassadors. The role of the House is to declare war, and control the purse strings. That's it, no more - only the President has the power to actually conduct or authorize foreign policy and diplomacy. Congress has no more authority to conduct diplomacy than it has to tell General Petraeus how to run the war in Iraq (and why do Democrats find it chronically impossible to understand the separation of powers doctrine? Is it laziness, political expediency, or mis/disinformation? Inquiring minds want to know).
Some have come close to violating the Logan Act: in 1971 John Kerry treacherously met with North Vietnamese government officials in Paris while President Nixon was trying to negotiate peace. Kerry much more recently raised toasts with the mullahs in Iran while proclaiming that the U.S. is a 'pariah state'. The irony of declaring the U.S a pariah state from Tehran was obviously lost on the master of nuance. Speaker of the House Jim Wright nearly ran afoul of it for meeting with the Sandinistas, Jesse Jackson came up with a propaganda 'agreement' with Fidel Castro, and Messrs. Jim McDermott and David Bonior infamously provided aid and comfort to Saddam Hussein on the eve of the Iraq invasion.
Given that history, can Nancy Pelosi be prosecuted under the terms of the Logan Act? Well, sure. A federal grand jury can indict a ham sandwich if it so chooses, but such a case is not likely to go anywhere for a myriad of reasons. As a matter of practical policy, no one has ever been prosecuted under the Act since it was passed in 1799. Moreover, the Logan Act may well be unconstitutional because it is vague and overbroad, thus leaving citizens to guess what behavior is proscribed, and criminalizing speech that would otherwise be protected. There is a question however, as to whether First Amendment protections extend to speech by U.S. citizens in foreign countries. But, no matter: it would be politically impossible for such a prosecution to take place. If the DoJ ever tried to prosecute the Speaker of the House for conducting unlawful diplomacy, it would certainly, invariably, lead to more silly show trials on the Hill, more calls for the impeachment of Bush, and spin in the mainstream media that would attempt to convince you that Pelosi, not Bush, is actually President.
Sadly, too many Americans would believe that to make such a prosecution possible.
Posted by Ken McCracken · 6 April 2007 02:05 AM
In reality, you are quite wrong.
Here is the State Dept. on the Logan Act as it refers to members of Congress:
The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution.
Historical precedence also works against you. Remember Gingrich going to China and telling the PRC the US would go to war over Taiwan? Or Hastert telling Columbia to ignore President Clinton?
Posted by: Jadegold at April 6, 2007 09:35 AM
First of all, the State Department does not decide what is and is not prohibited under the Logan Act - the courts do.
That quote you have up there is meaningless.
As far as 'historical precedence' [sic] goes, I don't recall Gingrich or Hastert being prosecuted under the Logan Act. So I don't know what 'precedence' you are talking about.
You seem quite confused on this issue.
Posted by: Ken McCracken at April 6, 2007 12:35 PM
The confusion is yours, Ken.
The State Dept's interpretation of the Logan Act is cited by Congressional Research Service (American Law Branch). Moreover, violations of the Logan Act would invariably come from the State Dept as it is the federal agency which would be most concerned with unauthorized foreign policy.
WRT Gingrich and Hastert; no, they weren't charged with violations of the Logan Act. Why? Because, as members of Congress, they are considered authorized personnel.
Posted by: Jadegold at April 6, 2007 01:04 PM
You ARE completely confused on this issue.
Who cares that some research service cites that quote?
If the Supreme Court cites it, then you would have something.
You seem to think that the State Department has the power to interpret law in a binding way, which is ludicrous. You need a remedial refresher course in American government.
"Nothing in section 953, however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution."
Yes, if the Congressmen are merely having discussions relating to oversight, there shouldn't be any problem.
That is not what Pelosi was doing however, was it.
Gingrich, et. al. are authorized to engage in diplomacy only if the White House says they are authorized. It is not automatic because they are members of Congress. Try reading the act itself and you will see - nowhere does it immunized Congress from prosecution.
Posted by: Ken McCracken at April 6, 2007 01:12 PM
Ken: Let's remember you are making the claim the Speaker of the House Pelosi can and should be prosecuted for a violation of the Logan Act.
Thus far, your evidence for such a claim is:
Given the fact no one--repeat--no one has ever been prosecuted under the Logan Act in its 200 years of existence, it would behoove you to provide some sort of rationale.
OTOH, I have provided a number of instances where Congress and the State Department have maintained members of Congress aren't subject to the Act. In addition, I have cited several instances wheremembers of Congress have conducted foreign policy outside the strictures of the executive branch without prosecution.
Posted by: jadegold at April 6, 2007 01:37 PM
"Ken: Let's remember you are making the claim the Speaker of the House Pelosi can and should be prosecuted for a violation of the Logan Act."
Oh for God's sake - could you at least READ my post before commenting on it?
Is that too much to ask of you? It would save you a good deal of needless embarassment.
Not only did I say that Pelosi could not be prosecuted under the Act, I said that Pelosi should not be prosecuted under the Act, for political reasons mostly.
Posted by: Ken McCracken at April 6, 2007 01:54 PM
I see; you're backtracking by claiming you didn't write what you wrote.
Let's count the things you wrote that you now deny:
'Damascus Nancy' And Unlawful Diplomacy
The list goes on. You claim Pelosi can be prosecuted but the DoJ won't do it because they're afraid.
Yes, Ken, very convincing.
Posted by: Jadegold at April 6, 2007 04:18 PM
I see you need a refresher course in English comprehension as well. I wrote:
"Given that history, can Nancy Pelosi be prosecuted under the terms of the Logan Act? Well, sure. A federal grand jury can indict a ham sandwich if it so chooses, but such a case is not likely to go anywhere for a myriad of reasons. As a matter of practical policy, no one has ever been prosecuted under the Act since it was passed in 1799. Moreover, the Logan Act may well be unconstitutional because it is vague and overbroad, thus leaving citizens to guess what behavior is proscribed, and criminalizing speech that would otherwise be protected. There is a question however, as to whether First Amendment protections extend to speech by U.S. citizens in foreign countries. But, no matter: it would be politically impossible for such a prosecution to take place. . .
You apparently missed the part where I said that the Logan Act is probably unconstitutional, and that prosecutions under the act are impractical and that there has never been enforcement of the Act in its entire history.
You are either too stupid to understand English, or you are deepy embarassed by your pitiful misreading of my post, and are now desperately trying to cover your ass.
Come on now, dig yourself in a little deeper, this is getting fun.
Posted by: Ken McCracken at April 6, 2007 04:26 PM
I smell flopsweat.
Let's review: first you claim Pelosi can and should be prosecuted. Then you claim you said no such thing while asserting only the USSC can make the determination whether she's prosecuted. Now, you claim the Logan Act is "probably" unconstitutional.
You certainly seem to want to have it all ways.
Posted by: Jadegold at April 6, 2007 08:58 PM
Keep your smelly flopsweat to yourself.
Let's review: I said Pelosi could be prosecuted, because anyone can be prosecuted for anything (i.e., my 'ham sandwich' comment. Google it. It might enlighten you.) But I said that such a prosecution would not work, for a variety of reasons you seem to be unable to comprehend. I claimed that the Logan Act is probably unconstitutional right there in the post. Go back and review, it's there. Trust me.
I seem to want to have it all ways, eh? Well at least you are finally, at long last, realizing that no, I am not calling for Pelosi's prosecution.
Is that clear now, or do we have to go around and around with this yet again?
Posted by: Ken McCracken at April 6, 2007 10:15 PM
Keep trying, JG. Ken asked a question as part of a discussion to examine whether Pelosi's actions are within her lawful sphere. In doing so, he clearly implied that her actions were suspect and marginal, but he came down, on balance, against any calls for prosecution, censure, or other consequence.
You had an argument on disk ready to go about how this type of interference is fine, citing some Republican actions (not quite accurately, but close), and berating Ken for making an accusation he didn't make. Your argument would probably work better in a case where it actually applied.
You then start digging deeper, arguing from absence that "OTOH, I have provided a number of instances where Congress and the State Department have maintained members of Congress aren't subject to the Act." And frankly, I dislike people using the phrase "a number of instances" when the number is 2. You are very quick on your feet, but standards of honesty in discussion with you are going to have to be kept high, as you have already demonstrated a willingness to phrase things deceptively.
Posted by: Assistant Village Idiot at April 7, 2007 11:30 AM
Okay, I wrote a brilliant comment that seems lost. Durn. I ran rings around you logic'ly, all of you.
Summary: advantage Ken. JG accuses him of comments he didn't make; and then plays fast and loose with phrases like "a number of instances" when the number is, uh, "2", and argued from the absence of evidence what Congress and the State Department approve. Tricksy.
At least one person with the requisite credentials and experience to know the issue is on Ken's side in this one. Robert F. Turner over at WSJ today: http://www.opinionjournal.com/extra/?id=110009908
Posted by: Assistant Village Idiot at April 7, 2007 12:38 PM
I like how JadeGold cherrypicked a few words I wrote to try and completely invert the meaning of my post, while completely sidestepping my actual points.
The word 'mendacious' comes to mind.
Posted by: Ken McCracken at April 7, 2007 04:26 PM
I will re-emphasise that I have no belief that Pelosi can or should be prosecuted under the Logan
Posted by: Assistant Village Idiot at April 7, 2007 07:07 PM
I am later (perhaps too late) to the debate, but it would seem that the most illustrative discussion of the statute would be contained in Agee v. Muskie, 629 F.2d 80 (1980):
Agee is quoted as stating that "in recent weeks" prior to December 23, 1979 he proposed to the "militants" in Iran (who obviously under 18 U.S.C. § 11 are a "faction and body of insurgents" constituting a "foreign government") that they should compel the United States to "exchange...the C.I.A.'s files on its operations in Iran since 1950 for the Captive Americans" [citation omitted]. Such conduct violates 18 U.S.C. § 953 which prohibits any citizen of the United States from carrying on correspondence or intercourse with any foreign government (the Iranian terrorist faction) "with intent to influence [its] measures or conduct or [that] of any...agent thereof [footnote omitted]. Agee's violation of this act with the Terrorists is self evident from his own uncontradicted statement.
Posted by: wavemaker at April 9, 2007 07:59 AM