Did Obama Violate the Logan Act?

The better question is: can we really even know?

So, Mrs. Sherpa and I watched Charlie Wilson’s War this weekend. We had seen it before but were hoping to find a movie we knew was good and entertaining. It was. Even the second time. But a line caught my attention. At one point during the film, Congressman Wilson tells the Pakistani President that he’s probably violating the “Logan Act.” Curious, I started looking around.

Interestingly, there’s a column in today’s New York Post alleging that Senator Obama violated the Logan Act during his recent trip to Iraq. Amir Taheri writes that Senator Obama urged Iraqi leaders to postpone an agreement on the withdrawal of American troops “until after the US elections and formation of a new administration in Washington,” according to Iraqi Foreign Minister Hoshyar Zebari. A few other outlets picked up on this story, the most “notable” (or notorious, depending on your mood these days) was Fox News Channel. In other words, it’s not going anywhere but speculation on law blogs (despite the fact that the Obama campaign all but admits that Taheri’s article is true).

However, the story, if true, is just such an issue the Logan Act sought to prevent – an American citizen without authority to speak for the country seeking to influence a foreign nation’s own negotiations with authorized representatives of our nation for whatever reason. Certainly, it raises an issue about the law and the extent to which a private citizen can go in talking and negotiating with foreign officials.

The Logan Act (18 U.S.C. § 953) was passed to discourage and punish the interventions of private citizens into the foreign relations of the United States either for personal gain or to disrupt the ability of the people’s representatives to carry out and represent the nation’s interests. The Executive Branch was to be the sole representative to foreign nations and private citizens were not to involve themselves in disputes or negotiations with other powers. The law reads as follows:

§ 953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

(emphasis added) As far as I can tell there was only one serious pursuit of charges under the Logan Act and several threats of using it. The one serious pursuit involved President John Adams’ Secretary of State who, after being relieved of his duties, proceeded to organize support for an effort to get New England to secede from the Union. The threats of using it include one by President Reagan against the Rev. Jesse Jackson when the latter brought some political dissidents back with him from Cuba.

The question is how far this can go. I’ve certainly been involved, when I worked on Capitol Hill, in discussions with foreign officials regarding American policy towards their nation or issue. I’ve personally sat in a foreign minister’s office and discussed America’s foreign policy. Of course, there was never an illusion that a 25-year-old House staffer could sway the policy of the U.S. Department of State or affect Congressional appropriations (though you might be surprised what 25-year-olds on Capitol Hill have the power to do).

However, a candidate for President at the end of an Administration on an issue of central importance to U.S. foreign policy and regional security is a different matter. Probably not so different that it would warrant charges. I mean, Members of Congress talk to foreign leaders all the time. They urge them to do certain things. Of course, whether they urge foreign leaders to take certain actions that advance their own domestic political interests or purport to express the current Administration’s policy in a dispute or negotiation is another matter. Herein lies the problem. The Act is so vague-and so rarely enforced-that there’s no way of knowing where the line is.

Still, can you construct a situation where this Act might be applied? It would need to be serious enough that the Executive Branch would turn from centuries of “unenforcement” of the Act to prosecution of someone.

What if a major business leader spoke with the President of Uzbekistan and offered to help with the therapy and rehab of an American citizen who had brutally beaten an Uzbek woman in a drug-induced rage but had fled to the United States? The U.S. had, to that point, refused extradition and, as a consequence, Uzbekistan refused to sign a trade agreement that woudl benefit the business leader’s company and American interests in the region. The business leader’s offer to “deal with attacker” could grease the skids and get the charges dropped and the trade pact signed without any intervention by or knowledge of the Administration (or, incidentally, justice for the victim).

That’s the best I got, but it’s probably not even close to serious enough.