Illegal Diplomacy

Illegal Diplomacy
http://online.wsj.com/article/SB117582330980561775.html?mod=opinion_main_commentaries
By ROBERT F. TURNER
April 6, 2007; Page A10

House Speaker Nancy Pelosi may well have committed a felony in traveling to
Damascus this week, against the wishes of the president, to communicate on
foreign-policy issues with Syrian President Bashar Assad. The administration
isn't going to want to touch this political hot potato, nor should it become
a partisan issue. Maybe special counsel Patrick Fitzgerald, whose aggressive
prosecution of Lewis Libby establishes his independence from White House
influence, should be called back.

The "Logan Act" makes it a felony and provides for a prison sentence of up
to three years for any American, "without authority of the United States,"
to communicate with a foreign government in an effort to influence that
government's behavior on any "disputes or controversies with the United
States." Some background on this statute helps to understand why Ms. Pelosi
may be in serious trouble.

President John Adams requested the statute after a Pennsylvania pacifist
named George Logan traveled to France in 1798 to assure the French
government that the American people favored peace in the undeclared "Quasi
War" being fought on the high seas between the two countries. In proposing
the law, Rep. Roger Griswold of Connecticut explained that the object was,
as recorded in the Annals of Congress, "to punish a crime which goes to the
destruction of the executive power of the government. He meant that
description of crime which arises from an interference of individual
citizens in the negotiations of our executive with foreign governments."

The debate on this bill ran nearly 150 pages in the Annals. On Jan. 16,
1799, Rep. Isaac Parker of Massachusetts explained, "the people of the
United States have given to the executive department the power to negotiate
with foreign governments, and to carry on all foreign relations, and that it
is therefore an usurpation of that power for an individual to undertake to
correspond with any foreign power on any dispute between the two
governments, or for any state government, or any other department of the
general government, to do it."

Griswold and Parker were Federalists who believed in strong executive power.
But consider this statement by Albert Gallatin, the future Secretary of the
Treasury under President Thomas Jefferson, who was wary of centralized
government: "it would be extremely improper for a member of this House to
enter into any correspondence with the French Republic . . . As we are not
at war with France, an offence of this kind would not be high treason, yet
it would be as criminal an act, as if we were at war . . . ." Indeed, the
offense is greater when the usurpation of the president's constitutional
authority is done by a member of the legislature -- all the more so by a
Speaker of the House -- because it violates not just statutory law but
constitutes a usurpation of the powers of a separate branch and a breach of
the oath of office Ms. Pelosi took to support the Constitution.

The Supreme Court has spoken clearly on this aspect of the separation of
powers. In Marbury v. Madison, Chief Justice John Marshall used the
president's authority over the Department of State as an illustration of
those "important political powers" that, "being entrusted to the executive,
the decision of the executive is conclusive." And in the landmark 1936
Curtiss-Wright case, the Supreme Court reaffirmed: "Into the field of
negotiation the Senate cannot intrude, and Congress itself is powerless to
invade it."

Ms. Pelosi and her Congressional entourage spoke to President Assad on
various issues, among other things saying, "We came in friendship, hope, and
determined that the road to Damascus is a road to peace." She is certainly
not the first member of Congress -- of either party -- to engage in this
sort of behavior, but her position as a national leader, the wartime
circumstances, the opposition to the trip from the White House, and the
character of the regime she has chosen to approach make her behavior
particularly inappropriate.

Of course, not all congressional travel to, or communications with
representatives of, foreign nations is unlawful. A purely fact-finding trip
that involves looking around, visiting American military bases or talking
with U.S. diplomats is not a problem. Nor is formal negotiation with foreign
representatives if authorized by the president. (FDR appointed Sens. Tom
Connally and Arthur Vandenberg to the U.S. delegation that negotiated the
U.N. Charter.) Ms. Pelosi's trip was not authorized, and Syria is one of the
world's leading sponsors of international terrorism. It has almost certainly
been involved in numerous attacks that have claimed the lives of American
military personnel from Beirut to Baghdad.

The U.S. is in the midst of two wars authorized by Congress. For Ms. Pelosi
to flaunt the Constitution in these circumstances is not only shortsighted;
it may well be a felony, as the Logan Act has been part of our criminal law
for more than two centuries. Perhaps it is time to enforce the law.


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