It was a good day for democracy – Saddam Hussein caught at last. Just weeks ago, though, democracy had a bad day, when a freelance "peace" agreement was unveiled in Switzerland by an unelected Israeli citizen – an instance of anti-democracy abetted by arch anti-democrat, Jimmy Carter.
I doubt that anyone would characterize Carter as a mass murderer, though as president he ushered in the era of Islamic fanaticism responsible for more murders than one would care to count. But Hussein and Carter both have a history of treating democracy with contempt – one through violence, the other through a pathological compulsion to speak for people who, except under threat of torture or death, would never elect him to office.
A well-known example occurred in 1990, during the run-up to the first Gulf War, when Carter lobbied UN Security Council members to oppose the U.S. effort to stop Hussein's invasion of Kuwait. In the dozen years since that war, Carter's crimes have yet to be prosecuted.
And yes, Carter's unauthorized diplomacy constitutes serious criminality. Title 18 of the US Code, Sec. 953, says that "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 measure or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States" shall be fined or imprisoned.
That statute, known as the Logan Act, demands that diplomatic matters, on which the fate of the nation may hinge, be reserved to the elected government. Thus, when, in 1798, a Quaker from Philadelphia named George Logan went to Paris to negotiate with the French government in a personal effort to avert war between France and the United States, an outraged Congress passed "An Act to Prevent Usurpation of Executive Functions."
The basic principle behind the law – that only an elected leader may speak for a nation – is inherent to democracy. Hussein flouted that principle through force, Carter by usurping the prerogative of the president to be, as Thomas Jefferson wrote in 1790, "the only channel of communication between the United States and foreign nations."
Recent, unauthorized talks with the West Bank Arabs – which likely had the secret blessings of Yasser Arafat and were therefore "with" a "foreign government" – had the intent of influencing the conduct of (to Carter) another foreign government, that of Israel. Carter may have had no role in the actual talks, but by participating in the "ceremony", he became a conspirator with self-appointed Israeli "diplomat" Yossi Beilin. (A conspirator need not take part in every part of a plan – or even know all of a conspiracy's members. As Black's Law Dictionary makes clear, he need only "know the purpose of the conspiracy and agree to become a party to effectuate that purpose.") By the plain meaning of Logan, then, Carter would seem to have "directly or indirectly" taken part in "intercourse" with a "foreign government... in relation to" a controversy that involves the United States.
If such behavior is a significant crime, why did former President George H. W. Bush decline to press charges against Carter back in 1990, as he certainly could have, and send the man to prison? One can only speculate. But here's a broader question: Why, in over two centuries, has Logan never been used to prosecute anyone?
One answer may be that disuse of the statute is self-perpetuating. A dormant law generates no case law as guidance on such issues as: In what sense must a controversy be "with the United States"? What counts as "intercourse" with a foreign government – and how "indirect" may it be?
Uncertainty may be daunting, but, as we have recently demonstrated in Iraq, it's no reason to allow fundamental principles to fall by the wayside. Those who threaten democracy – even if "only" by a usurpation of presidential authority – must be stopped.
We have the tool; we just need the will. Then, someday, a prosecutor might say of Jimmy Carter: "We got him!"
