Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In the article below, he suggests that former President Carter may have violated the federal Logan Act by meeting with officials of Hamas.
Over the last several days, former President Jimmy Carter and Secretary of State Condoleezza Rice have engaged in a surprisingly bitter debate about Mr. Carter’s recent meeting with officials of Hamas. First, the former chief executive indicated that no official of the U.S. government had attempted to dissuade him from this meeting. The Secretary promptly and bluntly disagreed. Secretary Rice, formally contradicting the former president, declared that the State Department had explicitly informed Mr. Carter that it opposed his plans to meet with leaders of Hamas. Mr. Carter, with equal promptness and bluntness, then retorted that, while he “has the greatest respect” for Secretary Rice, her statement “is not true.” In a particularly biting observation, Mr. Carter added that Secretary Rice spoke falsely but “perhaps inadvertently.”
Such a bitter interchange between a former president and a Secretary of State is likely unprecedented and, at one level, inexplicable. If there was miscommunication between Mr. Carter and the State Department, that does not justify the asperity of the Carter-Rice colloquy.
I offer an hypothesis for the bitter quality of this interchange: Depending on who is correct, Mr. Carter may have broken federal law by his personal diplomacy with Hamas. In particular, Mr. Carter may have violated the Logan Act by meeting with leaders of Hamas after the State Department told him not to.
The Logan Act is named after Dr. George Logan, whose discussions with the French government during the administration of President John Adams incurred the wrath of the Federalists who then controlled Congress. In its current form, the Logan Act, 18 U.S.C. Section 953, makes it a felony if a U.S. citizen, absent government authorization, “directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with the intent to… defeat the measures of the United States.”
The Act has been much criticized and rarely enforced. A plausible case can be made that the Logan Act, at least as potentially applied in particular cases, is unconstitutional. Nevertheless, Congress has declined to remove the Act from the federal statute books.
If Mr. Carter’s version of events is correct, he has some wiggle room for claiming that his meeting with the leaders of Hamas did not violate the Logan Act. The Bush Administration has a clearly articulated policy of isolating Hamas until it renounces terrorism and recognizes Israel. However, Mr. Carter could contend, he reasonably thought that this policy of isolation pertained to formal diplomatic contacts with Hamas, not to conversations with currently private citizens such as Mr. Carter. Thus, his meeting, he reasonably believed, was not intended to “defeat the measures of the United States,” in particular, the policy of isolating Hamas.
This defense disappears if Secretary Rice’s version of events is correct and Mr. Carter met with Hamas officials even after the State Department specifically requested that he not do so. In that case, Mr. Carter had prior notice that his proposed meeting with the leadership of Hamas contradicted current policy.
This possibility, I suggest, may explain the sharp verbal jousting of the former president and the Secretary of State.
Although the United States does not recognize Hamas diplomatically, the relevant statute and case law establishes that Hamas is a “foreign government” for purposes of the Logan Act. As a “faction, or body of insurgents” exercising de facto sovereignty over the people and territory of Gaza, Hamas is a “foreign government” under the Logan Act. Hence, if Mr. Carter was explicitly told not to meet with the Hamas leadership and deliberately disregarded that warning, he directly and knowingly conducted private diplomacy with a foreign government “with the intent to… defeat the measures of the United States,” i.e., the policy of isolating Hamas.
This may explain why Mr. Carter is so sensitive to the charge that he was specifically warned against his meeting with officials of Hamas but proceeded anyway. The possibility that Mr. Carter will be prosecuted for a Logan Act violation is remote. However, Mr. Carter has labored assiduously at personal rehabilitation during his post-presidential years. He cannot be pleased at the prospect of being characterized as careless or willful in his disregard of federal law. As a recent blog by James Kirchick of The New Republic makes clear, the allegation that Mr. Carter violated the Logan Act by meeting with Hamas’ leaders was surfacing in the blogosphere even before the Carter-Rice colloquy.
In sum, Mr. Carter may have violated U.S. law by meeting with officials of Hamas, thereby deliberately “defeat(ing)” the policy of the United States to isolate Hamas as a terrorist organization. Of course, no one (including me) is suggesting that Mr. Carter be prosecuted under the Logan Act for his actions. On the other hand, Mr. Carter’s possible disdain for federal law is, at a minimum, troubling behavior for a former president. If Secretary Rice’s version of events is correct and Mr. Carter was told not to do what he did, Mr. Carter, with prior notice, violated the Logan Act by meeting Hamas’ leadership.