Why the Logan Act should be repealed

Congress should repeal the Logan Act. Modern, globalized communications have destroyed any remaining rationale for this outdated law. The Logan Act today potentially criminalizes much routine (and constitutionally-protected) speech of US citizens.

During the presidency of John Adams, Dr. George Logan, a private citizen, engaged in freelance diplomacy with the government of revolutionary France. The Federalists, then in control of the federal government, were not pleased by what they perceived as Dr. Logan’s interference with the foreign policy of the United States.

They consequently adopted what has been denoted the Logan Act in the good doctor’s honor. The Logan Act makes it a crime for a US citizen to “directly or indirectly” conduct “any correspondence or intercourse with any foreign government or any officer or agent thereof…to defeat the measures of the United States.” Violators of the Act can be fined and jailed for up to three years. For this purpose, “government” is defined broadly to include any foreign “faction, or body of insurgents.”

The Logan Act has rarely been enforced. Its constitutionality has been questioned. But the Act remains on the books and, every now and then, rears its head.

Consider, for example, the recent report that biographer John A. Farrell discovered evidence confirming the conjecture that in 1968 the Republican presidential nominee, Richard Nixon, pressed the government of South Vietnam to resist President Johnson’s efforts to negotiate an end the Vietnam war. Through an intermediary, Nixon allegedly communicated to the South Vietnamese government that it should drag its heels and wait for a better deal from a Nixon Administration. Some have speculated that Nixon’s communications with the South Vietnamese government violated the Logan Act.

In 2008, Secretary of State Condoleezza Rice and former President Jimmy Carter engaged in a very public interchange about Carter’s Logan-style communications with Hamas. I speculated then that Mr. Carter’s acerbic response to Secretary Rice’s criticism might have reflected his concern that his freelance diplomacy violated the Logan Act.

Modern communications have made the Logan Act unworkable. For better or worse, we are all instantaneously communicating across the globe with everyone. Today, Dr. Logan need not travel to France to communicate with the French government. He can tweet from the comfort of his home.

We saw this reality during the interregnum between the Obama and Trump Administrations. President Obama and Secretary of State Kerry used their last days in office to criticize policies being pursued by the Israeli government. The President-elect promptly tweeted out his disagreement with that criticism which was instantaneously perceived around the globe including, no doubt, in the halls of the Israeli government.

Americans today travel abroad and routinely meet with foreign officials, and participate in international conferences which representatives of foreign governments also attend. Suppose, for example, that a US citizen criticizes President Trump’s views on climate change to an international audience which includes an environmental “agent” of a foreign government. Most recently, Representative Tulsi Gabbard met with Syrian President Bashar Assad.

One can envision less anodyne communications between Americans and representatives of foreign governments. However, even without the Logan Act, federal law is adequate to address any untoward possibilities. Our criminal statutes, for example, forbid a US citizen from improperly disclosing confidential information to a foreign government.

In particular instances, the contact between a US citizen and the agent of a foreign government can be a legitimate – often important – issue for public debate, as was President Carter’s contact with Hamas. I similarly doubt the wisdom of Representative Gabbard’s meeting with Mr. Assad. However, it is wrong to criminalize routine communications, as the Logan Act today does. Even the remote threat of the Logan Act’s criminal penalties can chill the exercise of American citizens’ rights of free speech.

Though the Logan Act is rarely enforced, it remains on the books, potentially available to federal prosecutors. Other laws, such as prohibitions on bribery and on the misuse of confidential information, are targeted at true abuses. The Logan Act is an anachronism in an era of modern communications and travel. The Logan Act should be repealed.

Featured image credit: Federal court reports by Open Grid Scheduler. Public domain via Flickr.