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Obama and the Logan Act

The Charges

In the September 15th edition of the New York Post, Amir Taheri reports that Senator Obama attempted to influence the Iraqi government with regard to the troop withdrawals from Iraq.

According to Iraqi Foreign Minister Hoshyar Zebari, Obama made his demand for delay a key theme of his discussions with Iraqi leaders in Baghdad in July.

“He asked why we were not prepared to delay an agreement until after the US elections and the formation of a new administration in Washington,” Zebari said in an interview.

Obama insisted that Congress should be involved in negotiations on the status of US troops – and that it was in the interests of both sides not to have an agreement negotiated by the Bush administration in its “state of weakness and political confusion.”

The Logan Act

These actions by Senator Obama appear to be a violation of the Logan Act(p 2)(pdf)

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, 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.

It would, therefore, appear that Senator Obama has violated the Act by inserting himself into the middle of the discussions of troop levels in Iraq. Matters of foreign policy have long been established as the sole property of the President. In United States v. Curtiss-Wright Export Corporation Justice Sutherland states(in the only legal decision that directly relates to constitutionality; many other refer to the Act’s constitutionality but do not act):

In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.

Senator Obama’s only defense in this instance would be that President Bush (or someone in the State Department) knew of his intentions to encourage Iraq to delay an agreement. That would be a highly unlikely occurence.

Likelihood of action

The likelihood of Senator Obama being charged with a violation of the Act, however, seem very slim. In the over 200 year history of the Act only one individual has been charged. He was however not prosecuted(p 6)(pdf).

There appear to have been few indictments under the Logan Act.7 The one indictment found occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who wrote an article in the FRANKFORT GUARDIAN OF FREEDOM under the pen name of “A Western American.” Flournoy advocated in the article a separate Western nation allied to France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice Marshall, went no further than procuring the indictment of Flournoy, and the purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become obsolete.

It would seem that history would indicate Obama will not be prosecutted. This may, however, be infomation that the McCain/Palin campaign can use to show Obama as unfit to lead. McCain campaing spokesman Randy Scheunemann had this to say:

At this point, it is not yet clear what official American negotiations Senator Obama tried to undermine with Iraqi leaders, but the possibility of such actions is unprecedented. It should be concerning to all that he reportedly urged that the democratically-elected Iraqi government listen to him rather than the US administration in power. If news reports are accurate, this is an egregious act of political interference by a presidential candidate seeking political advantage overseas. Senator Obama needs to reveal what he said to Iraq’s Foreign Minister during their closed door meeting. The charge that he sought to delay the withdrawal of Americans from Iraq raises serious questions about Senator Obama’s judgment and it demands an explanation.

Note: Senator Obama has denied the reports.

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