A recent front page article in the New York Times headlined “Karzai Warned Over Release Of Detainees” told of three members of the U.S. Senate bringing pressure on the president of Afghanistan concerning his country’s plan to release dozens of prisoners who were accused of attacking members of the U.S. military. On one level, the episode was one of many rough spots in the waning American military presence in that country, “Afghanistan fatigue” having joined other policy quandaries that outlast public interest (think Guantanamo).
On another level, however, there is something seriously wrong in American legislators remonstrating with foreign leaders on their own soil. Whether or not one subscribes to the “unitary executive” theory of presidential power, there is no question that the president, or at least the Executive Branch, is responsible for the conduct of foreign relations (not to mention the Chief Executive’s constitutional role as Commander in Chief). Congress, of course, gets to enact legislation that touches and concerns foreign affairs (e.g., foreign aid, funding the State Department), and the Senate gets to ratify treaties and confirm ambassadors. But it is the president who recognizes foreign regimes, commissions ambassadors, accredits foreign diplomats and in general conducts our foreign relations.
In foreign affairs, the need that the country speak with one voice is especially compelling. Multiple voices, only some of which may be authoritative in expressing the position of the United States, are a prescription for chaos and misunderstanding – and misunderstanding can have devastating consequences.
In 1799, Congress passed the Logan Act (18 U.S.C. § 953). As amended most recently in 1994, it provides:
“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 measures or conduct of any foreign government or of 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.”
This is strong medicine. In essence, it means that unless the president consents, private citizens may not conduct foreign affairs, on pain of criminal prosecution. No one has ever been convicted under the Logan Act, and there is a school of thought that holds it unconstitutional.
Nowhere in The Times story from Kabul was it suggested that Senators Lindsey Graham, John McCain and John Barasso were leaning on President Hamid Karzai at the behest or with the approval of the administration. If they had approval, it should not have been granted given the need for coherent policy on a matter as sensitive as the release of these prisoners and the connection to ongoing issues about the execution of a Status of Forces Agreement as a precondition to continued American support for the government of Afghanistan. If the three senators did not have explicit approval from the administration, it is difficult to imagine a clearer violation of the Logan Act. Their actions go beyond the activities of Senators John Sparkman and George McGovern when they met with officials in Cuba in 1975. The State Department registered no objection at the time.
To be sure, federal legislators have every right to inform themselves about conditions overseas and every right to vote their conscience when the time comes in the halls of Congress. But it is a far cry from doing that to jawboning a foreign head of state eyeball-to-eyeball on an issue of the magnitude of that presented by the Kabul prisoner release.
Congressional diplomacy is unwise and dangerous. A Logan Act prosecution would be unimaginable, but the practice should be discouraged. In our three-branch system of government, legislators should stay in their lane.•