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Monday, November 15, 2010

Don't repeal the Logan Act

Liberals have been outraged by Representative Eric Cantor's (R-Va) meeting with Prime Minister Netanyahu last week, and especially with the statement issued at the end of the meeting that said
"Eric stressed that the new Republican majority will serve as a check on the Administration and what has been, up until this point, one party rule in Washington," the readout continued. "He made clear that the Republican majority understands the special relationship between Israel and the United States, and that the security of each nation is reliant upon the other."
The liberals have called for Cantor's prosecution under the Logan Act.

In an earlier post, I mentioned House Speaker Nancy Pelosi's trip to Damascus during the Bush administration. The liberals were silent on that occasion, but now some of them are quoting Cantor's reaction to Pelosi's trip in calling for his prosecution.

Laura Curtis gives a lengthy list of apparent violations of the Logan Act over the last 40 years - mostly by Democrats - and argues that the Logan Act should be enforced or repealed.
Are all these examples actual violations of the Logan Act? That’s for a court to decide, but the problem is that one never will. Government officials, especially Democrats, violate it with impunity because they’re confident they’ll never be prosecuted. It’s rare they even get bad press for doing so. If these were social visits, perhaps Democrats should reconsider who they’re hanging out with.

Isn’t the real lesson here that the Logan Act is meaningless except for its value as a political cudgel? If the Logan Act is not going to be enforced, it should be repealed. I don’t know whether Cantor violated the Logan Act by making those comments to Netanyahu but if the DOJ thinks he did, by all means, prosecute him for it. Democrats are going to be hit a lot harder by Logan Act enforcement than Republicans will. And if the DOJ continues to enforce the law unequally (sanctuary cities get a pass, yet Arizona is prosecuted; some voter intimidation is more equal than others) then the 2010 teanami is going to seem like a pleasant day at the beach for Democrats in comparison to the 2012 wipeout.
I believe that there is value to a Logan Act even if it is never enforced. I've been in Israel long enough to see the unfettered discretion self-appointed leaders appropriate to themselves in the absence of a Logan Act-type statute. In Israel, it's not just politicians who attempt to make their own foreign policy; private citizens attempt to do the same. For example, see this incident involving a 'Peace Now' activist who took US officials on a tour of Jewish towns in Samaria, apparently to point out construction going on in the aftermath of the 'settlement freeze.'

The value of a Logan Act that is never enforced is what the US Supreme Court has referred to as a 'chilling effect.' Even if the law is unlikely to be enforced, knowing the law is on the books is likely to make a person obey it, or at least be more discrete about violating it. For example, while the odds of being caught speeding may be quite low in certain areas, one will drive within the speed limit anyway, because there's always that small chance. It is for this reason that states were forced to remove laws - for example - that forbade inter-racial marriages in the 1950's and 1960's. Even though those laws were rarely, if ever, enforced, their existence acted to deter what they prohibited. The same is true of the Logan Act. That's why the Logan Act ought to stay.

If the Act is going to be enforced, it ought to be enforced fairly. But with the Holder Justice Department in power, there is little or no chance that anyone other than Cantor will be prosecuted. If anything, Cantor ought to be treated more leniently than most of the other cases Laura Curtis cites, because Cantor was dealing with an ally while the other cases dealt mostly with enemy states. There ought to be a difference.

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