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The Logan Act (1 Stat. 613, 30 January 1799, currently codified at 18 U.S.C. § 953) is a United States federal law that forbids unauthorized citizens from negotiating with foreign governments. It was passed in 1799 and last amended in 1994. Violation of the Logan Act is a felony, punishable under federal law with imprisonment of up to three years.
Passed under the administration of President John Adams, during tension between the U.S. and France, it was informally named for Dr. George Logan of Pennsylvania, a state legislator (and later US Senator) and pacifist who in 1798 engaged in semi-negotiations with France during the Quasi-War.
Kevin Kearney, writing in the Emory Law Journal, described Dr. Logan's activities in France:
Upon his arrival in Paris, he met with various French officials, including Talleyrand. During these meetings, he identified himself as a private citizen, discussed matters of general interest to the French, and told his audience that anti-French sentiment was prevalent in the United States. Logan's conversation with Merlin de Douai, who occupied the highest political office in the French republic, was typical. Logan stated that he did not intend to explain the American government's position, nor to criticize that of France. Instead, he suggested ways in which France could improve relations with the United States, to the benefit of both countries. He also told Merlin that pro-British propagandists in the United States were portraying the French as corrupt and anxious for war, and were stating that any friend of French principles necessarily was an enemy of the United States. Within days of Logan's last meeting, the French took steps to relieve the tensions between the two nations; they lifted the trade embargo then in place, and released American seamen held captive in French jails. Even so, it seems that Logan's actions were not the primary cause of the Directory's actions; instead, Logan had merely provided convenient timing for the implementation of a decision that had already been made.
Despite the apparent success of Logan's mission, his activities aroused the opposition of the Federalist Party in Congress, who were resentful of the praise showered on Logan by oppositional Democratic-Republican newspapers. Secretary of State Timothy Pickering, also of Pennsylvania, responded by suggesting that Congress "act to curb the temerity and impudence of individuals affecting to interfere in public affairs between France and the United States." The result was the Logan Act, which was pushed through by the Federalist majority (60-46 in the House; and 22-10 in the Senate) with relatively little debate.
Subsequently, Logan himself was appointed and then elected as a Democratic-Republican to the United States Senate from Pennsylvania to fill the vacancy caused by the resignation of John Peter G. Muhlenberg and served from July 13, 1801, to March 3, 1807. He was unsuccessful in getting the Logan Act repealed. Logan declined to be a candidate for reelection. Nonetheless, despite the Logan Act, he went to England in 1810 on a private diplomatic mission as an emissary of peace in the period before the outbreak of the War of 1812, but was not successful.
1 Stat. 613, January 30, 1799, codified at 18 U.S.C. § 953 (2004).
In general, the Act is intended to prohibit American citizens without authority from interfering in relations between the United States and foreign governments. Although attempts have been made to repeal the Act, it remains law and at least a potential sanction to be used against anyone who without authority interferes in the foreign relations of the United States.
Washington has threatened to use the act to stop Americans from negotiating with foreign governments. For example, in February 1941 Under Secretary of State Sumner Welles told the press that former President Herbert Hoover might be a target for prosecution because of his negotiations with European nations over sending food relief.
The only known indictment under the Logan Act was one that occurred in 1803 when a grand jury indicted Francis Flournoy, a Kentucky farmer, who had written an article in the Frankfort Guardian of Freedom under the pen name of "A Western American." In the article, Flournoy advocated a separate nation in the western part of the United States that would ally with France. The United States Attorney for Kentucky, an Adams appointee and brother-in-law of Chief Justice John Marshall, went no further than procuring the indictment of Flournoy. The purchase of the Louisiana Territory later that year appeared to cause the separatism issue to become moot.
In the only other known case, US citizen John D. Martin, a prisoner of war in North Korea, was brought before a court-martial for collaborating with North Korean authorities and conducting "re-education" classes in the prison camp where he was held. The case was dismissed because the court-martial had no jurisdiction over acts he committed after the expiration of his enlistment.
During the 1968 presidential election, Richard Nixon campaign officials, through Anna Chennault, advised Saigon to refuse participation in peace talks, promising a better deal once elected. Defense Secretary Clark Clifford thought the move illegal, and President Lyndon B. Johnson called it treasonous, but did not want to reveal that the NSA was intercepting communications in Vietnam.
In 1975, Senators John Sparkman and George McGovern were accused of violating the Logan Act when they traveled to Cuba and met with officials there. In considering that case, the U.S. Department of State concluded:
The clear intent of this provision [Logan Act] is to prohibit unauthorized persons from intervening in disputes between the United States and foreign governments. Nothing in section 953 [Logan Act], however, would appear to restrict members of the Congress from engaging in discussions with foreign officials in pursuance of their legislative duties under the Constitution. In the case of Senators McGovern and Sparkman the executive branch, although it did not in any way encourage the Senators to go to Cuba , was fully informed of the nature and purpose of their visit, and had validated their passports for travel to that country.
Senator McGovern’s report of his discussions with Cuban officials states: "I made it clear that I had no authority to negotiate on behalf of the United States — that I had come to listen and learn...." (Cuban Realities: May 1975, 94th Cong., 1st Sess., August 1975). Senator Sparkman’s contacts with Cuban officials were conducted on a similar basis. The specific issues raised by the Senators (e.g., the Southern Airways case; Luis Tiant’s desire to have his parents visit the United States) would, in any event, appear to fall within the second paragraph of Section 953.
Accordingly, the Department does not consider the activities of Senators Sparkman and McGovern to be inconsistent with the stipulations of Section 953.
In 1984, President Ronald Reagan stated that the activities of the Reverend Jesse Jackson, who had traveled to Cuba and Nicaragua that year and had returned with several Cuban political prisoners seeking asylum in the United States, may have violated the Logan Act; but Jackson was never indicted.
In 1987 and 1988, President Reagan was furious at what he felt to be House Speaker Jim Wright's "intrusion" into the negotiations between Nicaragua's Sandinista government and the Contras for a cease-fire in the long civil war. The National Security Council considered using the Logan Act to muzzle Wright, but nothing ever came of it.
There has been little judicial discussion of the constitutionality of the Logan Act.
In United States v. Curtiss-Wright Export Corp. (1936), however, Justice Sutherland wrote in the majority opinion: "[T]he 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." Sutherland also notes in his opinion the Senate Committee on Foreign Relations report to the Senate of February 15, 1816:
The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations, and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct, he is responsible to the Constitution.
The Southern District of New York in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964), mentioned in passing that the Act was likely unconstitutional due to the vagueness of the terms "defeat" and "measures," but did not rule on the question.
In a memorandum dated September 29, 2006, and entitled "MEMORANDUM FOR ALL MEMBERS AND OFFICERS, from the Committee on Standards of Official Conduct of the United States House of Representatives, regarding the subject of "Post-Employment and Related Restrictions for Members and Officers," members of the House who were leaving office were cautioned regarding activities that may implicate the Logan Act: 'Members should further be aware of a permanent federal statutory restriction that prohibits any U.S. citizen acting without authority of the United States from: "Directly or indirectly commencing or carrying on any correspondence or intercourse with any foreign government, or any officer or agent thereof, with the 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.'"
The House memo goes on to state that the Logan Act "has never been the basis of a prosecution, and this Committee has publicly questioned its constitutionality. House Comm. on Standards of Official Conduct, Manual of Offenses and Procedures, Korean Influence Investigation, 95th Cong., 1st Sess. 18-19 (Comm. Print 1977). Members should be aware, however, that the law remains on the books."
The chair of the House Judiciary Committee in the 109th Congress, F. James Sensenbrenner of Wisconsin, proposed a comprehensive revision and modernization of the federal criminal code in 2006. The bill, H.R. 6253, was not enacted into law. What is noteworthy is that the Logan Act was significantly revamped in the proposed legislation to prohibit only knowingly false statements made under oath. The section revising the Logan Act was proposed to read as follows:
Sec. 923. False statements influencing foreign government — Whoever, in relation to any dispute or controversy between a foreign government and the United States, knowingly makes any untrue statement, either orally or in writing, under oath before any person authorized and empowered to administer oaths, which the affiant has knowledge or reason to believe will, or may be used to influence the measures or conduct of any foreign government, or of any officer or agent of any foreign government, to the injury of the United States, or with a view or intent to influence any measure of or action by the United States or any department or agency thereof, to the injury of the United States, shall be imprisoned not more than ten years.
In June 2007, Representative Steve King introduced legislation that would prohibit then-Speaker of the House Nancy Pelosi from drawing on Federal funds to travel to foreign states which the U.S. deems to sponsor terrorism. King claimed that Pelosi's dialogue with the Syrian government violated the Logan Act. The amendment was not adopted.