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Did Speaker John Boehner break the law in inviting Netanyahu to address Congress?

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Dennis Lamb, guest columnist

Speaker John Boehner’s invitation to Israeli Prime Minister Benjamin Netanyahu to address a joint session of Congress without first notifying President Barack Obama of his intention to do so led to much public discussion of whether Boehner violated diplomatic protocol. For me, the question is did Boehner violate the constitution and commit a felony? And, if so, will members of Congress who attend Netanyahu’s address be de facto accomplices in that felony?

“The Logan Act is a federal law that makes it a felony for any American citizen to attempt to negotiate with a foreign government or attempt to influence foreign policy without clear authority from the executive branch of the U.S. government. It was passed in 1799, due to interference by George Logan in relations with France and still is on the books at present, although it has since been revamped. Logan, whom the Act is obviously named for, had no authority to visit France. Congress soon realized that such attempts could very well give mixed signals during tensions between the U.S. and other nations and thus passed the Logan Act.

The constitutionality of the Logan Act hasn’t been thoroughly tested. On the other hand, the Supreme Court has acknowledged in other cases that the executive branch alone, namely the president, has the power to speak for the United States or the authority to appoint a spokesman. It should also be noted that the text of the Logan Act makes clear that its purpose is to prevent any person without the proper authority from interfering in disputes between the United States and foreign governments. Such a usurpation of executive power could clearly send mixed messages or dangerously undermine foreign policy.” (source: wiseGEEK)

Google “Logan Act” for further information on this law. The following italicized text is the heart of it:

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.

In United States v. Curtiss-Wright Export Corp. (1936), 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. (source: Wikipedia)

Boehner, though Speaker of the House, still is only a member of Congress and, per the Logan Act, not authorized to conduct foreign policy dealings that are explicitly the purview of the executive branch.

Yet, in inviting Netanyahu to address a joint session of Congress on Iran, Boehner corresponded with an officer of a foreign government — Israel — with intent to influence the conduct of both Israel and the United States in their disputes with Iran, and he appears to be joining with Netanyahu in seeking to defeat the measures of the United States, e.g., President Obama’s negotiations with Iran.

It seems clear to me that Boehner did violate the Logan Act and commit a felony. What I do not understand is why, if this is true, there has not been more discussion of the Logan Act in the media and why President Obama has not raised the Logan Act with Boehner.

• Dennis Lamb from Chelsea, retired from the CIA in 2002 after serving 30 years in its Directorate of Operations as a Case Officer and an Intelligence Analyst. His viewpoint above is personal and not the views of his former employer. Comments: lambden@hotmail.com

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