Thursday, May 30, 2013

McCain’s Syrian Adventure: Should He Be Charged with Violations to the Logan Act?

Here’s an astounding bit of news from The Daily Beast.
McCain, one of the fiercest critics of the Obama administration’s Syria policy, made the unannounced visit across the Turkey-Syria border with Gen. Salem Idris, the leader of the Supreme Military Council of the Free Syrian Army. He stayed in the country for several hours before returning to Turkey. Both in Syria and Turkey, McCain and Idris met with assembled leaders of Free Syrian Army units that traveled from around the country to see the U.S. senator.

Inside those meetings, rebel leaders called on the United States to step up its support to the Syrian armed opposition and provide them with heavy weapons, a no-fly zone, and airstrikes on the Syrian regime and the forces of Hezbollah, which is increasingly active in Syria.

Idris praised the McCain visit and criticized the Obama administration’s Syria policy in an exclusive interview Monday with The Daily Beast.
“The visit of Senator McCain to Syria is very important and very useful especially at this time,” he said. “We need American help to have change on the ground; we are now in a very critical situation.”
McCain’s unannounced visit- one conservative website called it “gutsy”- raises all sort of questions. Is it possible that the State Department could have given authorization for such a trip? 
It would surely have taken an approval by the executive branch. Think about it. A high-ranking official slipping across the border of one NATO country into another country in the midst of a bloody civil war? (Could there be grounds for another Issa investigation? Obama "scandals" are being sold to the gullible press at a dime a dozen nowadays.)
Reuters adds this:
The White House had no immediate comment.

A senior State Department official, in Paris with Kerry, confirmed that McCain did "cross into Syrian territory" but referred all questions to McCain's office. 
That suggests the trip was not authorized at all. The Secretary of State would surely have supplied further information if he had any. That implies that McCain took it upon himself to traipse into the messy conflict. A thumbing of the nose to the president, as it were. If true, then it raises some serious political and diplomatic questions.

Firstly there is the sticky question of legality. Did Senator McCain make it clear to the leaders of the Supreme Military Council of the Free Syrian Army that he is in no way authorized to speak or to make promises or to negotiate on behalf of the United States? 
His statements have no more weight than, say, Angelina Jolie. The statement by General Idris doesn’t suggest that McCain made that clear.

There's another question. Did John McCain commit a felony by violating the Logan Act, which forbids anybody but the president (or anybody the president authorizes) to conduct foreign policy.

John McCain and The Logan Act
Ratified in January 1799, the Logan Act became law after Dr.George Logan of Pennsylvania, a state legislator and later Senator, traveled to France in order to conduct an unauthorized negotiation with officials. Congress was outraged and enacted the Logan in order to “curb the temerity and impudence of individuals affecting to interfere in public affairs.”
The Logan Act reads:
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.
The employment of the Logan Act has come up now and then. Most recently, during the Reagan administration, there were two separate occasions in which the Logan Act was threatened. Once when Reverend Jesse Jackson traveled to Cuba and Nicaragua and another time, when House Speaker Jim Wright attempted to negotiate a cease-fire between Nicaragua's Sandinista government and the Contras. (At the time, President Reagan was much more interested in carrying out an illegal war than an unsatisfying peace.)

In both cases, the threatened use of the Logan Act was never carried out, probably due to the vagueness of its wording. In fact, the Reagan administration was quite correct to assert its authority even if that policy was questionable.
*   *   *   *
Of course, it might be argued that McCain did not actually meet with a foreign government, since the State department doesn’t actually recognize the Coalition of Syrian rebels as the legitimate government of Syria.
On that point let me clarify.

Back in December 2012, the State Department recognized the opposition as a political representative, but it purposefully fell short of conferring legal status. President Obama told ABC News in an interview at that time that the Syrian Opposition Coalition was “the legitimate representative of the Syrian people in opposition to the Assad regime.”
Conferring legal recognition involves numerous complicated territorial and property issues, including control of the Syrian government’s diplomatic presence in the United States, said Daniel Serwer, a former State Department mediator during the Bosnian war in the 1990s.
The president never stated that the Syrian opposition was the legal Syrian government. That prudent phraseology demonstrates how delicate the situation in Syria actually is. It also show how much importance the president gives to his approach. (Of course, critics would call that "typical Obama wishy-washiness.")

However, in the McCain affair, the Logan Act would presumably include armed rebel groups, diplomatically recognized by the State Department, as well as legally-recognized governments.

Syria: Where Caution is Advised
One thing is certain: the last thing the US needs is another disastrous military adventure. To paraphrase Kennedy, this generation has seen more than enough of war. Besides we really can't afford it. Although McCain seems oblivious, most Americans are extremely tired of unwinnable quagmires in Middle-East hell-holes with myriad sectarian divisions just under the surface. 

Sixty-one percent, in a recent poll, say they do not want the US to intervene in the civil war there, which has left 70,000 dead and created more than 1.2 million refugees. 
Perhaps recognizing the foolishness of declaring red lines, the president has recently displayed a sensible caution that others would do well to emulate (and that includes Israel, whose recent airstrikes have dangerously increased the chances of a region wide conflagration). Given the terrible costs of the US wars in Iraq and Afghanistan, as well as the increasingly sectarian nature of the Syrian fratricide, Obama is surely right not to rush into another Middle East conflict.
McCain’s interference could easily make the already dire situation there even worse. (Yes, things really could get worse. Well, at least for Americans.) In an attempt to criticize the president’s studied and thoughtful approach, McCain added a sense of confusion about how far America is willing to go in its support for some fairly unfamiliar “freedom fighters.” 

Only last week, a video emerged purportedly showing a rebel leader carving out and taking a bite out of the heart of a Syrian government soldier. According to John McCain, that's one of the good guys.

With the situation in Syria in such a mess, Senator McCain's interference was unhelpful and potentially disastrous. Any direct US involvement could easily broaden the conflict regionally to include Turkey to the north and Israel to the south and Iran to the east. 
Russia has- without much hesitation or conscience- shipped high tech arms and will continue to do so. In short, it has all the makings of another inconclusive costly war. This is not the time for the United States to give mixed signals to our friends and foes.

Perhaps Senator McCain thinks that he is in his second term as president, after narrowly winning in 2008. It's one explanation, at any rate.

The President Alone Has the Power
As Commander in Chief, only the executive branch’s prerogative to set foreign policy has been very well-established throughout US history.
In the 1936 case of United States vs. Curtiss-Wright Export, Supreme Court Justice George Sutherland gave the court’s decision, making this unambiguous statement about the presidential power to set foreign policy.
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.
For support, Sutherland cited John Marshall, Representative, Secretary of State and longest running Chief Justice of the Supreme Court. While serving in the House of Representatives, Marshall, on March 7, 1800, (only a few years after the Constitution was ratified), noted that
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.'
Sixteen years later, on February 15, 1816, the Senate Committee on Foreign Relations, reported to the Senate, among other things, as follows:
'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 committee considers this responsibility the surest pledge for the faithful discharge of his duty.They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch.'
These statements leave very little room for McCain- and any other of the conservative war-hawks- to maneuver. The president would be on pretty solid ground should the Justice Department chose to pursue a case against McCain.
But is that really so necessary? 

McCain the Serial Intruder
One reason why the Logan Act has been useful (at least, as a threat) is pretty obvious. Do we really want to have a hordes of congressmen and senators independently deciding the best foreign policy for the nation? Is this truly the way a superpower conducts diplomacy?

In McCain’s case, this wouldn't be the first time he has overstepped. In fact, McCain is something of a serial foreign policy intruder. 

For example, during the confusion of the Arab Spring, when Egypt was just emerging from widespread unrest after Hosni Mubarak stepped down, Senator McCain and Connecticut Independent counterpart Joe Lieberman made a surprising visit to Cairo. They reportedly met with Arab League chief Amr Mussa and made quasi-policy statements to reporters. At no time, did either Lieberman or McCain mention publicly that they were not there in any diplomatic or official capacity. It might as well have been a "gutsy" honeymoon on the Nile.

Press statements from February of 2011 indicate that the pair did indeed meet with Egyptian military staff. What was discussed was not made public but back home, McCain immediately called for special aid packages and free trade agreements for Egypt. (Keep in mind that under Mubarak dictatorial rule, Egypt received more American dollars than any country besides Israel. It was a lousy investment in the end.)

Whatever Johnny and Joe might have said behind closed doors, Egyptian officials could be forgiven for mistaking their comments and promises as official Obama administration foreign policy. It isn’t even clear whether McCain or Lieberman had the courtesy to debrief with the State Department upon their return. 
Again, it raises questions about violations to the Logan Act.

For the sake of argument, let’s assume that the State department actually gave permission for McCain to journey to war-ravaged Syria. Shouldn’t there be an investigation about the wisdom of allowing any high-ranking official to enter a war zone? 

As a former POW, McCain must understand the political value of hostage taking- a very common practice in that area of the world- and how it can potentially weaken any administration. He is presumably intelligent enough to understand how holding a senator hostage in exchange for direct military intervention (or at least, the implementation of a no-fly zone) is a very real danger. Furthermore, had McCain taken a wrong turn and been captured by Assad’s forces, it would have most certainly forced Obama to declare war on the Syrian government or face some kind of humiliating midnight diplomacy.

On the other hand, if McCain acted on his own, then his recklessness must be a subject for Senatorial censure.

While, John McCain, as a hostage in a Syrian prison, would be able to re-live his past, McCain is certainly old enough to recall the foreign policy tribulations the Reagan administration faced when Americans (including the CIA Beirut station chief, William Buckley died, who was tortured and died in captivity) were kidnapped in Lebanon and held hostage. As the Woodward book, Veil, points out, the hostage-taking in Lebanon was to become a catalyst for one of Reagan’s biggest policy blunders: the trading of arms for hostages, (one half of the better-known, Iran-Contra Scandal).

For all of the baby readers:
Though Reagan strenuously denied making covert deals with America’s enemy, the terrorist state of Iran, when confronted with overwhelming evidence to the contrary, he was forced to admit the truth to the American people:
“A few months ago, I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true. But the facts and the evidence tell me it is not.
("Blame it on my heart" was just another one of those Reagan "Say What?" moments. )
Of course, Senator McCain’s memory is exceedingly selective when it comes to that particular point. During the 2008 campaign, McCain noted that Reagan never negotiated with hostage-takers.

McCain's Permanent Blind Spot
But McCain, more than any other serving politician, has been so wrong, so often on so many foreign policy matters over the years. As far back as 1998, McCain advocated the same illegal policy of arming rebel groups but this time in Saddam’s Iraq. 

(Just to be clear, arming rebels is a violation of international law, no matter what the circumstances. That's why, in the past, at least, it was supposed to be done with some discretion.)

The problem with that policy is the same problem in Syria. The same problem that comes with arming any rebel group. With no real way to determine the needy from the opportunist, from today's freedom fighter to tomorrow terrorist, such a step has to be conducted with extreme consideration.

Back in 1998, McCain was one of the sponsors of the Iraq Liberation Act, which set “regime change” as national policy. It also mandated support of opposition groups. McCain was unable to recognize the dangers of arming people that cannot be trusted. (A lesson most political analysts had already understood when the Afghan freedom fighters turned into our sworn enemies.)
Among the major beneficiaries was the Iraqi National Congress, a London-based exile group headed by Ahmed Chalabi. The CIA had initially sponsored the group but broke with the leader in 1997, saying he could not be trusted. Under the new law, Mr. Chalabi's group received almost $33 million from the U.S. State Department, until American officials found financial improprieties and ended the arrangement. Asked by the Los Angeles Times this month if he regretted backing the 1998 law, which produced few discernible results other than bolstering Mr. Chalabi, Mr. McCain said he did not. Mr. Chalabi, although initially touted by neoconservatives as a future leader of Iraq, failed to garner any significant support in elections.
Today, most of the Neo-cons (with the exception of John McCain) realize now that putting faith in the con-artist Chalabi was a big mistake. Chalabi's promises of a peace deal with Israel blinded them to the fact that the Iraqi opposition leader was also making secret deals with Iran.

That kind of insight is not pure hindsight either. At that time, especially in the Israeli press, there were plenty of questions about the plan and whether Chalabi was a man of his word. In the end, it turned out to be an expensive political mistake. Moreover, the credibility of American leadership was called into question with our allies.The senator clearly has learned absolutely nothing from his dismal record of trusting the wrong people and seems eager to repeat the mistakes.

Of course, the list of misleading and just plain wrong statements made by McCain is really too extensive to go into in this post. But suffice to say, McCain’s career is so full of missteps and misjudgments that any wise president would listen to McCain carefully and with little hesitation, do the opposite.
The same holds true in Syria.

Unfortunately, as usual, President Obama would prefer to treat Senator McCain and so many right wing war hawks as untouchable, hoping perhaps that if he smiles politely, his critics will eventually get bored. The president seems to have a inherent distaste for confrontation but in this climate of divisive politics, that attitude has not always proved to be a virtue. Refusing to deal with bullies doesn't make them go away. It generally only encourages them.

In this particular case, the Obama administration doesn’t have the luxury of ignoring the McCain interference. McCain’s latest stunt is a direct challenge to the president’s executive authority. It sends mixed signals about American resolve and undermines US foreign policy in a very volatile area of the world. And having conflicting policy is always wrong no matter which opposing party engages in it.

In short, the Logan Act was written exactly for the situation that the “temerity and impudence” of Senator John McCain has created.

According to Reuters, the State Department was aware in advance of McCain's trip to Syria. That news is perhaps even more surprising.
"We were aware, of course, that Senator McCain was going to make this trip," White House spokesman Jay Carney said. "And we look forward to speaking with Senator McCain upon his return to learn more about the trip."
At the State Department, spokesman Patrick Ventrell noted that members of Congress often travel abroad and make their policy positions known. "I don't have a particular reaction to the trip one way or another," Ventrell said.
Of course, they were aware. Right. That's why Secretary of State Kerry had no information on the visit. (He deferred all questions to McCain's office.) 
That's the reason why Kerry chose this time to meet with his Russian Foreign minister to discuss the Syrian situation, despite the fact that Russia has publicly condemned the arming of rebels. If they were aware in advance why weren't debriefing arrangements made immediately upon his arrival on American soil?

Traveling abroad is one thing, but for the State Department to authorize a trip of a top Senator to a country in the middle of civil war is quite another. After all the flak that the State Department has received in the Benghazi events, is it plausible that they would authorize such a trip?

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