Here’s another unenforced and arguably unconstitutional United States federal law with potentially life-altering penalties and fines which nearly every Isaac Brock Society reader has violated:
18 USC § 953. Private correspondence with foreign governments
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.
There has never been a single prosecution under this law, the Logan Act, in its two-century history. But there didn’t need to be in order for it to scare people away from exercising their rights.
What is the Logan Act intended to prevent?
Many legal scholars regard the Logan Act as unconstitutional, though recently Drew Tedford (now a lawyer for the Texas Legislative Council) has expressed the opposite opinion in his Houston Journal of International Law paper “Silent no more: the Logan Act as a constitutionally enforceable tool in foreign policy”. I quote him here because as a proponent of the Logan Act he is motivated to provide the narrowest possible reading of the act so that it could be constitutional, in contrast to detractors of the act who would tend to interpret it broadly. Footnotes omitted:
Communications exclusively between civilian individuals are not prohibited by the Logan Act; only interactions with a “foreign government or any officer or agent thereof” are prohibited. The threat posed by such communications is as real today as it was in 1799. Arguably, with the increase in globalization has come a heightened threat of rogue diplomacy. Increased speed of travel and communications allow private diplomats to carry on communications with foreign governments with little investment of time or money. The Logan Act is not an obsolete or antiquated restriction of a modern trend, but is more necessary than ever in an increasingly accessible diplomatic world …
As for a facial challenge alleging that the Logan Act infringes on rights protected by the First Amendment, it is well-established that Congress has the power to legislate to protect the Executive power. Because the Executive has the power to carry on communications with foreign governments with which the United States is in dispute, Congress has the power to limit speech in foreign realms. This stance on speech rights in foreign affairs has come under intense scrutiny as an archaic holdover, but even today domestic First Amendment protections are not applied in the same form to foreign affairs. Therefore, communications that are purely foreign do not have the same protections; only limitations on domestic communications run the risk of infringing on these rights …
It was not and is not necessary for Congress to have declared war, but merely that the tone be that of negotiation, such that any correspondence an unauthorized individual might carry on with the foreign government could interfere with the formal and legitimate national negotiation. The crime is for an individual to interfere at a time when any negotiation is going forward by legal authority. When this is the case, correspondence by an unauthorized individual interferes with, and thereby potentially usurps the Executive power, which is prohibited by the Act.
Lawyers unable to act in their clients’ best interests
Regardless of its constitutional validity, the Logan Act is definitely unenforced, yet its mere existence has resulted in significant consequences. In particular, criminal defense lawyers for U.S. soldiers abroad have refused to lobby foreign governments to exercise jurisdiction over their clients under the relevant Status of Forces Agreement, or even to refer their clients to non-U.S.-citizen lawyers who could carry out the actual lobbying without fear of the Logan Act. Under 18 USC § 3559, a violation of the Logan Act would be a Class E felony — leading to a fine of up to US$250,000 (§ 3571), plus the prison sentence specified and potential disbarment.
The result: their clients were then tried by U.S. Armed Forces courts instead, which subjected them to harsher penalties for the same crimes, up to and including capital punishment. One such case, that of PFC Todd A. Dock, was discussed briefly by Captain Robin L. Davis, “Waiver and Recall of Primary Jurisdiction in Germany”, The Army Lawyer, May 1988, pp. 30–35:
The policy of the United States to attempt to obtain a release of jurisdiction in all cases does not always work to the benefit of the accused. For example, in 1985 Private First Class (PFC) Todd A. Dock was tried by general court-martial and sentenced to death for the premeditated murder and robbery of a German cab driver. If PFC Dock, who was 19 years old at the time, had been tried by German authorities under the Youth Court Law, the maximum imposable punishment would have been confinement for ten years …
Although the regulation [USAREUR Regulation 550–56] apparently forbids trial defense counsel to contact German authorities, a counsel is arguably free to assist the client in working with a German attorney or other private citizen in urging retention of primary jurisdiction as long as the military authority scrupulously avoids contact with German authorities. Even this course of conduct appears to run counter to the Logan Act, however … Thus, if maximization of jurisdiction over U.S. Forces is a “measure(s) of the United States”, a U.S. citizen defense counsel who even assists another in influencing German authorities to withhold jurisdiction may be criminally liable under the act. Under the broad language of the statute a U.S. defense counsel arguably violates it merely by advising client to take measures to effect retention of German jurisdiction.
About a decade after Davis wrote this, the issue came up again in United States v. Murphy, 50 M.J. 4 (1998), in which Sergeant James Murphy, also stationed in Germany, appealed a murder conviction on grounds of (among other things) ineffective assistance of counsel because his former lawyer in the trial below did not attempt to procure the services of a German lawyer for him, nor to contact the German government regarding his case — apparently also for fear of the Logan Act. Murphy’s appeal was unsuccessful.
Fear of unenforced laws
The Reed Amendment is a very convenient tool for nasty & unethical “professionals” who want to spread irrational fear among their clients and the public at large. As I mentioned in my earlier post about former U.S. citizens who later moved back to the U.S. for work or study, the worst offender in this regard is an anonymous Santa Barbara immigration lawyer on Yahoo! Answers, who for years has been going around scaring anyone who dares mention the word “renunciation” with tall tales of how they’ll “never set foot in the United States again” and how they must be “mentally ill” to even consider “pissing away” U.S. citizenship. The internet is full of examples which are more professionally-worded but equally malicious and ignorant. (There are at least a few honourable exceptions, fortunately).
Some Americans abroad have even stated that the potential of a lifetime ban on visiting their loved ones in the U.S. — however unlikely — has scared them into expensive and pointless IRS form-filing for the rest of their lives. One rare example of a person making such a statement under their real name is this post by an academic in Ontario. He first quotes a passage about the Reed Amendment from a Moodys Gartner Tax Law article, and then states:
I have seriously considered renouncing my US citizenship as a result of this law. But it turns out, I may decide not to do that after all … The only reason I’m going through all this nonsense is so I can freely visit my son and his family, who live in the US.
I could argue that I renounced my US citizenship not to avoid paying US taxes but to avoid having to pay accountants to demonstrate that I no longer owe the US any taxes. But I wouldn’t want to take a chance on winning that argument at the border.
And since I have made it quite clear on this blog that the only reason I would go through the process of renouncing my US citizenship is to avoid having to file US tax returns, I would be clearly in sights of the Reed Amendment.
Another striking parallel: Circular 230. As USCitizenAbroad has previously discussed, the IRS’ statements on Circular 230 & the OVDI led some American lawyers to believe themselves unable to advise U.S. Persons abroad on “quiet disclosures”, so those lawyers instead herded their clients into the one-size-fits-all OVDI criminal amnesty. And as it turns out, Circular 230 may also be invalid — though, unlike the Reed Amendment or the Logan Act, at least that question is getting tested in court.
Perhaps I’m just an incurable cynic, but I would not be surprised much to run across a “compliance professional” mentioning the Logan Act as yet another reason why U.S. Persons abroad should take no action whatsoever to defend themselves — not renouncing, not avoiding OVDI, not even writing angry anti-FATCA letters to their MP — but should instead throw themselves on the mercy of the IRS for the rest of their lives.
The challenge of understanding even enforced laws is illustrated by the hundred-thousand-plus comments on this site, in which we collectively groped our way towards enlightenment by reading and rereading statutes, regulations, court cases, academic papers, comments by practicing lawyers, and ordinary people’s accounts of their experiences with agencies which enforce the laws. In that respect, unenforced laws are even worse than enforced laws: with just a bare statute — no regulations, no case law, no horror stories — they leave everything to the imagination, and there are lawyers and laypeople alike who have very active imaginations.
An unenforced law still affects the behaviour of those who believe they may be subject to it. Such a law might prescribe illegitimate punishment for the exercise of human rights. Alternatively, such a law might not actually prohibit the exercise of human rights, but people merely believe it to because the government has left it unenforced and done nothing to clarify its meaning, instead of repealing it. In either case, such laws spread fear among people who do not understand their rights or cannot trust the courts to protect those rights.