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.
Conclusion
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.
I had a good laugh at this stupidity.
The real issue is that an unenforced law on the books today may become an enforced law at the whim of His Majesty Obama (or any successor) at anytime. FBARs were pretty much ignored and not enforced as was a good part of the CBT….but that changed overnight with Obama deciding to enforce (and add FATCA) giving rise to the current nightmare.
OK, I have been in long contact with the chairman of the Russian National Commission on Non-Ionizing Radiation Protection (RNCNIRP) and am currently working on a translation of one of their documents. I’ve also attended one of their conferences in Moscow. I suppose that also makes me a traitorous spy. So, what can the bastards do about that…. Send a predator drone to Australia!
Man, am I ever in trouble.
http://isaacbrocksociety.ca/2013/02/13/correspondence-between-swedish-citizen-and-political-secretary-of-the-controlling-party-in-sweden/
Me too, Swedish Citizen LOL. I’ve written letters to Stephen Harper, Chris Alexander, Tom Mulcair, Justin Trudeau and my MP asking them to revisit or postpone implementation of the residency time portion of C-24, especially for US citizens, in order to allow us to escape the malicious tentacles of FATCA and CBT. I told them the door may soon be slamming shut on us being able to renounce and that we needed help from the Canadian government to defend us against the US government.
The arrogance and imperialism exhibited by the Logan Act, especially in the context of FATCA and of dual citizens of the US and another country who reside in that other country and have their lives in that other country (and most especially duals-at-birth who never as adults, or even ever in their lives, have resided in the US nor made any claims on or exercised US nationality), is mind-boggling.
Who in that context would want to remain a US citizen? I sure wouldn’t. Disclosure: I am no longer a US citizen and haven’t been one for forty years. Boy am I glad of that, for lots of reasons and now thanks to Eric’s post, which was news to me, I have another good reason.
Dual citizenship with the US, if you don’t reside there and have no intention ever of doing so again if you once did, simply is not a viable option for a sane and free life IMO. And not just because of FATCA. No matter which party is in the White House or controls the Congress.
The Logan Act was passed in 1799, before either current political party existed in its current form and name as far as I recall. No administration since then has repealed it. If you think either the Democrats or the Republicans would repeal the Logan Act if they controlled both the Congress and the White House, then you’ll also believe that I own an impressive bridge in Brooklyn that I’d love to sell you.
I wonder if violating the Logan Act could be considered an “expatriating act?” Boy wouldn’t that be convenient.
US citizens everywhere who are terrified of the Logan Act::
Please help us continue our good “correspondence” with the (foreign) Government of Canada, and interfere in the strongest possible way between the shameful FATCA IGA “negotiations” between United States and Canada, by donating to fund our lawsuit.
Go to:
http://www.adcs-adsc.ca
This is very chilling and sobering. Some will just laugh it off as an “old unenforced law” but it is not an old law from two hundred years ago.
Go to the link provided and click the notes section;
http://www.law.cornell.edu/uscode/text/18/953
In 1940 the “old law” was refreshed by amendment. It previously stated “any citizen or resident within the jurisdiction of the United States not duly authorized” amending it to “Any citizen of the United States, wherever he may be.”
In 1994, twenty years ago someone looked at it and amended it again with a small amendment.
Brockers, this law is not old and dusty it is alive and well.
“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 ………………….. defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”
Guess what people? Trying to defeat FATCA is a violation of 18 U.S. Code § 953.
In regards to prosecution this is not “may be fined” it states “shall be fined.”
@Stephen Kish, based on my comment above it looks like you are violating 18 U.S. Code § 953. and conspiring others to violate it.
Having said that, this should be brought to the attention of Joe Arvey and John Richardson immediately. First, because they are legal counsel.
Second, it can be brought to the attention of Government of Canada that the United States as a fresh law on the books having been refreshed only twenty years ago that seeks the right of Canadian Citizens in Canada from lobbying their Canadian Government.
Will Canada protect Canadian Citizens with clinging US Nationality from the enforcement of 18 U.S. Code § 953 in Canada?
I think you can understand that we are probing for the thin opening under the tent to put the camels nose through.
I do plan to bring this to the attention of my government in violation of the act itself and also to my representative in the EU Parliament.
This is not a laughing matter of some “old dusty silly law,” it is US Law and it has been refreshed in recent times. Old dusty laws are repealed, they are not refreshed.
The law was refreshed by Congress to make and keep it enforceable.
Well, I’m not sure I needed to add fear of the Logan Act to my list but thank you, Eric, nonetheless, for drawing this to our attention. I guess my goose is pretty well charred in the U.S. of A.!
Charred goose or sheep? The choice is each of ours to make.
I had a meeting with my Member of Parliament yesterday during which I persuaded him to take action on a specific aspect of our country’s FATCA IGA.
I guess my goose is cooked.
Well, well, those of us who sent in a little something to finance the lawsuit might be implicated too. I’ve also wondered if this kind of site is watched by the US gov.
What are the chances Canada would extradite someone if the US chose to prosecute under this law?
That said, wouldn’t one have a jury trial in the US? But then again, convincing homelanders … oh never mind.
They need to make violating 18 U.S. Code § 953 an expatriating act when performed outside the United States.
But seriously, this needs to be brought to the attention of our represnetative in our respective Parliaments.
It is but another way to ensure the Master Nationality Act is respected.
hey uncle sam
i have communicated my displeasure with FATCA and what you are doing to CANADIAN citizens with various levels of the gov’t of canada come and get me.
i live in the 6th igloo over down by the river, i have my 8 dog team sitting next to their sled next to my snowshoes.
i find it amazing that after a law has laid dormant for so many years that it would even be considered to be brought back to life.
i guess it just shows you how really desperate america is to keep its grips on “american persons”
Another good reason to renounce or relinquish US citizenship. I’ve lost count of just how many reasons there are now. Who would want to be a citizen of a country that legislates idiocy like that?
Laws which have such a wide berth of interpretation are always dangerous.
Thanks for posting this gem. It wouldn’t surprise me in the least if another extraterritorial law like this became much more enforceable in the future. It is better to be part of the solution than part of the problem. Therefore, I have become part of the resistance by contacting Canada’s prime minister and many other Canadian government representatives to defy FATCA and the IGA.
I agree, another reason to renounce or relinquish US citizenship before it is too late. Another check will be sent to ACDS today in support of our “revolution”.
Re: “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.”
Note that the ADCS suit challenges injury Canadians with US taint sustain from Canadian law.
If there’s a muddle, it’s that the Logan Act didn’t foresee how other countries could so easily be made to roll over and enact law dictated by US foreign policy to inflict injury on their own (US tainted) citizens.
There’s how fighting your own country comes to look like the same thing as fighting the US.
Over at Talking Points Memo, Josh Marshall exults in the fact a former US citizen has been denied a visa to visit the USA. Although he points to the Reed Amendment as the reason, the visa appears to have been denied on the basis that applicant might not leave the USA. Actually, Marshall is probably right about the real reason.
Marshall probably doesn’t understand that the vast majority of a renunciants are also doing it for tax reasons not for the “rich guy leaves US to avoid paying tax” meme that he would like to propagate.
@Fred
RE extradition for violating 18 U.S. Code § 953. I am not a lawyer, but the general principle at work, as I understand it, is that Canada will extradite an individual to the US only if there is Canadian law covering the same crime. Homicide, fraud, extortion, for example, are crimes in both countries and are extraditable offences. At the time of the Vietnam War, there was no military draft in Canada, so US draft dodgers were not extraditable. I doubt that there is anything like 953 in Canada, but again, I am not a lawyer.
There are not enough prisons in the US for all the people who have violated this law. But if the intent is terror, they only need to make a few examples. Frankly, I am not going to worry myself over it.
I assume that the US and Canadian authorities are monitoring this side (and ADCS). It would be easy to establish the identities of all persons posting, if either government chose to do so.
John Kerry violated the Logan Act during the Viet Nam War: http://www.americanthinker.com/articles/2004/08/did_navy_lt_kerry_violate_the.html
@Petros For the benefit of the very few visitors this site who don’t already know it, your post should read “current US Secretary of State and 2004 Democratic Presidential nominee John Kerry …”
But then we also have all the tax irregularities of that were flagged about Geitner the previous US Treasury Secretary under Obama who was presumably behind all the FATCA IGAs … so why am I not even slightly surprised by all this.
That’s the thing about the Exceptional States of America — they have so many draconian and weird (even if unenforced or unenforceable) laws on the books, probably more than half their population should be in jail, if all their laws were enforced and enforceable even within their own borders.
No wonder their country is both fiscally bankrupt and, at the political level at least, morally bankrupt to boot. I feel deep sorrow for my family members who live there. They deserve better.
@George
The lawsuit in Canada is against the Canadian government, not the US government. This has nothing to do with the Logan Act.
It seems odd that a government can so easily enforce acts and treaties made over 100 years ago and just as easily, they can “forget” treaties with Native peoples and walk away and leave them for stupid. Just seems odd?