Don’t Investigate Pelosi — Debate Her

Wouldn’t it be nice if, just once, we learned from our mistakes?

The beleaguered Bush administration has had a dreadful couple of years. Now, for the first time in recent memory, a silk purse has fallen into the president’s lap in the form of House Speaker Nancy Pelosi’s blundering stroll down “the road to Damascus,” also known as “Appeasement Avenue.” So what happens? Some influential administration supporters suggest turning it into the sow’s ear of all time: An indictment against Pelosi under the Logan Act.

Here’s hoping President Bush not only turns a deaf ear to this advice but sees the opportunity for a teaching moment.

Let’s be clear from the start: There isn’t much question that Speaker Pelosi has committed a felony violation of the Logan Act. This two-century-old law, codified at Section 953 of the federal penal code, bars Americans who are “without authority of the United States” from conducting relations “with any foreign government … in relation to any disputes or controversies with the United States, or to defeat the measures of the United States[.]”

It is settled beyond peradventure that the authority of the United States over the conduct of foreign relations rests exclusively with the executive branch. As John Marshall, later to become the nation’s most important Chief Justice, famously observed, “The President is the sole organ of the nation in its external affairs, and its sole representative with foreign nations.… The [executive] department is entrusted with the whole foreign intercourse of the nation.” In 1936, the Supreme Court explicitly acknowledged in its Curtiss-Wright Export decision, the “delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations[.]” And, as convincingly explained in the Wall Street Journal by the eminent Professor Robert F. Turner, the congressional debate over passage of the Logan Act demonstrates that the law was understood to bar legislative interference with the president’s management of American diplomacy.

So the Bush administration is in charge of foreign relations. It has a policy of attempting to isolate the rogue Syrian regime of Bashar Assad. Far from authorizing Speaker Pelosi’s visit with Assad, the president asked her not to go. Pelosi went anyway, and proceeded to embarrass herself and our nation by meddling ineptly in the Syrian/Israeli conflict, concurrently giving the despicable Assad just the lifeline our policy has sought to deny him. As the Logan Act goes, it doesn’t get more black-and-white than that.

But is this really a law-enforcement issue? Federal statutory and regulatory books now burst into the thousands upon thousands of pages. Must the fact that a statute is inevitably implicated always mean we should delegate our political and national security issues — our policy disputes — to the federal courts for resolution?

Lawsuits, of course, have become as American as baseball, apple pie and You Tube. But hard as it may be for so litigious a culture to get this through its thick skull, not every problem in life is a legal problem. In a dynamic, confident society, policy disagreements are a sign of good health. They are not grounds for convening a grand jury — and if that’s what they become, confident dynamism is certain to shrivel into diffident paralysis.

It took us nearly a decade and thousands of dead to learn that Islamic terrorism is not, essentially, a legal problem, even though it always involves violations of federal law. The best hint might have come in spring 1998 when a federal grand jury indicted Osama bin Laden. So chastened was al Qaeda’s emir that he responded by … bombing U.S. embassies in East Africa, nearly sinking the U.S.S. Cole, and ordering the 9/11 attacks. Yes, laws were violated; but that was beside the point — and adding counts every time something went boom did not seem to stop things from going boom and innocents from being slaughtered. We needed to find more apt means for dealing with jihadist terrorism because the law, though ubiquitous, is neither effective not the main consideration.

Still, the lesson has failed to take hold even in the life-and-death matter of our security. In December 2005, the New York Times disclosed the existence of the National Security Agency’s Terrorist Surveillance Program. There ensued for over a year a heated national debate over a complete sideshow: namely, whether the warrantless penetration of potential enemy electronic communications — something the United States has done in every war since it has been technologically possible to do so — violated a statute, the Foreign Intelligence Surveillance Act of 1978 (FISA).

Should we be trying to intercept al Qaeda’s messaging? How much of our privacy is really compromised if we know there might be government eavesdropping on our international phone calls and e-mails — especially when we know foreign intelligence agencies may be listening anyway? Was the NSA program making us safer? These were the crucial policy questions. But they got no oxygen. The air, instead, was sucked out of the debate by dueling constitutional law scholars holding forth on the question whether the president’s constitutional power excused a clear transgression of FISA. Consumed by whether a national security program was legal, we forgot to probe whether it was effective — even as the paramount issue effectiveness was underscored by the absurdity of legislators nattering about “gross illegality” while continuing to fund the program, which polls showed the American people solidly favoring.

The NSA controversy was not alone. Cognate “scandals” erupted over secret CIA prisons for al Qaeda captives and monitoring of the international banking system to track terror funds. Did these programs contribute to our security? Who knows? We, after all, were too busy mulling the ramifications of international law and domestic financial privacy statutes to spend much time on anything so mundane as the safety of Americans or success in the war.

And has anything been more reviled on the Right in recent years than the prosecution of Scooter Libby, Vice President Cheney’s former chief of staff? Here you had political issues of the utmost importance: the nature of the intelligence which prompted the U.S. invasion of Iraq, the administration’s interpretation of that intelligence, and the state of Saddam Hussein’s capacity and intentions regarding nuclear weapons development. Former ambassador Joseph Wilson scandalously misled the nation about these matters, and the Bush administration, quite properly, sought to correct the public record and undermine Wilson’s credibility — pointing out, among other things, that he had been chosen for his infamous trip to Niger not because of any special expertise but at the suggestion of his CIA-insider wife who, herself, was predisposed to reject the possibility (which turns out to be the high likelihood) that Iraq had been seeking to stockpile uranium.

So what did we do? We spent three years not on these crucial matters of policy but obsessed over whether there had been a technical violation of statutes barring disclosures of classified information (viz., the fact of Valerie Plame Wilson’s employment by the CIA) … under circumstances where there had plainly been no intent to violate the law and the disclosures at issue had palpably done no damage to national security. Finding no violations, moreover, we were then riveted by Libby’s indictment and ultimate conviction for perjury and obstruction of justice. These were not unimportant matters, but were they worth the price paid? As public support for the war flagged, the administration was chilled from explaining itself for fear of accusations that it was interfering in a criminal investigation; and the investigation raised the powerful specter of our politics being criminalized.

Do we really want to do this all over again?

Speaker Pelosi should, of course, be rebuked for offending a bedrock separation-of-powers principle. But for the administration, the politics of her trip couldn’t be better. The Syrian regime is in the midst of executing a murderous coup to keep its hooks in Lebanon while abetting the terrorists who kill Americans and Israelis. The Speaker’s ham-handed diplomatic foray is proof positive of the folly of negotiating with such thugs. In addition, as Pelosi spoke preposterously of the Assad regime’s openness to peace, and had to be corrected on the international stage after misrepresenting Israel’s position, she confirmed the perception of many Americans that the Left is not up to the task of safeguarding our national security.

That she also violated the Logan Act is an excellent rhetorical point. But it would make for an incredibly foolish indictment. Why turn the page from a worthy national-security debate over the right strategy for dealing with state sponsors of terrorism?

The president can not only win that debate. He can use this opportunity to illustrate how damaging the criminalization of politics is in a democracy. He can stress that policy is something the Framers committed to the good judgment of an informed citizenry, not to the courts. And he can trenchantly separate himself from his knee-jerk “let’s appoint a prosecutor” critics by pointedly explaining that he trusts the American people, not the judicial system, to decide such matters as whether they really want détente Pelosi-style.

For a change, how ‘bout we go with the silk purse rather than the sow’s ear?

— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.