The Wall Street Journal and Criminal Intent

By Scott Horton

The latest exhibit in the Neocon-inspired hysteria relating to Speaker Pelosi's visit to Syria comes in the form of an op-ed by a lawyer, Robert F. Turner, in the Wall Street Journal's editorial page. It contends that Speaker Pelosi may have committed a felony (!) by traveling to Syria and visiting with Syrian President Assad. Even by the admittedly very low standards of the Journal's editorial page, this is a whopper of a piece. But in the end it only does damage to the reputation of Mr. Turner.

As an ornery Texas litigator once told me: The principles for effective advocacy are simple. If the facts are against you, argue the law. If the law is against you, argue the facts. If the facts and law are both against you—just make it up as you go along. Mr. Turner is clearly exploring that third route.

Where to begin? Speaker Pelosi's visit was fully coordinated with the Department of State, and U.S. diplomats arranged her visit and participated in her meetings. They have, by the way, already attested to the basic fraudulence of much of the account of her visit now being spread in the right-wing echo chamber. The United States is not at war with Syria. Nor has a war with Syria been authorized by Congress. Indeed, President Bush once saw Syria as a critical national security collaborator in the war on terror, which is the perspective that Secretary Baker urged. Bush transferred a critical terrorist detainee to them to be tortured—with, moreover, a list of recommended questions.

President Bush has embraced the recommendation of the Iraq Study Group, chaired by Baker, which urgently pushed for opening a dialogue with Syria. State-to-state dialogues normally include meetings and discussions between government officials at all levels—parliamentary representatives, judges and members of the executive. But beyond this—something that as a lawyer, Mr. Turner should know—simple discussions of the sort that Pelosi had are not within the scope of the Logan Act. The statements that Pelosi made could hardly be termed an effort to negotiate anything on behalf of the United States.

But beyond this, Speaker Pelosi is the second person in line of succession to be President, just behind our stent-enhanced Vice President, Dick Cheney, and is not covered by the Logan Act. (Indeed, Mr. Turner refers to the 1798 trip of Senator George Logan. But Logan was elected to the Senate in 1801; at the time of this visit, he was a private citizen.) Serving members of Congress are not subject to the Logan Act, but once their terms expire, they may be. Indeed, the last (Republican) Congress issued a memorandum to all members on September 29, 2006 reminding them that they should be conscious of the limitations of the Logan Act after leaving office. Members of Congress of both parties have been paying regular visits to Damascus for the last year. The White House has raised objection only to the visits of Democrats. This last point makes the partisan political nature of the criticism more than apparent.

One wonders what Mr. Turner wants to give us next—a return tour of the Alien and Sedition Act? No doubt Dick Cheney would love that—he regularly makes speeches implying that anyone who fails to vote for Republican candidates is guilty of treason.

Is the Logan Act even constitutional? The better view has long been that it, like its companion piece of early Federalist excess, the Alien and Sedition Act, is unconstitutional. This has been noted in dicta by a federal court, asserted by Congress in a committee report, and reflects the accepted wisdom of the academic community.

What exactly is the story here? The various Congressional delegations traveling to the area amount to nothing. They will have no impact on the Syrian Government, the Israeli Government, and least of all on the United States Government (unless, of course, the Congress suddenly develops a foreign affairs spinal column, which I do not expect).

All of this flap is about the war lobby asserting its muscle. It detests Jim Baker and the recommendations of his Iraq Study Group. It is determined to block any implementation of them—and to make a liar of the president when he says he will implement their recommendations. It is also determined to block any negotiations among the Syrians, the Lebanese and the Israelis, because that may get in the way of war plans now being eyed with great affection. But most immediately: the war lobby has the power to roll the media at will and get them to sputter mindless inanities for multiple news cycles. That should be the news story.

I have spent some time looking at cable news coverage of this story. It's chronically irresponsible prattle, largely circulating sensationalized or false comments. Matt Lauer and the folks at CNN have embarrassed themselves. I wonder how they can use the word “news” without putting it in quotation marks. It makes you wonder if either news shop employs editors or researchers. In any event, this is a good demonstration of the way preposterous assertions enter the broadcast news world in the United States and bounce around unchallenged for hours. It's enough to make one long for the old days of the fairness standard and tube radios. Yes. Bring back Howard K. Smith and Eric Sevareid.

But I forget. It's Holy Week, and what better time is there for character assassination and war mongering?