Are Ex-Presidents Above the Law?

When I was a U.S. government prosecutor during the Carter Administration, the first thing we came to understand is that the rule of law requires the equal application of the law. Today, in the wake of former President Carter's unauthorized talks with Hamas leaders, the issue is whether our laws apply equally to ex-presidents.

U.S. law establishes that one can be prosecuted for supplying "material support or resources" to entities on the list of Foreign Terrorist Organizations (FTOs) (U.S.C. § 2339A(b)(1)). In other words, it is criminal activity. The language is unambiguous in defining support as including "expert advice and assistance." By this standard, President Carter has engaged in criminal activity.

The list of FTOs includes Hamas along with Al-Qaeda and others. True, Hamas is now the de facto ruling authority of Gaza. Nevertheless, the ban remains intact.

Hamas continues to take full responsibility for unremitting attacks on the State of Israel, aimed, by its own words, at Israel's destruction. In this sense, its aims are materially different from the PLO or PA, which at least arguably use terrorism for the liberation of occupied territories defined as the West Bank and Gaza, not Israel as an entity in its pre-1967 borders.

Hamas openly carries out horrendous terrorist attacks within Israel's internationally recognized borders, such as the 2002 attack on Park Hotel during Passover Seder that killed 30 people. Unrelenting episodes like this have led the European Union and other countries like Japan to join the United States in declaring Hamas a terrorist organization.

Before Carter's departure for Syria to meet with leaders of Hamas, the White House reputedly advised him against it. The White House clarified that it would contravene the nation's foreign policy, as well as the will of Congress, to engage in dealings with Hamas, unless a specific exemption is granted. This exemption is granted by the U.S. Treasury Department's Office of Foreign Assets Control (OFAC). Any ordinary citizen wishing to cooperate or otherwise an entity labeled as an FTO must therefore seek licensed approval from the government before providing any services or receiving compensation.

For example, if an individual wanted to represent Hamas, they would have to get a license. Why is Jimmy Carter any different? Clearly he is providing a service to them of an estimable value.

Despite the fact that penalties for violating the statute range from a punitive fine to lifetime imprisonment, reactions from Congress have remained rather mild. Representative Joseph Knollenberg introduced the CARTER Act (Coordinated American Response to Extreme Radicals Act) with the intent of removing the financial support of taxpayers from the Carter Center. Another congressman presented a non-binding resolution that condemned Carter's actions and will hopefully dissuade ex-presidents from participating in "freelance diplomacy." Yet overlooked is that Carter has violated the law.

After their terms, former presidents have generally followed Jefferson's example in returning to Monticello to expand his personal library and organize his memoirs. Other presidents continued their roles in the public sphere, often as writers or orators. Even when they did return to public office (as when William Taft joined the Supreme Court or when Andrew Jackson returned to his position as Senator), none have considered circumventing official policy and acting as an independent ambassador. These expectations have been passed down generally and, they make good sense.

Former presidents need to be reminded of Churchill's dictum that "experts should be on tap, not on top" applies especially to ex-Presidents.

[Allan Gerson is the Chairman of AG International Law, a Washington based law firm that specializes in complex issues of international law and human rights.]

Comments

[BADEN]

Well, then - let's arrest them.

Cheney
Rumsfeld
Bush 41
Bush 43
Rice
Feith
Perle
Bolton

Yes, let's.

It IS the law.

http://www.counterpunch.org/madsen01142003.html

[SonnyBono]

Oh Sh*t and to think that I read this crap thinking that it was going to be about putting Bush and Cheney and the rest of the criminal gang on trial for their crimes. Carter was talking to Hamas - they are the legal government in Gaza - WTF - just exactly what is his crime? That he is trying to open dialog with the other side of the Isreali-Palestinian troubles? Or perhaps, he is annoying the AIPAC crowd?

[dgscol]

did you write your Congressman and tell him/her to impeach Bush? I guess if you did not, then perhaps that is why he is still the sitting legitimate head of our government. If you did, and your politicos did not act on your wishes, join the club of the disenfranchised. The upfront person in this is Nancy Pelosi.

[ynp7]

Can we deal with the laws broken by the CURRENT president first? At least if Carter broke the law he wasn't trying to mess things up worse for everyone.

[lvdragonlady]

Instead of worrying about BS like this, they should be looking into filing charged against the current administration for 'treason and crimes against humanity'.
Carter went to talk, nothing more nothing less......­......shru­bie and company are responsible for (1) the deaths of over 4000 of our kids, BECAUSE of lies (2) eavesdropping without warrants (3) putting the office of president ABOVE THE LAW and (4) the total disregard of the constitution.

[fact finder]

No one is above the law. Period!. With out equal application of the law, we live in a society that is not a democracy. As this is happening now we do not live in a Democracy, rather, a dictator style society. Furthermore, with out laws there would be total chaos. The law must be applied equally if those who are charged with equal distribution of justice will not or are unable to do so, then it is the duty and responsibility of the citizens to do so.

[thinkharder]

Despite the fact that this piece has very little to do with the Bush administration, everyone seems to be more concerned with raving about Bush than thinking seriously about this issue.

Be careful when you make Carter out to be some neutral, peace-loving dove. He receives tens of millions of dollars from Arab sources, and none from Israel. His interests are financially and ideologically biased, and his actions reflect this.

Also, I would point out that the code mentioned was derived by Congress, our elected legislature, not the Bush administration. The separation of powers between the executive and legislative is middle school material.

Finally, had any other private citizen gone to meet with Hamas, they certainly would not have been let off the hook. And yes, visiting with one of these groups with the intent of giving them political advice does constitute an infraction of the law, and would be held up in court as such. The degree to which you disagree with this and the number of exclamation points you use in your post have no effect on this reality. Luckily, Carter's visit did not result in the drawing up of any agreements, or this may have become a real issue.

[doodlefarbe]

thinkharder writes, "Be careful when you make Carter out to be some neutral, peace-loving dove. He receives tens of millions of dollars from Arab sources, and none from Israel. "

Is this publicly available information? If so, would you happen to have any links in support?

Thanks,
`farbe.

[thinkharder]

http://archive.newsmax.com/archives/articles/2002/4/28/112225.shtml

This article sums it up fairly well. Of course the money is funneled to his foundation the Carter Center. He is not necessarily pocketing anything, but it would surely affect his policy initiatives.

Just saying that he receives Arab funding does not necessarily diminish the value of his intentions for peace in the region, but, as always in politics, you have to watch where an individual's money is coming from when you want to consider his motives.

[Lon]

What a tortured argument. This is the kind of thing that feeds into conspiracy theories about people putting allegiance to Israel over the US, although I have no idea of the motivation for this particular article.

Advising against meeting with Hamas does not make meeting with Hamas illegal. And talking with them does not become material support or resources even if it does give them a pr boost. The whole point of specificing material support is to rule out arguments as stupid as the one given above.

This is as silly as the argument that circulated for a bit that Carter was guilty of meeting with a hostile foreign power made worse by the fact that it is not even an official foreign power.

We get it. You think that not talking to adversaries is an effective foreign policy because it has worked so well with Iran, and Cuba. But there is certainly a whiff of desperation in the attempts to defend this view by criminalizing the people who engage in the opposite.

[Chris]

It is funny, this guy lays out a good case for at the very least an investigation into what happened and the huffsters are up in arms.

On this site as long as you are a huff fave the the laws that apply to everyone else are not applicable.

[LittleBrother]

What a silly waste of Zionist venom!

But since we have a SITTING president who is above the law, and has cheerfully flung down and danced upon the Constitution since illicitly taking office, I don't think it's particularly consistent to worry about ex-presidents being above the law.

Besides, you'd be obliged to dig up the remains of Saint Ronald from his royal tomb in the Valley of the Kings and prosecute HIS ass for his Iran-Contra shenanigans.

[TJS]

"Material support?" Carter has provided no material support to anyone. He has not even offered to build a house for some poor Palestinian whose home was leveled by Israeli bulldozers­...

"Resources?" Carter has attempted to open a two-sided dialog. Is communication a resource? Then Carter is guilty. Jimmy Carter is a national resource!

[ExOFAC]

Gerson has forgotten the sanctions rules. Mere discussions (with anyone) have never been prohibited, and information (such as good old First Amendment-protected speech) and personal travel are exempt from direct or indirect Presidential prohibition or restriction when he imposes sanctions under the International Emergency Economic Powers Act, thanks to 1988 and 1994 amendments authored by Rep. Howard Berman. Gerson's comments may make good politics, but represent very sad lawyering.

[MTGradwell]

"one can be prosecuted for supplying "material support or resources" to entities on the list of Foreign Terrorist Organizations (FTOs)".

Don't forget "Nobel Peace Prize winner and international symbol of freedom Nelson Mandela is flagged on U.S. terrorist watch lists" http://www.huffingtonpost.com/2008/05/01/nelson-mandela-on-terrori_n_99588.htmll). Presumably the Nobel Committee can be prosecuted, because a Nobel prize is surely material support. Likewise for the Gandhi Peace Prize, etc.

"Hamas is now the de facto ruling authority of Gaza".

Not to mention clear winner in free and fair democratic elections for the whole of Palestine.

"Hamas continues to take full responsibility for unremitting attacks on the State of Israel"

Hamas announced a unilateral ceasefire on coming to power, to which Israel responded with air strikes and shelling. The US supplied the defeated Fatah faction in a bloody struggle to prevent Hamas taking the control it had democratically won.

"its aims are materially different from the PLO or PA".

Fatah, the largest component of the PLO, really does call actively for Israel's destruction. Its emblem includes machine guns and a hand grenade. Meanwhile Hamas' charter doesn't call for destruction, but merely states that it will happen: "Israel will exist and will continue to exist until Islam will obliterate it". As for the PA, Hamas won control of it democratically.

Only the US could tout "democracy" while supporting attacks on democratically elected bodies and treating anyone who talks to those bodies as a criminal.

[TommyMcCarthy]

The list of OUTRAGEOUS statements in Mr. Gerson's peice is so lengthy as to preclude addressing point-by-point.

Fortunately, in both size and scope, this list is DWARFED by another,..­....that being the list of President Carter's accomplishments in the service of peace, not only in the middle east, but WORLDWIDE.

To Mr. Gerson's specious suggestion that President Carter has in some way violated U.S. law by engaging all sides in an honest dialogue in search of peace, I can only express n
my fervent wish to see MUCH MORE lawbreaking of this kind in the future

[unitron]

"Are Ex-Presidents Above the Law?"

Of course not, that's why they buy retirement ranches in countries from which they can't be extradited!

[DMSmith]

BINGO! With all the laws that Bush and his administration have broken, national and international, you're talking about THIS president?

Get a grip guys!! Carter's not the problem.

[dward]

Your work for Ed Meese at the Justice Dept. and Jeanne Kirkpatrick at the U.N. clearly helps you laser in on the ultimate lawless President, Jimmy Carter. Glad to see you base your argument on a (vague) accusation from the Bush Administration. Pretty air-tight. But the seamless way it builds on the intellectual foundations you laid down in your earlier Huffpost urging "Giving Libby the Benefit of the Doubt"? Priceless.
http://www.huffingtonpost.com/allan-gerson/giving-libby-the-benefit-_b_9962.html
You have clearly found the best place on Earth to sell your ideas, sir. Genius.

[peterg76]

It's nice to see Carter given a little respect for once and called an expert. But while no-one claims that he was making an idle social call, simply talking is not "expert advice and assistance", no more than conventional diplomacy or whenever Little George offers his little uninformed suggestions. And it's kind of funny that Carter has to leave the US and go to Syria in order to exercise free speech.