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.]