Neutrality Law of 1794

The Volunteers. Marching Off to Other Nations' Wars, Americans Must Tiptoe Around 1794 Neutrality Law

By DAVID STOUT, The New York Times, April 20, 1999

WASHINGTON -- Americans who involve themselves in the Balkan wars, like the ethnic Albanians who have joined the Kosovo rebels, are venturing into a no man's land, legally speaking. The prospect of Americans fighting on foreign soil under a foreign flag raises, once again, the possibility of prosecutions under neutrality laws, the most important of which bars anyone in the United States from taking part in or aiding any military expedition against "any foreign prince or state, or of any colony, district or people with whom the United States is at peace."

That language is from the Neutrality Act of 1794, enacted by the fledgling United States of America to keep adventurers from getting it into wars with more powerful countries. The law carries a prison sentence of up to three years and a fine of up to $3,000, which was a lot of money in 1794.

Officials at the State and Justice Departments have been conferring on what, if anything, to do about Americans who have gone overseas to fight under the red and black flag of the Kosovo Liberation Army. They made it clear that it is a decision they would just as soon not have to face. "It's fascinating, but at this point we don't have a clear-cut answer," a Justice Department official said. "Any determination whether an individual has violated any statute would have to be based on the individual facts of that case." And what if Americans of Serbian descent choose to fight for Slobodan Milosevic? "We would find that question equally complex," a Justice Department representative said, adding that such cases will have to be judged on an individual basis. "We want to see less fighting in Kosovo, not more," a State Department official said, advising would-be volunteers to check with a lawyer first.

But a lawyer might be at a loss to give clear advice. Enforcement of the neutrality laws has been selective over the years, and some of the words are less precise than they might seem. America is not exactly "at peace" with Yugoslavia. But the United States has not been in a declared war since 1945. The United States was more or less "at peace" with Germany in 1940, when some Americans joined the Royal Air Force to fight for Britain, and President Franklin D. Roosevelt was tilting heavily toward that country. Spokesmen in the State and Justice Departments said that to the best of their knowledge no Americans were prosecuted for fighting against Germany before the United States entered World War II, or for fighting in Spain on behalf of the republic against the fascist rebels in the late 1930s.

In the 1960s, when Robert Kennedy was attorney general, the top law enforcement official of the United States, he said loose enforcement of the neutrality laws was just fine. "Clearly, they were not designed for the kind of situation which exists in the world today," he said just after the Bay of Pigs debacle of 1961. He said the neutrality laws were not violated by the United States-supported invasion of Cuba, a country with which the United States was officially "at peace," more or less.

True, the invading force of Cuban exiles had been partly organized in the United States and, yes, the CIA had backed the enterprise. But the immediate base for the invasion was Central America, not the United States, the attorney general argued.

Many charges arose against many defendants in the Iran-contra affair, involving the sale of arms to Iran and the diversion of some profits to American-backed rebels fighting the Nicaraguan government. But neutrality laws were seldom mentioned, even though American support of insurgents fighting a government with which the United States was at peace would seem to have been in violation of those laws.

The Logan Act, enacted in 1799, also falls under the rubric of neutrality laws. Basically, it prohibits American citizens from unauthorized negotiating with foreign governments on matters of policy. No one has ever been convicted under the Logan Act, although in 1980 the Senate urged the attorney general's office to prosecute anyone who violated it. That Senate resolution was passed with a former attorney general in mind -- Ramsey Clark, who was one of 10 Americans who visited Iran for a conference on possible crimes committed by the United States during the reign of the deposed Shah Mohammed Riza Pahlevi.

As for Americans fighting under foreign flags, professor Barry Carter of Georgetown University Law School called it "a time-honored tradition." Some adventurers are part of national lore, others all but forgotten. "Davy Crockett and his volunteers fought in Mexican territory at the Alamo," Carter observed. And died there, he might have added.

Carter recalled that a California lawyer named William Walker organized a force of some 60 men who invaded Nicaragua in 1855 with dreams of creating an empire throughout Central America. Walker actually became president of Nicaragua for a short time. Troops from neighboring countries ousted Walker, but he never faced trial for violating neutrality laws. He did face a firing squad, however.