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AP Explains: Kushner and the Back Story of Back Channels

by Associated Press

   WASHINGTON --

   Smart diplomacy or inappropriate -- and possibly illegal?

   Jared Kushner's reported attempt to establish a "back-channel" line of
   communication between Russia and Donald Trump's presidential transition
   team is proving divisive, even if such talks aren't unusual.
   Supporters of the president say it's laudable that Kushner, Trump's
   son-in-law and a trusted adviser, was working even before the
   inauguration to foster better relations with Russia.
   Critics say it's a matter of context and timing. They call it a giant
   and arrogant step over the line -- perhaps even treasonous -- for a
   private citizen to try to set up covert communications with a hostile
   power like Russia, particularly after U.S. intelligence agencies
   accused Moscow of trying to interfere in the 2016 election to help
   Trump.
   A look at what constitutes back-channel diplomacy, some examples from
   history and the risks and benefits of such informal communications.
   DEFINITION, PLEASE
   Back-channel diplomacy refers to unofficial but direct, high-level
   communications that bypass formal channels, according to "Safire's
   Political Dictionary." These talks sometimes can help governments work
   through difficult problems and reduce tensions in lower-pressure
   settings away from the limelight.
   "They can be an incredibly effective tool in the diplomatic tool box,''
   says Richard Moss, a professor at the U.S. Naval War College and author
   of the book, "Nixon's Back Channel to Moscow: Confidential Diplomacy
   and Detente." But Moss added that such channels "work best when they
   supplement rather than supplant traditional diplomacy."
   A COMMON PRACTICE
   Back-channel talks have been common in U.S. diplomacy, especially when
   Washington lacks formal ties with another government it wants to speak
   with.
   The Obama administration, for example, approved months of secret
   meetings between U.S. and Iranian officials to clinch an interim 2013
   nuclear deal.
   When the deal was done, President Barack Obama said the early informal
   talks explored "how much room" existed to get something done. Once the
   work became more technical, they merged into public talks with world
   powers.
   U.S. back-channel diplomacy with Cuba has its own long history. It
   spans the secret talks leading to Obama's 2014 agreement to
   re-establish diplomatic ties back a half-century to the 1962 Cuban
   missile crisis, when President John Kennedy used his brother, Attorney
   General Robert Kennedy, to help defuse the crisis. President Richard
   Nixon used multiple back channels to interact with the Soviet Union.
   TRANSITION PERIODS
   Back-channel talks during a presidential transition period can be
   particularly sensitive, as an incoming administration looks to get a
   head start on diplomacy while the current president still holds power.
   That's one reason the Kushner overtures are getting so much attention.
   But even transition back channels aren't unprecedented.
   Nixon set up two back channels to the Soviets while waiting to take
   over from President Lyndon Johnson, Moss says, including talks between
   Nixon adviser Henry Kissinger and KGB operative Boris Sedov.
   Those talks proved to be a "fruitful back channel between the
   leadership of our two countries," former KGB general Oleg Kalugin wrote
   in "Spymaster: My Thirty-two years in Intelligence and Espionage
   Against the West," adding that Kissinger "began to convey to us that
   Nixon was no anti-Communist ogre and that he wanted improved relations
   with USSR."
   Moss said longtime Nixon aide Robert Ellsworth also had a back channel
   with the Soviet ambassador and another Soviet diplomat that Nixon used,
   among other things, to kill Johnson's idea of a summit involving his
   outgoing administration, the incoming Nixon team and the Kremlin.
   There have been persistent allegations of back-channel talks between
   aides close to Republican presidential candidate Ronald Reagan and the
   Iranian government in 1980 amid U.S. negotiations to release American
   hostages in Iran. Reagan always denied such parallel talks. The
   hostages were freed hours after Reagan's 1981 inauguration.
   Obama wasn't averse to informal diplomatic channels before his 2008
   election. When foreign policy adviser Daniel Kurtzer met with Syrian
   President Bashar Assad's foreign minister in the summer of 2008,
   Obama's campaign stressed that Kurtzer wasn't a paid adviser or
   authorized to conduct talks with any government. Still, Obama's
   Republican rival, Sen. John McCain of Arizona, criticized the outreach.
   McCain is now among those raising concerns about Kushner's proposed
   back-channel talks.
   KUSHNER'S CONTACTS
   What exactly was Kushner up to? He talked to Russian Ambassador Sergey
   Kislyak about opening up a line of communication to explore options as
   the new administration developed a Syria policy, according to a person
   familiar with the discussions. The intent was to connect Trump's chief
   national security adviser at the time, Michael Flynn, with Russian
   military leaders. In Syria's civil war, Russia has backed Assad. The
   U.S. has supported anti-Assad rebels. Kushner proposed using Russian
   diplomatic facilities for the discussions, apparently to make them more
   difficult to monitor, according to The Washington Post. Flynn never
   ended up using Russian facilities to talk to Moscow, U.S. officials
   said.
   CONTEXT IS EVERYTHING
   Kushner's outreach, at a time of alleged Russian meddling in the U.S.
   election, has fed accusations of Trump campaign collusion, which the
   FBI is investigating.
   Eliot Cohen, a veteran of George W. Bush's State Department, tweeted
   that contacts between a transition team and foreign diplomats are
   normal. "What is not normal," he added, "is asking a hostile government
   to provide secure comms to avoid FBI/NSA surveillance."
   Former CIA boss Michael Hayden asked on CNN: "What manner of ignorance,
   chaos, hubris, suspicion, contempt would you have to have to think that
   doing this with the Russian ambassador was a good or an appropriate
   idea?"
   Back channels are fine, Hayden said, "but you don't do it when you're
   not the government and I don't think you do it using your adversary's
   communications system."
   IS IT LEGAL?
   Kushner's contacts have revived talk about the Logan Act, a
   centuries-old law that prohibits U.S. citizens from trying to influence
   a foreign government in disputes with the United States. The act has
   been used so rarely that legal experts say it may no longer be valid.
   And no one has ever been found guilty of violating it.