Foreign Agents Registration Act

The Foreign Agents Registration Act (FARA) is a United States law passed in 1938 requiring that agents representing the interests of foreign powers in a "political or quasi-political capacity" disclose their relationship with the foreign government and information about related activities and finances. The purpose is to facilitate "evaluation by the government and the American people of the statements and activities of such persons." The law is administered by the FARA Unit of the Counterintelligence and Export Control Section (CES) in the National Security Division (NSD) of the United States Department of Justice.[1] As of 2007 the Justice Department reported there were approximately 1,700 lobbyists representing more than 100 countries before Congress, the White House and the federal government.[2]

Foreign Agents Registration Act
Other short titlesForeign Principal Registration Act of 1938
Long titleAn Act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States and for other purposes.
Acronyms (colloquial)FARA
NicknamesForeign Propagandists Registration Act of 1938
Enacted bythe 75th United States Congress
EffectiveSeptember 6, 1938
Citations
Public lawPub.L. 75–583
Statutes at Large52 Stat. 631
Codification
Titles amended22 U.S.C.: Foreign Relations and Intercourse
U.S.C. sections created22 U.S.C. ch. 11, subch. II § 611 et seq.
Legislative history
  • Introduced in the House as H.R. 1591 by John William McCormack (D-MA) on July 28, 1937
  • Committee consideration by House Judiciary, Senate Foreign Relations
  • Passed the House on August 2, 1937 (Passed)
  • Passed the Senate on May 18, 1938 (Passed)
  • Reported by the joint conference committee on May 23, 1938; agreed to by the Senate on May 27, 1938 (Agreed) and by the House on June 2, 1938 (Agreed)
  • Signed into law by President Franklin D. Roosevelt on June 8, 1938

History

1938 Act

The Act originally was administered by the Department of State until transferred to the Department of Justice in 1942.[3] From its passage in 1938 to 1966, when the Act was amended, enforcement focused on propagandists for foreign powers even if it was not "for or on behalf of" those powers. It was used in 23 criminal cases during World War II.[3][4]

1966 revision

In 1966 the Act was amended and narrowed to emphasize agents actually working with foreign powers who sought economic or political advantage by influencing governmental decision-making. The amendments shifted the focus of the law from propaganda to political lobbying and narrowed the meaning of "foreign agent."[5] From that moment on, an organization (or person) could not be placed in the FARA database unless the government proved that it (or he or she) was acting "at the order, request, or under the direction or control, of a foreign principal" and proved that it (or he or she) was engaged "in political activities for or in the interests of such foreign principal," including by "represent[ing] the interests of such foreign principal before any agency or official of the Government of the United States."[6]

That increased the government's burden of proof; since 1966, there have been no successful criminal prosecutions under FARA.[5] However, a civil injunctive remedy also was added to allow the Department of Justice to warn individuals and entities of possible violations of the Act, ensuring more voluntary compliance but also making it clear when the law has been violated. This has resulted in a number of successful civil cases and administrative resolutions since that time.[3]

1995 revision

In 1995, the term "political propaganda" was removed from Subsection 611 following the 1987 Supreme Court case, Meese v. Keene, in which a California State Senator wanted to distribute three films from Canada about acid rain and nuclear war, but felt his reputation would be harmed if he distributed films that had been classified officially as "political propaganda."[4][7] The court backed up an earlier lower court ruling in favor of one of the film's distributors in Block v. Meese.[8] The Lobbying Disclosure Act of 1995 (LDA), 2 U.S.C. § 1601, removed from the Act certain agents engaged in lobbying activities who register under that Act, which is administered by Congress.[9]

Twenty-first century

An online search of FARA registrants was added by the United States Department of Justice (FARA Quick Search). In 2004 the Justice Department stated that the Foreign Agent Registration Unit's database for tracking foreign lobbyists was in disrepair.[10] However, in 2007, the Justice Department launched an online database which can be used by the public to search filings and current reports.[2]

Following a spike in public attention, registrations, and prominent cases in the late 2010s, in 2020 Foreign Affairs magazine declared, "FARA is no longer a forgotten and oft ignored piece of New Deal–era reforms. Eight decades after being enacted, FARA is finally worth the paper it was written on."[11]

Scope

The Act requires periodic disclosure of all activities and finances by:

  • people and organizations that are under control of
    • a foreign government, or
    • of organizations or of persons outside of the United States ("foreign principal"),
  • if they act "at the order, request, or under the direction or control" (i.e. as "agents")
    • of this principal or
    • of persons who are "controlled or subsidized in major part" by this principal.[6]

Organizations under such foreign control can include political agents, public relations counsel, publicity agents, information-service employees, political consultants, fundraisers or those who represent the foreign power before any agency or official of the United States government.[6]

The law does not include news or press services not owned by the foreign principal.[6] It also provides explicit exemptions for organizations engaged in "religious, scholastic, academic, or scientific pursuits or of the fine arts," as well as for those "not serving predominantly a foreign interest."[12]

Examples of organizations lobbying on behalf of foreign governments are DMP International,[13] Flynn Intel Group,[14][15] DLA Piper, Dickens & Madson Canada, Invest Northern Ireland, Japan National Tourism Organization and Netherlands Board of Tourism and Conventions,[16] Ketchum Inc.[17]

Prominent cases

There have been several dozen criminal prosecutions and civil cases under the Act.[18] Among the most prominent are:

  • United States v. Peace Information Center, 97 F. Supp. 255 (D.D.C. 1951) which the US government claimed that the peace organization led by Pan-Africanist African American Civil Rights activist W. E. B. Du Bois was spreading propaganda as an agent of foreign governments. The trial judge dismissed the case for lack of evidence.[19]
  • United States v. John Joseph Frank (D.D.C. 1959) where Frank's lack of registration as an agent of the Dominican Republic was aggravated by the fact that the defendant had been notified by letter of his burden to register.[3][20]
  • United States v. Park Tong-Sun (D.D.C. 1977) involved South Korea and was ended by a plea bargain.[3][21]
  • Attorney General v. Irish Northern Aid Committee (1981) in which the government sought to compel the committee, which was already registered under FARA, to register more specifically as an agent of the Irish Republican Army (IRA). The committee, based in Belfast, Northern Ireland which collected money from supporters in the U.S., denied a relationship with the IRA and claimed selective prosecution was based on the Attorney General's hostility towards their beliefs.[22] While failing to do so in 1972, in May 1981, the U.S. Department of Justice won a court case forcing the committee to register with the IRA as its foreign principal, but the committee was allowed to include a written disclaimer against the court ruling.[23]
  • Attorney General v. The Irish People, Inc. (1986) in which the court found that the Irish Northern Aid Committee's publication The Irish People also must register under the Act and with the IRA as its foreign principal.[24][25]
  • United States v. McGoff: 831 F.2d 1071 (D.C. Cir. 1987) shortened the statute of limitations for agents who refuse to register, contrary to the express language in Section 8(e) of the Act.[3]
  • "Cuban Five" (1998–2000) five Cuban intelligence officers were convicted of acting as an agents of a foreign government under FARA, as well as various conspiracy charges after entering the United States to spy on the U.S. Southern Command and various Cuban-American groups thought to be committing terrorist acts in Cuba.[26][27]
  • United States v. Susan Lindauer et al (2004) involved a former U.S. Congressional staffer and journalist whom the U.S. government alleged had violated pre-war Iraq financial sanctions by taking payments from Iraqi intelligence operatives. In addition to charges under the FARA, Lindauer was indicted for Title 18 Section 2332d (financial crimes) and placed under the International Emergency Economic Powers Act (IEEPA). During and after her one-year incarceration, she was twice judged incompetent to stand trial. In court, Lindauer won against USDOJ efforts to forcibly drug her with anti-psychotic medication. The case was dropped in 2009.
  • United States v. Samir A. Vincent (2005) included a charge of conspiracy to act as an unregistered agent of a foreign government[28] in the "oil-for-food" scandal helping Saddam Hussein's government. Samir was fined $300,000 and sentenced to probation.[29][30]
  • Syed Ghulam Nabi Fai, a U.S. citizen from Indian held Kashmir, was arrested in 2011 by the Federal Bureau of Investigation for lobbying secretly for Pakistan's Inter-Services Intelligence agency.[31] He later pleaded guilty to tax evasion and making false statements.[32]
  • On November 13, 2017, RT America officially registered as a foreign agent and will be required to disclose financial information.[33]
  • The U.S. Justice Department in 2018 ordered the Chinese state-run China Global Television Network to register as a foreign agent.[34]
  • The Overseas Friends of the BJP (OFBJP—BJP being the ruling Bharatiya Janata Party of India), after 29 years in operation in the United States, formally registered as a "foreign agent" on 27 August 2020.[35]
  • Elliott Broidy pled guilty in October 2020 to acting as an unregistered foreign agent, admitting taking $9 million to secretly lobby the Trump administration on behalf of Malaysian and Chinese government interests.[36][37]

FARA is one of several federal statutes aimed at individuals called foreign agents.[38] There are federal statutes authorizing the exemption of otherwise covered agents (e.g., the Taiwan Relations Act and the Compact of Free Association with the Federated States of Micronesia and the Marshall Islands.) Others target specific agents, such as federal legislation shutting down the Palestine Liberation Organization office in Washington, DC, in 1981 and Executive Order 12947 (1995) which prohibits fundraising within the United States on behalf of certain violent groups opposed to the Israeli–Palestinian peace process. The Antiterrorism and Effective Death Penalty Act of 1996 prohibits, among other things, fundraising which is done to benefit foreign organizations designated by the United States as terrorist.[3]

Allegations of selective enforcement

Although the act was designed to apply to any foreign agent, it has been accused of being used to target countries out of favor with an administration.[39] This was stated by the Irish Northern Aid Committee in legal filings.[40] The 1980s Federal Bureau of Investigations (FBI) operations against the Committee in Solidarity with the People of El Salvador also allegedly was based on selective enforcement of FARA.[41] It has been noted that during the same period it investigated CISPES, the FBI ignored possible FARA violations like Soldier of Fortune magazine running back cover advertisement to help the Rhodesian national army recruit fighters.[42]

In the 1950s President Eisenhower's administration repeatedly demanded the leaders of the American Zionist Council register as "agents of a foreign government."[43] In November 1962 Attorney General Robert F. Kennedy's Department of Justice ordered the American Zionist Council to register as a foreign agent because of FARA violations alleging it was being funded by the Jewish Agency for Israel and acting on behalf of Israel. The Department of Justice later withdrew its demand.[30]

The American Zionist Council was reorganized as the American Israel Public Affairs Committee (AIPAC). In 1988 former Senator William Fulbright in the 1970s and former senior CIA official Victor Marchetti, unsuccessfully petitioned the Department of Justice to register the lobby under the Act.[44]

The 2005 case of United States v. Franklin, Rosen, and Weissman against United States Department of Defense employee Larry Franklin and AIPAC policy director Steven Rosen and AIPAC senior Iran analyst Keith Weissman[45][46] raised the possibility that AIPAC would come under greater scrutiny by the Department of Justice. While Franklin pleaded guilty to passing government secrets to Rosen and Weissman, as well as to an Israeli government official,[47][48] the cases against Rosen and Weissman were dismissed and no actions against AIPAC were instituted.[44]

Proposed reform to FARA

There have been proposals to reform FARA to both improve enforcement of the Act and to modernize and better target its provisions. In September 2016, the Office of the United States Department of Justice Office of the Inspector General released an audit of the National Security Division's enforcement of FARA.[49] The audit noted that National Security Division officials had proposed amending FARA to provide the Justice Department with civil investigative demand authority to better enforce the Act and to eliminate the Lobbying Disclosure Act exemption to improve compliance.

Nonprofits have complained that the broad definitions in FARA can capture much routine nonprofit activity, requiring them to potentially register as foreign agents.[50] In response, there have been proposals to amend the Act to define foreign principals under the Act to only be foreign governments or political parties or those operating on their behalf, as well as amend the current broad and unclear agency definition in FARA to instead mimic the Restatement of the Law of Agency, Third definition.[51]

In July 2020, Attorney General William Barr warned U.S. companies and executives that advocating on behalf of Chinese government interests may violate FARA requirements.[52]

Chronology of amendments

Chronology of amendments to the Foreign Agents Registration Act of 1938.

Date of Enactment Public Law Number U.S. Statute Citation U.S. Legislative Bill U.S. Presidential Administration
August 7, 1939 P.L. 76-319 53 Stat. 1244 H.R. 5988 Franklin D. Roosevelt
April 29, 1942 P.L. 77-532 56 Stat. 248 S. 2399 Franklin D. Roosevelt
August 3, 1950 P.L. 81-642 64 Stat. 399 H.R. 4386 Harry S. Truman
October 4, 1961 P.L. 87-366 75 Stat. 784 H.R. 470 John F. Kennedy
July 4, 1966 P.L. 89-486 80 Stat. 244 S. 693 Lyndon B. Johnson

See also

References
  1. National Security Division, U.S. Department of Justice (August 17, 2017). "Foreign Agents Registration Unit (FARA)". fara.gov. Archived from the original on May 9, 2011. Retrieved May 6, 2011.
  2. Alex Knott, Foreign Lobbying Database Up and Running Archived October 27, 2017, at the Wayback Machine, Congressional Quarterly, May 30, 2007.
  3. Foreign Agents Registration Act Enforcement Archived January 7, 2015, at the Wayback Machine, Department of Justice website.
  4. Notes on 22 U.S.C. § 611 : US Code Archived February 22, 2012, at the Wayback Machine, FindLaw website.
  5. Department of Justice Manual. Kluwer Law International. 2012. p. 2062. ISBN 978-1-4548-2445-9.
  6. 22 USC § 611 - Definitions Archived June 14, 2017, at the Wayback Machine, Cornell University Law School website.
  7. Julie Hilden, The Documentary "This Film Is Not Yet Rated" Raises an Interesting Question About the MPAA Film Ratings System Archived November 29, 2011, at the Wayback Machine, FindLaw website, February 5, 2007.
  8. Block v. Meese, 793 F.2d 1303 (D.C. Cir.) Archived December 10, 2011, at the Wayback Machine at OpenJurist.org.
  9. Foreign Agent Registration Act website FAQ Archived April 14, 2012, at the Wayback Machine/
  10. Kevin Bogardus, Foreign Lobbyist Database Could Vanish; Justice Department claims merely copying its foreign agents database could destroy it Archived November 7, 2010, at the Wayback Machine, at PublicIntegrity.org, July 28, 2004.
  11. Michel, Casey; Freeman, Ben (September 3, 2020). "The Danger of Banning Foreign Lobbying: It's a Real Problem, But Biden's Proposal Isn't the Right Fix". Foreign Affairs. Vol. 99 no. 5. ISSN 0015-7120. Archived from the original on September 4, 2020. Retrieved September 6, 2020.
  12. "22 U.S. Code § 613 - Exemptions". LII / Legal Information Institute. Archived from the original on May 29, 2016. Retrieved April 29, 2016.
  13. Hamburger, Tom (June 27, 2017). "Former Trump campaign chairman Paul Manafort files as foreign agent for Ukraine work". Washington Post. Archived from the original on June 29, 2017. Retrieved June 29, 2017.
  14. Baker, Peter; Rosenberg, Matthew (March 10, 2017). "Michael Flynn Was Paid to Represent Turkey's Interests During Trump Campaign". The New York Times. ISSN 0362-4331. Archived from the original on March 25, 2017. Retrieved June 29, 2017.
  15. "Mike Flynn attended intelligence briefings while a lobbyist for Turkey". NBC News. Archived from the original on March 10, 2017. Retrieved June 29, 2017.
  16. Anupama Narayanswamy and Luke Rosiak, Adding it up: The Top Players in Foreign Agent Lobbying Archived July 1, 2017, at the Wayback Machine, ProPublica, August 18, 2009.
  17. Lake, Eli (2014). "Confessions of a Putin Spin Doctor". The Daily Beast. Archived from the original on March 12, 2014. Retrieved March 12, 2014.
  18. There were 85 cases as of 1992.Foreign Agents Registration Act—Cases and Material Archived November 21, 2014, at the Wayback Machine, Department of Justice website.
  19. Johnson, Robert C., Jr. (1998). Race, Law and Public Policy: Cases and Materials on Law and Public Policy of Race. Black Classic Press. p. 472. ISBN 978-1-58073-019-8. OCLC 54617416. Archived from the original on May 3, 2014.
  20. United States v John Joseph Frank case Archived 2014-05-03 at the Wayback Machine.
  21. Report to Congress On the Activities and Operations Of the Public Integrity Section For 1978 Archived 2012-04-02 at the Wayback Machine, Department of Justice.
  22. Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", Fordham International Law Journal, Volume 6, Issue 2, 1982, Article 5, pp. 366, 372-374, 379.
  23. "Irish America and the Ulster Conflict 1968-1995". CAIN Web Service. Archived from the original on May 31, 2011. Retrieved September 27, 2008.
  24. Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", pp. 379, 380.
  25. Appeal of Department of Justice Order at Attorney General of the United States V. Irish People, Inc. Archived 2012-04-07 at the Wayback Machine, United States Court of Appeals, District of Columbia Circuit, Decided July 25, 1986.
  26. 4 June 2008, United States Court of Appeals for the Eleventh Circuit, D. C. Docket No. 98-00721-CR-JAL Archived February 21, 2012, at the Wayback Machine.
  27. Jose Pertierra, Cuban Five: a Cruel and Bizarre Decision Archived September 21, 2014, at the Wayback Machine, CounterPunch, September 19, 2011.
  28. United States vs. Samir A. Vincent documents Archived February 14, 2006, at the Wayback Machine.
  29. Larry Neumeister, Oil-for-Food Witness Receives Lenient Sentence Archived October 15, 2008, at the Wayback Machine, Associated Press, April 25, 2008.
  30. Martin J. Manning, Clarence R. Wyatt, Encyclopedia of Media and Propaganda in Wartime America, Volume 1, ABC-CLIO, 2010, p. 522 Archived February 25, 2017, at the Wayback Machine
  31. Savage, Charlie (July 19, 2011). "F.B.I. Arrests Man Said to Be a Front for Donations". The New York Times. Archived from the original on August 18, 2017. Retrieved July 20, 2011.
  32. Matthew Barakat, Kashmir activist sentenced to 2 years in Va., Associated Press, March 30, 2012.
  33. "Russia's RT America registers as 'foreign agent' in U.S." Reuters. November 13, 2017. Archived from the original on November 13, 2017. Retrieved November 14, 2017.
  34. "Justice Department Has Ordered Key Chinese State Media Firms to Register as Foreign Agents". The Wall Street Journal. September 18, 2018. Archived from the original on April 18, 2019. Retrieved February 1, 2020.
  35. Friedrich, Pieter (September 16, 2020). "OFBJP now listed as foreign agent under US Law, ties with ruling BJP laid bare". Two Circles. Archived from the original on September 16, 2020.
  36. Hsu, Spencer S. "Major RNC, Trump fundraiser Elliott Broidy pleads guilty to acting as unregistered foreign agent". Washington Post. ISSN 0190-8286. Retrieved October 21, 2020.
  37. Vogel, Kenneth P. (October 20, 2020). "Elliott Broidy Pleads Guilty in Foreign Lobbying Case". The New York Times. ISSN 0362-4331. Retrieved October 21, 2020.
  38. See, e.g., 18 U.S.C. § 951; Public Law 893, 50 U.S.C. §§ 851–857; and 18 U.S.C. § 2386.
  39. James Shanahan, Propaganda without propagandists?: six case studies in U.S. propaganda, Hampton Press, 2001, p 108: "The DOJ's search for those who fail to disclose accurately their relationship with foreign groups and enforcement of FARA is selective."
  40. Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", pp. 373, 379, 380.
  41. Elihu Rosenblatt, editor, Criminal Injustice: Confronting the Prison Crisis, South End Press, 1999, pp 104-105 Archived February 25, 2017, at the Wayback Machine ISBN 9780896085398.
  42. Ward Churchill, Jim Vander Wall, Agents of repression: the FBI's secret wars against the Black Panther Party and the American Indian Movements, South End Press, 2001, p. 375 Archived February 25, 2017, at the Wayback Machine, ISBN 9780896086463
  43. Abraham Ben-Zvi, Decade of Transition: Eisenhower, Kennedy, and the Origins of the American-Israeli Alliance, Columbia University Press, 1998, p. 98 Archived February 26, 2017, at the Wayback Machine, ISBN 978-0-231-11262-8
  44. Ori Nir, Leaders Fear Probe Will Force Pro-Israel Lobby To File as ‘Foreign Agent’ Archived January 27, 2012, at the Wayback Machine, The Forward, December 31, 2004.
  45. "2 Senior AIPAC Employees Ousted" Archived January 19, 2017, at the Wayback Machine, Washington Post, April 21, 2005
  46. US vs Franklin, Rosen, & Weissman Archived May 20, 2012, at the Wayback Machine, 2005, US District Court for the Eastern District of Virginia, Grand Jury Indictment.
  47. "Defense Analyst Guilty in Israeli Espionage Case" Archived March 14, 2017, at the Wayback Machine, Washington Post, Oct. 6, 2005
  48. Barakat, Matthew. "Ex-Pentagon Analyst Sentenced to 12 Years", Associated Press, January 21, 2006 Accessed May 18, 2007
  49. [https://oig.justice.gov/reports/2016/a1624.pdf Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act] Archived February 12, 2020, at the Wayback Machine, September 2016, p 17-18.
  50. Interaction Open Letter to Congress Concerning the Foreign Agents Registration Act Archived February 26, 2020, at the Wayback Machine, April 23, 2018.
  51. "Nick Robinson, "Foreign Agents" in an Interconnected World: FARA and the Weaponization of Transparency, Duke Law Journal (2020)". Archived from the original on February 26, 2020. Retrieved February 26, 2020.
  52. Woodruff Swan, Betsy (July 16, 2020). "Barr lambastes Apple in China speech". POLITICO. Archived from the original on July 18, 2020. Retrieved July 18, 2020.

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