FARA does not prohibit lobbying for foreign interests, nor does it ban or restrict any specific activities.[3] Its explicit purpose is to promote transparency with respect to foreign influence over American public opinion, policy, and laws; to that end, the DOJ is required to make such information publicly available.[4] FARA was enacted in 1938 primarily to counter Nazi propaganda,[5][6] with an initial focus on criminal prosecution of subversive activities; since 1966, enforcement has shifted mostly to civil penalties and voluntary compliance.[7]
For most of its existence, FARA was relatively obscure and rarely invoked;[8] since 2017, the law has been enforced with far greater regularity and intensity, particularly against officials connected to the Trump administration.[7][9] Subsequent high-profile indictments and convictions under FARA have prompted greater public, political, and legal scrutiny, including calls for reform.[7][6]
FARA is administered and enforced by the FARA Unit of the Counterintelligence and Export Control Section (CES) within the DOJ's National Security Division (NSD).[10][11] Since 2016, there has been a 30 percent increase in registrations;[7] as of November 2022, there were over 500 active foreign agents registered with the FARA Unit.[12]
Background
Foreign influence over American politics has been a recurring concern since the nation's founding.[13][14] In 1796, prior to his retirement from the presidency, George Washington warned about foreign nations seeking to influence both the American government and the public, namely through local "tools and dupes".[15] As early as 1808, the House of Representatives sought to investigate U.S. Army General James Wilkinson over allegations that he was a Spanish spy.[16] In 1852, a joint resolution was introduced in Congress that invoked Washington's warning and reaffirmed the U.S. government's commitment "'Against the insidious wiles of foreign influence'".
Notwithstanding deeply rooted anxieties about foreign interference in American politics, it is not illegal for Americans to advocate for foreign governments or interests.[17] The First Amendment to the U.S. Constitution enshrines the right to petition the government, including through political lobbying,[18] and makes no distinction between citizens and noncitizens.[17] As a result, efforts to address foreign influence have generally avoided censorship in favor of transparency.[19] Only in 1917, shortly after the U.S. entered World War I, did Congress make the first formal attempts to regulate or restrict foreign lobbying, taking into consideration measures that would require foreign agents to publicly disclose their advocacy and prohibiting noncitizen residents from acting as foreign agents without prior government permission.[20][21]
History
In response to the rise of Nazism in 1930s Germany, the House created the Special Committee on Un-American Activities to address the growing concerns about foreign propaganda in the U.S.[22][23] The committee was tasked with conducting investigations into three issues: "(1) the extent, character, and objects of Nazi propaganda activities in the United States, (2) the diffusion within the United States of subversive propaganda that is instigated from foreign countries and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation."[24]
Pursuant to the findings and recommendations of the committee, FARA was enacted in 1938 to target foreign propaganda and political subversion, particularly from Nazi sources abroad;[25] foreign agents were implicated by the law regardless of whether they were acting "for or on behalf of" those interests.[26] The law would not ban such activities but instead require that individuals engaged in propaganda on behalf of foreign governments and principals register with the government and disclose information about their clients, activities, and contract terms.[3] Enforcement of the act was assigned to the Department of State, which opposed having such responsibility on the basis that it lacked the resources and personnel;[27] consequently, authority over enforcing the act was transferred to the Department of Justice in 1942.[26] A "Foreign Agents Registration Section" was created within the DOJ's newly established War Division during World War II, and a total of 23 criminal cases were prosecuted on the basis of FARA.[26][28]
Following the end of the war in 1945, enforcement of FARA declined significantly: Only two indictments were brought between 1945 and 1955, followed by nine "failure to file" indictments between 1955 and 1962.[29]
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."[30] Consequently, an individual or organization could not be placed in the FARA database unless the government proved that they were acting "at the order, request, or under the direction or control, of a foreign principal" and proved that the alleged foreign agent 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."[31]
Due to the greater burden of proof placed on the government, until 2015, there only seven criminal prosecutions under FARA,[9] none of which resulted in a conviction.[30] 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 while making it clear when the law has been violated. This has resulted in a shift from the law's initial focus on criminal prosecution, as the number of successful civil cases and administrative resolutions increased since that time.[26]
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 the films were to be classified officially as "political propaganda."[28][32] The court affirmed an earlier lower court ruling in favor of one of the film's distributors in Block v. Meese.[33] The Lobbying Disclosure Act of 1995 provided exemptions under FARA for certain agents who register with Congress and are thereby permitted to lobby the legislative and executive branches directly.[34]
Twenty-first century
An online database of FARA registrants was added by the Department of Justice. In 2004 the Justice Department stated that the FARA Unit's database for tracking foreign lobbyists was in disrepair;[35] by 2007, it launched an online database which can be used by the public to search filings and current reports.[36] That same year, the DOJ reported that there were approximately 1,700 lobbyists representing more than 100 countries before Congress, the White House, and federal agencies, many of whom were not registered under FARA.[36]
Following a spike in public attention, registrations, and prominent cases in 2016, 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."[8]
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" ("agents")
of this principal or
of persons who are "controlled or subsidized in major part" by this principal.[31]
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.[31]
The law does not include news or press services not owned by the foreign principal.[31] 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."[37]
There have been several dozen criminal prosecutions and civil cases under the Act.[43] Among the most prominent are:
United States v. Peace Information Center,97F. 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.[44]
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.[47] 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.[48]
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.[49][50]
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.[26]
"Cuban Five" (1998–2000) five Cuban intelligence officers were convicted of acting as 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.[51]
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[52] in the "oil-for-food" scandal helping Saddam Hussein's government. Samir was fined $300,000 and sentenced to probation.[53][54]
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.[60]
On September 3, 2024, the U.S. Justice Department arrested and charged Linda Sun, a former high-ranking New York State official, with acting as an undisclosed agent of China and the Chinese Communist Party.[64][65]
Notable organizations listed by the United States as foreign agents
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 a given administration.[72] This was alleged by the Irish Northern Aid Committee in legal filings.[73] In the 1980s, the Federal Bureau of Investigation (FBI) conducted operations against the Committee in Solidarity with the People of El Salvador (CISPES) allegedly based on selective enforcement of FARA.[74] It has been noted that during the same period it investigated CISPES, the FBI ignored possible FARA violations such as Soldier of Fortune magazine running back cover advertisements to help the Rhodesian national army recruit fighters.[75]
Leaked documents from the Israeli ministry of Justice revealed that in 2018 the ministry was concerned that compliance with FARA would damage the reputation of Israeli-directed American groups, and that political donors would be reluctant to fund them if registered under the law. The ministry thus sought legal advice on FARA from law firm Sandler Reiff, from 2018 through at least 2022. The proposed solution was for Israel to create and fund a new American nonprofit organization that would be informally managed by the Israeli government.[83]
Proposed reform
There have been proposals to reform FARA to both improve its enforcement and modernize its provisions. In September 2016, the U.S. Department of Justice Office of the Inspector General released an audit of the National Security Division's enforcement of FARA.[84] The audit noted that NSD 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. The Department of Justice has also proposed expanding civil enforcement under the statute.[85]
Nonprofits have complained that the broad definitions in FARA can capture much routine nonprofit activity, requiring them to potentially register as foreign agents.[86] 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.[87]
In July 2020, Attorney GeneralWilliam Barr warned U.S. companies and executives that advocating on behalf of Chinese government interests may violate FARA requirements.[88] In November 2021, Reuters reported that the Chinese embassy in Washington, D.C. sent letters to American executives urging them to lobby against bills seeking to enhance U.S. economic competitiveness, thereby sparking possible FARA concerns.[89]
Chronology of amendments
Chronology of amendments to the Foreign Agents Registration Act of 1938.
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↑ National Security Division, U. S. Department of Justice (August 17, 2017). "Browse Filings". www.justice.gov. Archived from the original on May 18, 2024. Retrieved September 5, 2022.
↑ "Farewell Address | The American Presidency Project". www.presidency.ucsb.edu. Retrieved September 24, 2022. As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils! Such an attachment of a small or weak toward a great and powerful nation dooms the former to be the satellite of the latter. Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government. But that jealousy, to be useful, must be impartial, else it becomes the instrument of the very influence to be avoided, instead of a defense against it. Excessive partiality for one foreign nation and excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots who may resist the intrigues of the favorite are liable to become suspected and odious, while its tools and dupes usurp the applause and confidence of the people to surrender their interests.
↑ Gouverneur Morris: “How far foreign powers would be ready to take part in the confusions he would not say. Threats that they will be invited have it seems been thrown out. He drew the melancholy picture of foreign intrusions as exhibited in the History of Germany, and urged it as a standing lesson to other nations.” Records of the Federal Convention of 1787, edited by Max Farrand, vol. 1 (New Haven: Yale University Press, 1911), p. 530.
↑ “General Wilkinson,” House debate, Annuals of the Congress of the United States, vol. 18 (January 18, 1808), pp. 1461-1462. General Wilkinson was given back his commission by President James Madison on February 14, 1812. In explaining why General Wilkinson was being recommissioned, President Madison wrote “that although there are instances in the Court, as well as in the conduct of the Officer on trial, which are evidently and justly objectionable, his acquittal of the several charges agst.[sic] him is approved, and his sword is accordingly ordered to be restored.” Andro Linklater, An Artist in Treason: The Extraordinary Double Life of General James Wilkinson (New York: Walker Publishing Company, 2009), p. 294.
↑ Maggie McKinley, “Lobbying and the Petition Clause,” Stanford Law Review, vol. 68, issue 5 (May 2016), pp. 1131- 1206; and Nicholas W. Allard, “Lobbying Is an Honorable Profession: The Right to Petition and the Competition to Be Right,” Stanford Law & Policy Review, vol. 19, no. 1 (2008), pp. 23-69
↑ Testimony of Carl J. Austrian, American-Jewish Committee, in U.S. Congress, House Committee on the Judiciary, Subcommittee No. 1, To Require the Registration of Certain Persons Employed by Agencies To Disseminate Propaganda in the U.S., hearing on H.R. 1591, 75th Cong., 1st sess., June 16, 1937, unpublished (Washington: GPO, 1937), p. 28.
↑ H.R. 2583 (65th Congress), introduced April 10, 1917
↑ H.R. 5287 (65th Congress), introduced August 24, 1917
↑ H.Res. 198 (73rd Congress), agreed to March 20, 1934.
↑ U.S. Congress, Special Committee on Un-American Activities, Investigation of Nazi and Other Propaganda, 74th Cong., 1st sess., February 15, H.Rept. 153 (Washington: GPO, 1935), p. 2.
↑ Amending Act Requiring Registration of Foreign Agents: Hearings Before the Subcomm. No. 4 of the H. Comm. on the Judiciary, 77th Cong. 28 (1941) (statement of Hon. Adolf A. Berle, Jr., Assistant Sec’y of State) [hereinafter 1941 Hearings].
1 2 Martin J. Manning, Clarence R. Wyatt, Encyclopedia of Media and Propaganda in Wartime America, Volume 1, ABC-CLIO, 2010, p. 522Archived February 25, 2017, at the Wayback Machine
↑ 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."
↑ Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", pp. 373, 379, 380.
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