Foreign Agents Registration Act
|Other short titles||Foreign Principal Registration Act of 1938|
|Long title||An Act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States and for other purposes.|
|Nicknames||Foreign Propagandists Registration Act of 1938|
|Enacted by||the 75th United States Congress|
|Effective||September 6, 1938|
|Statutes at Large||52 Stat. 631|
|Titles amended||22 U.S.C.: Foreign Relations and Intercourse|
|U.S.C. sections created||22 U.S.C. ch. 11, subch. II § 611 et seq.|
The Foreign Agents Registration Act (FARA) is a United States law (22 U.S.C. § 611 et seq.) 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 Registration Unit of the Counterespionage Section (CES) in the National Security Division (NSD) of the United States Department of Justice. As of 2007[update] the Justice Department reported there were approximately 1,700 lobbyists representing more than 100 countries before Congress, the White House and the federal government.
History of the Act
The Act originally was administered by the Department of State until transferred to the Department of Justice in 1942. From passage in 1938 until 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. For cases not warranting prosecution, the Department of Justice sent letters advising prospective agents of the law.
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". From that moment on, an organization (or person) could only be placed in the FARA database if 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."
This increased the government's burden of proof; since 1966 there have been no successful criminal prosecutions under the FARA act. 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.
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". The Court backed up an earlier lower court ruling in favor of one of the film's distributors in Block v. Meese. 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.
In 2004 the Justice Department stated that the Foreign Agent Registration Unit's database for tracking foreign lobbyists was in disrepair. However, in 2007 The Justice Department launched an online database which can be used by the public to search filings and current reports.
Scope of the Act
The Act requires periodic disclosure of all activities and finances by:
- people and organizations that are under control of a foreign government, 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" of this principal (i.e. as "agents") or of persons who are "controlled or subsidized in major part" by this principal.
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.
The law does not include news or press services not owned by the foreign principal. 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."
Examples of organizations lobbying on behalf of foreign governments are DLA Piper, Dickens & Madson Canada, Invest Northern Ireland, Japan National Tourism Organization and Netherlands Board of Tourism and Conventions, Ketchum Inc.
FARA is one of several federal statutes aimed at individuals called foreign agents. 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 groups opposed to the peace process in the Israeli–Palestinian conflict. 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.
There have been several dozen criminal prosecutions and civil cases under the Act. Among the most prominent are:
- United States v. Peace Information Center (1951) which claimed that the peace organization led by Pan-Africanist W. E. B. Du Bois was spreading propaganda as an agent of foreign governments. The trial judge dismissed the case for lack of evidence.
- 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.
- United States v. Park Tong-Sun (D.D.C. 1977) involved South Korea and was ended by a plea bargain.
- 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 USA, denied a relationship with the IRA and claimed selective prosecution was based on the Attorney General's hostility towards their beliefs. 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.
- 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 principle.
- 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.
- "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.
- 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 in the "oil-for-food" scandal helping Saddam Hussein's government. Samir was fined $300,000 and sentenced to probation.
- Syed Ghulam Nabi Fai, a US 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. He later pleaded guilty to tax evasion and making false statements.
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. This was stated by the Irish Northern Aid Committee in legal filings and in the Washington Report on Middle East Affairs in the case of associates of the Kashmiri American Council as compared to earlier treatment of the American Zionist Council. The 1980s Federal Bureau of Investigations operations against the Committee in Solidarity with the People of El Salvador also allegedly was based on selective enforcement of FARA. 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.
In the 1950s President Eisenhower's administration repeatedly demanded the leaders of the American Zionist Council register as "agents of a foreign government." 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.
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.
The 2005 case of United States v. Franklin, Rosen, and Weissman against United States Department of Defense employee Larry Franklin and American Israel Public Affairs Committee policy director Steven Rosen and AIPAC senior Iran analyst Keith Weissman 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, the cases against Rosen and Weissman were dismissed and no actions against AIPAC were instituted.
Amendments to 1938 Act
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|
- U.S. Department of Justice, Foreign Agents Registration Act home page
- Alex Knott, Foreign Lobbying Database Up and Running, Congressional Quarterly, May 30, 2007.
- Foreign Agents Registration Act Enforcement, Department of Justice website.
- Notes on 22 U.S.C. § 611 : US Code, FindLaw website.
- Department of Justice Manual. Kluwer Law International. 2012. p. 2062. ISBN 978-1-4548-2445-9.
- 22 USC § 611 - Definitions, Cornell University Law School website.
- Julie Hilden, The Documentary "This Film Is Not Yet Rated" Raises an Interesting Question About the MPAA Film Ratings System, FindLaw website, February 5, 2007.
- Block v. Meese, 793 F.2d 1303 (D.C. Cir.) at OpenJurist.org.
- Foreign Agent Registration Act website FAQ/
- Kevin Bogardus, Foreign Lobbyist Database Could Vanish; Justice Department claims merely copying its foreign agents database could destroy it, at PublicIntegrity.org, July 28, 2004.
- "22 U.S. Code § 613 - Exemptions". LII / Legal Information Institute. Retrieved 2016-04-29.
- Anupama Narayanswamy and Luke Rosiak, Adding it up: The Top Players in Foreign Agent Lobbying, ProPublica, August 18, 2009.
- Eli Lake (2014). "Confessions of a Putin Spin Doctor". The Daily Beast.
- See, e.g., 18 U.S.C. § 951; Public Law 893, 50 U.S.C. §§ 851-857; and 18 U.S.C. § 2386.
- There were 85 cases as of 1992.Foreign Agents Registration Act—Cases and Material, Department of Justice website.
- Robert Johnson, Robert Johnson (Jr., J.D.), Race, law and public policy: cases and materials on law and public policy of race, Black Classic Press, 1998, p. 471-471, ISBN 978-1-58073-019-8
- United States v John Joseph Frank case.
- Report to Congress On the Activities and Operations Of the Public Integrity Section For 1978, Department of Justice.
- 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.
- "Irish America and the Ulster Conflict 1968-1995". CAIN Web Service. Retrieved 27 September 2008.
- Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", pp. 379, 380.
- Appeal of Department of Justice Order at Attorney General of the United States V. Irish People, Inc., United States Court of Appeals, District of Columbia Circuit, Decided July 25, 1986.
- 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..
- Jose Pertierra, Cuban Five: a Cruel and Bizarre Decision, CounterPunch, September 19, 2011.
- United States vs. Samir A. Vincent documents.
- Larry Neumeister, Oil-for-Food Witness Receives Lenient Sentence, Associated Press, April 25, 2008.
- Martin J. Manning, Clarence R. Wyatt, Encyclopedia of Media and Propaganda in Wartime America, Volume 1, ABC-CLIO, 2010, p. 522
- Savage, Charlie (19 July 2011). "F.B.I. Arrests Man Said to Be a Front for Donations". The New York Times. Retrieved 20 July 2011.
- Matthew Barakat, Kashmir activist sentenced to 2 years in Va., Associated Press, March 30, 2012.
- 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.
- Grant F. Smith, Selective FARA Enforcement: Pakistan's Alleged Agents Prosecuted, Israel's Ignored, Washington Report on Middle East Affairs, September–October 2011, Pages 32-33, 73.
- Elihu Rosenblatt, editor, Criminal Injustice: Confronting the Prison Crisis, South End Press, 1999, pp 104-105 ISBN 9780896085398.
- 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, ISBN 9780896086463
- Abraham Ben-Zvi, Decade of Transition: Eisenhower, Kennedy, and the Origins of the American-Israeli Alliance, Columbia University Press, 1998, p. 98, ISBN 978-0-231-11262-8
- Ori Nir, Leaders Fear Probe Will Force Pro-Israel Lobby To File as ‘Foreign Agent’, The Forward, December 31, 2004.
- "2 Senior AIPAC Employees Ousted", Washington Post, April 21, 2005
- US vs Franklin, Rosen, & Weissman, 2005, US District Court for the Eastern District of Virginia, Grand Jury Indictment.
- "Defense Analyst Guilty in Israeli Espionage Case", Washington Post, Oct. 6, 2005
- Barakat, Matthew. "Ex-Pentagon Analyst Sentenced to 12 Years", Associated Press, January 21, 2006 Accessed May 18, 2007
- Foreign Agents Registration Unit website
- Foreign Agents Registration Act—Cases and Material, United States Attorneys' Manual
- Jahad Atieh, Foreign Agents: Updating FARA to Protect American Democracy, University of Pennsylvania Journal of International Law, Summer, 2010, 31 U. Pa. J. Int'l L. 1051