Foreign Agents Registration Act Enforcement
The Foreign Agents Registration Act of 1938, as amended, 22 U.S.C.
§ 611 et seq. (FARA or the Act) is a disclosure statute aimed
"agents of foreign principals" (agents) as defined, who are engaged in
activities, on behalf of their foreign principal(s), unless exempt. The
Department's enforcement policies and procedures are closely tied to the
legislative history of this little known statute.|
From its passage in 1938 until the 1966 amendments, FARA was
on propagandists. The original Act included a fairly broad definition of
term agent, and a single felony penalty for the most serious transgressions.
was used in the World War II era to successfully prosecute some 23 criminal
cases. After administration of the Act was transferred from the Department
State to the Department of Justice in 1942, the Department developed the
of attempting to achieve compliance with the statute in instances which did
on their face warrant prosecution by sending letters advising prospective
of the existence of FARA and their possible obligations thereunder. The
was not without its enforcement significance, since receipt of the letter
sometimes be used to help prove the willfulness of the failure to register,
for example, in United States v. John Joseph Frank, (D.D.C. 1959).
In 1966, FARA was significantly amended to focus on the integrity
the United States Government decision-making process, and to emphasize
seeking economic or political advantage for their clients. The amendments
prompted by the excesses of lobbyists struggling over their share of the
quotas" legislatively determined after trade with Cuba, the principal sugar
producer, was prohibited. It required any person engaged in "political
activities", as defined, as an agent on behalf of a foreign principal, to
register. This is substantially narrower than the original act, which did
require that the activities be "for or on behalf of" the foreign principal.
This increase in the Government's burden of proof, along with the
addition of a civil injunctive remedy similar to that in the securities laws
Section 8(f) of the Act), and the "Rule 2" advisory opinion mechanism,
the Department provides statements of its enforcement intentions regarding
proposed activities which may require registration under the Act (See 28
§ 5.2), drastically reduced the incidence of criminal FARA prosecutions
increased civil and administrative resolution of FARA questions. Since 1966
there have been no successful criminal prosecutions under FARA and only 3
indictments returned or informations filed charging FARA violations. The
criminal cases post 1966 were: United States v. Park Tong-Sun (D.D.C.
1977), which was dismissed as part of a plea bargain; United States v.
P. McGoff (D.D.C. 1986), which the Department lost because of a statute
limitations problem; and United States v. Sam H. Zakhem, et al. (D.
1992), which was dismissed by the Government after the principal AUSA
for the case resigned. In addition, there have been 2 other grand jury
investigations that did not result in criminal charges. One was a grand
investigation in Chicago in the late 1970's into Government of Iran funding
massive pro-Shah demonstrations at the time of his state visit to then
Carter. At the conclusion of the investigation, a recommendation was made
proceed with an injunctive action, but that recommendation was rejected by
Assistant Attorney General. In the second, a grand jury in Connecticut
information that became the basis for a civil consent decree against the
advertising firm Young and Rubicam in 1992 for failing to report a fee
agreement with a Jamaican firm associated with a Jamaican Government
By way of contrast, there have been 17 civil cases in that period, of which
were successfully litigated and 7 ended by consent decree. The number of
administrative resolutions is much greater.
The threshold for a criminal investigation is the presence of
to believe that a significant FARA offense has been committed and that
evidence should be available to prove this. The common threads of the last
FARA criminal investigations were: millions of dollars in receipts or
expenditures by the prospective defendants; "core" violations of FARA with
appeal; and evidence of willfulness. The Tong-Sun Park case involved
million dollars of "Food for Peace" monies, some of which were diverted to
and lobbying expenses; the unindicted Government of Iran sponsored
demonstrations involved some $11,000,000 in expenditures for the 3 day
McGoff case involved some $11,000,000.00 of South African Government money;
the Zakhem case involved some $7,700,000 in Kuwait Government expenditures
a $2,000,000 plus public relations and lobbying campaign. Tong Sun
involved bribery; the Pro-Shah demonstrations a massive propaganda
display; McGoff an attempt to purchase The Washington Star as
South African propaganda organ; and Zakhem war and peace. FARA
prosecutions must be approved by the Criminal Division or higher authority
the United States Attorney's Manual, and in practice must first be approved
the appropriate United States Attorney's office.
The threshold for a civil action is sufficient credible evidence of
significant violation for which the civil injunctive remedy is judged
in light of all the circumstances because time is of the essence or for some
other reason. Civil actions often result from "Section 5" inspections of
books and records of registered agents. Section 5 of the Act, 22 U.S.C.
615, allows the Attorney General to conduct inspections of the books and
of registered agents, which shall be "open at all reasonable times to the
inspection of any official charged with the enforcement of this Act." Less
often, they are proposed after criminal declinations as in Attorney
v. Young & Rubicam, (D.D.C. 1991), and sometimes they are filed after a
person either refuses to answer a routine administrative inquiry, or answers
falsely, as, for example in Attorney General v. William A. "Billy"
(D.D.C. 1980). The Department has never asked the FBI to develop a strictly
civil FARA case. Civil cases are always submitted to the Assistant Attorney
General, Criminal Division for approval before filing.
If the Department receives credible information establishing a
facie registration obligation, where evidence of intent is lacking, the
Department usually sends a letter advising the person of the existence of
and the possible obligations thereunder. FARA, after all, is a malum
prohibitum enactment not well known outside the legal/lobbying
The letter usually cites or provides the information prompting the inquiry.
the Department's experience, the vast majority of persons approached with an
inquiry letter based on public source information respond within a
amount of time and either register or convincingly explain their lack of
status or the availability of an exemption.
If this administrative route is chosen, and there is no response to
letter, or a seemingly false response, the only alternatives are to refer
matter to the FBI, which has the responsibility for FARA investigations, or
close the matter pending receipt of sufficient evidence to warrant some
action. The letter in that event will have served its purpose of putting
person on notice of the existence and reach of the Act.The Department has
for authority to issue civil investigative demands (CID) to more effectively
gather evidence in these situations. In the meantime, letters have been
Enforcement Issues under the Foreign Agents Registration Act of 1938, as
amended 22 U.S.C. § 611 et seq.
The oft-amended Foreign Agents Registration Act of 1938, as
is the foundation for requiring the registration of, and disclosures by,
of foreign principals," as defined, who are engaged in "political
defined, or other defined activities of a quasi-political nature, and who
exempt. It covers most lobbying, advertising, public relations, and
for "foreign principals" as defined, that is not of a commercial nature, or
performed by Embassy officials. The Act requires agents to make periodic
disclosure of their identities, agency, activities, receipts and
Disclosure of the required information facilitates evaluation by the
and the American people of the statements and activities of such persons in
of their status as foreign agents. The news media are the greatest users of
information filed under the Act, and give it further publicity, usually
attribution. Other agents, commercial firms, students and academics, in
order, are also major visitors to the Department's public office.
FARA does not exhaust the federal government's response to
problems in this area. There are numerous other federal statutes aimed at
persons loosely called foreign agents (See, e.g., 18 U.S.C. §
Public Law 893, 50 U.S.C. §§ 851-857; and 18 U.S.C.
§ 2386 (the
Voorhis Act)). Restricting the discussion to foreign agents engaged in
activities covered by the Act, there are both federal statutes which
the exemption of otherwise covered agents (See, e.g., the Taiwan
Act, 22 U.S.C. § 3301 et seq., and Section 105(f)(2) of the
of Free Association Act (with the Federated States of Micronesia and the
Islands), 48 U.S.C. § 1681 note) and statutes and regulations which
certain agents from engaging in activities otherwise covered by the Act.
Palestine Liberation Organization office in Washington, DC, for example,
registered from 1976 to 1981, but was closed in 1981 as a result of the
of federal legislation. In addition, E.O. 12947 (1995), prohibits
within the United States on behalf of groups opposed to the peace process,
Section 401 of the Comprehensive Terrorism Prevention Act of 1995,
among other things, fundraising on behalf of designated foreign terrorist
organizations, activities which otherwise would require registration and
The cornerstone of the Registration Unit's enforcement efforts is
encouraging voluntary compliance. This includes the essentially
function of providing registration forms, with copies of the Act, Rules,
Regulations, and guidelines for responses to the firms and individuals
under the Act, as well as the members of the public, press and bar who write
call to request them. It also includes the more proactive outreach to the
primarily professional communities (law, advertising, political and public
relations) from which the majority of agents are drawn, as well as informing
educating prosecutors, and interested Departments and Agencies regarding the
Encouraging voluntary compliance and providing information on the
identities of those registered generates "Rule 2" advisory opinion requests,
C.F.R. § 5.2, regarding the applicability of the Act to certain
circumstances from agents and their attorneys interested in complying with
Act. It also prompts registrants and others to alert the Unit to other
similarly situated who are not yet registered, a service the Unit's contacts
the various Departments, Agencies and Committees of Congress also provide.
At another level, the Unit has established a number of routine
enforcement initiatives, from reviewing a wide range of publications for
indications of activities by unregistered agents to reviewing the filings of
registered agents and conducting audits or inspections of their books and
records. Almost all of the Unit's civil enforcement actions, including the
so-called "Canadian films cases," Meese v. Keene, 481 U.S. 465
Block v. Meese, 793 F.2d 1303 (D.C. Cir.), cert. den.
U.S. 1021, reh. den. 481 U.S 1043 (1987), were developed in
fashion. The Unit also works closely with the law enforcement and
community components who provide reports on potential violations of the Act.
Unit's less frequent criminal prosecutions have primarily come from this
source--most recently an IRS investigation in Denver (the
case) and previously, a South African Government investigation of internal
corruption (the McGoff case).
The Department has fared well in the Courts in its enforcement
with the exception of the decision in United States v. McGoff, 831
1071 (D.C. Cir. 1987). This case shortened the statute of limitations for
who refuse to register, contrary to the express language in Section 8(e) of
For advice/information concerning FARA, and related statutes,
contact either Frederick J. Close, Jr., Chief, or Heather H. Hunt, Attorney,
Registration Unit, Internal Security Section, Criminal Division at (202)
[cited in USAM 9-90.700; USAM 9-90.710]