Justice Department Records Show Dramatic Rise in FARA Enforcement

Over the past few years, the Justice Department has dramatically ramped up its enforcement of the Foreign Agents Registration Act (FARA), according to new records obtained by POGO under the Freedom of Information Act (FOIA). The records provide hard evidence in support of what many attorneys had suspected.

Established in the 1930s, FARA requires that persons working to influence the U.S. government on behalf of a foreign government or foreign political party submit highly detailed disclosures of their activities to the Justice Department.

FARA registrants are required to furnish copies of their contracts, records of their interaction with government officials and journalists, and records of money received from clients and dispersed on their behalf—all of which are posted publicly by Justice in a searchable database. The disclosures are an invaluable tool for journalists and government watchdogs (POGO has used FARA disclosures in a number of investigations).

POGO obtained records of Justice’s audits of firms’ compliance with FARA. The records do not cover investigations into whether a firm that has not registered with Justice should be registered. In other words, the audits are intended to ensure that those who have registered with Justice have disclosed all required records. The FARA Registration Unit in the Counterespionage Section of the National Security Division is responsible for administering and enforcing the statute.

The new records show that Justice audited 13 FARA registrants in FY 2008, 14 in FY 2009, 13 in FY 2010, and 11 through June of FY 2011. By comparison, Justice audited a total of 8 registrants between FY 2000 and FY 2007, and not a single registrant between FY 2004 and FY 2007.

The uptick in audits has been noticed by attorneys. “The FARA unit appears to have increased the number of routine audits, the number of routine notices regarding missing and late filings,” attorney Joe Sandler told The Hill. “They have dramatically ramped that up,” added Rob Kelner, an attorney at Covington & Burling.

FARA Used to Target Alleged Espionage

For much of its history, FARA was relatively obscure and rarely enforced. In a series of nearly identicalreports, the Government Accountability Office (GAO) criticized Justice’s enforcement of the law.

But in recent years, Justice’s prosecution of individuals for failing to register under FARA has made headlines (this is separate from the increase in FARA audits described above). In an interview with The Hill, Kelner said Justice has been using FARA as “a convenient tool in espionage and terrorism cases.” And many of the recent cases appear to support that.

The statute has been used against suspected Russian spies, a nonprofit allegedly directed and financed by Pakistan’s spy service, and a Syrian accused of videotaping protests in the U.S. on behalf of Syrian intelligence. All of whom did not register under FARA.

The distinction between spies and lobbyists may not be so clear, however. A July 2010 article in Intelligence Online, a publication devoted exclusively to covering the public and private intelligence world, suggested that the line between espionage and foreign lobbying has been blurring. The article asserted that foreign governments are now using lobbyists to gather background intelligence on other governments, a function that was traditionally carried out by spies.