The Department of Justice (DOJ) has recommended changing the language in the Foreign Agents Registration Act (FARA) to make the law significantly less transparent, according to a document the Project On Government Oversight (POGO) obtained through the Freedom of Information Act.
FARA dates back to 1938, when Congress was concerned about Nazi propaganda circulating in the United States. Under FARA anyone in the United States working to influence policy on behalf of foreign governments or political parties must register their activities with the Department of Justice. The law also requires registrants to file copies of any informational materials distributed to two or more people within 48 hours of distribution and to properly label those materials to make it clear they are distributed on behalf of foreign clients. These materials provide all kinds of insights into how foreign countries attempt to influence U.S. policies and can include everything from informational pamphlets to proposed legislation.
Yet POGO has found that FARA registrants regularly break the law when it comes to filing their informational materials. Our 2014 investigation found nearly half of the materials were filed past the deadline. A subsequent audit by the Department of Justice Inspector General (DOJ IG) found “unacceptable” levels of compliance, with 61 percent being filed late. Late filing of these documents can defeat the openness that is supposed to be afforded by these filings. When these documents are filed weeks, months, or ever years past the time they were distributed, it becomes impossible to know what foreign governments were influencing which policies and why. And yet the DOJ rarely enforces the law.
In response to the DOJ IG audit the Justice Department “determined that the 48-hour rule is out of date and unreasonable,” and they would pursue modifications to the law. In a December 2016 letter obtained by POGO through the Freedom of Information Act, the Department detailed their actions to resolve the IG’s recommendation.
In order to address poor compliance with the informational material deadline, the Department drafted suggested legislative language to remove the deadline entirely. Seemingly this “fix” would allow registrants to file materials at any time, potentially weeks, months, or even years after they’ve been distributed, completely undermining the transparency intent of the law. Instead of trying to improve compliance, the office would rather gut one of the most important parts of FARA.
Part of their reasoning for wanting to change this longstanding requirement is that technological advancements have changed the way information is distributed. The FARA enforcement unit told the DOJ IG that the use of social media has made it unrealistic to require registrants to file materials in hard copy or for FARA personnel to police submissions within 48 hours of distribution. But the FARA office allows for electronic submissions, which would seem to make it easier for registrants to comply with the deadline, particularly for electronically distributed information. This argument doesn’t justify eliminating the deadline.
Just this year the DOJ began posting electronic copies of informational materials online, taking a step forward in improving transparency. Removing the deadline would be a much bigger step backward. The Justice Department did not respond to requests for comment.
When information is filed long after being distributed, the issues it addresses may have already been settled. The value of knowing what information is being disseminated decreases as the length of time after dissemination increases. Transparency must be timely for the public to know how foreign governments and parties are trying to shape U.S. policy.
Furthermore, the DOJ’s proposed fix does nothing to address one of the other most commonly violated parts of the law: the proper labeling of informational materials. FARA requires informational materials to include a “conspicuous statement” that they are distributed on behalf of a foreign principal. The DOJ IG review of documents filed between 2014 and 2015 found that 47 percent did not include this statement at all. Additionally, POGO found that not only do these documents rarely include the identification statements, the registrants will readily admit to breaking the law. In reports that registrants are required to file twice per year, registrants are asked to report if they properly labeled their informational materials. POGO’s analysis of reports filed in the first six months of 2010 found that 51 percent of registrants reported they did not properly label the informational materials they distributed. Without these statements, those who are working on U.S. policy may be left in the dark about who is actually trying to influence them.
For example, in 2016 the Kingdom of Saudi Arabia launched a multi-million dollar lobbying campaign, with 22 different U.S. firms working to stop the passage of the Justice Against Sponsors of Terrorism Act (JASTA), a bill that would allow family members of 9/11 victims to sue Saudi Arabia for any involvement in the terrorist attacks. Part of the strategy used by these firms was to offer all-expense paid trips to Washington, DC, for veterans willing to meet with Members of Congress and urge them not to vote for the bill. But these veterans had no idea they were working on behalf of a foreign client, partially because the materials they were given didn’t include the required disclosure statement.
Brian McGlinchey of 28Pages.org found that a flyer detailing problems with JASTA was distributed to veterans without the required statement, but the version of the document filed with the Department did include the identification. At this time, the DOJ has not publicly pursued any enforcement actions against the firms working on this campaign.
The Department’s failure to enforce this law, proposals to weaken the law further, and reluctance to pursue meaningful fixes is particularly troubling at a time when fears about secret foreign influence in the U.S. political process are at an all-time high. Reducing transparency will only make matters worse.