The Department of Justice will soon begin posting seven years’ worth of Foreign Agents Registration Act advisory opinions for the first time, as the National Law Review reported last week.
These advisory opinions are among the only official departmental interpretations of the Act, known as FARA, a convoluted law regulating foreign influence. For years, the Project On Government Oversight has recommended the Department make these documents available as an informational resource to improve compliance with the law, and submitted testimony to Congress just last week urging it to make doing so a legal requirement. The Justice Department’s decision to proactively make these opinions available is a huge win for foreign-influence transparency.
Congress passed FARA in 1938 as a response to Nazi and Communist propaganda in the U.S. The law requires those in the U.S. working to influence policy on behalf of foreign governments and political parties to register as a "foreign agent" and disclose details about their activities. But in the decades since FARA’s inception, it has failed to keep up with the times: the means of distributing information and peddling influence in Washington have evolved beyond the law's capabilities. This has left many who work with or for international entities to question whether they are inadvertently running afoul of the law. We believe the agency’s interpretation of the law must be clarified so Congress and the public can grapple with the underlying issues of foreign influence.
The Justice Department will issue advisory opinions that describe its “present enforcement intentions” concerning FARA. They can either be proactively issued by the Department or a person or entity can request an advisory opinion if they are unsure if their work requires disclosure under FARA. Currently a few summaries of these advisory opinions are published online, but they fail to provide clarity on the more nuanced aspects of the law.
The language in the law itself is vague and broad, leaving loopholes and uncertainties about what kinds of activities and relationships trigger a FARA registration requirement. Having the full advisory opinions publicly available will bring much-needed clarity and transparency to FARA, inherently a law intended to provide transparency into how foreign governments attempt to influence U.S. policy.
A 2016 audit by the Department of Justice Inspector General (IG) found that compliance with FARA is dismally low and the Department did not have a comprehensive enforcement strategy. The IG found that the FARA enforcement unit had received 14 requests for advisory opinions since 2013 and recommended the Department consider making them publicly available with personal information redacted. “We believe the FARA advisory opinions may be a worthwhile informational resource, and recommend [National Security Division] consider whether there is value in making them publicly available,” the report stated.
The Justice Department releases advisory opinions that have led to a FARA registration under the Freedom of Information Act, demonstrating this information can be released without undermining enforcement or compromising the privacy of those trying to comply with the law.
These opinions are a vital resource in determining how the Justice Department enforces the law, by providing specific examples of the activities and relationships in play. Moreover, they will allow Congress and the public to see whether the Department applies the law fairly and consistently. We applaud the Department’s decision to post these documents online.