Can FARA Registration Preempt Espionage Charges?

Syed Ghulam Nabi Fai was accused last week of acting as an unregistered foreign agent, and was arrested for working to influence Congress and develop White House and State Department contacts on behalf of the Pakistani spy agency Inter-Services Intelligence.  Had he not also been accused of hiding millions of dollars for his illegal lobbying, he may have been able to avoid arrest by registering under the Foreign Agents Registration Act.

The Act, which is housed under the Department of Justice National Security Division’s Counterespionage Section, was intended to counter German propaganda agents in 1938.  It respects freedom of speech, and simply requires disclosure of “any person who acts…at the order, request, or under the direction or control of a foreign principal,” which is defined as being any foreign government or political party, or person outside the U.S., or an entity organized outside the U.S.

There is no doubt that his activities constituted “political activity” under the FARA definitions; the Act defines “political activity” as “[A]ny activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

Indeed, it is not illegal for foreign governments to contract lobbyists in the U.S. (Syed Ghulam Nabi Fai is an American citizen) to petition their interests.  And the Inter-Services Intelligent unit for which he was accused of spying is cooperative with the US on some issues, including terrorism.  The arrest could have been avoided with a simple registration and better accounting practices.

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