Daily Archives: September 29, 2019
By Petr Svab
The acquittal of a former business partner of Lt. Gen. Michael Flynn has the potential to hinder some government attempts to abuse its powers to spy on Americans.
Bijan Rafiekian was acquitted on Sept. 24 of acting as an agent of the Turkish government without informing the U.S. government and two related charges.
In vacating Rafiekian’s conviction, U.S. District Judge Anthony Trenga criticized the prosecutors for broadening the definition of “agent of a foreign government” and sketched a narrower definition.
The case has received some media attention because of Flynn’s short stint as President Donald Trump’s national security adviser. But its repercussions may be significant, as labeling a person a “foreign agent” opens the door for the government to spy on them.
Rafiekian was charged under Section 951, which says that a person who acts as a foreign agent—“agrees to operate within the United States subject to the direction or control of a foreign government or official”—will face up to 10 years in prison unless he or she first informs the Attorney General.
The law has several exceptions, such as for diplomats and people engaged in “a legal commercial transaction”—it’s not supposed to go after people engaged in above-board business with foreign governments.
Yet the government, it appears, found a clever way to make many legal transactions illegal.
The prosecutors argued that violations of the Foreign Agent Registration Act (FARA) can make one liable under Section 951.
Such an interpretation seems open to abuse of power.
FARA deals with foreign lobbying and requires timely, periodical, and detailed disclosures from people whose lobbying is done on behalf of foreign governments or that principally benefits a foreign government.
FARA violations are common, data suggests.
Even among those who register, many seem to flunk the rules.
The Justice Department’s Inspector General found, from a “risk-based” sample of new FARA registrations from 2013 to 2015, that about two-thirds were filed late. The majority of the reviewed filings also had at least one other noncompliance issue (pdf).
Yet only seven FARA violations have been prosecuted in the previous 50+ years. Part of the reason for that is that FARA has a high standard for the co-called “mens rea”—state of mind. The government would have to prove the violators acted “willfully,” knowingly breaking the law. A lobbyist ignorant of the law can’t be held liable.
In the Rafiekian case, the prosecutors argued that any FARA violation, regardless of willfulness, makes one ineligible for the “commercial transaction” exception under Section 951.
They further said, in substance, that “direction or control” under Section 951 means somebody “agrees or is willing to do something the foreign principal requests,” Trenga said in his opinion.
That’s indeed the case under FARA, but such a reading of the law is “unwarranted,” under Section 951, the judge said, because “the word ‘agent’ has a well-established common-law meaning” that includes “the power of the principal to give directions and the duty of the agent to obey those directions.”
“A person must do more than act as a ‘representative’ or ‘on behalf of’ a foreign government,” he said, further noting that, “In sum, the government’s construction of Section 951 would, in effect, import into and conflate the narrow common law notion of agency reflected in Section 951 and the related regulation with the broad definition of an ‘agent’ under FARA, which goes well beyond any common-law understanding of agency and includes conduct not fairly read into the definition of agency under Section 951.”
Trenga’s reining in of who the government can and can’t label an “agent of a foreign government” has a special significance because the label seems to open the door to spying under the Foreign Intelligence Surveillance Act (FISA).
FISA allows the government to obtain the electronic communications of anybody the secret FISA courts determine to be an “agent of a foreign power.”
Both FISA and FARA are overseen by the Justice Department’s National Security Division (NSD), which in the past assigned counterintelligence overtones to its interpretation of Section 951.
The NSD called Section 951 “espionage lite,” saying that it “generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government,” according to a 2016 IG report (pdf).
She said she would “bet money” the government took out a FISA warrant on Flynn in 2016, when he was advising the Trump campaign. That hasn’t been confirmed, though.
It may not be easy or even possible for the government to collapse FARA and FISA together directly. FARA speaks of agents of a “foreign principal”—a term that includes private entities and appears too far removed from the “agent of a foreign power” label needed to pass the muster of FISA judges.
Trenga’s opinion, however, seems to confirm that the government was borrowing the broad FARA interpretation of “agent” to label people foreign government agents under Section 951.
Wilson Miller, a lawyer who has previously identified issues with the NSD, commented that “it would be legally permissible to use allegations of Section 951 violations as grounds for a FISA warrant.”
Trenga’s opinion isn’t a binding precedent in other federal jurisdictions, but it can be raised in the future by defense lawyers to persuade other judges. In that sense, it may make the government think twice before taking out a FISA warrant on somebody based on FARA violations.
Follow Petr on Twitter: @petrsvab
by Paul Sperry
If you believe recent media accounts, the former Democratic president has suddenly transcended the political fray. It’s as if a newly “Zen-like” Barack Obama is content to just write his memoir and let Donald Trump and Republicans write the next chapter of history.
In a cover story asking “Where is Barack Obama?,” for example, New York magazine concluded that the 44th president has “virtually disappeared” from the political scene and is sitting idly by as his legacy is dismantled piece by piece. From an exclusive interview, the periodical concluded Obama was “modeling his political engagement out of office after George W. Bush’s” — that is, staying out of the rough-and-tumble of politics, maintaining distance from his former office and resigning himself to be an elder statesman fading into the sunset.
Don’t buy it.
Obama is doing far more to shape the political landscape than is visible. In fact, for an ex-prez, he’s taking an unusually active role in politics, including helping radical protest groups fight Trump and his policies and devising a scheme to flip the GOP majority in the House and permanently turn red seats blue.
From his sprawling DC office not far from the White House, where he oversees a full-time staff of 20, Obama has held regular meetings with Democratic lawmakers, as well as DNC chief Tom Perez, whom he personally helped install to run the Democratic Party. Obama has also met with his attorney general, Eric Holder, to craft a strategy to redraw congressional district maps in Democrats’ favor, according to Politico. Holder now runs the National Democratic Redistricting Committee, which Obama helped his old friend launch.
Obama, who maintains a home in Chicago, originally said he only planned to stay in Washington temporarily, until his younger daughter, Sasha, now 17, finished high school there. But the family is clearly putting down deeper roots. They recently bought their DC rental home and erected a massive security wall around the property, which includes offices, and are installing a swimming pool.
While it may be true Obama does not want to engage directly in Washington politics, including personally protesting Trump’s policies, he is using a political organizing group he founded to do that for him.
That nonprofit — Organizing for Action — is not exactly a household name. But it is no less than the organizing and training hub of the anti-Trump resistance.
Most recently, OFA helped stage rallies across the country against the administration’s border policies, which it has decried as “cruel and inhumane.” OFA describes itself as a “nonpartisan grass-roots-driven organization,” but it clearly has a pro-Obama agenda. In fact, it’s run almost entirely by alums from Obama’s campaign and White House, including Jon Carson and Jim Messina, who co-chair the group, and Katie Hogan, who serves as its executive director, according to recent tax filings by the nonprofit.
Though Obama has no official or legal role in OFA, he features the group along with his foundation on his post-presidency website and rallies its foot soldiers, who wear blue T-shirts with big white “OFA” letters, in conference calls. After Trump won, for example, he phoned to “fire up” Carson and his team and told them not to worry, that they would “cook up all kinds” of strategies to reclaim the agenda, according to a Nov. 14, 2016, White House transcript of his OFA conference call. More recently, Obama sent an email to “OFA supporters” urging them to “keep going in 2018,” because “there’s simply too much at stake this year.” Obama has tweeted from OFA’s account before and after leaving the White House, and while he was in the White House, he let OFA control his Twitter account, according to The Atlantic.
Earlier this year, moreover, he met with Hogan to discuss how the group can flex its muscles during the midterm campaign to help Democrats recapture the House, according to the New York Times. To that end, OFA plans to train and deploy organizers in 27 Republican-held congressional districts, many with heavy Latino populations, that could be key to a Democratic takeover of the House. With offices in DC and Chicago, OFA has already trained more than 40,000 leftist agitators in person or by webinar, according to tax records.
Behind the scenes, he really may be coordinating the resistance
“We’ve seen grassroots organizing make a big difference this past year, it will again in November,” Hogan recently tweeted.
Meanwhile, OFA has formally partnered with one of the angriest resistance groups, Indivisible Project, which has been criticized for using overly aggressive protest tactics against Republicans at town-hall meetings. Indivisible plans to deploy OFA-trained agitators to storm Republican districts during the Fourth of July recess, starting this weekend, to shout down “Trump’s racist policies,” according to its website.
OFA brings in between $6 million and $14 million in donations a year, and is funded in part by Democracy Alliance, which is connected to the radical group that dispatched agitators to march outside Homeland Security Secretary Kirstjen Nielsen’s Virginia town house, blaring an audiotape of crying immigrant children and chanting “No justice, no sleep!” The group, CREDO Action, also held signs calling Nielsen a “child snatcher” and shouted, “You’re a modern-day Nazi!”
With the help of 40 full-time staffers, OFA trains volunteers in the hard-core tactics popularized by the late Chicago radical Saul Alinsky, including smearing and intimidating opponents and mobilizing angry mobs to convey the appearance of a mass movement that enjoys a good deal of public support.
Alinsky trainers schooled Obama in these same tactics when he was an organizer in South Side Chicago.
Meanwhile, Hogan and OFA have partnered with Obama and Holder’s gerrymandering project to manufacture future Democrat victories.
Republicans are so alarmed by Obama’s permanent presence and political interference, they are raising money from donors based on these fears, warning in a recent fundraising newsletter about “his scheme to interfere in the 2018 midterms,” according to a June 22 email from House Majority Whip Steve Scalise.
In public, Obama has skillfully kept his distance from recent anti-Trump protests and politicking. But behind the scenes, he really may be coordinating the resistance — and acting as its organizer in chief.
Paul Sperry is a former Hoover Institution media fellow and author of the bestseller “Infiltration.”