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 ERIC LICHTBLAU
WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyber attacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
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