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tv   AEI Discussion on Foreign Agents Registration Act  CSPAN  April 25, 2019 11:49am-12:52pm EDT

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the whole process and what is worse, the other problem is people don't engage with the other side at all. >> watch this weekend on booktv on c-span2. >> c-span's newest book the presidents. noted historians rank america's best and worst chief executive, provides insight into the lives of the 44 american presidents together by interviews with noted presidential historians. explore the life events that shaped our leaders, challenges they face and the legacies they left behind. order your copy today, c-span's the presidents as a hardcover and e-book. the foreign agents registration act requires individuals, representing foreign powers to disclose their relationship.
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the american enterprise institute hosted a discussion on modernizing the 80-year-old law. assistant attorney general for national security john deb a joins other law experts on the panel. [inaudible conversations] >> good afternoon, everybody. thanks for joining us at the american enterprise institute for this conference on foreign agents registration act. i am delay to be joined. i will go in order down the panel. there pool bios are available on our website. i just briefly summarize. john demos is the assistant of national security and claire
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finkelstein, i can't read my handwriting, the professor of law at the university of pennsylvania law school and founder of the center for ethics and rule of law. rob killed her is chairer is ca rob killed her is chairer is n covington. we are going to have a conversation here today. will be a conversation appear and it will be a conversation with you. there's a lot to talk about and nobody is giving a presentation so if something has been left out keep it in mind and we will come back to it. farah has been in the news a great deal yesterday for a whole variety of reasons and doubtless will remain in the news but for those who are less familiar with this was a law passed in 1938. we have some of the epidemics printed in tiny print on the wall for you to look at but it
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is a longer piece of legislation. i would like to start with the general, the most general questions about this. is it you're feeling this is a law that needs updating? the needs modernization? we are in a totally different world than the world we contemplated then when we were thinking about the germans or the japanese. how do you see it at doj? >> the way we see it, even smaller print right here. i don't know that it doesn't need an overhaul. what i find fascinating about this law, it is a rather elegant solution, difficult problem that is full of first amendment implications. whenever i see a lot like this, when you read the history of the coming up from nazi is a
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man's communist propaganda in the us you think okay, we have done this before or dealt with this issue before or lived through this before. a number of opinions that improve the transparency of our work on its 80th birthday. it is a law, as we are refocused on it at the department in light of an inspector general report, issued two years ago and obviously all of what we have seen coming out of the 2016 election and a lot of cases that came out of that. as we work through the statute we continue to look at it to see whether there are improvements that need to be made but it is not a law that needs an overhaul.
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for me it gets to the essential problem together with a criminal statute which is the problem of covert foreign influence in the united states. >> this is important and i want to stick with you for a second because what you are talking about is a desire on the part of a foreign principal to do something that is not apparent to the public eye. this is really from your standpoint not even about influence. it is about disclosure. as originally conceived it wasn't about disclosure. it was about the soviets and the nazis and others having malign influence. >> the idea is foreign governments and foreign principals is the term under the statute, foreign individuals can speak and they can speak about issues important to americans but when they speak they need, the american public needs to
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identify the speaker so the problem is when foreign governments or foreign individuals speak through intermediaries and it is not apparent that the real speaker is not that intermediaries who is often an american person but rather a foreign government. >> one of the issues you brought up when we were talking about this is this concern you have on the first amendment side. if in fact this is about transparency it is not about curtailing the right to speak but there have been very substantial changes in the sense that in the sense that what i would call foreign propaganda, organizations that call themselves are tea and others have been forced to register under sar a -- fara.
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>> there are first amendment concerns. the fact that are tea has to register does not concern many people because it does not look like rt is an independent news organization but rather a spokesperson for the russian government but now there is talk about having al jazeera register. where does it go from there? protection in the law is the press organization would have to be under the control of a foreign government so they do not have independence we expect a press organization but there will be great areas of gray, marginal cases that will be hard to cross. one of the worries, when an organization has to register under the statute they lose
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their congressional press credentials so fara is the tool for identifying an organization, using journalistic credentials or media credentials, as a false front and becomes a vehicle for d credentialing the press. >> let me press you on this. the active registration registering itself, is not fraught with judgment. there are plenty of countries where foreign press agencies have to register. when i was a journalist in the stone age we worked in the foreign press building in jerusalem where they were all foreign press. and if grade d credentialing on the were taken away, >> that might make some difference.
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this organization is speaking for a foreign government or funded by controlled by a foreign government -- >> there is nothing in the statute, an organization making a separate decision. >> i do think the statute has a point in getting at foreign media organizations that are not functioning with independence we expect them to function with. though there is a reason why, on the other hand, you might want d credentialing but those gray area cases might make you concerned. >> i do think registering as a foreign agent is highly stigmatized and there are many international news organizations that are extremely resistant to being labeled as foreign agents not
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only because it causes credentialing problems, dealing with one in congress, with credentialing issues elsewhere in the country but because it makes it difficult to collect information as reporters if they are known to be foreign agent for once registered you would have to expose that they are a foreign agent or once registered they distribute material and have to label it indicating they are a foreign agent and reference the department of justice, that is highly chilling to the typical journalistic process. i think the major issue with news organizations is by labeling them a foreign agent through registration you need to make it extremely difficult for them to function. i would also say more generally i think the statute needs a major overhaul. a 1938 statute, it has been very minor and phrases in it that are fairly meaningless, information service employee, it has other phrases like a
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request for any foreign principal, that are extraordinarily broad. in theory if you read the statute, any request from a foreign institute would trigger the statute with a few qualifications. it is really unacceptably big and broad. .. but it requires you to make very fine judgment calls about the degree of independence of the press organization relative to a government from which they may be receiving funding and worries about the chilling effect of federal funding of press organizations.
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>> i hear everything you're saying and the default for most people is to err on the site of first amendment rights and to really bend over backwards. that's our tradition in the united states. on the other hand, i want to get a chance to jump in because this was a recent decision that was made requiring -- the plaything about rt under and to a certait i would say slightly -- funny thing -- about al-jazeera and others as well, whether it's in cuba or others that are, in fact, state propaganda organs that exist to serve the agenda of the dictator or would be dictator. it's good for people to know these are not real reporters. these people are not reporters. you're working for russia today you're not a reporter. you're working for the russian government. you cannot question of vladimir putin. help us navigate understanding
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the taste and attitudes towards this will change. >> i think he made a point, that was my reaction to lot of what was said. it's fine as long as it's appropriate applied in the right context we have to have an evidentiary basis to say when you act would be reporter, acting at the direction and control of the government and you are not, you don't have a sort of independent journalistic ethos that we think of when we look at a reporter. and the fact not labeling it as reporter, as a foreign agent is misleading because you are presenting itself to the american people as someone who is independent and thinking their own thoughts but you are not. you're getting your thoughts from a foreign government. really that's all we're saying. you are still allowed to express all the thoughts that the foreign government has and americans are led to consider those as they consider that view
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they taken whatever the policy issue is. >> i want to let rob who brought up the statement issue. i wonder whether, i understand how as a talking point that is an issue for a press organization but is it really an issue in practice? because of course i can't tell you among my very large acquaintance in washington and both the briscoe and elsewhere i can't tell you who's registered at the fourth turn time on the fara page. even less on the lda, the lobby and disclosure i paid. do you really think it has that stigma? >> the reason i think you don't react that way is they are extremely few news organizations that are registered foreign agents. the aggregate advocacy organizations, very few thing takes registered as for ages. were that to change and some of them be required to register for agent i think you absolutely
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notice it. i can tell you with certainty there are a lot of international media organizations that receive their difficulty conducting interviews, difficulty engaging in the art of reporting in the united states if they're labeled as a foreign agent. and it's one thing to say i understand john's point that if you have a news organization that is nothing but an agent of a foreign government for influence purposes, that's one category, but the challenge is there are all kinds of countries in this world with many different kinds of systems. many of which have much close relationships between their government and the news organizations. that does mean all of those news organizations act purely as an agent of influence. it's their hybrids, the spectrum and fara doesn't respect nuance. it doesn't recognize that spectrum. the department of justice can in its discretion in terms of how it enforces the statute but that's the fundamental problem with the statute is it gives
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prosecutors hugely fast discretion to pick which cases they want to pursue and which to not. >> that would argue for for a e of specificity and even perhaps an embrace of categories or, where there would be decisions that would be made by doj, or this was delegated to dig from the state department, wasn't it? >> originally. >> so used to be a foreign policy decision and now it's a legal decision which is also interesting. i gather that nothing that would really distinguish someone, say reported for party or a guest commentator who comes on on a regular basis on rt from it being considered a foreign agent herself other than the discretion of prosecutors to say look, it would be ridiculous for us to start prosecuting those individuals. you don't want a statute to be
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so broad and general that sensible charging decisions are the only thing that stands between you and a real potential abuse of a statute. >> one thing that's interesting to me here is this modernity question. were talking about russia today but the truth is russia today is exactly the same as -- what was the cauldron the soviet era? pravda was newspaper but yes, these are the same. the reality is that we have a much more complex environment now in which we have twitter and we are facebook advertising campaigns and we have news platforms. one of the things al-jazeera did was they started and news let form that is not anyone's obvious eyes al-jazeera called ajay plus, which was intended to appeal to a different audience
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but still pressed a particular viewpoint and much more subtle way. how do we navigate this? the hardest question for you so i will make you entered first. >> i mean, it's always the same. to us is always the same question and yes, there certainly an exercise of discretion. it's always a question of what are the facts you know and do you have record the shows that the person is acting at the direction and control of this foreign government. so if the foreign government is speaking to twitter and it has an individual who they have hired or otherwise pay and that person pretends or not they are a foreign government after speaking to twitter so it's a question of what the facts that we have can show about the amount of control that the foreign principals exercise over the actions of the person. >> but your job is much, much
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harder because of course you don't have to describe, i can be, you know, dp 828 and no one will ever know who i am and what i am. >> that's for sure. it's not just the fara issue. this is a problem of basically foreign interference more generally. it's a lot harder if people are anonymizing themselves over the internet. that was before. now, look, fara was those people by letters to the editor and parking there were not who they were. it's a problematic even when we have written newspapers and that's all we had, and radio. but that is for sure a difficulty and that's what we are confronting generally when it comes to foreign interference, especially in the election context. >> what would you fix? how would the statute look if you had -- >> how long do you have? >> you have two minutes. >> first thing i i would do isi would encourage the department to issue regulations, have rulemaking proceedings so that
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the statute to be updated. one of the problems with fara is there's been very little active guidance over 80 years from department. until last year when the department made the great decision to start releasing advisor opinions to essentially secret opinions and i would have for the most part the opinions that were issued a 42010. i would release all of the opinions from the beginning of the statute for complete transparency since it is a transparency statute. i would have several will makings probably to update the statute for -- the 21st century standards i would limit the word request on the definition of the agency which is unreasonably and dangerously overbroad true. i would revise the definition of political consultant which is externality broad and the major time for nonprofit organizations. a host of thing i would do to clarify the commercial exemption, so there's a lot of work to be done.
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>> yes? what you think? >> i guess i want to understand better, let's put aside the questions of vagueness which are always a problem in statute that we should try to fix, but what is it, what's the problem you're trying to get at for those other changes? do you want, i mean, what's the line you're trying to draw when you want the transparency that it foreign government acting and would you don't? >> i i basically, to answer the question, can't set aside vagueness because that's the fundamental issue. >> but is that the only issue? it sounds to me like you want to fix more than vagueness. >> it's the principal issue. in addition to that i do think i would draw a sharper distinction between governmental agencies and the activity of nonprofits and private organizations. you understand to put emphasis on the role of government and i understand as a policy matter. one of the problems of the
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statute is you have situations where there's essentially no direct government agency. so, for example, within the commercial exemption, the commercial exemption under regulations will not apply if the activity directly promotes speedy what you explain what you just said so folks understand? >> there's a significant exemption to the statute which is even if you are engaging in activities that would otherwise trigger fara registration, you have an exit ramp you wouldn't have to register. if you are engaging and bona fide commercial activities on behalf of of, say a foreign corporation, or an individual, but that exit ramp will only work for you, only apply if you activity in the united states doesn't directly promote the interest of a foreign government. nobody really knows what that means. in other words, you might not have a foreign government client at all. there may be no foreign government role, vis-à-vis your
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activity, but the nature of the issue itself might be such that what you're doing benefits a foreign government in some way come directly promote foreign government interest. it could be right differently but read literally you actually could have a requirement to register even without any foreign government role. that's what i would again as my second major concern apart from vagueness. >> if i could clarify the difference between vagueness and overbreadth. those are two separate problems. the statute is is that because there are all these undefined terms. one of the first ones which amended is political activity, what counts for political activity. but the issue of overbreadth is the prosecution under the statute can rope in more or less innocent activities that were not meant to be targeted by the statute at least on the face of it. i think we should add that as sort of a separate concern and that raises real notice issues with the statute which is a
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serious constitutional problem potentially. >> what's strange to me about this conversation is were talking as if the statute, the problem with the statute is that we've had over enforcement, whereas the real problem with the statute is we have had under enforcement. >> so maybe these will be concerns going forward, talk about media organizations come with a five that in a limited context. we are talking about like we've been out there labeling all these independent travelers in the uk as agents of a foreign government. i'm not, that's why say i'm not sure what the problem is we're trying to solve in this conversation. and i'm not against -- the our improvements we could make in terms of transparency and perhaps in defining some of these terms and we can target with the right mechanism is, but the whole conversation seems to me coming added sort of counterfactual -- >> don't you think we got under
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enforcement because of the vagueness and overbreadth problem? that's part of the reason why it's been difficult for dj to enforce it. >> i would say it hasn't been a concern or a priority and that's what the election change. i want to talk about a different issue and this is this is a sof political problem of fara but we tend to see this through the prism of some of the prosecutions and influence of operations that took place in the 2016 election. of course this actually became a big issue when john mccain ran for president, when he was for the first time banned lobbyists from working on his campaign. this sort of conversation about lobbyists being sort of the stuff beneath the pond scum came to the fore. then it was the added vineyard that even if you are lobbyists,
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god forbid, if you were fara registered then you are somehow engaging in something fundamentally un-american. and people who had fara registrations now are dis- incentivized from registering, not simply by the vagueness but by the fact that it has a stigma attached to it. i think the number one broad question is, should it have the stigma attached to it? and is that the intention? this is something also to talk about. >> i would just say look, the light which of the statute was designed to stigmatized because at the time, 1938, it was directed against nazis so it appropriate was intended to stigmatized. i think it's difficult to remove the stigma after 80 years. what you can do though is the much more targeted and how it's applied. i think given the history of
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light enforcement, that reflects the exercise of discretion by the department. you're very careful about how it uses this incredibly powerful statute but to my mind it highlights the fact that the government shouldn't have that much power. it needs to be constrained in targeted to what i think we agree is the essential mission which is dealing with hostile attempts to influence our electoral systems. right now it's much part of the net, in view. >> i think that a certain amount of statement is appropriate if you are covertly in the pay of a foreign government and not disclosing that. that's where the appropriate stigma lies. why should there be stigma around working for foreign government as long as it's routinely disclosed? i think some of that would start to fall away. so if fara was clearly enforced and we knew what counted as a foreign agent and who wasn't a foreign agent and we had a much
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more robust practice of registration, i think little by little we would start to see a general acceptance as the public was able to rely more clearly on now we know that this messaging is coming from russia and this is a non-foreign influence campaign. >> do you think the genie can be stuffed in the bottle, john? >> really the stigma that then arises from getting charged under the statute because you didn't register, not because you didn't register. i don't think, as i said before, i have no problem with foreign governments speaking and the united states and expressing their views on matters of tremendous interest to them. the only thing that statute is time to get at is when you speak, say you speak on behalf of. say he was paying you. that's really the core you think about enforcement and who we
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expect to register under the statute. that's really the core issue that it think the statute is meant to address. there doesn't need to be stigma. the word lobbyists has a stigma, right, but there's nothing inherent in advocating up of yu have somebody else that should be stigmatizing. that's first amendment. you're going to exercise your first amendment rights through me, that's fine, but i don't see it as a stigma for somebody to register under fara. i see it as a stigma if they don't, but if they do, that's okay. it's very interesting because maybe somebody has a politically unpopular country that they are registering on the half of maybe the stigma comes from the client being open about who you're speaking on behalf of. i don't think there is the same stigma of registering as an agent of uk as there is as registering as the agent of
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another other countries that i will not mention but you can all choose. >> we have a couple more minutes before it opened up to questions. questions. i want to talk about my world, selfishly, which is a world of 501(c)(3), the world of think tanks. because we are and this is an of the other side of the journalism coin in some ways. how do we all operate? aei doesn't take any money from foreign governments or from the u.s. government. that's our policy and so it makes it easy for us. but, of course, we had a president who's a very good fundraiser. it's hard to raise money for think tanks and it's very tempting as we know from a number of people who take money from foreign governments. but increasingly this is an opportunity to also exercise influence through individuals. congress has gone after this actually on the house side, enforcing witnesses to disclose
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whether the institution takes any foreign government money. but am i wrong to perceive this as a problem? either way, i'm not wrong. [laughing] i'm pretending to ask is if i'm balanced and fair minded about this. can you all talk about how you see this? >> i agree it's a problem, and there is an exemption under the statute for scholarly activities. so you would like to have that category clearly defined and understood so that is not a chilling of speech and the children of academic research, but what constitutes a scholarly activity and what is the political activity. the statute is unclear about that so i think whenever a statute is unclear and you don't know exactly what's happening with an enforcement regime you tend to get over compliance out of concern about chilling --
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>> i don't think there's any over compliance in my neck of the woods. i'm not aware of any think tanks institutionally. >> and by the way they are not compatible. i don't think you can register and stay as a 501(c)(3). >> you can? we have a whole future funding stream i wasn't aware of. how do you see this? >> some of my favorite clients are think tanks but i will say think tanks face a significant chance with respect to fara. some of them do accept money from, by the way, not just foreign governments but other foreign principles, foreign corporation, foreign ngos, all of which are relevant to fara. not just foreign governments and the terms of the statute. when you do accept money the critical thing is to establish either that they fall within the exemption for scholastic or academic activity, or that they're not acting as an agent. so you can accept money to support your existing mission and things you would be doing to serve that mission without
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necessarily triggering agency but it can be very difficult. this comes back to the vagueness and the discretion, very difficult for think tank to know what is that line? between accepting money from a foreign donor to support our existing projects and mission, versus beginning to act on their behalf or at the request under the statute. that's another point where it could be a difficult judgment call, and difficult judgment calls chill activity. >> is there something that you all have thought about at all? >> this is something we probably ought to be getting more thoughts to you but this is a classic problem i think faced by any academic institution and its donors. what degree of independence judgment do you maintain from your donors? that's a problem for university and it doesn't have to be of foreign donor. it could be an american donor
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gives a lot of money and there's always this question of what advocating for the money? are the just funding this caused because they love it or are they trying to get a professor with a particular viewpoint to express for whatever, ideological or other reason. that's an issue for think tanks but to maintain their credibility and her editorial independence in the context of fara we haven't got any enforcement actions in this context but thanks for flagging. [laughing] >> okay, last issue. what about enforcement? this is an interesting question. claire, when you and i talked you said you get the feeling that this is kind of the thing they tack on when you're throwing the book at you. and that it doesn't really arise separate from that. rob, you corrected and said there have been seven or eight prosecutions -- >> there was a 50 year timeframe when there were about eight
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prosecutions and last year there were five. >> suggest. how are we to understand that? >> i think i said at the beginning, i think we, it was before i was here, we were certainly driven by inspector general report that outline the deficiencies in our enforcement of the statute, and that also by what we saw in the context of doing investigations related to the 2016 elections, and the pervasiveness of foreign influence in that case, and sort of in our democratic process. it's just one tool that we have to address. we do have other statutes we can use to address this behavior, depending on how it is manifested. but i think in light of the increased sensitivity to the problem of covert foreign influence, we should expect to
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see see a continued focus on this area in terms of enforcement, and not just measured by criminal cases. as we think critically about the way we have approached fara and think about the need to do more inspections of people who have declared, they need to send that more efficiency letters, that is, pay more attention to the content of the registration and make sure that it is wholesome and meets all the requirements of the act, and the opportunities to use a civil enforcement provision of the statute, not just a criminal penalty. these are all areas where we can do better in the department and we can get better compliance with the transparency requirements of the statute. >> apparently the last point john made, which would be the use of the civil injunction authority that the department has and hasn't really used very much up until now. >> and the fact there's no
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ability to really investigate, to issue subpoenas and having civil side of this. all of which would make enforcement more possible. i think the reason for the anxiety about the vagueness and overbreadth is when you're moving from a regime of total under enforcement to enormous public scrutiny on this issue, pressure to engage in more enforcement, enormous concern of foreign influence and thinking some of fara might be the tool to counter that. one has the feeling get no idea what enforcement regime is going to look like. it's somewhat reassuring to hear you, sensible brains and the department of justice thinking about these problems, but i do think we can expect to see a lot of very skittish people in a lot of different sectors until it gets sorted out. >> it sadly it's moment right now, just like nanny taxes had
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their moment and that everybody has gone back to not paying their taxes for their nanny. none of you, i know. >> another enforcement tip. [laughing] >> just come to me. it's another income stream for aei. let's open it up for questions from folks, and -- excuse me. and if there's something i have brought up, i hope one of you all will like it. if you would not mind following aei's usual rules, which is wait for me to call on you. wait for a microphone. identify yourself and put the really brilliant but brief statement in the form of a question. young man right over there, and i'll just keep dropping stuff while you do that. thank you. >> thank you. and thank you, john demers, for joining the rest of the panel. my name is nick robinson.
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i'm a legal adviser at the international center for not-for-profit lauper we work on closing specific issues in the u.s. and globally. as you may know when there's been increasing enforcement of fara we've seen publicize abuses, w.e.b. du bois was prosecuted in the 1950s after fara. just last summer there was a congressional committee that investigated four prominent nonprofits of whether they were in violation of fara. we've seen this abroad report a deposit and expressly targeting nonprofits in the media. i'm curious of what kind of additional safeguard you'd like to see either in the act of what you're contemplating as you now ramping up enforcement to make sure these kinds of abuses that go to vegas and the broadest of the act? one last point, we do talk to nonprofits on a regular basis who are concerned about this and don't know how to comply because i says that pointed out, foreign principal story abroad, the hd definition very broad.
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it's just confusing. >> rob is a good lawyer, fara lawyer, if you guys need one. when it's going to take that? >> look, partisanship can never enter into any of the decision we do and that's not just through fara. that's to every single thing fêted at the department and everything the department does. what you describe would be wholly inappropriate. the good thing about the act is its content neutral. it's not, it doesn't, it's not triggered by what you're saying. it's triggered by his asking you to say it. and that's the way out enforcement will become witches content neutral and that gets to some of the first amendment concerns as well because we will not make judgments about what the person is saying. it can be difficult because especially people speaking to the internet to figure that out but again we are not triggered by the content of the statement. it's about who is putting it out
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there. that is something that is, it's a constant refrain for those of us at the justice department that we cannot apply these laws in a way better anyway parson. >> one caveat about the content neutrally. if rt were coming out with statements critical of the russian government, i doubt that they would have been required to register, right? so the problem speedy then they would negate an agent of the russian government. >> exactly. so the is a content test buried in the because it's partly the accounted the tillage were not that relationship exists. it's just a caveat. >> you brought up another point which was a question i was going to ask you, which is how worried are we as we step up enforcement and scrutiny and add clarity to some of fara provisions that other countries are going to start looking at the own version
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of the same thing? i'm not even talking about bad guys. i'm not talking about the russians for the egyptians portending you have an ngo law, we haven't ngo law. you require fara, we require -- not so much that but are european allies and others who might start to apply standards to our own companies and individuals working over there. are we worried about things like that? >> no one would be closer to that, , whether it's the state department or intelligence unity has expressed a concern. it would be legitimate for european country to say, to somebody there that you have to identify yourself if you speaking on behalf of the united states. this again is not a law that i think is unique to us, and so that hasn't been a concern.
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we'll see. >> yes, sir. >> microphone is navigate its way to you. >> my name is jules acker. i'm on the board but ask any question as a citizen, a private citizen. i would like to ask you questions about the prosecution of great speedy know, story. i promise will not talk about this. you can't talk about specific individual cases and some going to be the bad guy here. do you have a more general question you would like to ask? >> i didn't hear you saying that at the beginning. >> i'm sorry. i should've given you a fair warning but i didn't think anyone would ask that question actually. >> and i will not ask my question. >> thank you. anyone else? hang on one second.
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mic. >> on the subjects of individual cases allowed to ask questions? >> i don't know. i should think so. >> my name is sam and i think i'm the ninth conviction under fara postconviction. in an abundance of caution i would ask about question regarding my own case which i pled guilty. when i did the judge made note of the fact that the bait mates, should the law at some point later in time be struck down for vagueness, my conviction would stand. i think vegas is real. i think vegas is something that needs to be addressed but if think someone on the panel has addressed that well. >> what's the question? >> my question has to do with the ngo exclusion. let's take a hypothetical, for instance, the country that is coming to a lot of attention recently is ukraine. there's a presidential election this sunday in ukraine. let's say the think tank community sort of believes that
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one candidate should win. let's say the was a think tank that received funding from supporters of that particular candidate, the issued and disseminated opinion pieces, arguing for that candidates victory is there a reason why that should be applicable under fara? >> good. this is what hope we're going to with this question, because this is, you know, especially as there is a stigma attached to fara registration and to lobbying and something else we talked about, which is often countries, because of course with the fara registration you to also post your contract which is available to anyone of you when you leave, you can go on the fara page and pull up an individual fara registrants contract and see what it is that the foreign principal company, political party, wanted you to do, in great detail.
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they don't -- special political party don't want to share that great detail which is a perverse incentive of course to find other avenues to have the kind of influence. there's a good hypothetical. it doesn't have to be ukraine because it can be anywhere. should that be a fara registrable act? rob? >> i mean, a threshold question is whether there's agency for foreign government or foreign political party. so you can have activity by the u.s. nonprofit that involves u.s. elections or foreign elections where it's not necessarily on behalf of a foreign principal. but if you do have evidence of agency, generally speaking, it is likely to trigger the statute. >> of course these things are often not knowable. i mean, part of the reason why you want the contract is to understand what the foreign
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principal is asking the american to do. i would assume. is that right? what the nature of the relationship is. >> how much control the have. >> right. how does that judgment, when you advised, rob, a client about that, how does a judgment get made? >> every organization is different and every organization has different challenges and risk tolerances and different constituencies and stakeholders that they have to wait in in making those decisions. it's not just about the registration itself by the way, but once you are registered, apart from having to disclose all of your activities in great detail, you also have to file with the department of justice any document or writing for e-mail or text that you distribute to two or more persons basically without regard to the content of that document. it goes up on the public website, and so that a real effect on constraining the operations of the organization.
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with every organization is going to have different equities to wait in making a decision. >> what i think there are a lot of perverse incentives. it is a challenge. >> if i could just add, i want to commend mr. bad for speaking openly about his situation and helping us to deepen our understanding of the situation in a very murky area of policy, so thank you. >> yes, sir. >> there are nine bills pending -- >> would you identify yourself? >> jim thurber, professor at american university. i teach a course in ethics and lobbying and we focused on fara for quite a while. i have a very specific question, and that is, there are nine bills on the hill. it's highly polarized, likely not to go anywhere.
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therefore, you have to shift, in my opinion, to you and to the department of justice in terms of improving the act, including trying to do something about the vagueness of agency, agent, foreign principal, clinical activities. my question is are you intend to have as was recommended a rulemaking process to try to define those a little more carefully so there's not that vagueness out there that's worrying so many people? >> so that, this is something that we continue to evaluate. in terms of both come whether there are statutory changes that we would support and what we can do internally, you know, in the meantime or in addition to any statutory changes. we haven't made any decisions about doing any kind of administrative rulemaking process or anything like that. >> of course, you know, having a
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congress with a bunch of men and women sitting up there, one might ask why they wouldn't have hearings to figure this out, which would be certainly a good process of leading to a deeper understanding of the direction in which we might go. but that's just -- >> to have hearings about, was a 20 something i was the last hearing? >> the topic. see, i'm full of tips today. anybody else? did you have a question? right here. >> i'm eiji jean kirkpatrick fellow, i work for aei but it yet does not take institutional position of anything so my opinions are mine and my alone. >> i am full of dread now. [laughing] i stood at the region disinformation campaigns and one of the things that i'm concerned about is the unwitting foreign agent come specifically in social media and the anonymous
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accounts going out there, the grandmother that sharing viral russian post or whatever. when we deputize the private sector to become the law enforcement agency on this, there's also like creates free-speech issues over censorship, how are they choosing which accounts to shut down or go after, how are they going to do that? how are the transparent about that? i'm wondering if there's some applicability of fara to the issue? >> one of the protections i think you would have in that context is it has to be a willful violation of the statute in order to be a prosecutable offense. someone who is unwittingly we tweeting the tweets of a foreign power is not acting willfully. that is i think in terms of the statutory protection, that's what it would be. >> very often when you have statute that is potentially overbroad or vague, having a
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willfulness requirement in it helps to counter some of that. one worry is that you might get sort of manipulation of that. if you want to make sure you don't run afoul of the statute to make sure not to ask where the, what the source is the funds you are getting or the information that you're getting, whose position you are pressing. they don't want strategic behavior to evade a willfulness finding. >> right. although one has to know something to be strategic in the first place. >> but sort of does willful line discount as satisfying the willfulness requirement? maybe you can tell us. >> we will see how it plays out. >> not wanting to know is apparently your best defense. certainly that's true in washington. >> but the other thing, just one more thing to add to that which is a truly important, if fara is
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going to do anything to help educate the american public, it's going to have to be coupled with education efforts so that when the public finds out yes, this is a foreign government and know how to do just that. they know what that means. in the with the implications are. hopefully when there's greater transparency, then the grandmother is not going to be re-tweeting the foreign propaganda because they count of a better understanding of the damage that that can do. >> you said fara was having its moment. i made it. if, in fact, you are a foreign government that seeks to subvert or seeks to influence anonymously, or otherwise, that are so many better tools than hiring joe blow, former hill staffer, to do it for you. there's the internet. there is facebook. there are the inserts, the china daily inserts that we get in the "washington post" where
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democracy dies in darkness. but not the china daily section. that's the reality. there are tons and tons of these. so this sort of disclosure and transparency as it thinks something that will be helpful but, of course, it just leads an entire murky world on the other side. a leading anybody out? let's have this be the last question from this gentleman over here. our intern is getting a huge amount of exercise here. >> my name is -- and i'm a registered foreign agent, so come and everything it implies. >> i don't know what that means. >> with the statement because you can see how the faith has changed since you have to say that. but let me start first by complementing your staff. every single time we've ever had a question, and we had to call in, they had been extremely
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polite. probably some of the nicest people we've ever had to interact with through 25 years of working in washington, d.c. so that's first and foremost. >> thank you. >> secondly, it's the on stigma because as a u.s. citizen i have adverse consequences for doing this job. i represent a foreign government. i run their trade office, and some of the things that's happened is i'm not unlimited in terms of my lyrical activism and i've been very active in the past. but it really identifies you and it puts you almost on a watchlist so that you don't get the invitations you used to. you don't have the exposure you used to. you are curtailed entrance of what you can participate in because people are afraid, special over the last couple of years. putting it out there, i think, i haven't heard anybody address
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this issue from my point of view, from the person who is registering in the sense of all of these ailments of your rights as u.s. citizen. and the second part of my question is also perspective from a u.s. citizen. i have a very difficult time accepting the justifications concerning journalists who are forced to register. because i see that as one step away from let's take another hypothetical situation, a combat situation, where journalists are involved in covering a war, a conflict. if they're forced to register in the united states as foreign agents, doesn't that deprived them of protection under the law of, the rule of war? >> good last question. >> i can speak to the last issue, which is that, if this is a part that confusing, which is losing your congressional press staff status, doesn't
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necessarily mean that you've lost your press status for purposes of the law of armed conflict. i think this is going to be a very confusing issue, which is why i have some concern about using fara as a vehicle to be credentialed press. there ought to be a more unifid approach and an international approach as to who counts as press. >> what about this first part of this question, you know, this notion that people are basically a separate part of society now? >> the departments tradition and would be, look at the disclosure statute. by registering you are signing up to after reveal your activities. i do think in many contexts that are real practical consequences. how much we care about those consequences is a policy question. but we just heard a pretty compelling explanation of how that works in practice for an individual. there's a question that it's a
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problem in terms of credentialing for journalists. there's no question that registered foreign agents find their u.s. political activities constrained. again, it's a value judgment or policy judgment about whether that's a a good thing or a bad thing but i think it accurately describes reality. >> it's not really any remedy for that, is there? >> not that part those of the actions of other people reacting to registration. but look, i appreciate your perspective very much, and your comments. thank you. >> and i very much appreciate all three of you being here today. they do so much. this was a terrific conversation. i want to make one final point. i hope everybody understands a special this nice gentleman here. when we people from u.s. government and we have lawyers here frankly, asking questions about particular individuals is always very fraught tickets my job up here to be the heavy and the enforcer, and to ensure that
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we don't step on peoples privacy rights and that we don't put other people in awkward positions. i hope everybody forgets us for that, but we do have public interest here. thank you all so much for being here. [applause] [inaudible conversations] [inaudible conversations] >> the national commission on military, national, and public service is meeting today to hear from the public about requiring men to register for military service, and whether women should also be required to register. live coverage when hearing resumes shortly here on c-span2.
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>> tv will be in primetime tonight with discussions on political memoirs. >> here are some of our featured programs this weekend on
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booktv. >> just remember one thing. turn every page. never assume anything. turn every god damn page. i can't tell you how many times in my life that stuck with me. >> sunday night at nine eastern on "after words," former southern district of new york federal prosecutor gives an inside look at how the judicial process works drawing from personal experiences and case history in his new book, doing justice work he's interviewed by senator richard blumenthal of connecticut. >> the basic issue of how to resolve a dispute or persuade someone to your point of view, what you have i think too much is inside you say you to problems. one is when people to engage they yell and they say your ugly or your fat, or there's what about is an and all sorts of
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non-logical arguments that go on that very mean-spirited and very terrible and it affects peoples opinion of the whole process your what's even worse i think in some ways is of the problem and the problem is people to engage with the other site at all. >> watch this weekend on booktv on c-span2. >> c-span's newest book the president noted historians rank america's best and worst chief executive. provides insight into the lives of 44 american presidents. true stories caliber interviews with noted presidential historians. it's more of the life events that shaped our leaders, challenges they faced and legacies they have left behind. order your copy today. c-span's the the president is w available as a hardcover or e-book at c-span.org/thepresidents. >> former vice president joe

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