The House Natural Resource Committee is intenseifying its ongoing investigation to “examine foreign influence on U.S. natural resource and environmental policy.” On June 13 it asked the Department of Defense (DOD) for an assessment on how a number of U.S. environmental organizations’ litigation against DOD impacts national security. A week later it sent the Center for Biological Diversity a letter demanding extensive information on its advocacy regarding relocation of a U.S. military base in Okinawa. (This follows a similar inquiry sent to the Natural Resources Defense Council on June 5.) The committee is using vague provisions of the Foreign Agent Registration Act (FARA) in an attempt to equate traditional forms of policy advocacy involving international affairs, including litigation, with being an agent of a foreign government. This is strikingly similar to a tactic used by Russia and other non-democratic governments to limit the voice of civil society.
Letter to the Center for Biological Diversity
The Center for Biological Diversity is a U.S-based organization dedicated to protecting biological diversity on the planet. In 2003 it sued DOD on behalf of a coalition of U.S. and Japanese environmental groups to stop relocation of the base in Okinawa, an island under jurisdiction of Japan. The basis of the suit is a threat to the dugong, a mammal, which CBD alleges is protected by the national Historic Preservation Act. CBD has also engaged in traditional advocacy activities aimed to stopping relocation of the base, including sending an open letter to the President and Japanese Prime Minister, public education activities and coordinating a delegation of Okinawans that included local pubic officials to visit the U.S. and meet with members of Congress. The committee’s letter quotes the Japanese intelligence services as characterizing many groups opposing the base relocation as “radical.”
The letter states CBD’s activities “may require compliance with the Foreign Agent Registration Act.” FARA requires registration when a U.S. person or group is acting on behalf of a foreign person or government. (More background here.) It asks CBD to provide extensive documentation about its work to the committee by June 27, including details on any financial transactions involving Japanese officials or nationals and a list of employees who have worked on the issue since 2003 if their “activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in part by a foreign entity or non-U.S.-based environmental group from January 1, 2003 to present.”
Request for DOD Assessment of National Security Impact of Litigation by Environmental Groups
The committee’s letter to the Secretary of Defense takes the position that litigation against DOD plans for sonar testing, live fire exercises and base relocation by a number of different groups are having a “negative impact on our national security.” It complains that this constitutes “environmental lawfare” in which lawsuits are used to “stop, restrict, delay or impose additional costs” on the military. It is therefore investigating “how foreign adversaries may use U.S.-based 501(c)(3) organizations as knowing or unknowing proxies to engage in environmental lawfare.” After citing several examples of lawsuits it is concerned with, including some that have been successful, It goes on to claim that “environmental groups that bring such lawsuits may be knowingly or vulnerable to unwittingly serving as proxies for our foreign adversaries.” The committee asked DOD to furnish details about litigation brought against it by U.S. 501(c)(3) organizations and to brief committee staff no later than July 5.
Problematic Interpretation of FARA
FARA has been in the news in 2017-18 in connection with investigations into Russian interference in the 2016 Presidential election. A little-known and under-enforced registration and disclosure law requires U.S. persons and organizations engaged in broadly defined “political activities” on behalf of a “foreign principal” to register, report on their activities and post a notice of the “foreign agent” status on public communications. Several bills pending in Congress seek to strengthen the bill.
However, to date these bills do not address potential for abuse of FARA enforcement for political purposes that the overly broad definitions of “political activities” and “foreign principal” create. (See this analysis from ICNL.) Basic rights of association and expression can be implicated. The current House Natural Resources Committee investigations appear to demonstrate the dangers created by politicized use of FARA.