Agents of Foreign Governments - Title 18 U.S. Code § 951
The federal government has enacted stringent laws to safeguard national security, including regulations that dictate the conduct of agents of foreign governments within the United States. These laws are of utmost importance and should be adhered to without exception.
To that end, under Title 18 U.S. Code 951, acting as a foreign agent without properly notifying the authorities is a serious federal offense. If you're charged with this crime and convicted, you could face up to 10 years in federal prison.
18 U.S.C. 951 says, "(a) Whoever, other than a diplomatic or consular officer or attaché́, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.
(b) The Attorney General shall promulgate rules and regulations establishing requirements for notification.
(c) The Attorney General shall, upon receipt, promptly transmit one copy of each notification statement filed under this section to the Secretary of State for such comment and use as the Secretary of State may determine to be appropriate from the point of view of the foreign relations of the United States. Failure of the Attorney General to do so shall not be a bar to prosecution under this section.
(d) For purposes of this section, the term "agent of a foreign government" means an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official, except that such term does not include -
(1) a duly accredited diplomatic or consular officer of a foreign government who the Department of State so recognizes.
(2) any officially and publicly acknowledged and sponsored official or representative of a foreign government.
(3) any officially and publicly acknowledged and sponsored member of the staff of, or employee of, an officer, official, or representative described in paragraph (1) or (2) who is not a United States citizen; or (4)any person engaged in a legal commercial transaction…."
What is the Background of the Law?
The roots of 18 U.S.C. 951 trace back to U.S. concerns about foreign influence within its borders. During the Cold War era, the U.S. government sought to prevent foreign governments from secretly operating within the country, particularly to curtail espionage or undue political influence.
Initially designed to catch spies or foreign agents conducting activities without permission or oversight, this statute now applies broadly to anyone acting under the direction of a foreign government within the U.S. without proper notification.
Although this statute may appear similar to the Foreign Agents Registration Act (FARA), the two laws differ in scope.
While FARA focuses on individuals acting on behalf of foreign entities in a political or propaganda capacity, 18 U.S.C. 951 applies more broadly to agents of foreign governments, regardless of whether the activities are political.
In other words, FARA is more specific and targeted, while 18 U.S.C. 951 is a broader law that covers a wider range of activities.
For instance, non-political activities, such as gathering economic data or technology research, could fall under this law if the individual is acting on behalf of a foreign government and fails to notify the Attorney General.
What Does the Law Say?
The core provision of 18 U.S. Code 951 requires individuals acting as agents of foreign governments to notify the U.S. Attorney General before conducting their activities in the United States.
The law makes exceptions for accredited diplomats or consular officers, who are already subject to separate regulations and have a distinct legal status under international law.
This notification is crucial for maintaining transparency and ensuring that foreign activities do not undermine U.S. interests. It is important to note that even individuals engaged in legal, commercial transactions must comply with notification requirements if a foreign state directs their activities.
What Must Be Proven to Convict?
To secure a conviction under 18 U.S.C. 951, the prosecution must prove several key elements of the crime beyond a reasonable doubt, such as:
- The defendant acted as an agent of a foreign government: This means that the person was under the control or direction of a foreign government. They do not have to be an employee of the foreign government, but the prosecution must show that they acted on its behalf or under its instructions.
- The defendant acted within the United States: The crime pertains to activities occurring on U.S. soil.
- No prior notification to the Attorney General: The defendant failed to notify the U.S. Attorney General of their actions in advance.
- The defendant was not exempt: Exempt individuals, such as diplomats or consular officers, are not subject to this law. Therefore, the prosecution must show that the defendant did not fall into one of these exempt categories.
What are Related Federal Laws?
18 U.S. Code Chapter 45 Foreign Relations has several related federal statutes, including the following:
- 18 U.S.C. 951 - Agents of foreign governments.
- 18 U.S.C. 952 - Diplomatic codes and correspondence.
- 18 U.S.C. 953 - Private correspondence with foreign governments.
- 18 U.S.C. 954 - False statements influencing foreign government.
- 18 U.S.C. 955 - Financial transactions with foreign governments.
- 18 U.S.C. 956 - Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country.
- 18 U.S.C. 957 - Possession of property in aid of foreign government.
- 18 U.S.C. 958 - Commission to serve against friendly nation.
- 18 U.S.C. 959 - Enlistment in foreign service.
- 18 U.S.C. 960 - Expedition against a friendly nation.
- 18 U.S.C. 961 - Strengthening armed vessel of a foreign nation.
- 18 U.S.C. 962 - Arming vessel against a friendly nation.
- 18 U.S.C. 963 - Detention of an armed vessel.
- 18 U.S.C. 964 - Delivering armed vessel to a belligerent nation.
- 18 U.S.C. 965 - Verified statements as to a vessel's departure.
- 18 U.S.C. 966 - Departure of vessel forbidden for false statements.
- 18 U.S.C. 967 - Departure of vessel forbidden in aid of neutrality.
- 18 U.S.C. 970 - Protecting property occupied by foreign governments.
Further, it's a federal crime under 18 U.S.C. 219 for any public official or federal employee to act as an agent of a foreign entity while serving in their official role.
What are the Penalties for Violating 18 U.S.C. 951?
The penalties for acting as an unauthorized foreign agent can be severe. If found guilty, you may face:
- Fines of up to $250,000, and
- Up to 10 years in federal prison.
Furthermore, a conviction under 18 U.S.C. 951 can lead to additional, long-lasting consequences. These may include deportation if you are a non-U.S. citizen, loss of professional licensing, and severe damage to your personal and professional reputation.
What are the Common Defenses?
Despite the seriousness of this offense, a skilled federal criminal defense attorney can employ several strategies to defend against the charge. These include the following:
- You Were Not a Foreign Agent: Your attorney may argue that you were not under the direction or control of a foreign government but instead acted independently or without the required relationship to the foreign power.
- Proper Notification Was Made: Your attorney may show evidence that you did, in fact, notify the U.S. Attorney General of your activities as required or that notification was not legally necessary based on the facts of the case.
- Diplomatic or Consular Immunity: Your attorney may make the case that you meet the qualifications of an accredited diplomat or consular officer and are, therefore, exempt from the rules regarding notification.
For additional information, contact our federal criminal defense law firm, Eisner Gorin LLP, based in Los Angeles, California.
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