Turkey Lobbying Case Reveals Avenue to FISA Spying Abuse

July 24, 2019 Updated: July 24, 2019

News Analysis

On July 23, Bijan Rafiekian was convicted of acting as an unregistered agent of Turkey. The courtroom was half-empty. No cameras waited outside.

Media took notice, it appears, only because the lobbying job at the core of the case was done by the now-defunct Flynn Intel Group (FIG), which Rafiekian ran with retired Lt. Gen. Michael Flynn, former head of the Defense Intelligence Agency and former national security adviser to President Donald Trump.

The case, however, was notable for another reason. It demonstrated how far the U.S. government has stretched the law to label Rafiekian an “agent of a foreign government”—a label that appears to open the doors for the FBI and the Justice Department to target American citizens, such as Rafiekian or Flynn, for extremely intrusive surveillance under the Foreign Intelligence Surveillance Act (FISA).

Many Republicans in Congress have alleged that Trump’s opponents in various branches of the government have abused the Act to spy on his aides. Attorney General William Barr set out to explore the issue, while the Justice Department’s Inspector General (IG) is expected to soon release a report addressing the matter.

The Rafiekian case adds another dimension to the issue.

Section 951

Rafiekian was charged under Section 951, which stipulates that “an individual who 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 in writing who he is, what he’s about to do, and for whom.

On its face, the statute is extremely broad. If a foreign minister gives someone $5 to buy him a slice of New York pizza, does one have to tell the Attorney General first? That’s why the law has several exceptions, such as excluding “any person engaged in a legal commercial transaction.”

The enforcement of the statute is managed by the Justice Department’s National Security Division, which 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).

But Rafiekian wasn’t alleged to have engaged in any such activity.

The Gulen Job

FIG was hired in 2016 by Ekim Alptekin, a Turkish businessman and former chair of the Turkey-U.S. Business Council, to do some research and lobbying focused on an Islamic cleric living in exile in Pennsylvania named Fethullah Gulen, who runs a group that Turkish President Recep Tayyip Erdogan blamed for an attempted 2016 coup.

Despite Alptekin’s grandiose demands of congressional investigations and massive media coverage of Gulen’s alleged siphoning of U.S. taxpayer dollars from his network of charter schools, the lobbying job produced only two things: One phone call by Rafiekian to then-Rep. Dana Rohrabacher (R-Calif.) and one op-ed published in The Hill on Nov. 8, 2016.

FIG first registered under the Lobbying Disclosure Act, which covers lobbying for foreign commercial clients. After some prodding from the Justice Department over the op-ed, FIG also registered under the Foreign Agents Registration Act (FARA), which requires more thorough disclosures and covers lobbying for foreign governments or lobbying that principally benefits a foreign government.

Widespread Noncompliance

FIG’s March 2017 FARA registration was months late—it was supposed to be within 10 days of when the work started. But that’s nothing unusual.

The IG 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 had at least one other noncompliance issue, as well.

And that only counts those who actually registered.

There are more than 10,000 registered lobbyists in the United States, according to The Center for Responsive Politics, a nonprofit watchdog. Only about 500 are registered under FARA—a low number, given how commonplace foreign lobbying in Washington is.

“Why would anyone file? Almost no one who cheats gets called to account, so why bother?” wrote Washington reporter Ken Silverstein, who’s covered lobbying for more than 20 years, in a 2017 Politico op-ed.

Prosecutions under FARA are extremely rare (only seven in more than 50 years), in part because the government would have to prove the violators acted “willfully,” meaning knowing what they did was in violation of the maze-like FARA disclosure requirements. One requirement, for instance, is that all information materials distributed to two or more people must be filed with the Justice Department within 48 hours. The majority of the materials that are actually filed are submitted late, the 2016 IG report said.

Yet the prosecution argued (pdf) that any violation of FARA requirements, even one that could never get actually prosecuted under FARA, is sufficient to prove that FIG wasn’t involved in “a legal commercial transaction” and was thus an “agent of a foreign government.”

FISA Tie-in

Going after FIG—a tiny outfit founded by Flynn in 2015 which only ever did one lobbying job, the one for Alptekin—was an “egregious abuse of government power,” said Flynn’s lawyer, Sidney Powell.

Powell went further, arguing that the government was trying to label FIG an “agent of a foreign government” in order to spy on Flynn.

The National Security Division oversees not only FARA but also FISA, which allows the government to obtain the electronic communications of anybody the secret FISA courts determine to be an “agent of a foreign power.”

“The National Security Division and the FBI have been collapsing FISA and FARA stuff to the point where there’s no distinction between the two,” Powell said. “This is a prosecution that’s designed to cover their own abuses of the surveillance system. That’s why it was so important to them.”

If the government was willing to call Rafiekian an “agent of a foreign government,” what was stopping it from arguing the same for Flynn in front of a FISA court, snooping on his communications during the time he advised the Trump campaign?

While there’s no proof on public record, Powell said she’d “bet money” that the government took out a FISA warrant on Flynn.

Follow Petr on Twitter: @petrsvab
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