Senators Want More Scrutiny of Lobbying by Former Defense Officials

Senate Judiciary Committee ranking member Sen. Chuck Grassley (R-Iowa) speaks during a committee business meeting on Capitol Hill in Washington, March 28, 2022. Susan Walsh/AP Photo

More than 500 retired United States military veterans, mostly high-ranking former flag officers, worked as paid contractors and consultants on behalf of more than 50 foreign governments between 2010–2020, according to a report by Washington-based fiscal watchdog Project on Government Oversight (POGO).

While the ethics of Pentagon brass pursuing lucrative post-retirement posts with defense contractors are addressed by Congress, the increasing frequency of military veterans receiving waivers that exempt them from Foreign Agents Registration Act (FARA) disclosures is spurring calls for a similar scrutiny of these exemptions granted under the Lobbying Disclosure Act.

Sen. Chuck Grassley (R-Iowa) and four GOP co-sponsors are seeking to impose more oversight on the waiver program in Senate Bill 1364, their proposed Foreign Agents Disclosure and Registration Enhancement Act, which proposes several FARA reforms “aimed at ensuring public awareness of lobbying campaigns pushed by foreign powers.”

Retired four-star Marine Corps Gen. John Kelly, here visiting the Aisne-Marne American Cemetery and Memorial in Belleau, France, as White House Chief of Staff, was an instructor with Australia’s Defense Joint Task Force Commanders Course after he left the Corps. Geoffroy van der Hasselt/AFP via Getty Images

Introduced on April 27, read twice, and sent to the Senate Foreign Relations Committee, among SB 1364’s prospective provisions is requiring the U.S. Government Accountability Office to study the extent to which the Lobbying Disclosure Act (LDA) exemption “is being used to circumvent registration under FARA.”

Congress first adopted FARA in 1938 to identify Nazi propaganda and other foreign efforts to influence U.S. policy. It has been amended 12 times, most recently in 2007.

FARA requires anyone working on behalf of a foreign government, political party, or entity “to influence U.S. policy or public opinion” to register with the U.S. Department of Justice (DOJ) as a “foreign agent” and comply with disclosure requirements under the LDA.

The LDA lists eight categories of “certain individuals, who might otherwise be considered agents of a foreign principal,” to be exempt from registering under FARA.

Exempt are diplomatic and consular officers and staff; actual officials of foreign governments; private and nonpolitical activities for solicitation of funds; religious, scholastic, or scientific pursuits; attorneys representing foreign entities before a U.S. court or agency; and “defense of foreign governments vital to United States defense.”

Grassley said his proposed Foreign Agents Disclosure and Registration Enhancement Act strengthens FARA by placing greater scrutiny on the waivers and by increasing penalties for failure to properly register as a foreign agent.

“This bill gives the Justice Department new tools to detect and deter secret foreign lobbying and ensures policymakers and the American public know when influence campaigns are being pushed by foreign interests,” he said.

Of course, there is enduring doubt that Congress can legislate, and federal agencies enforce, ethics guidelines on Pentagon officials when right now there are more than 800 former White House staffers, 735 former U.S. House representatives, 212 former US Senators, more than 5,000 federal agency staffers registered as Capitol Hill lobbyists, according to Open Secrets.

Emoluments And Evade And Elude

Under the Emoluments Clause in Article I, section 9 of the U.S. Constitution, U.S. officeholders are prohibited from accepting “any present, emolument, office, or title” from a foreign country.

An emolument in this context is compensation, profit, personal benefit in exchange for performance of official duties.

The Department of Defense (DOD) explains the how the clause applies to active and retired service members on its Standards of Conduct Office’s post-government employment and procurement integrity webpage.

Under DOD’s policy and federal law, any retired or reserve members of the military wishing to work for a foreign government must first obtain approval from the secretary of their military service and then from the U.S. Secretary of State.

U.S. presidential senior adviser Jared Kushner and U.S. National Security Adviser Robert O'Brien meet in 2020 with military officials in the United Arab Emirates, which at that time employed more than 280 retired U.S. military veterans. Lisa Barrington/Reuters

Critics such as POGO say that permission system, or waiver program, is outdated and not transparent since the military branches and State Department refused to make them public citing privacy concerns.

The lack of oversight is highlighted by “a glaring loophole” that allows FARA exemptions to be approved with little review.

“This process is too opaque for adequate oversight, and it appears to be too permissive to protect our domestic policy from undue foreign influence,” POGO maintains.

Concerns about former military leaders not revealing their post-retirement employment affiliations when engaged with Congressional or administration officials surfaced in June 2022 when an FBI investigation revealed former four-star Marine Corps general and Brookings Institute president John Allen did not disclose to federal investigators in 2020 about his work on behalf of the Qatari government.

But Allen is hardly unusual.

After retiring as a four-star Marine Corps general in 2013, James Mattis was a military adviser for the United Arab Emirates (UAE) in 2015–2016 before becoming the first of four secretaries of defense under President Donald Trump.

Retired four-star Marine Corps Gen. John Kelly who served as Homeland Security Secretary before being named Trump’s White House chief of staff, was an instructor with Australia’s Defense Joint Task Force Commanders Course, and, retired three-star Army Gen. Mike Flynn, Trump’s first national security adviser, was being paid by the Turkish government throughout the 2016 presidential campaign and never filed for a FARA exemption at all.

UAE Has a Deep Pentagon Bullpen

POGO’s October report of former military officials working for foreign governments, corporations, or organizations spans more than 4,000 pages of documents, including case files for about 450 retired military veterans who worked for overseas concerns.

After years of refusing access, the documents were secured by POGO through hundreds of Freedom of Information Act (FOIA) requests and a court ruling prompted by a Washington Post lawsuit.

The Washington Post sued the individual branches of the armed forces and the State Department after they denied FOIA requests for FARA exemption documents, arguing making them public violated privacy rights of military personnel and that “disclosure was not in the public interest.”

In September 2022, U.S. District Judge Amit Mehta ruled the public has an interest and “a right to know if high-ranking military leaders are taking advantage of their stations … to create employment opportunities with foreign governments in retirement.”

According to POGO, the United Arab Emirates (UAE) is the biggest employer of retired Pentagon brass.

Between 2015 and 2022, at least 280 retired U.S. military veterans have worked as military contractors and consultants for UAE. Among them: Mattis, Allen, and a former Navy SEAL paid $348,000 salary and $54,400 for expenses to be a firing range instructor.

U.S. Senate Judiciary Committee Ranking Member Sen. Charles Grassley (R-Iowa) is the lead sponsor of a proposed bill that seeks several reforms in the Foreign Agents Disclosure and Registration Enhancement Act. Kevin Dietsch/Getty Images

POGO documents that 15 retired U.S. generals and admirals have worked as paid consultants for the Saudi Defense Ministry and Crown Prince Mohammed bin Salman since 2015, including retired Marine Corps Gen. James Jones, a former NATO commander and Marine commandant, whose Jones Group International firm employs eight retired U.S. generals and admirals and 32 lower-ranking U.S. military retirees with consulting contracts across the Middle East.

As of October 2022, the Saudi government was paying Jones Group International $24,000 for an “Independent Consultant/Senior Adviser” and $27,000 a month for a “Senior Adviser.” The firm also listed “multiple” undefined payments to its consultants in Egypt, Libya, and United Arab Emirates (UAE).

Scrutiny Results In Rare Denial

Under scrutiny applied by disclosures in the POGO and Washington Post analyses, the Air Force denied $5,000-a-day consulting deals with a cargo airline owned by the Azerbaijani government for two retired generals who had coordinated supplies into Afghanistan into Azerbaijan.

The proposed Foreign Agents Disclosure and Registration Enhancement Act would authorize DOJ’s FARA Unit to issue civil investigative demands to compel the production of documents, interrogatories, or depositions to confirm compliance.

Grassley’s SB 1364 is the third attempt in consecutive congresses to reform FARA.

Its 2021–2022 iteration, which also included the DOJ authorization and GAO analysis, drew support from Assistant U.S. Attorney General of Legislative Affairs Carlos Uriarte in a December 2022 letter to the House Foreign Relations and Judiciary committees.

Uriarte said the unit now lacks authority to compel such production, noting the department has been calling for provision since it was among recommendations in a 2016 DOJ inspector general report.

But he wrote the provision auditing the use of the LDA exemption is unnecessary “as the DOJ already conducted an assessment of the exemption and concluded it should be removed from FARA” because “it has not proven to be an adequate substitute for transparency.”

Grassley said SB 1364 is the same Foreign Agents Disclosure and Registration Enhancement Act originally filed in 2019. He said it has bipartisan support, is endorsed by the DOJ, and needs to get on President Joe Biden’s desk.

“The bill is the product of years of negotiations and congressional oversight, and it’s time we get it on the books,” he said.