Pressure Groups and US Middle East Policy

Leaders Fear Probe Will Force Pro-Israel Lobby To File as ‘Foreign Agent’ Could Fuel Dual Loyalty Talk

By Ori Nir
Forward
December 31, 2004

WASHINGTON – As the Department of Justice intensifies its investigation of the American Israel Public Affairs Committee, Jewish communal leaders fear that the goal of the probe is to compel the powerful lobbying organization to register as a “foreign agent” representing the government of another country.

Widely regarded as one of the most influential organizations on Capitol Hill, Aipac is registered with Congress as a lobbying group. Under American law, registering as a foreign agent would require Aipac to provide significantly more detailed information about its aims and activities to the government – thereby robbing the group of a key weapon: the ability to operate behind the scenes.

Such a change would severely weaken the organization’s influence and fuel charges of dual loyalties against Jewish groups, communal observers said.

“I think that from the start, this is what [the investigation] was all about,” said Abraham Foxman, national director of the Anti-Defamation League. “It doesn’t take very much to start an investigation – all it needs is a legitimate complaint by somebody that there is a violation of the law.”

Many in Washington who are hostile to Israel and the Jewish community would love to discredit Aipac, Foxman said. “So I see this as a broad fishnet operation,” he added, “which may possibly result in something relating to foreign agent registry, rather than spying.”

The concerns come just weeks after the FBI raided Aipac’s office and four of the group’s top officials were subpoenaed by a grand jury. For months, the federal probe was believed to center on allegations that Aipac officials might have illegally passed classified documents on to Israel, which they received from a Pentagon employee, Larry Franklin. In recent weeks, media reports have surfaced suggesting that the FBI used Franklin to entrap officials at the pro-Israel lobby.

Aipac officials have vehemently denied any wrongdoing. Now some supporters are suggesting that the real goal of investigators is to clip Aipac’s wings by forcing it to operate under the strict limits applied to agents of foreign governments.

The possibility of having to change its registration is “an issue of concern to Aipac, in terms of the outcome” of the investigation, said Malcolm Hoenlein, executive vice-chairman of the Conference of Presidents of Major American Jewish Organizations. “Frankly, if you’re really determined to get someone, you’ll find something.”

Among other things, the shift would undermine Aipac’s standing as the chief grass-roots organization of American Jews who advocate for a strong American-Israel relationship into an entity that represents Israel in America. It also would play into the hands of Aipac’s foes, who for years have charged that the organization’s chief loyalty was to Israel rather than to the United States.

Even if an attempt to force Aipac to register as a foreign agent is unsuccessful, Jewish activists said, a public fight over the issue would damage the pro-Israel lobby and the wider Jewish community.

“This is a real threat. If Aipac eventually has to become a foreign agent, that would mean the end of Aipac as we know it. But even if not, it will be ugly,” said the leader of one major Jewish group, who – like most other communal leaders interviewed for this story – spoke on condition of anonymity.

Several Jewish communal leaders believe that the FBI’s initial investigation into Aipac might have revolved around alleged violations of the Foreign Agents Registration Act. Passed in 1938, the law was originally designed to block Nazi Germany’s propaganda efforts in America. It requires that a “foreign agent” register with the Department of Justice, and submit detailed reports of “any transactions or connections between the foreign government and the U.S. agent, as well as detailed lists of expenditures,” said Kenneth Gross, a Washington lawyer who is considered one of the nation’s experts on the law.

Aipac is registered as a lobbyist with Congress, as required by the Lobbying Disclosure Act. This law requires some disclosure of lobbying activity on Capitol Hill, but not nearly the same level of detail as the rules dealing with foreign agents. More than 20,000 lobbyists are registered with Congress. Fewer than 500 are registered with the Department of Justice as foreign agents.

“Although the enforcement of [the law on foreign agents] has always been spotty,” Gross said, “it is used by the government to closely monitor what foreign governments are doing in Washington. It does get the camel’s nose under the tent.”

American law sets two chief tests for defining an organization or a publicist as an “agent of a foreign principal.” The financial one clearly does not apply to Aipac, which does not receive money from Israel.

The other test has to do with the nature of the relationship between the American advocacy organization and the foreign government in question. According to the law, any person or group that acts “at the order, request, or under the direction or control of a foreign principal” has to register with the Justice Department as a foreign agent.

Aipac’s foes have repeatedly called for the lobbying powerhouse to be registered as a foreign agent. In the mid-1970s, a prominent Democratic senator from Arkansas, William Fulbright, led such a campaign. In 1988, former senior CIA official Victor Marchetti filed a complaint with the Department of Justice, alleging that a thorough study he conducted of Aipac’s conduct demonstrated that under the law, the pro-Israel lobby should have been registered as a foreign agent. The complaint was rejected.

Violation of the relevant law is punishable by up to 10 years in prison. But in almost all cases of suspected violations, subjects received an oral or written warning, and in some instances have been hit with relatively small fines.

Although Aipac staffers are known to be exceedingly careful in their dealings with official representatives of Israel, so as not to violate the law, there have been incidents in the past in which Israeli officials gave directions to Aipac to act in one way or another, said former Aipac employees speaking on condition of anonymity.

One Jewish activist closely connected to Aipac said: “We know that the FBI took documents and computer files from Aipac’s offices. We assume that there were phone taps, as well. Maybe years of phone taps. Who knows what evidence they have?”

Legally, it would be difficult for the government to prove that Aipac must register as a foreign agent, experts say. “Lots of ethnic organizations throughout America are representing Americans who support foreign countries or political parties in foreign countries. None of those have in the past been considered foreign agents or required to register as such,” said Tom Susman, a Washington lawyer who chairs the Ethics Committee of the American League of Lobbyists. Aipac, he said, “doesn’t advocate on behalf of the government of Israel, but the nation of Israel.” Also, he pointed out, the law does allow for a certain degree of coordination with a foreign government. Therefore, “a substantial independence [of the lobbying group] is all that’s needed. Not total independence,” Susman said.

Aipac’s lawyer, Nathan Lewin, noted that the organization “has prevailed in prior cases, when attempts were made to make them register as a foreign agent.” According to Lewin, Aipac officials “prevailed on the proposition that they are an agent entirely of American citizens who have a particular interest in improving American-Israeli relations.”

Jewish activists say that even if the likelihood is low that a legal attempt to compel Aipac to register as a foreign agent will be successful, public focus on the issue could be damaging. “Any open debate of this issue could be damaging,” said a Jewish communal leader. “Questions of loyalty will resurface, and this time such questions will have to do with the chief pro-Israel lobby in America.”