Last Updated on Tuesday, 9 January 2024, 19:15 by Denis Chabrol

By: Dr. Vivian M. Williams, Esq.

Like a forgotten unexplored island, the U.S. Espionage Act lay gathering dust for a century. It came into existence in the heat of the first global conflict – World War I. Two decades later, in 1938, a sibling named FARA was born out of the exigencies of World War II. The Foreign Agent Registration Act (FARA) and the Espionage Act were designed to track and repel the enemy within. They are laws designed to deter trespassers of the United States’ territorial sovereignty.

One hundred years later, almost on the anniversary of the Espionage Act, Donald J. Trump defied the odds to be elected President of the United States. Trump’s election to the Presidency was so confounding that it sparked claims of Russian interference. Special Counsel, Robert Muller, appointed in 2017 to probe these claims, resurrected FARA and the Espionage Act from the vaults of U.S. laws.

Muller wasn’t the first to dip into the vaults of US laws to find value in FARA. Russia had beaten him to the punch half a decade before. After protesters demanding fair elections overran Moscow in 2011, Russia blamed incitement from foreign agents. It swiftly enacted the Russian Foreign Agents Law (RFAL) in 2012, modelling it after FARA[i].

Now, amid a social media revolution, a new wave of global tension has emerged because the world’s superpowers believe foreign agents are trespassing territorial sovereignty. This perception has triggered global turf wars. The consequence is a world where countries are enacting and weaponizing “foreign agents” laws. In the three short years after Russia made the move, almost half of the states in the world played copycat and enacted or tabled laws to clamp down on foreign interference within their home turf[ii].  As Jacqueline Van de Velde puts it, there is now an avalanche of foreign agent laws across the world[iii].

That’s the state of play as Guyana, one of the newest members of the UN Security Council and an emerging oil giant, moonwalks into the party.

Like other countries, the government of Guyana is riled by dissidents abroad who are using the internet to pile pressureon it. Unlike other countries that are confronting foreign agents from within their home turf, Guyana contends that it can reach into the turf of other countries to serve criminal summonses on people “wherever” they may be.

Guyana – the New Kid on the Block Where Turf Wars Rage

On the night Guyana became a non-permanent member of the UN-Security Council, the country’s Attorney General, Anil Nandlall, provided food for thought. Addressing what the Guyana government considers criminal conduct by a dissident in the United States, the Attorney General stated:

“It is felt in his small little head that he could be in New York, and he could violate the laws of the world and freedom that apparently America confers upon him protects him from all the other laws of the world… that you could stay in your basement and violate the laws of any country using the internet technology and no one could get you because you are in the great United States of America and the Constitution of the United States of America protects you. Well, we will see.[iv]”

This statement is part of bellicose rhetoric from Guyana in furtherance of the proposition that criminal summonses issued by its magistrates, could be served on people “anywhere” in the world. Guyana chooses the turf of a superpower to test that proposition. One of its police officers entered the United States and retained a private process server to serve criminal summonses on an accused within the U.S.

Guyana assumes that retention of a private process server legitimizes its attempt to extend and obtain criminal jurisdiction over people in the United States. That assumption seems oblivious of the prospect that a private process server who is contracted by another country to serve criminal process in the United States, may offend the Espionage Act and FARA. It also ignores the application of those laws to people/foreign principals – wherever they may be, who procure and or facilitate a violation of the Espionage Act and FARA. In the series of indictments brought by Muller, the U.S. noted its unprecedented intent to raise the argument of conspiracy to violate these laws.

In United States v Rafiekian the 4^th Circuit Court of Appeals points out that America has a strong interest in identifying people acting at the behest of foreign governments within its borders[v]. Therefore, the Espionage Act imposes a penalty of ten years imprisonment for “whoever other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General”[vi]. FARA defines a foreign agent more broadly to include persons within the United States who act under the order or request of a foreign principal.

Unfazed by America’s intolerance of persons acting within its jurisdiction at the behest of foreign principals, the Guyana Police Force announced that one of its officers participated in the service of criminal summonses in the United States. It then threatens citizens of the world, that the long arm of Guyana’s laws will reach them in similar fashion, “wherever” they may be.

In 2022, a court in the U.S. addressed what is meant by an “agent” in the Espionage Act when it decided the Rafiekian case[vii]. All that is required is an agreement to act subject to the direction or control of a foreign government.

The court has specifically determined that an independent contractor is an agent of a foreign government if (s)he agrees to act on behalf of that country, subject to its control or at least “not contrary to (its) directions”[viii].

Since Muller breathed new life into the Espionage Act and FARA, prosecutions and criminal investigations into their violation are buzzing in the United States. Adding to the anxiety is uncertainty about how provisions in the law will be interpreted, and who or what falls within its reach. As the saying goes, a violation is what U.S. prosecutors deem to be so. Consequently, non-profit organizations, corporate executives, top military servicemen, media workers, and even prominent law firms, have been ensnared. Therefore, FARA registration is strongly recommended whenever an agent works on behalf of a foreign government or its affiliate[ix].

Problems with Guyana’s Approach

Guyana’s audacity comes from an over reliance on and simplistic reading of domestic criminal laws. It fails to appreciate the basic fact that a country cannot look to its own laws to determine proper conduct in the international community. Moreover, as a rookie member of the UN Security Council and a vulnerable state, it is imprudent for Guyana to argue that domestic laws could authorize agents of astate tocurtail or chill constitutional protections in another.

In considering jurisdictional limits, the United States Supreme Court has determined that distance could inconvenience and prejudice a party to the extent that it may constitute a violation of liberty, property, and due process guaranteed by the U.S. Constitution. These considerations are factored into review of an extradition request.

If Guyana could pass laws or interpret its laws to allow its agents to enter the United States to serve criminal process, then other countries would follow suit with even more viral speed than the world is currently experiencing with “foreign agent” laws. United States is aware that if it allows Guyana to use private process servers to serve criminal process upon its people to force them to either travel to face criminal charges in Guyana or be convicted in absentia, Russia, China, Iran, Afghanistan, et al, will quickly follow suit. Therefore, Guyana should expect the United States to be intolerant of any backdoor attempt to exercise criminal jurisdiction over its people.

Secondly, the Attorney General is misguided by a simplistic reading of the country’s criminal procedure laws. He argues that once a criminal court of Guyana determines that a crime known to Guyana’s laws has been committed, it must necessarily also have the power to bring the accused “wherever” s/he is before it.

It is normal for criminal courts to issue summonses and warrants for people wherever they be. However, the service of summonses and warrant in another sovereign country is unprecedented. This is so because the authority to issue a criminal summons does not translate to authority to direct that it be served in another sovereign territory. The issuance of a criminal summons or warrant may serve as a trigger for an extradition request to the country where the wanted person is. Full stop!

Common Sense Considerations

Guyana’s Criminal Procedure Laws provide for a criminal summons to be issued for a person “wherever he may be”. However, it is silent on the service of criminal summonses on a person “wherever he may be”. The Attorney General infers authority from this silence because there is also silence as to its prohibition[x]. He claims that common sense compels that conclusion.

It is good that the AG has invited common sense to the discourse. Common sense would tell you that the AG’s conclusion requires you to assume that magistrates have unlimited authority, so if a thing is not expressly prohibited, it is authorized. In such a case, you should expect the instrument from which magistrates derive their authority to list the things prohibited. Common sense would tell you that when that instrument instead, lists the things magistrates are authorized to do, the rational conclusion is the authority of a magistrate is prescribed.

Common sense would also tell you that the United States would not allow the freedoms and civil liberties conferred upon its people by its Constitution to be constrained by the acts of foreign agents within its territory. Common sense would tell you that the US would not allow a private process server to become an enemy within, who aid another state in undermining its Constitution –

not in a world where turf wars are raging. If the Attorney General of Guyana believes that freedoms and protections the “Great United States of America” offers its people do not protect them in their country and stubbornly advises Guyana to proceed with the policy it has adopted, then … “well, we will see”.

References

 

[i] Samuel Rebo (2022), FARA IN FOCUS: What can Russia’s Foreign Agent Law Tell Us About America, 12 Nat’l Security L. & Pol’y 277

[ii] Harriet Sherwood, Human Rights Groups Face Global Crackdown ‘Not Seen in a Generation’, The Guardian (2015) available at https://www.theguardian.com/law/2015/aug/26/ngos-face-restrictions-laws-human-rights-generation

[iii] Jacqueline Van De Velde, The “Foreign Agent Problem”: An International Legal Solution to Domestic Restrictions on Non-Governmental Organizations, 40 Cardozo L Rev 687 [2018]

[iv] Anil Nandlall, Issues in the News, January 2 (2024), available at https://www.facebook.com/AnilNandlallppp/videos/391630836565541

[v] United States v. Rafiekian, 991 F.3d 529, 533

[vi] 18 USCA § 951 (The Espionage Act)

[vii] Within 2 years of being decided, United States v Rafiekian was cited at least 24 times in other cases across the U.S. This is an indication of the number of similar cases that are being prosecuted in the U.S.

[viii] United States v. Rafiekian, 991 F.3d 529, 533

[ix] See Lydia Dennett (2018), Justice Department Reveals (Some) of How it Interprets Foreign Influence Law, available at https://perma.cc/3NM6-7ZL8

[x] Anil Nandlall, Issues in the News, January 2 (2024)