On Think Tanks, Propaganda, the Foreign Agents’ Registration Act, and Korea

Washington is a marvelous city for someone like me. Where else could a foreigner, an outsider like myself, do the things I was able to do?

                                          – Tongsun Park, to the House Ethics Committee, April 1978

A detailed story in The New York Times, examining grants and gifts by foreign governments to U.S. think tanks — and how those gifts influence scholars (and through them), voters, policymakers, and Congress — has caused much controversy and discussion in Washington this week. South Korea is not mentioned in the story, but it does feature prominently in this companion graphic tracking think tank contributions.

The Times also suggests that some of the strings attached to those gifts, whether expressed or (more often) implied, could violate the Foreign Agents Registration Act, which is a thing people can actually go to jail for, but as we’ll see below, seldom do.

In a Washington Post op-ed, David Post calls the story “rather nasty” and wonders what the big deal is. The Brookings Institution, one of the think tanks discussed in the story, responds that the reporter’s “characterization of a few issues is inaccurate,” but promises to “continue to review our internal policies and procedures … to make sure that we are setting the standard for think tank integrity.” A “deeply concerned” Congressman Frank Wolf also wrote to Brookings. And in a thoughtful piece for The New Republic, John Judis worries that foreign influence is corrupting our foreign policy. I’ll return to Judis’s piece a few times in this post.

There is much in the Times’s story that’s concerning, such as this:

Qatar and the United Arab Emirates — two nations that host large United States military bases and view a continued American military presence as central to their own national security — have been especially aggressive in their giving to think tanks. The two Persian Gulf monarchies are also engaged in a battle with each other to shape Western opinion, with Qatar arguing that Muslim Brotherhood-style political Islam is the Arab world’s best hope for democracy, and the United Arab Emirates seeking to persuade United States policy makers that the Brotherhood is a dangerous threat to the region’s stability. [N.Y. Times]

Guess who else has been one of the beneficiaries of Qatar’s contributions to “political Islam.”

It’s bad enough that foreign governments vie to use our armed forces as their rent-a-cops. Now, contemplate the idea that foreign governments do this even as they simultaneously subsidize threats to themselves, to the American people, and to millions of other innocent civilians.

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This brings us to Korea, one of a select group of countries to have given its name to a Washington influence-peddling scandal. In 1977, years before his conviction in the Oil-for-Food scandal, Tongsun Park was “charged with 36 counts of conspiracy, bribery, mail fraud, failure to register as a foreign agent and making illegal political contributions,” after paying off 30 members of Congress to support South Korea’s interests, including by opposing a withdrawal of U.S. forces from Korea.

During the decade I’ve watched Korea policy in Washington, I’ve never seen or heard of anything remotely resembling Koreagate. I have, however, observed the extraordinary influence of the South Korean government over our Korea policy. Specifically, I’ve observed the tendency of South Korean Embassy staff and Korea-affiliated foundations to offer grants, travel, and other things of value to persons they considered influential. People I trust — both Koreans and Americans — have described efforts by the Korean Embassy to influence the agenda, content, and comment at think tank events where scholars meet, connect, and share information. At events I’ve attended in Washington and elsewhere, “Counselors” from the Korean Consulates were always present, and always watchful.

The “news” that foreign governments buy influence in Washington will not shock many people in this town, but the possibility that conduct far less egregious than Koreagate could still be illegal might. I’ve long felt that some Korea watchers should be more wary about FARA compliance. I’ve also long felt that the Justice Department should offer clearer guidance about the FARA’s limits, and that it should be more aggressive about enforcing the law against those who have crossed them.

For example, writing a confidential gossip dossier filled with personal information of obvious intelligence value about influential scholars, journalists, congressional staffers, and government officials — and then attempting to provide that dossier to a foreign embassy — certainly runs contrary to my reading of the FARA’s spirit. The Justice Department can decide whether this was legal, but I certainly found it ethically objectionable, like a Washington analogue to The Lives of Others. I’d be astonished if South Korea’s National Intelligence Service didn’t plan to use that dossier to target its subjects. But for an errant keystroke that sent that dossier to hundreds of people, none of the subjects would ever have known that a fellow citizen was reporting their vulnerabilities and personal matters to a foreign government.

Observing all of this from my anomalous position — a hobbyist Korea-watcher without professional entanglements with Korea — I’ve often thought that South Korea’s influence was so extensive that I’ve wondered how one can even do significant policy research about Korea beyond its sphere of influence. The expectations of a foreign donor, and how those expectations impact the donee’s work, have obvious potential to push a scholar into treacherous waters, both legally and ethically. I know scholars who’ve shared similar concerns with me.

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Disclosures required under the FARA are supposed to be publicly available, but until recently, you had to obtain them from the Justice Department’s FARA Unit. Today, the Sunlight Foundation has begun publishing them online, although the data are still incomplete. Here is what those disclosures tell us about:

This document provides exceptionally detailed information about what individuals or companies do for their foreign clients. This could include contacting a member of Congress, a federal official or a member of the media. It also could involve producing a conference, press releases or placing op-eds. Supplemental forms also contain key information such as who registrants have contacted in the United States, payments to registrants from clients, political contributions and disbursements that are used to pay for expenses and activities. [Sunlight Foundation]

But how does South Korea compare to other nations in terms of its influence-buying? Sunlight analyzed the FARA disclosures of different nations and found that South Korea spends $3.9 million a year to influence Americans. That would put Korea first among East Asian nations, and seventh among all nations.

It would, except that even this figure is probably a wild underestimate (Israel, a country of undeniable influence, didn’t even make the list). For one thing, it excludes “diplomatic contacts by members of a nation’s embassy.” It also excludes contributions that donees either don’t have to report to the Justice Department, or simply don’t report. Finally, we may not associate FARA-reportable contributions by foreign corporations with a foreign government, even when the foreign government orchestrates them.

The FARA also has a confusing, abuse-prone exemption for “the defense of [a] foreign government” the President has deemed “vital to United States defense.” For the life of me, I can’t see the use for that.

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South Korea’s FARA-registered agents include 22 governmental, consular, political, and commercial entities. They also include at least one media entity, the Korean Broadcasting System. The Korea Herald has also reported FARA contacts with the Korea Economic Institute.

The Korea Economic Institute is the most prominent FARA-registered entity in Korea policy circles. KEI is a well-connected group that serves as South Korea’s voice (and a key hub of its influence machine) in Washington. Its current head is a former congressman, and its previous head was a former senior State Department official. According to KEI’s IRS Form 990, KEI had an annual revenue of $2.3 million in 2012, but in 2013, it reported only $1.3 million in “payments to the registrant,” suggesting that (assuming Sunlight’s math is correct) many of its financials were not reported (or reportable) under the FARA. Its FARA-reported annual outlays include overhead and salaries, and support for conferences, congressional round tables, study programs, and social events for influential people, such as the Korea Society’s Annual Gala.

Despite its considerable influence on Korea policy, the Korea Society is not FARA registered, although a number of its contributions have been disclosed under the FARA, and its Chair, a former U.S. Ambassador to Korea, has disclosed contacts on behalf of Korean principals. Its contributors include KEI and a host of Korean corporations, including LG, Doosan, Asiana, SK, Hanhwa, and Hyundai, in addition to U.S. and European corporations. They also include The Korea Foundation, an organization under the substantial control of the Korean government.

Nothing in my research surprised me as much as the fact that The Korea Foundation (unlike the South Korean government, and its Embassy) also does not appear on the list of registered foreign agents, although a few of its contributions to KEI and other organizations are listed among the FARA disclosures.

That is troubling, because there is no question that the Korea Foundation is a tiger’s paw for the Korean government. It is a creation of a Korean law. Its Chair is “appointed by the President upon the proposal by the Minister of Foreign Affairs and Trade.” Its directors and officers are all appointed by the Foreign Ministry. Most of its offices abroad, with the notable exceptions of its Washington D.C. and Los Angeles offices, are co-located with Korean embassies (See Page 51 of its 2012 annual report). Its annual budget of more than $200 million (49) is funded by the Korean government and Korean corporations.

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[Figures in Korean won. W1,000 ~ $1.]

The Korea Foundation is immensely influential in U.S. policy circles. It promotes Korean culture, language, and academic exchanges, which is wonderful. It also conducts what it calls “public diplomacy,” a concept it describes in terms that strongly suggest an intent to influence policy through important people:

The Korea Foundation implements various dialogue programs to help fulfill its public diplomacy mission by providing venues for in-depth discussion among distinguished foreign figures and Korea-related specialists, and groups of next-generation leaders, expanding the community of those with a keen interest in Korea, establishing human resource networks, telling the story of Korea to the world’s peoples, and strengthening friendship with countries the world over. To enhance Korea’s public diplomacy, the Foundation organizes numerous international forums that include the participation of domestic and foreign opinion leaders from the fields of politics, economics, and academia, as well as those in the social and cultural sectors. In addition, the
Foundation supports think-tanks abroad, as well as the research projects, conferences, and publications of international organizations. (5)

Specifically, the Korea Foundation provides “support for policy-oriented research on Korea” by the American Enterprise Institute, The Brookings Institution, Berkeley’s APEC Study Center, the Center for Arms Control and Non-Proliferation, Council on Foreign Relations, the Korea Society, KEI, the Mansfield Institute, and the Wilson Center, among others (39). Here are some screenshots from its 2012 annual report.

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The Korea Foundation has also brokered donations by Korean corporations and wealthy individuals to numerous U.S. and third-country universities, including Harvard ($570,000), Cornell ($450,000), Indiana University ($750,000), and the Deerfield Academy ($1,113,000) (48).

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In his New Republic piece, John Judis writes that “Japan and China, two of the main countries that have tried to exercise influence in Washington, have often done so through companies and foundations rather than directly through their governments.” He recounts a number of experiences with this and concludes, “In these countries, government and business often work in concert.” Clearly, that is also true of South Korea.

It is also true of North Korea, which is increasingly using corporate profiteers as levers against Seoul’s disarmament-first policy, in favor of a unilateral lifting of sanctions to allow more investment. That view seems to be gaining traction within South Korea’s ruling party, notwithstanding significant ethical and security concerns to the contrary. And if that view prevails in Seoul, its influence will be felt in Washington, too.

The Korea Foundation also sponsors congressional staff visits to Korea.

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None of this means, of course, that the scholars and think tanks that participated in Korea Foundation events allowed their work to be influenced. But having read the Times article, you may wonder whether The Korea Foundation has ever used its funding to try to control American think tanks. You don’t have to. In 2003, The American Enterprise Institute published a special Korea issue of The American Enterprise. Some of the articles in that issue questioned the return on our military subsidies to South Korea following a wave of pro-North Korean and anti-American sentiment that sometimes resulted in violence, and most of which was repulsive in some way. Shortly thereafter, the Korea Foundation withdrew its funding from AEI, and it made no great secret about why.

I can’t say how much of an in terrorem effect the Korea Foundation’s action against AEI had on other think tanks, but it seems suspect that ever since, almost no scholars of note have questioned the size or shape of U.S. Forces Korea. The only example I know of is Doug Bandow. Unfortunately, we’ve heard little from Mr. Bandow since he admitted to taking money from Jack Abramoff.

(My own belief is that U.S. Forces Korea is overdue to evolve into a command that provides air, naval, logistical, and intelligence support, as one part of a multilateral regional alliance. I’ve believed since I was a soldier in Korea that keeping U.S. ground forces there is a relic of 1960s doctrine. It puts tens of thousands of American soldiers and their families at excessive risk from a North Korean attack. American taxpayers carry too much of the burden of South Korea’s defense, and South Korea’s reliance on Uncle Sugar’s security blanket had created a false sense of security. South Korea will never be a self-confident and independent nation without greater self-sufficiency in its own defense. To achieve that, it should end its subsidies to North Koreastop cutting its defense budget, improve its missile defenses, and build a big enough Army reserve component to stabilize North Korea if the regime collapses. Also, I dislike the idea that my taxes are effectively subsiding both sides. But then, I can see why South Korea would rather not raise defense spending when having a good lobby in Washington costs so much less.)

Of course, the most effective way to influence people is through personal relationships. Indeed, The Washington Post’s report on Sunlight’s study concluded that because it’s cheaper and more effective to use long-established connections, “[t]he governments that spend the most here on hired PR are ones that typically don’t have strong established diplomatic ties.”

Not surprisingly for a culture places a high value on friendships and loyalty, Korea does that very well. In a 2007 op-ed for a Korean newspaper, one respected American scholar cited the Korea Foundation’s assistance to him and the enduring gratitude it had obviously earned, and called for the Korean government to increase its funding:

For the past ten years I have received grants from the foundation to hold conferences on Korea in the United States when I was at the Korea Economic Institute in Washington, and for the past three years to support the reports being written by the International Crisis Group’s Seoul office. The amounts were never huge, but they really made a difference for my organizations. In fact, the foundation provides the only funding that Crisis Group receives from China (excluding Hong Kong), Japan or Korea. The Japan Foundation and Sasakawa Peace Foundation will not go near projects that might offend Japan’s right wingers. Crisis Group’s report on history/territorial disputes certainly would have.

This scholar corroborates the Korean government’s politicization of the Korea Foundation when he writes, “It is well known that one president’s chief (if not only) qualification was that he had backed the right horse in the presidential election.”

Although the scholar insists that “in all of my various capacities, the Korea Foundation never once even hinted at what subjects I should write about or the opinions I should express,” at the end of his piece, he alleges that “[t]hree American think tanks have quietly complained to me that they thought their funding had been suddenly cut off for political reasons.” That op-ed was published not long after the Korea Foundation cut off funding for the American Enterprise Institute.

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Since you were about to ask, North Korea also has one FARA-registered agent, Woo Park of “Korea Pyongyang Trading U.S.A.,” who appears to be the same person as Steve Park of Pyongyang Soju infamy. To further confuse you, Park was previously convicted of acting as an unregistered South Korean agent, by giving its National Intelligence Service detailed reports of his travels in North Korea. Immediately thereafter, the judge allowed Park to leave for a business trip to Pyongyang, where he was, inexplicably, not immediately shot. (Try to imagine the conversation between Park and his lawyer — you want me to ask the judge what at your plea hearing??).

Park still aspires to promote North Korean business interests here today. Want to read a translation of his MOU with the North Koreans to promote Keumgang tours to Americans? You know you do. Yes, that would be the same Keumgang where a North Korean soldier shot and killed South Korean wife and mother Park Wang-Ja in 2008. The MOU doesn’t disclose what Park is being paid, but does have this curious term:

The two sides shall not announce the nationalities and affiliations of the tourism study delegation personnel.

In other words, this foreign influence disclosure statute disclosed a nondisclosure agreement to protect the secrecy of North Korea’s finances, which it will use to buy foreign influence.

Park isn’t the only one to violate the FARA on North Korea’s behalf. In 2003, businessman and “unification” activist John Joungwoong Yai of Santa Monica pled guilty to taking more than $18,000 from North Korean agents to work on Pyongyang’s behalf.

North Korea is also a beneficiary of the influence of Chinese commercial interests. Judis adds:

… The New York Times might have also investigated another foreign contribution to CSIS. This May, CSIS, which I’ve heard from other people at think tanks to be desperately seeking funding, announced that its posh new building would house the Zbigniew Institute on Geostrategy. The institute, which may simply be a fundraising gimmick, was seeded by a large grant from Wenliang Wang, who runs Rilin Enterprises, which is headquartered in Dandong, China.

Rilin Enterprises is the largest private construction firm in China and also controls the largest port near the North Korean border. Wang has been an advisor to municipal administrations and is on Forbes list of the China’s most wealthy individuals. Says Mann, “Anyone in construction is dependent on state banks for loans. Dandong, the closest city to North Korea, is more heavily connected to the government and the People’s Liberation Army than most other cities. It is safe to conclude the guy has extensive government connections.” Is it likely, given this bequest, that this institute will air hostile views toward China?

Dandong, of course, is also a notorious hub for North Korean money laundering.

The problem of illegal foreign influence-buying is much larger than think tanks, of course, and touches both parties. A few of us will recall the massive Chinese influence-buying scandal from the 1996 campaign, when Chinese diplomats funneled money to Democratic campaigns through their agents of influence in the United States, who in turn funneled the money through destitute immigrants who often spoke little English. The scandal resulted in several jail terms and even lapped at the feet of former Vice President Al Gore.

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Having said this, the application of the FARA to think tanks and scholars isn’t as clear as The New York Times would suggest. The “Definitions” section of the FARA (see 22 U.S.C. 611), defines “foreign principal” to mean almost any foreign government, person, or entity, and “agent of a foreign principal” as any person who acts as the principal’s “public-relations counsel,” “publicity agent,” or “information-service employee.” So what do those things mean?

(g) The term “public-relations counsel” includes any person who engages directly or indirectly in informing, advising, or in any way representing a principal in any public relations matter pertaining to political or public interests, policies, or relations of such principal;

There is a specific exception for news organizations, although the FARA leaves just enough room to allow, arguably, for a prosecution of an individual journalist who agrees to censor or alter the content of a news report on a foreign principal’s behalf. (And … I’ll just stop there.)

(h) The term “publicity agent” includes any person who engages directly or indirectly in the publication or dissemination of oral, visual, graphic, written, or pictorial information or matter of any kind, including publication by means of advertising, books, periodicals, newspapers, lectures, broadcasts, motion pictures, or otherwise;

This provision would probably cover bloggers and activists. So would the following one, which is also the provision that’s most likely to apply to think tanks:

(i) The term “information-service employee” includes any person who is engaged in furnishing, disseminating, or publishing accounts, descriptions, information, or data with respect to the political, industrial, employment, economic, social, cultural, or other benefits, advantages, facts, or conditions of any country other than the United States or of any government of a foreign country or of a foreign political party or of a partnership, association, corporation, organization, or other combination of individuals organized under the laws of, or having its principal place of business in, a foreign country;

The FARA then imposes certain disclosure and registration requirements on those falling within the definition of the term “agent of a foreign principal,” but contains (at 22 U.S.C. sec. 613) a number of exceptions, including this one:

Any person engaging or agreeing to engage only in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts;

“Bona fide” leaves much to the prosecutorial imagination, and neither DOJ’s public guidance nor its FARA regulations help to clarify it. My view, which obviously isn’t the view that really matters, is that research is “bona fide” if it’s objective and unencumbered by any “order, request, … direction or control, of a foreign principal.” It ceases to be “bona fide” when a foreign principal’s “order, request, … direction or control,” affects its content.

In most cases, of course, that control is only implied. Think tanks are undoubtedly mindful of how donors have reacted to the work of other think tanks and scholars. The Justice Department should be equally mindful of it. It should also clarify that point in a regulation, establishing prior conduct, such as asking a scholar to alter her work or threatening to cut funding, as a FARA-reportable event that becomes circumstantial evidence of intent to control in future cases.

The Justice Department’s FARA regulations are potentially helpful in another way, however. Under section 5.2, a “present or prospective agent of a foreign principal” can ask the Justice Department for a confidential advisory opinion about FARA requirements. The U.S. Attorneys’ Manual’s FARA guidance cites this process as one reason why FARA prosecutions are a rarity today. Another would seem to be DOJ’s practice of only going after easy wins: “millions of dollars in receipts or expenditures by the prospective defendants; ‘core’ violations of FARA with jury appeal; and evidence of willfulness.”

The FARA also provides for civil penalties, but DOJ pursued fewer than two dozen such actions in the three decades preceding 1995, when the FARA section of the Manual was last updated.

Thus, members of the public and scholars can see few signs that the Justice Department is interested in clarifying or enforcing the FARA. Meanwhile, some of America’s best intellectual assets are being overgrown with entanglements. Because of its confidentiality, the advisory opinion process, as useful as it may be for scholars, does nothing to restore public confidence.

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I express no legal opinion as to whether the Korea Foundation is required to register under the FARA. I am expressing an opinion as a citizen that if it isn’t, then the FARA isn’t serving its intended purposes — to protect the objectivity of our public discourse from hidden foreign influence, and to protect public confidence in the objectivity of our scholarship. Maybe the law needs to be amended, and maybe it just needs to be enforced, but it isn’t working anymore.

Public confidence is important enough that that law recognizes and prohibits “the appearance of impropriety” by those with greater duties to the public. Here, I believe that the appearance is bad enough to demand remedies.

First, the Justice Department should amend its FARA regulations to offer clearer public guidance on the FARA’s application to scholars and nonprofits. Clearer guidance is not only necessary for scholars, but also for the consumers of their research. Specifically, DOJ should promulgate regulatory guidance on implied “direction or control” that mirrors what scholars must already be thinking as they write. It should require scholars and think tanks to report attempts by foreign agents to control their work through requests or threats to cut funding, a power Congress has given the Attorney General in section 2 of the FARA. And when foreign principals fail to meet registration requirements or willfully omit material facts, the Justice Department should enforce the law and set examples.

Second, think tanks don’t have to wait for the Justice Department to act. They can set clear guidelines for their staff, assuming they haven’t already done so. They can use central funding to insulate their scholars from foreign influences on their research. They can also be clear with donors that contributions will be accepted without conditions and encumbrances. Their publications should also voluntarily disclose their contributions from foreign principals that may have interests in the work.

Nothing, however, would be a more welcome change to Korea policy than the emergence of the Korean-American diaspora as an independent political force, with influence in both the U.S. and Korean governments. Such a force would, to be certain, maintain a strong affinity to its ancestral homeland, and continue to support its security. Just as certainly, it would diminish the influence of commercial and corporate interests in favor of security and humanitarian interests. It would be far less likely to triangulate toward the anti-anti-North Korean views of many on South Korean’s political left. And given the success with which Korean-Americans are assimilating into American society, its newer generations would increasingly reflect the interests and values of America as a whole.

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Update: This post was edited after publication.