Few prosecutions for unregistered foreign agents

Introduction

The major roll-up of 11 Russian spies-cum-suburbanites involves the relatively rare use of the criminal code that requires agents of foreign powers to register with the U.S. Justice Department – a provision that allows prosecution of covert foreign operatives working without diplomatic immunity.

Over the last several years, there have been a few notable prosecutions of agents who failed to notify the Justice Department. Robert Cabelly, a former State Department official in the George H. W. Bush and Clinton administrations, was indicted in October last year for unregistered work for Sudan.

Venezuelan national Franklin Duran was convicted in November 2008 and sentenced to four years in prison for failing to disclose to the Justice Department his work on behalf of the Hugo Chavez government. He was accused of helping to cover up a scandal at the direction of the Venezuelan government by pressuring a Florida businessman to remain silent about Venezuelan money that was funneled into Argentina to influence its presidential election.

A searchable database of federal prosecutions maintained by the non-profit Transactional Records Access Clearinghouse reveals relatively few prosecutions since 1990 under the same part of the criminal code – 18 U.S.C. 951 – used in the new Russian spy ring, Cabelly and Duran cases. The latest Justice Department report available, for the six months ended in June 2009, said a total of 1,906 agents of foreign countries were registered with it. The registration tracks the identity of people engaged in political activities on behalf of foreign governments, foreign political parties, and other foreign entities.

Some speculate that U.S. prosecutors charged the Russians with failure to register – rather than the more difficult-to-prove charge of espionage – because the government lacks evidence that the Russians transmitted sensitive information, according to Foreign Policy magazine. The suspects, who allegedly sent by Russia as covert agents to pose as ordinary suburban families, face a maximum penalty of 5 years if convicted of failing to register as foreign agents.