National Globalism, or Globalism With Nationalist Characteristics

FARA and imperial jaywalking

We expect in an age of renewed nationalistic fervor to see the application of inert laws that were adopted long ago for nationalistic purposes but have since fallen into disuse among more multinational ruling cliques.

One such law is the American border itself. Whether they’re defended by walls or police, borders are a kind of primitive law that bridge the is-ought divide, if not syntactically then at least physically. Borders assume a lawless external world that wants in and is supposed to be kept out through border enforcement, precisely because the external world is not beholden to any legal or moral obligations prescribed or cherished by the nation. The fact of the barrier entails a norm that an outsider should not cross regardless of whether he believes he ought to be granted entry. Given the nature of the lawless outsider, it follows that if physical impediments to crossing the border cease to exist, so does that norm.

We expect nationalists to renew interest in border enforcement. What we don’t necessarily expect is for nationalistic laws to be resurrected by the same multinational ruling cliques who refrained from enforcing or complying with those laws for so long. And yet this is happening now with certain nationalistic laws (though not the border).

We can begin to understand why by looking at one recently resurrected nationalist law: the Foreign Agent Registration Act (FARA). FARA, like most modern laws, lacks the primitive unity of law and nature, and therefore the intuitive legal coherency, of a border wall. This deficiency is why FARA has been resurrected by multinational cliques.

Typically, modern legal systems make up for the lack of intuitive legal coherency in a law by consistently and impartially applying that law, such that ordinary subjects can know how to obey and predict legal outcomes simply by observing the legal system in action. Doing so is not as easy as observing a border wall patrolled by armed guards and deducing that you’re not supposed to pass, but it works for most citizens.

FARA and its history do not meet these coherency and consistency criteria. Passed in 1938, FARA requires under threat of imprisonment that Americans working on behalf of a foreign principal register with the DOJ and comply with onerous reporting requirements, including reporting on meetings and their subject-matter and applying watermarks to documents disclosing the relationship. Critically, the law does not criminalize being a foreign agent.

Although the vague language of the statue covers nearly every conceivable interaction with a person outside of the United States (one law review article suggests that providing a weather report from Bali on behalf of a foreign principal could require registration[1]), the original intent of Congress, at least according to House Judiciary Committee reports, was to subject Americans who were spreading propaganda on behalf of Nazi Germany to public shame.

Predictably, the law became for the DOJ an “effective and low-profile means for eliminating unwanted political ideas from the U.S.” During WW2, the DOJ created “parallel tests to demonstrate the connections between [defendants in FARA prosecutions] and the official German propaganda line.” [1120]. In other words, sharing a view espoused by German propaganda was considered probative of whether a defendant was a foreign agent who had failed to register under FARA.

This was a predictable trajectory for the law because foreign adversaries want to encourage dissent in America and will therefore mirror and amplify organic domestic dissent. American intelligence agencies obsessed with foreign subversion will then assume all domestic dissent is foreign subversion.

This approach was, once again, predictably exploited during the McCarthy era, culminating in the prosecution of the famous Black literary figure and Stalinist W.E.B. Du Bois. Du Bois and his non-profit’s advocacy of nuclear disarmament was deemed foreign agent activity under FARA in part because it paralleled the propaganda of the Soviet Union. Unlike with pro-Nazi speech, however, the prosecution of Du Bois caused an uproar among elites and respected figures in American public life. Even Albert Einstein, a very high-IQ but nonetheless “unwitting” agent of Russia in the past (as I discussed here), offered to testify on Du Bois’s behalf. [1119]

Although the prosecution was unsuccessful, Du Bois suffered financial hardship and was tarnished by the DOJ’s suggestion that he was a foreign agent. Lamenting these consequences, an enlightened American leadership began amending FARA in the ‘60s to focus more upon official lobbying activity and less upon the promotion of political opinions. Though the DOJ and judiciary followed suit in practice, most of the poorly drafted content in FARA covering attempts to influence public opinion remained intact; and it was only by virtue of prosecutorial discretion that Americans saw just 7 prosecutions under FARA between 1966 and 2015.

In 2015, the disposition of the DOJ, judiciary, and Congress shifted, with FARA once again being deployed as a blunt, partisan instrument against individuals and businesses. Several prosecutions have occurred and dozens of FARA amendments now make it to the floor of Congress every year.

The effect of this new disposition on Americans and foreigners is the exact opposite of the effect of observing a border wall. Unless one is privy to the attitudes of a given ruling clique in Washington or certain countries, determining whether one should register and comply with the onerous reporting requirements of FARA is, as I’ll show below, an act of impossible bureaucratic augury. For members of multinational cliques, being prosecuted for a FARA violation likewise feels about as reasonable and predictable as being prosecuted by a local government for jaywalking on a quiet street.

Preemptive compliance isn’t the optimal strategy for everyone, either. Registering as a foreign agent colors an individual’s or business’ activities with a pall of illegitimacy or at least suspicion. Forced transparency undermines competitive advantages; and complying with reporting requirements can be enormously costly.

My intent in sketching these problems is not to suggest that America shouldn’t have such laws – on the contrary, I believe we need even stricter laws. Instead, I want to show how legacy nationalistic laws like FARA are incompatible with the structure of American power and the goals of its leadership classes, neither of which is wholly oriented toward the American nation today.

This disorientation causes a disorienting enforcement pattern for laws like FARA that betokens at worst opportunistic lawfare and at best the excessive influence of the paranoid intelligence agencies, which myopically focus upon the foreign conflicts and intrigues occupying their institutional mandates. Each potential motivation here nonetheless reflects a reality where non-nationalist concerns are exploiting the legitimacy of nationalist laws to pursue, if not wholly non-national, at least multinational goals.

The rest of the article explores incoherent FARA enforcement patterns and the various cliques involved.