Almost two years ago, this blog reported on the charges against Alexander Fishenko who, among other things, was accused of shipping various USML and CCL items to the Russian government without a license. Yesterday, according to this DOJ press release, Fishenko pleaded guilty to all the charges against him.

These charges included charges that Fishenko failed to register under the Foreign Agents Registration Act, a charge calculated to elicit a frenzy of headlines about the charges against a “Russian Spy.” And the press predictably took the bait then and took the bait again in reporting the plea agreement. The nominally respectable Bloomberg News headlined the plea deal as “Military Technology Exporter Admits to Spying for Moscow.” Even the previously mentioned DOJ press release only called Fishenko a “Russian Agent.”

The statute involved is the Foreign Agents Registration Act, which requires that any person in the United States acting on behalf of any foreign person, not just foreign governments or spymasters, must register with the Department of Justice. Section 1(c)(1) of the Act, 22 U.S.C. § 611(c)(1), defines the precise activities that trigger the registration requirement, including political activities for a foreign person or government, acting as a publicity agent for a foreign government or person, dispenses money on behalf of the foreign government or person, or representation of the foreign government or person before a government agency.

Under this definition, Fishenko might, I suppose, be said to have dispensed money on behalf of his Russian buyers in buying the items that were exported to them. The problem with this theory of liability under the act is section 3(d) of the Act which exempts from the registration requirements “private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal.” Because the act covers acting on behalf of foreign governments and private foreign entities, every exporter would be a “foreign agent” or “spy” without this exemption.

As this blog noted in the original post, the only activity that Fishenko was accused of in engaging in for the Russian government was buying stuff. The fact that it was exported without a license does not prevent it from being bona fide trade. The bona fide requirement is designed to prevent foreign persons or governments from spreading influence simply by buying things that they don’t actually need. And again, because the act covers not just foreign governments but all foreign entities, if lacking a license for the export prevented the purchase for the foreign person from being bona fide trade, then all persons guilty of illegal exports are also necessarily “spies” unless they register under FARA.

Of course, since Fishenko pleaded guilty, we will never know how a court would come out on these arguments. If, as I suspect, the FARA charges were simply designed to poison the well with spy charges, the government might not have even bothered to press those charges had it ultimately been forced to go to trial.

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