Kashmiri-American leader charged with failing to register as a "Foreign Agent"

Dr. Ghulam Nabi Fai, who I’ve known for more than 20 years as the Executive Director of the Kashmiri American Council (KAC), was arrested on July 19th of this year on Federal felony charges of having failed to register with the US government as a “foreign agent”.

The U.S. government’s prosecution of Dr. Fai is disturbing at many levels, and should concern even those who’ve never previously heard of Dr. Fai, the KAC, or the Foreign Agents Registration Act. It’s important to Kashmir. It’s important to the broader causes of human rights and self-determination. And it’s important to the freedom of political speech in the USA.

Here’s why:

The complaint against Dr. Fai and his co-defendant Zaheer Ahmad (who, unlike Fai, I’ve never met, so far as I know) is based on an FBI agent’s affidavit based, in turn, on many months of interception of Dr. Fai’s e-mail, tapping of his phones, searches of Dr. Fai’s home and the KAC office, and data dumps of cell phones and copying of address books and papers at U.S. borders and international airports.

[It’s unclear whether the court-authorized searches referred to in the affidavit supporting the complaint were conducted openly, or as secret “black bag” jobs. The searches couldn’t have been searches incident to, or after, Dr. Fai’s arrest, since the affidavit describing what was found in these searches was filed with the court on July 18th, the day before Dr. Fai’s arrest.]

According to the FBI and the Federal prosecutor, “Fai and the KAC have received at least $4 million, from the Pakistani government since the mid-1990s.” There’s no mention of any attempt to determine how much Dr. Fai and/or the KAC received from other sources, or what fraction of their total budget the alleged Pakistani government contributions constituted.

“Millions of U.S. dollars” may look good in Indian newspaper headlines, but over 15+ years, $250,000 a year is a pretty modest budget for maintaining a presence in Washington, even with only one full-time staff person, especially given the necessity of extensive international travel to participate in international events (such as observing meetings of the U.N. Human Rights Council in Geneva) and coordinate the KAC’s work with other groups throughout the Kashmiri diaspora and in the various divided portions of Kashmir itself.

Tellingly, the affidavit supporting the complaint notes that conversations and documents were translated by the FBI from Urdu and Punjabi (the languages Kashmiris would use when talking with Pakistanis or other non-Kashmiri South Asians). But there’s no mention of any attempt to translate from Kashmiri, the language used for discussions within the Kashmiri community.

Pakistan has been and remains — IMHO, most unfortunately, as I’ve written previously — Kashmir’s sole international diplomatic champion. The New York Times explainer about Kashmir, in an obvious error that they’ve occasionally corrected in past articles but keep reprinting, claims that, “Both India and Pakistan claim the Kashmir Valley.” In reality, while India — on the basis of the disputed actions of the former despotic and unpopular feudal ruler — claims the “democratic” right to rule all of the former principality, Pakistan has never claimed any of Kashmir as part of Pakistan, but has recognized that its status will remain disputed until a plebiscite can be held. (The U.S., on the other hand, has tried to back away from its former votes in the U.N. in favor of the plebiscite plan.)

An advocate for the Kashmiri nationalist cause, in the USA or anywhere else, would be remiss in failing to develop good working relationships with Pakistani diplomats. But the criminal complaint against Dr. Fai entirely ignores the role of other KAC members, including the KAC Board of Directors that hired Dr. Fai, in setting KAC policy. Just because the KAC and the Pakistani government have often been political allies doesn’t mean that the KAC has adopted its positions at Pakistan’s direction, or would have taken a different line if some Pakistani diplomat told them to do so.

Fundraising ability is often a factor in the selection and retention of the Executive Director of a nonprofit organization. The Kashmiri-American community is minuscule — perhaps a few thousand people — and it took substantial personal financial commitments from some of its wealthier members to open and staff a Washington office.

I’ve met several KAC Board members. They are principled people — some bear the scars left by Indian army torturers — and no matter how much they may have welcomed Dr. Fai’s ability to raise enough money to pay his salary and keep the KAC office open, I seriously doubt that they would have allowed Dr. Fai to work against the Kashmiri nationalist cause, no matter what anyone within Pakistan’s government may have wanted.

As an organization working in solidarity with a nationalist movement being subjected to intense, violent repression in Kashmir — torture, disappearances, summary executions in staged “encounters” with the armed forces of Indian occupation — the KAC had an ethical duty to respect the confidentiality of contacts and sources of information for whom being linked to the KAC could be a death sentence. It’s hardly surprising, in such circumstances, that some organizational details were shared, even within the KAC, only on a “need to know” basis.

One member of the KAC Board told the New York Times that Dr. Fai “did not inform board members about all the sources of the council’s revenue”. Why should he have, especially given the demonization of the KAC (and all Kashmiri nationalist organizations) by India’s government? Donors to the KAC may have had good reasons to remain anonymous to reduce the risk of retaliation against family members in India (or themselves when they visit India) — or to avoid the sort of surveillance that Dr. Fai turns out to have been subjected to by the US government.

Other US political organizations, notably the NAACP and the ACLU, have fought against being forced to disclose the identities of their members or donors to the government or the public. Why should it be different if some of those donors are foreign citizens?

Anyway, so what if Pakistan’s government helped fund a voice in Washington for Kashmiri-Americans? Why is this a crime? And should it be?

The Foreign Agents Registration Act or FARA (22 U.S. Code, Chapter 11, Subchapter II, “Registration of Foreign Propagandists”) requires any U.S. citizen who carries out political advocacy work in the U.S. on behalf of a foreign government or individual (agents and U.S. subsidiaries of foreign corporations are exempt) to register with the Department of Justice, file detailed reports on their finances (including the exact amount received from each foreign-citizen donor) and activities, and “conspicuously” identify any of their printed political literature (it’s unclear if the definition in the law also includes Web content) as “foreign propaganda”.

For those required to register, the reporting requirements are burdensome at best, and in many cases essentially impossible to fully comply with.

FARA was originally enacted to expose the sources of clandestine Nazi propaganda, but was used primarily as a Cold War witch-hunting tool against American Communists.

You might be forgiven if you assumed that such a law would long since have been repealed. So far as I can tell, with the exception of one conviction in 2010 of a lobbyist for an Islamic charity [Correction: and one of an advocate for reunificatioin of North and South Korea in 2003], the last (unsuccessful) prosecution under the Foreign Agents Registration Act was in 1992, and no one else has been convicted of violating this law since 1966.

While Dr. Fai’s is only the second prosecution for this “heinous” crime in almost 20 years, and his conviction would be only the second in 45 years, he’s obviously not the only U.S. citizen to have violated this law. The law’s definition of a “foreign agent” is extraordinarily broad, potentially including any U.S. citizen who acts, to any degree, “in any capacity at the … request … of any person any of whose activities are directly or indirectly financed or subsidized in whole or in major part by a foreign principal, and who directly or indirectly or through any other person engages within the United States in political activities … in the interests of such foreign principal.” And despite the common assumption that this must apply only to agents of foreign governments, it doesn’t. Even individual foreign citizens are considered “foreign principals” for purposes of this definition of a “foreign agent”.

So if immigrants who aren’t U.S. citizens contribute a “major part” of the contents of the collection basket at a church, synagogue, temple, or mosque, and I write a letter to Congress at the request of the minister, priest, imam, or rabbi, or which serves the interests of the immigrant congregation, I’m a felon unless I register and report my activities as a foreign agent.

This law is almost universally violated. Most non-profit political organizations in the U.S. unwittingly receive contributions, constituting an unknown and unknowable part of their budget, from people who aren’t U.S. citizens. Neither cash, checks, credit cards, nor Paypal identify the citizenship of their donors.

So why is Dr. Fai, of all people, being prosecuted?

A plausible and widely-accepted theory seems to be that the charges are diplomatic gamesmanship directed neither at Fai nor the KAC, but at Pakistan’s government and specifically at Pakistan’s counterpart to the CIA, Pakistan’s Inter-Service Intelligence (ISI).

The back story goes like this:

Pakistan saw the U.S. raid on Osama Bin Laden — on Pakistani soil without permission from Pakistan or even notice from the U.S. military or CIA to their nominal anti-terrorist “allies” in ISI — as a serious breach of Pakistani sovereignty as well as a public display of U.S. mistrust of Pakistan and ISI. That should have come as no surprise to the U.S.: How would the U.S. react if a foreign government secretly sent a team of commandos to carry out an assassination in the U.S.?

It didn’t help Pakistani public opinion when the Bin Laden raid was followed by the still-unexplained killing of two Pakistanis on a crowded Lahore street by a CIA agent and former Blackwater contractor.

Since the U.S. commandos had left Pakistan and were out of reach of Pakistani retaliation, Pakistan expressed its outrage at U.S. and CIA meddling within Pakistan by arresting three Pakistani citizens who had worked as informers for the CIA in violation of Pakistani law.

The arrest of Dr. Fai, a U.S. citizen accused of having illegally worked for Pakistan and ISI within the U.S., is merely the latest round of diplomatic tit for tat.

The Times of India, despite its bias, may have gotten it right when it headlined one of its stories on the case, “Fai a sideshow as FBI nails ISI, Pak govt.”

But should taking donations from non-US citizens without telling the government exactly which foreigners contributed how much be a felony? Should it be illegal to pass the hat or the collection plate at a political, civic, or religious event without checking contributors’ passports, logging their names, and reporting them to the government? Should political speech by groups supported by immigrants or other non-US citizens have to be labelled “foreign propaganda”?

It’s a matter of public record that I’ve encouraged my readers to contribute to charitable and disaster relief efforts organized by the KAC, and that I’ve spoken several times on the same platform as Dr. Fai, most recently in September of 2010 when I happened to be in New York during a demonstration at the United Nations called by the KAC. (I’m seen briefly standing next to Dr. Fai at 2:10-2:30 of this video.) In 1990, Dr. Fai invited me to join him in some meetings with members of Congress and their staff members. At a forum at UCLA in 2003, I was one of three speakers along with Dr. Fai and Pakistan’s Ambassador to the USA. Later that year, I was on a panel with Dr. Fai discussing Kashmir at the annual convention of the Islamic Society of North America in Chicago. Dr. Fai reimbursed my travel expenses for some of these events. Does that mean that I was supposed to register as a foreign agent?

(It’s also a matter of public record that my mother was born in Lahore, in what is now Pakistan. Does that mean I’m not just a foreign agent but a suspected terrorist, even though others of my ancestors have lived in what is now the USA for more than 300 years?)

To me, the important thing was not just that I had no idea from whom Dr. Fai got the money he gave me, but that never, ever, did he try to control what I could say. Like anyone who knows me, he knew I would speak my mind, regardless of whether he or anyone else agreed with me.

But what’s wrong with this picture goes far beyond me or Dr. Fai:

• U.S. xenophobia. Why should political statements instigated by foreigners be labelled as “propaganda” any more than the opinions of U.S. citizens? Is the Foreign Agents Registration Act intended to pander to U.S. mistrust of foreigners and dismissal of the legitimacy of foreign opinion? Is it a symptom of that xenophobia, or a cause? Either way, it’s got to go. The largest reason I’ve devoted much of my life to encouraging and facilitating international travel, particularly by native-born U.S. citizens, is my fervent belief that the U.S. needs more, not less, exposure to and awareness of foreign points of view, especially those most different from our own. [Update: See this article for a similar view of the hypocrisy of US government attitudes toward foreign-funded NGOs in the US, compared with US government funding of NGOs in other countries.]
  
  
• Sacrificing Kashmir to other causes. Kashmir’s political problems have proven so intractable no so much because they are insolvable (difficult yes, impossible no, if a sincere effort were made) but because other countries’ policies toward Kashmir — most especially and significantly those of the USA — have too often been driven by concerns about other countries and geopolitical issues (India, Pakistan, China, Communism, Islam, etc.) and rarely by concern for Kashmir itself. Once again in “l’affaire Fai”, it appears that the U.S. is using Kashmir as a pawn in a diplomatic tiff with Pakistan. The losers, once again, are the long-suffering Kashmiri people and their desire that their demand for human rights and self-determination be heard on its own terms — and, of course, the international image and credibility of the U.S.
  
  
• Universal criminality as a pretext for domestic surveillance and repression. Police and police states everywhere love laws that are sweeping, impossible to comply with, universally ignored, and universally violated. If everyone is always breaking the law, there’s always a facially-neutral excuse for surveillance or imposition of sanctions. Dr. Fai’s selection for prosecution — from among millions of officers of non-profit organizations who’ve routinely, probably unknowingly, violated the same law over the decades — is a perfect example of this discriminatory exercise of prosecutorial discretion in investigative and enforcement. The current USA-Pakistan diplomatic dispute is only a few months old, but the complaint against Dr. Fai suggests that he was under intense surveillance — his phones tapped, his office bugged, his e-mail intercepted — months before there was any real consideration of actually bringing charges against him. In the absence of the Foreign Agents Registration Act, that surveillance of the otherwise entirely lawful political activities of a U.S. citizen (it’s worth noting that the long-term monitoring uncovered no other potential illegality of any sort) would have been a flagrant violation of Dr. Fai’s First Amendment rights.

While the case against him is being presented to a Federal grand jury, Dr. Fai is under house arrest and electronic monitoring at his home (which he and his wife had to pledge as bail) in the Virginia suburbs of Washington. [Here’s an interview with Dr. Fai while under house arrest.] If convicted, he faces a possible sentence of up to five years in a Federal prison.

A fund for Dr. Fai’s legal expenses has been established by a Kashmiri-American attorney and member of the KAC Board of Directors. And Dr. Fai’s Constitutional rights, as well as the need for continued advocacy on behalf of Kashmir, have been endorsed by a coalition of American Muslim organizations.

However, the announcement of the formation of the defense fund suggests that many potential donors are afraid to contribute, lest they be charged with the same crime or subjected to the same surveillance as Dr. Fai — highlighting the chilling effect of Dr. Fai’s prosecution on even lawful political activities and solidarity against domestic surveillance and repression.

It’s up to all of us to spread the word about what is being done to Dr. Fai and why it matters, to contribute to Dr. Fai’s defense, to speak out in support of Kashmiri self-determination and human rights, and — perhaps most importantly — to urge Congress to repeal the Foreign Agents Registration Act.

Update: On 7 December 2011, Dr. Fai pled guilty to two lesser (but still serious) charges of conspiracy to deceive Federal agents and the IRS by misrepresenting as tax-deductible money that originated from Pakistan. These charges carry a possible maximum sentence of 8 years in prison. The charge of violation of FARA was dropped, but FARA remains on the books as a potential weapon for harassment, intimidation, and surveillance of immigrants and of those US citizens who advocate for immigrants. The judge’s sentencing of Dr. Fai is scheduled for 9 March 2012. [Further update: The sentencing has been postponed until 30 March 2012.]

As part of what was reported to be a plea bargain, “Fai agreed to pay about $200,000 to the IRS and forfeit about $143,000 the government seized from five bank accounts… Fai also agreed to cooperate with any federal investigation.”

Dr. Fai’s co-defendant, Zaheer Ahmad, reportedly died of natural causes in Pakistan in October, but the charges against him have not (yet) been officially withdrawn — perhaps the US government doesn’t believe he’s really dead?

Dr. Fai’s lawyer said that money from Pakistan “never affected the work that he did or the message that he put out.”

In Dr. Fai’s own statement at the courthouse, which is worth reading in full, Dr. Fai reiterated his believe in the essentially national identity of Kashmir and the right of Kashmiri people to self-determination, and detailed the many public statements he has made over the years that deny any legitimate Pakistani authority over Kashmir or Pakistani entitlement to determine Kashmir’s future. In one typical 2004 op-ed in a US newspaper, for example, Fai had written that, “some in Pakistan gain by keeping Kashmir unresolved. It distracts attention from Pakistan’s enormous domestic faults, and provides indigenous militants with an outlet unthreatening to [its own] government”. Hardly the stuff of Pakistani government propaganda.

Dr. Fai also repeated what I agree is the essential truth of the “Kashmir problem” and the essential simplicity of the only real path to resolution of it:

“Bitterly ironical is the contrast between the complex and decades-long agony the Kashmir issue has caused to Kashmiris, to Pakistan and to India itself and the simple, rational measures that would be needed for its solution. No sleight of hand is required, no subtle concepts are to be deployed, and no ingenious deal needs to be struck between an Indian and a Pakistani leader with the endorsement of the more pliable Kashmiri figures. The time for subterfuges is gone. All that is needed is going back —- yes, going back —- to the point of agreement which historically existed beyond doubt between India and Pakistan and jointly resolving to retrieve it with such modifications as are necessitated by the passage of time.

That point of agreement was one of inescapable principle — that the future status of the State of Jammu and Kashmir shall be decided by the will of the people of the State as impartially ascertained in conditions free from coercion. The two elements of a peaceful settlement thus were, first, the demilitarization of the State (i.e. the withdrawal of the forces of both India and Pakistan) and a plebiscite supervised by the United Nations….”

The KAC Board of Directors issued a statement that it “welcomed the Government’s decision to voluntarily withdraw the FARA allegation”, but “the Board remained disturbed over the balance of the charges…. Speaking on behalf of the Board, Mr. Sareer A. Fazili, Esq. … confirmed the uniquely pro-Kashmir agenda disseminated by the organization, identifying pieces detrimental to the national interests of both India and Pakistan.” The KAC Board reaffirmed “its commitment to pursuing all avenues in encouraging a resolution of the Kashmir issue, taking into account primarily the wishes and aspirations of the Kashmiri people.”

Further update: On 30 March 2012, Dr. Fai was sentenced to two years of imprisonment, to be followed by three years on probation with special conditions restricting his contact with US or Pakistani government officials. The prosecutor had recommended four years in prison.

Dr. Fai continued to maintain at his sentencing that (as I and many others had argued in our letters to the judge) he had worked for the interests of the Kashmiri people, not those of the government of Pakistan, and that he had consistently argued for the independence of Kashmir, not its incorporation into Pakistan.

The court ordered Dr. Fai to surrender himself to the US Bureau of Prisons by 30 June 2012.

In the meantime, the court gave Dr. Fai permission to travel to California to attend his daughter’s graduation from Stanford University on Thursday, 21 June 2012, and to participate in a forum on The Right of Self-Determination for the People of Kashmir that evening in Newark, CA.

The event in Newark (off I-880 near Fremont, just south of the Dumbarton Bridge) is free and open to the public. I’ll be among the speakers along with Dr. Fai and leaders of the movement for self-determination from Kashmir and the Kashmiri diaspora around the world. I encourage everyone interested in Kashmir, human rights, and how and against whom the US government is using politically-motivated criminal prosecutions to disrupt legitimate, nonviolent human rights activism to take advantage of this opportunity to hear from Dr. Fai, and learn about his case, before he is locked up as a political prisoner of the USA for the next two years.