Asia, Human rights, New in Lobbying

$2 million Myanmar lobbying contract raises legal questions

A lobbyist for Myanmar’s military junta has formally registered his $2 million agreement with the country’s sanctioned defense minister, raising questions about the legality of the effort.

Foreign Lobby Report first reported Friday that former Israeli intelligence officer Ari Ben-Menashe had inked a deal with Defense Minister Mya Tun Oo as the Southeast Asian country faces global blowback following the Feb. 1 military coup against the civilian government. The work to be carried out by Ben-Menashe’s Montreal-based firm Dickens & Madson includes presenting the military regime as a bulwark against Chinese influence in the region and working with Gulf Arab countries to repatriate the Muslim Rohingyas, almost a million of whom have fled persecution by Myanmar’s armed forces.

Ben-Menashe registered the contract under the Foreign Agents Registration Act (FARA) on Monday, and the US Department of Justice published it on the FARA web site on Tuesday. The official filing provides few new details other than the size of the contract, which Ben-Menashe had previously described simply as a “big amount.”

“Within the United States, Registrant [Dickens & Madson] will provide advice and counsel to the foreign principal and advocate before the executive and/or legislative branches of the government of the United States to seek support and humanitarian aid for the benefit of the citizens of the Republic of the Union of Myanmar and to strive for the removal or modification of current sanctions,” the lobbying disclosure states. “Additionally, Registrant proposes to provide media and public relations services to further the country’s goals and activities. Registrant also provides lobbying services to the foreign principal in other countries.”

As an Israeli-Canadian citizen, Ben-Menashe is not directly affected by sanctions that the Joe Biden administration slapped on Mya Tun Soo and other Burmese military officials last month in response to the coup as long as he’s outside the United States. But sanctions experts say Ben-Menashe would still need permission from the US Treasury Department to carry out any lobbying activities targeting US officials.

“He could be liable for causing a US person to violate the sanctions,” said Judith Alison Lee, the co-chair of the International Trade Practice at Gibson Dunn. “If he calls up a US official and that US official does anything to help him and his client, that US official is in violation of the US sanctions. And so [Ben-Menashe] could be liable for causing a violation even if he never sets foot in the US.”

Ben-Menashe’s attorney, Andrew Kramer, said Dickens & Madson is well aware of the risks and is already working on a license application with the Office of Foreign Assets Control (OFAC).

“He clearly has to be careful who he talks with and how he goes about this,” Kramer said. “There are a lot of things he can’t do without the OFAC license.”

Kramer added however that the US restrictions don’t apply to work abroad that Dickens & Madson has proposed to carry out. The firm’s agreement with Mya Tun Oo mentions lobbying the governments of Saudi Arabia, the United Arab Emirates, Israel and Russia in addition to the United States.

There’s also the non-trivial matter of payment.

Dickens & Madson’s FARA filing states that the firm will only be paid “when legally permissible by controlling jurisdictions.”

In a phone interview on Tuesday, Ben-Menashe said the firm will be seeking authorization to be paid from the Canadian government, which has also sanctioned Mya Tun Oo and other military leaders. Global Affairs Canada, the government department that handles the country’s diplomatic relations, has already put him on notice about violating Canadian sanctions.

“We are aware of reports concerning a Montreal-based company potentially in contravention of the Special Economic Measures (Burma) Regulations,” department spokeswoman Angela Savard told The Globe and Mail newspaper. “Contravening Canadian sanctions is a criminal offence. All persons in Canada and Canadians abroad must comply with Canada’s strict sanctions measures.”

Meanwhile the delayed payment presents its own set of challenges in the United States.

US sanctions apply regardless of whether foreign agents are working for pay or pro bono, so the legality of Dickens & Madson’s lobbying is unaffected by the contract terms. The law however does prohibit tying payments to a specific outcome.

“[The] bigger question for me is … why this arrangement isn’t a prohibited contingent fee, if the lobbying includes efforts to get them off the sanctions list,” said Joshua Rosenstein, a lobbying expert with Sandler Reiff. “The only way to be paid would be if the lobbying were successful, in that case.”

Ben-Menashe however insisted that there was no contingency fee because the Burmese government is supposed to pay him regardless of his success. What’s in doubt, he said, is whether the US and Canadian governments will allow him to accept the payment.