In 2002, in the course of investigating abductions of U.S. citizens in Saudi Arabia, the House Government Reform Committee subpoenaed three U.S. firms (Patton Boggs, Qorvis Communications and The Gallagher Group), which had provided lobbying and public relations services to the Saudi government. Each firm was registered under the Foreign Agents Registration Act (FARA), which requires registrants to maintain, and make available for Justice Department inspection, extensive documentation regarding the foreign representation.
The Saudi government maintained that the subpoenas violated the Vienna Convention on Diplomatic Relations, which provides that “archives and documents” of a diplomatic mission are to be held “inviolable.” The House committee, backed by an opinion from Vienna Convention expert Eileen Denza, argued that the Vienna Convention was inapplicable to records of U.S. lobbyists for a foreign government. It noted that the Saudi position was incompatible with FARA and pointed out that Congress had previously investigated the activities of lobbyists for foreign governments (in 1980 the Senate Judiciary Committee investigated Billy Carter’s lobbying on behalf of Libya).
Congress will want to keep this background in mind as it considers gathering information from Libyan agents in the U.S. There are several U.S. firms that reportedly have contracted with the Libyan government to provide lobbying, public relations or other services. Some registered under FARA; others did not. Congress may want to obtain information from these firms to better understand Libya’s propaganda campaign in the U.S. and to determine whether FARA has been effective in making this campaign transparent.
I have always thought that the Saudi Vienna Convention argument was pretty weak (I represented the House committee in that dispute). Moreover, under the present circumstances it seems unlikely that U.S. firms would abide by Libyan instructions to withhold information from Congress. Thus, I suspect that Congress would have little difficulty getting information from Libya’s U.S. representatives.
A more difficult question will be presented if Congress attempts to get documents or testimony directly from Libyan diplomats. Presumably these officials would normally enjoy immunity from congressional inquiry. However, there are two wrinkles here that could make a difference.
First, there is the question of which Libyan government is entitled to representation in the U.S. As far as I understand it, the U.S. has not yet withdrawn recognition from the Qadaffi regime or extended it to the Libyan rebels. If this change occurs, however, it could affect the privileges and immunities available to Libya’s (former) diplomats.
Second, some Libyan diplomats in the U.S. have already broken with the Qadaffi regime. Are these officials still entitled to diplomatic immunity/inviolability?
I don’t know the answers to these questions. But lawyers on the Hill may want to start thinking about them.