Foreign Government Employment by Armed Services Retirees

Updated January 5, 2023

Foreign Government Employment by Armed Services Retirees

Background

In 2021, the Washington Post filed Freedom of Information

Act requests with the Department of Defense (DOD) and

Department of State (DOS) for the records associated with

retired general and flag officers who had obtained approvals

required by federal law for employment with a foreign

government. Information released by DOD and DOS was

later published in a series of news articles [see Washington

Post, “Foreign Servants” (Oct. 18, 2022)]. This In Focus

examines the process through which a retiree of a regular

component of an armed service in a military department of

the United States (regular retiree) obtains approval to work

for a foreign government. The In Focus also contains a

review of other federal restrictions that apply to this work.

Regular Retirees and Continued Military Status

Regular retirees typically are servicemembers in the regular

component of an armed service who qualified for retirement

based on their past full-time service and are entitled to retired

pay based on their continuing obligation to serve if recalled to

duty (10 U.S.C. §688). As such, this permanent service

obligation places regular retirees in a continued military status.

Consequently, they also remain subject to the Uniform Code

of Military Justice [UCMJ; 10 U.S.C. §802 (Art. 2)].

Table 1 lists the laws and policies applicable to DOD and

DOS approval processes for regular retirees.

Table 1. Foreign Government Employment

Regular Retiree Approval Process

Law and Policy

U.S. Cons., Art. I, Sec. 9, Cl. 8

37 U.S.C. §908

22 C.F.R. Part 3a

AR 600-291

AFI 36-2913

MyNavy HR (Retired Activities)

DOD 7000.14-R, V. 7B, Ch. 5, 6

Purpose

Employment Prohibition

Employment Exception

DOS Process

Army Process

Air Force Process

Navy Process

Loss of Retired Pay

Emoluments Clause Prohibitions

Due to concerns over possible undue influence by foreign

nations, the emoluments clause of the U.S. Constitution

prohibits federal office holders from receiving gifts, salary,

honoraria, consulting fees, or travel expenses from a foreign

government, unless otherwise authorized by Congress.

Members of the armed services, including active, reserve,

and National Guard forces, are classified as office holders

under this clause. Regular retirees are included in this

classification based on their continued military status.

Exception to the Emoluments Clause Prohibitions

Although foreign emoluments generally are prohibited,

Congress has authorized foreign government employment

by regular retirees in certain cases (P.L. 95-105, §509).

Under this consent, if the service secretary concerned

approves a request to work for a foreign government, the

Secretary of State must then make the final decision on this

request, but must first establish whether the employment

would harm U.S. foreign relations given the continued

military status of the regular retiree (22 C.F.R. §3a.5).

Unintended Foreign Government Employment

Even if the links between a foreign state and foreign employer

are not apparent, unwittingly accepting foreign government

employment is still prohibited. DOD cautions regular retirees

to exercise due diligence by ensuring a foreign employer that

ostensibly is not affiliated with a foreign state is not in fact

owned, operated, or controlled by a foreign government.

Loss of Retired Pay for Actions in a Foreign State

DOD will reduce the retired pay of regular retirees found to

have accepted unapproved foreign government employment

by the amount received as compensation for this work;

however, these retirees can still request approval of this

employment. The full entitlement to retired pay will resume

if a belated request is approved, but DOD will not restore

previously reduced amounts as such approvals cannot be

retroactive. Whether foreign government employment is

approved or unapproved, regular retirees who relinquish

U.S. citizenship to work for a foreign state, or for any other

reason, will lose their entitlement to regular retired pay, as

DOD deems loss of U.S. nationality incompatible with the

continued military status of regular retirees.

Employment Does Not Include Military Service

The congressional consent for regular retirees to accept civil

employment with a foreign government does not extend to

activities that DOD or DOS would consider military service.

Currently, the only congressional authorization for regular

retirees to perform foreign military service is in the armed

forces of a newly democratic nation (10 U.S.C. §1060). DOD

policy requires loss of retired pay if a retiree’s foreign military

service is unapproved, but there is no specific offense in the

UCMJ that makes such service subject to punitive measures.

Persons not Prohibited by the Emoluments Clause

Former servicemembers who no longer have a military

status are not considered federal office holders based on

their former service. Except for reasons other than military

service, foreign government employment by these former

servicemembers typically would not be prohibited:

 Reserve Component retirees (receiving retired pay);

 Disability retirees of the armed services; and

 Persons who leave the armed services without retired

pay eligibility or further military service obligations.

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Foreign Government Employment by Armed Services Retirees

Foreign Employment Restrictions

Even if regular retirees obtain secretarial approval to accept

foreign government employment authorized by Congress,

but otherwise prohibited by the emoluments clause, they

may still be subject to certain statutory restrictions enacted

by Congress for this type of employment.

Intelligence Community (IC)

Since about 80% of the IC workforce is within the IC

elements in DOD, previous service in the IC is common for

regular retirees. From 2014 to 2022, former IC employees

(including servicemembers) were required to report their

employment with a foreign government in the two-year

period after occupying a covered position, which was

defined broadly to include most IC positions (P.L. 113-293,

§305). In 2022, a 30-month ban on such employment by

former IC employees superseded this requirement (50

U.S.C. §3073a). Violations of this ban can be prosecuted

criminally and result in security clearance revocation. The

Director of National Intelligence may grant waivers to the

ban, but former IC employees who also are regular retirees

would still require secretarial approvals for foreign

government employment. The fiscal year 2023 Intelligence

Authorization Act contains further IC restrictions, including

a prohibition on working for certain foreign countries and a

requirement for yearly reporting of foreign government

work that does not require a waiver (P.L. 117-263, §6301).

Defense Trade Controls

DOS oversees the export licensing of certain defense

articles and services (22 U.S.C. §2778). In the International

Traffic in Arms Regulations (ITAR; 22 C.F.R. Subchapter

M), military advice and training are among the services

subject to defense trade controls. Accordingly, regular

retirees who intend to export defense services while

working for a foreign government would need two separate

approvals from the Secretary of State as each activity is

controlled by a distinct DOS legal regime. Convictions for

willful criminal violations of the military export control

statutes can result in imprisonment up to 20 years and a fine

for as much as one million dollars (22 U.S.C. §2778(c)).

Foreign Agent

Persons working for a foreign government may be required

by the Foreign Agents Registration Act of 1938 (FARA) to

register with the Department of Justice (DOJ) as a foreign

agent of a foreign principal (22 U.S.C. §§611-621). Within

the United States, a foreign agent is a person who serves the

interests of a foreign principal by:









Engaging in its political activities;

Acting as its political consultant;

Overseeing its pecuniary interests; or

Representing it before a federal agency or official.

Anyone who fails to register as a foreign agent if required

under the FARA may be subject to criminal prosecution for

false statements or willful omissions (22 U.S.C. §618).

Restrictions on Former Federal Officials

For the first year after leaving their positions, certain former

federal officials cannot represent a foreign entity before the

U.S. government or attempt to influence U.S. officials on

behalf of this entity (18 U.S.C. §207(f)). Willful violation

of this provision can result in fines and imprisonment up to

five years (18 U.S.C. §219).

Loss of Nationality

Under the Immigration and Nationality Act of 1952 (INA),

U.S. nationals aged 18 or older who work for a foreign state

may lose this nationality by committing acts of expatriation,

which include acquisition of this state’s nationality or

swearing, affirming, or declaring allegiance to this state (8

U.S.C. §1481(a)(4)). Yet in practice, loss of nationality for

foreign government employment is unlikely as various

judicial decisions and DOS policy implementing them have

narrowed the scope of this INA provision to a point that its

limits on foreign government employment would be rare.

For example, an administrative presumption established by

DOS in 1980 asserts that a U.S. national cannot lose this

nationality unless its relinquishment is intended (22 CFR

§50.40(a)). Thus, the expatriating acts related to foreign

government employment would not result in loss of U.S.

nationality without further evidence of intent. However,

DOS will not apply this presumption to foreign government

employment in a policy level position (7 FAM §1285(a)).

Though even without such a presumption, a U.S. national in

a policy making role who affirms an intent not to relinquish

this nationality may ultimately avoid its loss, unless serving

as a foreign minister or head of government.

Congressional Considerations

Employment with a foreign government is not prohibited

under federal law generally beyond these specific federal

restrictions and the emoluments clause prohibitions on

federal office holders. Departmental review of requests for

the approval of foreign government employment normally

is limited to whether the employment will have adverse

political or security effects on the United States. However,

some commentators have suggested that certain actions by

regular retirees during and after their foreign government

employment could conflict with U.S. foreign relations and

national security interests.

While the current departmental standard of review for

requests to approve foreign government employment is

meant to avoid harm to the United States, Congress could

consider adopting the IC waiver standard for a temporary

restriction on such employment, which only permits foreign

government employment if it would advance U.S. national

security interests (50 U.S.C. §3073a(a)(2)(A)(ii)(II)). One

option for addressing possible concerns that may arise from

such approved employment could be establishing additional

conditions with the intent of preventing potential conflicts.

For example, existing provisions in the DOD Joint Ethics

Regulation (JER) could be extended to cover regular

retirees before, during, and after approved employment

(DOD 5500.07-R). Alternatively, Congress could require

the establishment of specific standards of conduct for

foreign government employment by regular retirees, as well

as other categories of federal office holders who must

receive congressional consent to work for a foreign state

(DOD Directive 5500.07).

Alan Ott, Analyst in Defense and Intelligence Personnel

Policy

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Foreign Government Employment by Armed Services Retirees

IF12276

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