December 9, 2022
Foreign Government Employment by Armed Services Retirees
Background
Exception to the Emoluments Clause Prohibitions
In 2021, the Washington Post filed Freedom of Information
Although foreign emoluments generally are prohibited,
Act requests with the Department of Defense (DOD) and
Congress has authorized foreign government employment
Department of State (DOS) for the records associated with
by regular retirees in certain cases (P.L. 95-105, §509).
retired general and flag officers who had obtained approvals
Under this consent, if the service secretary concerned
required by federal law for employment with a foreign
approves a request to work for a foreign government, the
government. Information released by DOD and DOS was
Secretary of State must then make the final decision on this
later published in a series of news articles [see Washington
request, but must first establish whether the employment
Post, “Foreign Servants” (Oct. 18, 2022)]. This In Focus
would harm U.S. foreign relations given the continued
examines the process through which a retiree of a regular
military status of the regular retiree (22 C.F.R. §3a.5).
component of an armed service in a military department of
the United States (regular retiree) obtains approval to work
Unintended Foreign Government Employment
for a foreign government. The In Focus also contains a
Even if the links between a foreign state and foreign employer
review of other federal restrictions that apply to this work.
are not apparent, unwittingly accepting foreign government
employment is stil prohibited. DOD cautions regular retirees
Regular Retirees and Continued Military Status
to exercise due diligence by ensuring a foreign employer that
Regular retirees typically are servicemembers in the regular
ostensibly is not affiliated with a foreign state is not in fact
component of an armed service who qualified for retirement
owned, operated, or control ed by a foreign government.
based on ful -time service and are entitled to pay. This pay is
based on the permanent obligation of a regular retiree to
Loss of Retired Pay for Actions in a Foreign State
serve if recalled to duty (10 U.S.C. §688). As such, this service
DOD will reduce the retired pay of regular retirees found to
obligation places regular retirees in a continued military status.
have accepted unapproved foreign government employment
Consequently, they also remain subject to the Uniform Code
by the amount received as compensation for this work;
of Military Justice [UCMJ; 10 U.S.C. §802 (Art. 2)].
however, these retirees can still request approval of this
employment. The full entitlement to retired pay will resume
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if a belated request is approved, but DOD will not restore
and policies applicable to DOD and DOS approval
previously reduced amounts as such approvals cannot be
processes for regular retirees.
retroactive. Whether foreign government employment is
approved or unapproved, regular retirees who relinquish
Table 1. Foreign Government Employment
U.S. citizenship to work for a foreign state, or for any other
Regular Retiree Approval Process
reason, will lose their entitlement to regular retired pay, as
DOD deems loss of U.S. nationality incompatible with the
Law and Policy
Purpose
continued military status of regular retirees.
U.S. Cons., Art. I, Sec. 9, Cl. 8
Employment Prohibition
37 U.S.C. §908
Employment Exception
Employment Does Not Include Military Service
22 C.F.R. Part 3a
DOS Process
The congressional consent for regular retirees to accept civil
AR 600-291
Army Process
employment with a foreign government does not extend to
AFI 36-2913
Air Force Process
activities that DOD or DOS would consider military service.
NAVSOP-1778
Navy Process
Currently, the only congressional authorization for regular
DOD 7000.14-R, V. 7B, Ch. 5, 6 Loss of Retired Pay
retirees to perform foreign military service is in the armed
Emoluments Clause Prohibitions
forces of a newly democratic nation (10 U.S.C. §1060). DOD
policy requires loss of retired pay if a retiree’s foreign military
Due to concerns over possible undue influence by foreign
service is unapproved, but there is no specific offense in the
nations, the emoluments clause of the U.S. Constitution
UCMJ that makes such service subject to punitive measures.
prohibits federal office holders from receiving gifts, salary,
honoraria, consulting fees, or travel expenses from a foreign
Persons not Prohibited by the Emoluments Clause
government, unless otherwise authorized by Congress.
Former servicemembers who no longer have a military
Members of the armed services, including active, reserve,
status are not considered federal office holders based on
and National Guard forces, are classified as office holders
their former service. Except for reasons other than military
under this clause. Regular retirees are included in this
service, foreign government employment by these former
classification based on their continued military status.
servicemembers typically would not be prohibited:
Reserve Component retirees (receiving retired pay);
Disability retirees of the armed services; and
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Foreign Government Employment by Armed Services Retirees
Persons who leave the armed services without retired
U.S. government or attempt to influence U.S. officials on
pay eligibility or further military service obligations.
behalf of this entity (18 U.S.C. §207(f)). Willful violation
of this provision can result in fines and imprisonment up to
Foreign Employment Restrictions
five years (18 U.S.C. §219).
Even if regular retirees obtain secretarial approval to accept
Loss of Nationality
foreign government employment, they may also be subject
Under the Immigration and Nationality Act of 1952 (INA),
to federal restrictions limiting this type of employment by
U.S. nationals aged 18 or older who work for a foreign state
persons who are not federal office holders.
may lose this nationality by committing acts of expatriation,
which include acquisition of this state’s nationality or
Intelligence Community (IC)
swearing, affirming, or declaring allegiance to this state (8
Since about 80% of the IC workforce is within the IC
U.S.C. §1481(a)(4)). Yet in practice, loss of nationality for
elements in DOD, previous service in the IC is common for
foreign government employment is unlikely as various
regular retirees. From 2014 to 2022, former IC employees
judicial decisions and DOS policy implementing them have
(including servicemembers) were required to report their
narrowed the scope of this INA provision to a point that its
employment with a foreign government in the two-year
limits on foreign government employment would be rare.
period after occupying a covered position, which was
For example, an administrative presumption established by
defined broadly to include most IC positions (P.L. 113-293,
DOS in 1980 asserts that a U.S. national cannot lose this
§305). In 2022, a 30-month ban on such employment by
nationality unless its relinquishment is intended (22 CFR
former IC employees superseded this requirement (50
§50.40(a)). Thus, the expatriating acts related to foreign
U.S.C. §3073a). Violations of this ban can be prosecuted
government employment would not result in loss of U.S.
criminally and result in security clearance revocation. The
nationality without further evidence of intent. However,
Director of National Intelligence may grant waivers to the
DOS will not apply this presumption to foreign government
ban, but former IC employees who also are regular retirees
employment in a policy level position (7 FAM §1285(a)).
would still require secretarial approvals for foreign
Though even without such a presumption, a U.S. national in
government employment. Among other limitations, the
a policy making role who affirms an intent not to relinquish
proposed Intelligence Authorization Act for fiscal year
this nationality may ultimately avoid its loss, unless serving
2023 contains further restrictions which would prohibit
as a foreign minister or head of government.
working for certain foreign countries, and would require
Congressional Considerations
yearly reporting of foreign government work that does not
require a waiver (H.R. 7776 (EAH), §6301).
Employment with a foreign government is not prohibited
under federal law generally beyond these specific federal
Defense Trade Controls
restrictions and the emoluments clause prohibitions on
DOS oversees the export licensing of certain defense
federal office holders. Departmental review of requests for
articles and services (22 U.S.C. §2778). In the International
the approval of foreign government employment normally
Traffic in Arms Regulations (ITAR; 22 C.F.R. Subchapter
is limited to whether the employment will have adverse
M), military advice and training are among the services
political or security effects on the United States. However,
subject to defense trade controls. Accordingly, regular
some commentators have suggested that certain actions by
retirees who intend to export defense services while
regular retirees during and after their foreign government
working for a foreign government would need two separate
employment could conflict with U.S. foreign relations and
approvals from the Secretary of State as each activity is
national security interests.
controlled by a distinct DOS legal regime. Convictions for
While the current departmental standard of review for
willful criminal violations of the military export control
requests to approve foreign government employment is
statutes can result in imprisonment up to 20 years and a fine
meant to avoid harm to the United States, Congress could
for as much as one million dollars (22 U.S.C. §2778(c)).
consider adopting the IC waiver standard which requires the
Foreign Agent
employment to be necessary for advancing U.S. national
Persons working for a foreign government may be required
security interests (50 U.S.C. §3073a(2)). One option for
by the Foreign Agents Registration Act of 1938 (FARA) to
addressing possible concerns that may arise from such
register with the Department of Justice (DOJ) as a foreign
approved employment could be establishing additional
agent of a foreign principal (22 U.S.C. §§611-621). Within
conditions with the intent of preventing potential conflicts.
the United States, a foreign agent is a person who serves the
For example, existing provisions in the DOD Joint Ethics
interests of a foreign principal by:
Regulation (JER) could be extended to cover regular
retirees before, during, and after approved employment
Engaging in its political activities;
(DOD 5500.07-R). Alternatively, Congress could require
Acting as its political consultant;
the establishment of specific standards of conduct for
Overseeing its pecuniary interests; or
foreign government employment by regular retirees, as well
Representing it before a federal agency or official.
as other categories of federal office holders who must
receive congressional consent to work for a foreign state
Anyone who fails to register as a foreign agent if required
(DOD Directive 5500.07).
under the FARA may be subject to criminal prosecution for
false statements or willful omissions (22 U.S.C. §618).
Alan Ott, Analyst in Defense and Intelligence Personnel
Policy
Restrictions on Former Federal Officials
For the first year after leaving their positions, certain former
IF12276
federal officials cannot represent a foreign entity before the
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Foreign Government Employment by Armed Services Retirees
https://crsreports.congress.gov | IF12276 · VERSION 1 · NEW
Foreign Government Employment by Armed Services Retirees
Disclaimer
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https://crsreports.congress.gov | IF12276 · VERSION 1 · NEW