Foreign Government Employment by Armed Services Retirees

Foreign Government Employment by Armed Services Retirees

Updated January 5, 2023
Foreign Government Employment by Armed Services Retirees
Background
by regular retirees in certain cases (P.L. 95-105, §509).
In 2021, the Washington Post filed Freedom of Information
Under this consent, if the service secretary concerned
Act requests with the Department of Defense (DOD) and
approves a request to work for a foreign government, the
Department of State (DOS) for the records associated with
Secretary of State must then make the final decision on this
retired general and flag officers who had obtained approvals
request, but must first establish whether the employment
required by federal law for employment with a foreign
would harm U.S. foreign relations given the continued
government. Information released by DOD and DOS was
military status of the regular retiree (22 C.F.R. §3a.5).
later published in a series of news articles [see Washington
Post, “Foreign Servants” (Oct. 18, 2022)]. This In Focus
Unintended Foreign Government Employment
examines the process through which a retiree of a regular
Even if the links between a foreign state and foreign employer
component of an armed service in a military department of
are not apparent, unwittingly accepting foreign government
the United States (regular retiree) obtains approval to work
employment is stil prohibited. DOD cautions regular retirees
for a foreign government. The In Focus also contains a
to exercise due diligence by ensuring a foreign employer that
review of other federal restrictions that apply to this work.
ostensibly is not affiliated with a foreign state is not in fact
owned, operated, or control ed by a foreign government.
Regular Retirees and Continued Military Status
Regular retirees typically are servicemembers in the regular
Loss of Retired Pay for Actions in a Foreign State
component of an armed service who qualified for retirement
DOD will reduce the retired pay of regular retirees found to
based on their past ful -time service and are entitled to retired
have accepted unapproved foreign government employment
pay based on their continuing obligation to serve if recalled to
by the amount received as compensation for this work;
duty (10 U.S.C. §688). As such, this permanent service
however, these retirees can still request approval of this
obligation places regular retirees in a continued military status.
employment. The full entitlement to retired pay will resume
Consequently, they also remain subject to the Uniform Code
if a belated request is approved, but DOD will not restore
of Military Justice [UCMJ; 10 U.S.C. §802 (Art. 2)].
previously reduced amounts as such approvals cannot be
retroactive. Whether foreign government employment is
Table 1 lists the laws and policies applicable to DOD and
approved or unapproved, regular retirees who relinquish
DOS approval processes for regular retirees.
U.S. citizenship to work for a foreign state, or for any other
reason, will lose their entitlement to regular retired pay, as
Table 1. Foreign Government Employment
DOD deems loss of U.S. nationality incompatible with the
Regular Retiree Approval Process
continued military status of regular retirees.
Law and Policy
Purpose
Employment Does Not Include Military Service
U.S. Cons., Art. I, Sec. 9, Cl. 8
Employment Prohibition
37 U.S.C. §908
Employment Exception
The congressional consent for regular retirees to accept civil
22 C.F.R. Part 3a
DOS Process
employment with a foreign government does not extend to
AR 600-291
Army Process
activities that DOD or DOS would consider military service.
AFI 36-2913
Air Force Process
Currently, the only congressional authorization for regular
retirees to perform foreign military service is in the armed
MyNavy HR (Retired Activities)
Navy Process
forces of a newly democratic nation (10 U.S.C. §1060). DOD
DOD 7000.14-R, V. 7B, Ch. 5, 6 Loss of Retired Pay
policy requires loss of retired pay if a retiree’s foreign military
Emoluments Clause Prohibitions
service is unapproved, but there is no specific offense in the
UCMJ that makes such service subject to punitive measures.
Due to concerns over possible undue influence by foreign
nations, the emoluments clause of the U.S. Constitution
Persons not Prohibited by the Emoluments Clause
prohibits federal office holders from receiving gifts, salary,
Former servicemembers who no longer have a military
honoraria, consulting fees, or travel expenses from a foreign
status are not considered federal office holders based on
government, unless otherwise authorized by Congress.
their former service. Except for reasons other than military
Members of the armed services, including active, reserve,
service, foreign government employment by these former
and National Guard forces, are classified as office holders
servicemembers typically would not be prohibited:
under this clause. Regular retirees are included in this
classification based on their continued military status.
 Reserve Component retirees (receiving retired pay);

Exception to the Emoluments Clause Prohibitions
Disability retirees of the armed services; and
 Persons who leave the armed services without retired
Although foreign emoluments generally are prohibited,
pay eligibility or further military service obligations.
Congress has authorized foreign government employment
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Foreign Government Employment by Armed Services Retirees
Foreign Employment Restrictions
of this provision can result in fines and imprisonment up to
Even if regular retirees obtain secretarial approval to accept
five years (18 U.S.C. §219).
foreign government employment authorized by Congress,
but otherwise prohibited by the emoluments clause, they
Loss of Nationality
may still be subject to certain statutory restrictions enacted
Under the Immigration and Nationality Act of 1952 (INA),
by Congress for this type of employment.
U.S. nationals aged 18 or older who work for a foreign state
may lose this nationality by committing acts of expatriation,
Intelligence Community (IC)
which include acquisition of this state’s nationality or
Since about 80% of the IC workforce is within the IC
swearing, affirming, or declaring allegiance to this state (8
elements in DOD, previous service in the IC is common for
U.S.C. §1481(a)(4)). Yet in practice, loss of nationality for
regular retirees. From 2014 to 2022, former IC employees
foreign government employment is unlikely as various
(including servicemembers) were required to report their
judicial decisions and DOS policy implementing them have
employment with a foreign government in the two-year
narrowed the scope of this INA provision to a point that its
period after occupying a covered position, which was
limits on foreign government employment would be rare.
defined broadly to include most IC positions (P.L. 113-293,
For example, an administrative presumption established by
§305). In 2022, a 30-month ban on such employment by
DOS in 1980 asserts that a U.S. national cannot lose this
former IC employees superseded this requirement (50
nationality unless its relinquishment is intended (22 CFR
U.S.C. §3073a). Violations of this ban can be prosecuted
§50.40(a)). Thus, the expatriating acts related to foreign
criminally and result in security clearance revocation. The
government employment would not result in loss of U.S.
Director of National Intelligence may grant waivers to the
nationality without further evidence of intent. However,
ban, but former IC employees who also are regular retirees
DOS will not apply this presumption to foreign government
would still require secretarial approvals for foreign
employment in a policy level position (7 FAM §1285(a)).
government employment. The fiscal year 2023 Intelligence
Though even without such a presumption, a U.S. national in
Authorization Act contains further IC restrictions, including
a policy making role who affirms an intent not to relinquish
a prohibition on working for certain foreign countries and a
this nationality may ultimately avoid its loss, unless serving
requirement for yearly reporting of foreign government
as a foreign minister or head of government.
work that does not require a waiver (P.L. 117-263, §6301).
Congressional Considerations
Defense Trade Controls
Employment with a foreign government is not prohibited
DOS oversees the export licensing of certain defense
under federal law generally beyond these specific federal
articles and services (22 U.S.C. §2778). In the International
restrictions and the emoluments clause prohibitions on
Traffic in Arms Regulations (ITAR; 22 C.F.R. Subchapter
federal office holders. Departmental review of requests for
M), military advice and training are among the services
the approval of foreign government employment normally
subject to defense trade controls. Accordingly, regular
is limited to whether the employment will have adverse
retirees who intend to export defense services while
political or security effects on the United States. However,
working for a foreign government would need two separate
some commentators have suggested that certain actions by
approvals from the Secretary of State as each activity is
regular retirees during and after their foreign government
controlled by a distinct DOS legal regime. Convictions for
employment could conflict with U.S. foreign relations and
willful criminal violations of the military export control
national security interests.
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)).
While the current departmental standard of review for
requests to approve foreign government employment is
Foreign Agent
meant to avoid harm to the United States, Congress could
Persons working for a foreign government may be required
consider adopting the IC waiver standard for a temporary
by the Foreign Agents Registration Act of 1938 (FARA) to
restriction on such employment, which only permits foreign
register with the Department of Justice (DOJ) as a foreign
government employment if it would advance U.S. national
agent of a foreign principal (22 U.S.C. §§611-621). Within
security interests (50 U.S.C. §3073a(a)(2)(A)(ii)(II)). One
the United States, a foreign agent is a person who serves the
option for addressing possible concerns that may arise from
interests of a foreign principal by:
such approved employment could be establishing additional

conditions with the intent of preventing potential conflicts.
Engaging in its political activities;

For example, existing provisions in the DOD Joint Ethics
Acting as its political consultant;

Regulation (JER) could be extended to cover regular
Overseeing its pecuniary interests; or

retirees before, during, and after approved employment
Representing it before a federal agency or official.
(DOD 5500.07-R). Alternatively, Congress could require
the establishment of specific standards of conduct for
Anyone who fails to register as a foreign agent if required
foreign government employment by regular retirees, as well
under the FARA may be subject to criminal prosecution for
as other categories of federal office holders who must
false statements or willful omissions (22 U.S.C. §618).
receive congressional consent to work for a foreign state
Restrictions on Former Federal Officials
(DOD Directive 5500.07).
For the first year after leaving their positions, certain former
federal officials cannot represent a foreign entity before the
Alan Ott, Analyst in Defense and Intelligence Personnel
U.S. government or attempt to influence U.S. officials on
Policy
behalf of this entity (18 U.S.C. §207(f)). Willful violation
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Foreign Government Employment by Armed Services Retirees

IF12276

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https://crsreports.congress.gov | IF12276 · VERSION 6 · UPDATED