I'm not really sure that there's anything that FR can do about that as a legal matter. They could certainly use their policy to ban MD4Bush, something which hasn't been done yet.
It is rather ironic, though, that the Washington Post, which sued FR for copyright infringement, has no problem with violating FR's stated policies.
Perhaps "ironic" is too gentle.
The participation of the Washington Post makes this story exponentially more interesting than it would be otherwise. Their "journalistic ethics" (or more accurately the lack of them) are on display for all to see. With the problems the NYT has been having, the WaPo may be on the way to being the most influential paper in the country.