CONGRESSIONAL RECORD - SENATE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800020020-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 4
• Document Creation Date: December 9, 2016
• Document Release Date: August 31, 2001
• Sequence Number: 20
• Publication Date: September 10, 1975
• Content Type: OPEN

September IDAed For CONGRESSIONAL RECORD 77SENATE000800020020-3
of allegedly planned political assassina-
tions. Dubbed "tyrannicides," these ef-
forts worked under the assumption that
it is in the best interests of this country
to dispose of the. leaders we feel are
harmful or undesirable.
Unfortunately, some have felt that, in
certain cases, tyrannicide is justifiable.
This, in my mind, raises certain doubts
as to the morality of our foreign policy
implementation.
But, aside from the morality, there is
the question of true national interests.
Tyrannicide is. merely an attack at the
at the tip of the iceberg, so to speak!
What we must realize is that it does
nothing to quell, satiate, or change the
factors which brought about such a situa-
tion.
Second, there is the question of where
we draw the limits.
Recently, I read an editorial in the
Yankton, S. Dak., Press and Dakotan
which quite accurately addressed these
concerns. I think it is worthy of my col-
leagues' attention.
I ask unanimous consent that the edi-
torial be printed in the RECORD.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
TYRANNICIDE: PERILOUS POLITICS
As the rumors and suspicions and alle-
gation that the Central Intelligence Agency,
with the knowledge of American presidents,
plotted or perpetrated the assassination of
certain foreign heads of state, a number of
commentators have questioned whether this
kind of secret, "gunpoint diplomacy" is nec-
essarily and always evil.
Calling it not murder by tyrannicide col-
lunmist John P. Roche asks: "Would it have
been unconstitutional; immoral and general-
ly dreadful if some American intelligence
agent had put a 30-caliber slug into Hitler's
skull, in, say, 1937?"
On the face of it, it might appear that the
20th century would have been a far happier
one had someone dispatched Herr Hitler
when he first raised Nazism's ugly head. The
same could be said about Torquemada and
the 15th century, or Genghis Khan and the
12th century.
The argument collapses, however, as soon
as we consider the death of a leader like
Abraham Lincoln. Yet his assassin fervently
believed that he was ridding the world of a
tyrant. The student who assassinated the
Archduke of Austria in 1914 and precipi-
tated the First World War no doubt thought
of his act as heroic.
Of course, neither of these "tyrannicides,"
nor others which have dramatically altered
history, was the official act of an organized
government. They were the work of fanatic
Individuals. Nevertheless, it would be peri-
lous if we came to believe that even in the
case of Hitler we can set up a standard of
morality for governments separate from that
demanded of individuals in society.
Yes, it can be argued that it would have
been a good thing if someone had killed
Hitler in 1937. Perhaps Stalin, too. But what
about Mussolini? And Franco? Once em-
barked on such a course, where would we
stop?
The assassination of Fidel Castro in 1962
or 1963 would not have changed the factors
that brought him into power In the first
place, any more than the assassination of
President Diem of South Vietnam was of
benefit to'that tragic land. And as for Adolph
Hitler, there were other, nonmurderous
means of dealing with him in 1937, if world
statesmen had had the guts to stand up to
him.
One feature distinguishing the American
political experiment from all others before it
was that it provided a peaceful means for
changing rulers. If we ever reach the point
where we practice a different morality in our
dealings with foreign nations than we prac-
tice at hime, if we adopt "tyrannicide" as
a valid, 'all if only a last resort, method of
furtheril naQio a poliby, we will have as-
sassins 1 is best In
WITHMIAWAL OF A COSPONSOR
S. I
Mr. BAYH. Mr. President, I ask
unanimous consent that my name be re-
moved as a cosponsor of S. 1, a bill to
codify, revise, and reform title 18 of the
United States Code; to make appropri-
ate amendments to the Federal Rules of
Criminal Procedure; to make conform-
ing amendments to criminal provisions
of other titles of the United States Code;
and for other purposes, and that all sub-
sequent printing of S. 1 reflect this
request.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. BAYH. I further request unani-
mous consent to print in the RECORD a
statement I made during the recent re-
cess detailing the reasons for my deci-
sion to remove my name as a cosponsor
of S. 1.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
STATEMENT OF SENATOR BIRCH BAYH ON
THE CRIMINAL CODE
I originally joined as a co-sponsor of S-1
because I was convinced that codification
of federal criminal law was needed and be-
cause I believed that as a co-sponsor I
would be in a better position to see to it
that those sections of the draft bill with
which I took exception were modified. In my
statement of co-sponsorship, I made it quite
clear that I could not accept some sections
of the draft bill and would seek to amend
it.
I have now become convinced that I mis-
judged the role. I could play that would be
most effective in strengthening those basic
civil liberties which I have stood for
throughout my public career.
During the preliminary discussions on
this massive bill which runs to 735 pages,
this strategy appeared to be working with
some success. A dozen changes in the bill
were agreed to by the Subcommittee and
the Department of Jutice. But the more
people I talked with around the country
about this bill, the more I became con-
vinced that my initial judgment that I could
play the most effective role by working
from the inside as a co-sponsor was wrong.
For several reasons, S-1 has come to be
viewed by many people as a symbol of repres-
sion.
In its present form, the bill does have
features which are repressive. This country
has just witnessed an effort by the most
powerful officials in the land to violate the
basic rights of individual Americans. I fear
that this temptation will not pass with
Watergate. As the great Justice. Louis D.
Bandeis once observed, "The greatest dangers
to liberty lurk in insidious encroachment by
men of zeal, well meaning but without under-
standing." Those civil liberties and civil
rights we cherish can be lost today or tomor-
row a law at a time or a phrase at a time
S 15705
through the action of men of good intention
who lack understanding. -
Throughout my public life I have fought
to protect the rights of individual Ameri-
cans. At this moment . in our history when
I believe we must rededicate ourselves to
the preservation of those basic rights which
have kept America and Americans free, I
cannot associate myself with a measure
which has become.a symbol of repression to
so many.
While I will ask that my name be removed
from the current draft bill, I fully intend to
press my efforts to 'see to it that the bill is
modified to take account of those sections
which I have indicated I cannot support. I
continue to believe that codification is a
highly desirable goal, and I will work toward
that end, but if my amendments are not
agreed to, I will do everything I can to see
to it that the bill is defeated.
I would like to outline for you in some
detail-first, why I believe codification is
desirable, second, the changes, in the bill
that we have already achieved and, third,
the amendments which I will propose.
WHY IS CODIFICATION NEEDED?
The nearly two hundred years of Ameri-
can legal history have seen us evolve from
a nation bound by the judicially developed
common law of Great Britain to one in which
criminal sanctions, if they are to be im-
posed, must be specifically enacted by the
people's representatives in federal and state
legislative bodies. .
In the federal system, however, this legis-
lative process has been one of reaction and
accretion. A particular problem is observed
and is regarded as serious enough to merit
criminal sanctions and then a statute is
enacted which addresses itself, often very
narrowly, to the precise problem presented.
As a result of this unsystematic process of
evolution, serious gaps in the coverage of
our laws exist. At the same time many of
our present criminal statutes suffer from
unnecessary overlap. The punishments pro-
vided are often inconsistent or outmoded. A
number of statutes dealing with identical
kinds of conduct, yet worded differently, are
interpreted in varying and frequently con-
flicting fashions.
Instead of a criminal code, we have de-
veloped something akin to what might be
termed "Collected Federal Criminal Statutes."
But even that term is somewhat misleading
for it cannot be properly said that the fed-
eral criminal laws are collected in any one
conveniently accessible place. Criminal of-
fenses exist in virtually all of the fifty titles
of the United States Code. One who wished
to discover whether a certain type of con-
duct was the object of a federal offense
would have to rely on the index to those fifty
titles and his own skill as a researcher in
order to act with total ,certainty. While
ignorance of the law ought not to constitute
a general defense, it also ought not to be
encouraged by the manner in which the
laws are preserved. Yet, the present dis-
organized scattering of criminal offenses
does precisely that.
Our present criminal statutes are scat-
tered throughout the 50 volumes of the
United States Code; they suffer from un-
necessary overlap; statutes dealing with
identical kinds of conduct, yet worded dif-
ferently, are interpreted in varying and fre-
quently conflicting fashions. A few examples:
There are several dozen separate statutes
in the present law which punish theft. Most
commonly the distinction in their coverage
Is based on the nature of the federal govern-
ment's jurisdiction; Thus, one who steals a
truck containing mail while it is parked on
an Indian reservation may be charged with
three separate crimes, I.e., theft of the mails,
robbery on the Indian reservation, and the
Deyer Act. These three offenses have widely
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CONGRESSIONAL RECORD - SEI\ ATE September 10, 19 i .r
varying iaiwLions attached to them and
the choice is left to the prosecutor to charge
whichever he pleases, or all three for that
matter. There is no mechanism to review
the prosecutor's actions;
The various Watergate offenses would not
have been prosecutable federally had they
not hai3pened to occur in the District of Co-
'smbia.. even though the intent was clearly
to disrirt and influence a Presidential elec-
tion. The new code rectifies-this situation;
One section of present law punishes the
breaking into a vehicle or vessel of the Post
Office with a maximum penally of three
years, while: breaking into a post office build-
ing carries a five year penalty;
One provision of present law punishes
making= a false statement to a government
agency under some circumstances as a five
year felony, yet another section adds an ad-
ditional charge carrying a three year penalty
if it happens to involve the Department of
Housing and Urban Development; and
Another provision makes it a federal of-
fense to engage in a conspiracy to deprive a
citizen of his rights under the Constitution,
yet there is no substantive offense actually
punishing one who does deprive a person of
his federally guaranteed rights.
There is, therefore, a clear need for codifi-
cation it, order to limit the extent to which
conduct is criminalized and in order to pro-
vide notice as to what the criminalized con-
duct is. Our criminal law represents the most
serious sanction that society can inflict upon
its members. That system of sanctions ought
to operate under conditions of simplicity,
clarity, and fairness. The very nature of the
way in which current law developed argues
strongly that these essential elements have
been glossed over.
The criminal law is not simple when only
a trained and skilled individual can discover
where it may be found. It is not clear when
a common word, "willful" for example, has
one meaning in one statute and a very differ-
ent meaning in another, the difference de-
pending in large part on the vagaries of the
language at the time the statute was en-
acted :and the meaning of the term to the
particular legislators responsible for the leg-
islative history. It is in some sense unfair to
have vital -questions of law depend for their
answer a pen the judicial circuit or district in
which the prosecution is instituted as is the
case with the corroboration requirement in
rape cases, for example.
Moreover, the system is cumbersome for
the prosecutor and this leads to situation"
which, white not violative of basic rights, are
certainly undesirable If they can be avoided.
New crimes must be squeezed into old stat-
utes with the same effort as putting square
pegs in round holes.
A statute designed to prevent large-scale
frauds through the use of the mails must be
made eo fit. the offense of using stolen credit
cards. A law enacted to protect blacks against
"facial o-opression during the Reconstruction
period iia the only one available to charge
National Guardsmen alleged to have wan-
tonly tacen the lives of students at Kent
State. R.esaect for law naturally decreases
when a jury, having heard evidence of a
crime appearing to be murder, is charged by
the judie in terms of an offense described
as the deprivation of a civil right under
color of l aw.
Revision and reform then are also vital
needs-w:.thin the Federal criminal structure
in addition to codification. Uniformity and
simplicity of approach and language lead to
wider understanding of the meaning and
content of the law. Elimination of anchronis-
tic reciuirements and resolution of ancient
and trivial differences will inevitably lead
to a greater belief in Lae wisdom of the law
and consequently a greater faith in the
fundamental concept that this society is not
only ous of laws, but of just laws as well.
Codification could be at its simplest level a
process of bringing our criminal statutes to-
gether fn a single title of the United State
Code with the ultimate goal of easy access
to the jaw. But to do only this would be to
deal with only one part of the problem with
the federal criminal law. Since, as I have
noted, there are in fact many other preblem,~
associated with our present unstructurec
collection of criminal statutes, the process
of codification ought also to involve the join,
processes of revision and reform so as to
modernize and make more fair that area o:
law--the criminal code--in which ::)it,- rtos?
basic liberties and values are sought to bi-
preserved. Whatever may be said for o:
against isolated aspects of a given effort a
codification, it seems clear tiat there exist.
a compelling need for the federal goverimen
to operate under a rational, just and work-
able criminal code and that, consequently
the concept of codification and the comple-
mentary aspects of revision and reform an
objectives which the entire citizenry can an(
should support.
MODIFICATIONS AGREED TO IN THE BILL
Because of the size and complexity of this -
project. I determined when I decided to ado`
my name as a co-sponsor in January that the
first step was to instruct my staff to sit dowi.
with the staff of the Criminal Laws Sub-
committee, the staffs of ether interested:
Senators and representatives of the Justic':
Department and negotiate those change
which would improve the bill, but which did:
not involve major policy issues. The staff wa
also directed to isolate those policy question:
for presentation to the Committee Thi
initial process has now been completed with
the following significant modifications hav-
Ing been agreed to:
(1) The statute of limitations for failin,-
to register under the selective services law=
(5 years) begins to run at the time the dui-
to register ceases (age 26) instead of bein..r
indefinite;
(2) There is an absolute bar to trying an -
juvenile below the age of sixteen as an adul?
eliminating the "murder" exception in S. 1.
(3) In the treason section, the constitu -
tional requirement that conviction "include
the testimony of two witnesses to the same
overt act" is added;
(4) In the treason and related crimes sec-
tion, the modifier "armed" was added to thy,
term "insurrection" in order to limit its
scope.
(5) in the constitutionally sensitive sec
tion which punishes inciting the overthro~ t
of the government by force. the "clear ana
present danger test" was added to the statu-
tory language; new language was added re
quiring "active" membership in a grow;:.
which the defendant specifically knows hw
the intent of overthrowing the govemner--
by force or violence: and the penalty for the
offense was lowered from If to 7 years.
(6) The sabotage section which p:inishc
one who damages certain - peciflc propert
with an intent to impair the nation's abiiit,;
to make war or engage in defense activities
was modified. As the bill read, it include
any property of the United States and an-
public facility. Language was added requit-
ing that the property or facility be "used if
or particularly suited for Else in, the na-
tional defense".
(7) The grading of the offense of evadin
military service was reduced from a Class 11
felony (7 years) to a Class E 13 years), ex-
cept in time of war.
(8) In the rape section, language w?-
added barring the requirement of corrobora-
tion of the victim's testimony, and prohibit
ing the introduction into evidence of he vie
tim's prior sexual conduct.
(9) In the Ellsberg case, the governmer -
attempted to convict him under the generi:
theft sections of Title 18 on the theory the-..
it had a "property right" in the Pentagon
Papers (aside from the value of the actual
Xerox paper). Since S. 1 has sections for
prosecuting the disclosure of classified in-
formation, a bar to prosecution was added
in the theft sections so that a person could
not be prosecuted for both.
(10.) The scope of the federal riot statute
was reduced by eliminating the provisto:,
which gave the federal government jurisdic-
tion whenever the mails or a facility of inter-
state commerce was used to plan or carry out
a riot. In addition, the definition of riot was
narrowed to require "violent and tumultous
conduct causing a grave danger of injury to
persons or property" by at least 10 persons.
(11. In the obscenity section, the eons: f-
tutional phrase requiring that the material
appeal "predominantly" to the prurient in-
terest was added,
(12.) The section punishing disorderly cof;-
duct was narrowed to eliminate the following
acts from the section: (a) making a loud
noise; (b) using abusive or obscene lan-
gaage: and (c) soliicting a sexual act,
AMENDMENTS TO S. 1.
While as I have indicated, I strongly sup-
port the need for codification of the criminal
code, as one would expect with a project of
this magnitude, there are a number of policy
decisions reflected in the current draft of the
bill with which I take strong exception. Ac-
cordingly, I am today proposing a number of
specific changes In the statutory language.
The following are my specific proposals for
modification of the draft bill. I do not mean
that iidoption of these amendments will sat-
isfy aI of my concerns. I have made sure
that other Senators, with particular interests
in specific areas, do plan to offer amendments
covering other previsions with which I have a
problem. Senators Kennedy and Matthias, for
example, have developed special experience
by virtue of hearings held last year by the
Subcommittee on Constitutional Rights,
Administrative Practices, and a special Ad
Hoc Subcommittee of the Foreign Relations
Committee in the wiretapping area. Senator
Tunney has Indicated a particular interest in
the insanity defense. Senator Burdick, as
Chairman of the Subcommittee on Peniten-
tiaries, has amendments to the provisions re-
lating to sentencing and parole. Senator Hart
has, in the past, made a number of proposals
in the area of firearms control and drug
abuse. Other Senators, not on the Judiciary
Committee, such as Senators Javits, Cran-
ston, Nelson, and Moss have offered Legisla-
tion which comes within the general, purview
of the federal criminal code.
OFFICIAL SECRETS
The sections of the Code which have drawn
more public comment than any others are
those relating to the control of information
held by the government. This is understand-
able given the abuses of government secrecy
over the last decade which were without pre-
cedent in our history. The sections involved
are Subchapter C of Chapter 11 "Espionage
and Related Offenses" and Subchapter D of
Chapter 17 "Theft and Related Offenses".
The current espionage laws are contained
in some twelve sections of Titles 18, 42 and 50
of the U.S. Code. Generally, these laws punish
anyone who obtains a broadly defined cate-
gory of information relating to defense mat-
ters with an intent that it be used to the in-
jury of the United States or to the advan-
tage cf any foreign power. (18 U.S.C. 793 and
794) These sections have not been modified
substantially since their enactment as part
of the Espionage Act of 1917. Information
"relating to the national defense" is not spe-
cifically defined. Communication of such it,-
formation to any foreign government car-
ries a 10 year maximum penalty. In addition,
under the provisions of Section. 783 of Title
50, it is a crime for a government employee
to communicate any "classified" information
to a foreign government. To the extent there
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is classified information which would not
fall within the broad definition of informa-
tion "relating to the national defense" there
is, under current law, no provision which
punishes its disclosure except to a foreign
government or agent thereof. It is worth not-
ing that the law is unsettled as to whether
the publication of classified information
would constitute an offense under 50 U.S.C.
783, since by virtue of Its publication It ob-
viously becomes available to foreign govern-
ments. This was an issue in the Ellsberg case
but was never settled because of the outrage-
ous government misconduct which required
dismissal of that indictment.
The current draft provisions of S. 1 in
part codify present law, but also contain one
notable expansion. Under Section 1124 a new
offense is created which punishes the dis-
closure of any classified information held by
a government employee or government con-
tractor to anyone not authorized to receive
it.
In my view, both the current statutes and
the proposals contained in the bill are inade-
quate, and, indeed dangerous. The crux of
the problem is that they attempt to deal with
what are two quite separate problems in the
same statutory provisions. One concerns the
government's quite legitimate interest in pro-
tecting information relating to its military
capabilities from access by potential foreign
enemies. The other involves the highly sus-
pect right of the government to withhold in-
formation from its own citizens. Accordingly,
the amendment I will offer has been drafted
to separate, as much as possible, these two
interests.
Under my proposal, it will be an offense
to transfer any classified information di-
rectly to a foreign power or agent thereof
with an intent to injure the United States.
If the classified information so transferred
is especially sensitive "vital defense secrets",
which is specifically defined in the statute
as relating directly to certain military capa-
bilities, the offense is a Class A felony in
time of war and a Class B felony otherwise.
If the information is classified but does not
fall within this special category, the penal-
ties are substantially lowered.
The more difficult question is what type of
information is so essential to the security
of the United States that the government can
legitimately punish its disclosure by any,
one, the first amendment notwithstanding.
The approach of my proposed amendment
in this area is two fold: first, it very pre-
cisely and narrowly defines the type of in-
formation covered; and second, it adopts an
additional requirement taken from the Su-
preme Court's decision in the Pentagon
Papers case that the information's disclo-
sure must pose a "direct, immediate, and ir-
reparable harm to the security of the United
States". The amendment defines these
"vital defense secrets" as those which "di-
rectly concern the operation of"
(a) cryptographic information regarding
the nature, preparation, use or interpre-
tation of a code, cipher, cryptographic sys-
tem, or other method used for the purpose
of disguising or concealing the contents of
a communication by a foreign power or by
the United States;
(b) operating plans for military combat
operations;
(c) information regarding the actual meth-
od of operation of weapons system;
(d) restricted data as defined in Section
11 of the Atomic Energy Act of 1954.
In effect, what this amendment does is to
adopt the constitutional standard which
must be met before the government can im-
pose a prior restraint on the publication of
information as being likewise the appropri-
ate standard for the criminal law. I strongly
believe that in this way we can successfully
balance the public right to know and the
government's responsibility "to provide for
the common defense". The language for this
amendment has been worked out In a series
of meetings with the Reporters Committee
for Freedom of the Press and a number of
attorneys representing a broad cross-section
of the media.
Turning to the Chapter 17 offenses, there
has been concern about the assertion by the
government on several occasions in recent
years that it had a property interest in cer-
tain types of information, and therefore,
that anyone who disseminated such infor-
mation could be charged with the theft
of government property. As I have indicated,
these sections have now been modified to
exclude all classified information from their
coverage, unless obtained by illegal entry.
In my view, however, this does not com-
pletely take care of the problem. I have In
mind incidents like one which occurred re-
cently when the Chairman of the Federal
Reserve Board called in the FBI to investi-
gate the disclosure of certain financial in-
formation on consumer interest rates.
It is inconsistent with constitutional prin-
ciples to allow the government to assert a
proprietary interest in information gener-
ally. The amendment I will propose, there-
fore, will explicity state that the govern-
ment has no property interest in Informa-
tion. I might note that this is a policy
which is consistent with provisions of the
copyright law which we adopted fifty years
ago barring any copyright to the govern-
ment. At the same time, the amendment
would protect under separate sections a few,
very specialized categories of materials in-
cluding: information submitted in patent
applications; certain "trade secrets" volun-
tarily submitted to government agencies:
some types of confidential financial data on
private individuals and corporations: and
grand jury minutes. The amendment also
adds a similar bar to prosecution under the
related offense of defrauding the govern-
ment contained in Chapter 13.
Under present Federal decisional law, the
defense of entrapment, like other defenses,
raises an issue of the accused's guilt or in-
nocence. Thus, a successful claim of entrap-
ment results in an acquittal on the theory
that the accused is innocent of the crime
charged. This is true in spite of the fact
that the accused may have committed the
proscribed acts with the forbidden intention.
In fact, such an acquittal is the consequence
less of the accused's Innocence than of the
government's wrongdoing, for It is conceived
to be contrary to the congressional intent
to convict one who might not have com-
mitted the offense without the active and
energetic promptings of the government.
The defense of entrapment has an "origin-
of-intent" emphasis. It seeks to determine
whether it was the strength and persistence
of the government's urging or the accused's
own pre-existing criminal intention which
gave rise to the conduct constituting an
offense. The defense has, therefore, come to
require both that: (a) the government has
engaged in activities beyond the reasonable
limits of those artifices or stratagems neces-
sary to produce evidence of criminality, and
that (b) the accused was not predisposed
In fact or by reason of his past conduct to
engage in the prohibited conduct. These
twin elements of inducement and predispo-
sition, when joined, form the presently
recognized basis for the entrapment defense.
The proposed amendment changes the
existing law by giving principal significance
to the inducements of the government. En-
trapment Is continued as a defense to a
crime, but the question of the accused's
predisposition is removed and the issue is
framed rather in the objective terms of
whether persons at large who would not
otherwise have- done so would have been
encouraged by the government's actions to
engage in crime.
S 15707
CONSPIRACY
The purpose of this amendment is to at-
tempt to substantially narrow the present
law of conspiracy. The exact origin of con-
spiracy theory in the common law appar-
ently is not known. While it first received
legislative recognition as early as 1305, it
did not reach full maturity until the 17th"
century, when the criminal law experienced
perhaps its 'greatest growth, largely at the
hands of the infamous Star Chamber.
The modern crime of conspiracy has been
defined as "so vague that it almost defies
definition". This factor has resulted in
widely varying definitions of the elements of
this crime.
The first part of my amendment would ex-
plicitly reject the controversial doctrine laid
down in Pinkerton v. United States, 328 U.S.
640 (1949). The effect of the Pinkerton doc-
trine is that mere membership in a con-
spiracy is sufficient not only for criminal
liability as a conspirator but also for all
specific offenses committed in furtherance
of it. I believe that while conspiracy law is
needed, particularly in organized crime and
civil rights offenses, it can be a dangerous
Instrument, and should be carefully con-
trolled. Some have argued for the complete
abolition of the offense. I am unwilling to go
this far, but I am convinced that a modifi-
cation of the Pinkerton doctrine is necessary
to keep the offense under reasonable control.
The second part of this amendment would
add to the general conspiracy statute, Sec-
tion 1002, the requirement that in order
to involve a particular defendant in a con-
spiracy charge he be guilty of some specific
conduct which is "substantially corrobora-
tive" of his intent to engage in one of the
criminal objectives. of the conspiracy. This
part of the amendment is an attempt to
narrow what I believe is the over-breadth
of the conspiracy laws by requiring a more
substantial overt act than does present law
by requiring a more substantial overt not
in order for the government to bring an in-
dividual within the conspiracy net. Both of
these recommendations follow those of the
Brown Commission.
CRIMINAL SOLICITATION
There is, at present, no federal law of
general applicability which prohibits an un-
successful solicitation to commit a crime,
although a few statutes define specific of-
fense which contain language prohibiting
solicitation such as 18 U.S.C. 201 that pro-
hibits soliciting the payment of a bribe. The
problem with this offense is its inherent
overbreadth. All it requires is one person
asking another if he is interested in commit-
ting any criminal act.
In my view, actions which come close to
being criminal are adequately covered by
the reach of the attempt provision which
encompasses conduct that goes beyond "mere
preparation" for the commission of the
crime, and by the broad sweep of the con-
spiracy statutes. The Brown Commission was
concerned by the scope of the solicitation
provision -and limited It to. felonies only
where the defendant engaged in a specific
"overt act". While this is a possible com-
promise position, I believe the crime of
solicitation should be eliminated entirely
from the Code.
IMPAIRING MILITARY EFFECTIVENESS BY
FALSE STATEMENT
Section 1114 of the Bill which punishes
the "impairing of military effectiveness by
false statement" likewise raises serious first
amendment concerns. This section punishes
conduct if, in time or war, an Individual
"with the intent to aid the enemy or to
impair, interfere with, or obstruct the ability
of 'the United States to engage in war or
defense activities, communicates a state-
ment of fact that is false, concerning: (1)
losses, plans, operations, or conduct of the
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CONGRESSIONAL L 5
military f)rces of the United States, of an
associate nai,ion, or of the enemy; (2) civil-
ian or mil tary catastrophe; or (3) any other
matter of fact that, if believed, would be
likely to affect the strategy or tactics of the
military forces of the United States or would
be likely co create general panic or serious
disruption". The first amendment problem
here is the danger of political prosecutions.
This danger was recognized by Justice Holmes
and Brandeis in their dissent in Pierce
v. - United States which affirmed the convic-
tions of Socialist Party members in 1920 who
distributed some 5,000 copies of an anti-war
leaflet. The present version of the bill adopts
the Holmes-Brandeis view that convictions
under this section can only be sustained if
the statements were, in fact, false and not
expressions of opinion. The amendment that
I am offering today, however, would go be-
yond this and require that the government
show, as an element of the offense, that the
defendant specifically knew that the infor-
mation in this category was false when he
communicated it. The government must have
the abilit v, in time of war, to apprehend
individuals who are knowingly publicizing
'false infoem.ation concerning military mat-
ters, but the reach of the statute must be
carefully circumscribed because of its close-
ness to rights protected under the first
amendment. I believe that this amendment
will provide such protections.
IMPAIRING MILITARY - EFFECTIVENESS
Section 11.12 of the proposed bill punishes
as a felony anyone who "in reckless disre-
gard of the risk that his conduct might im-
pair, interfere with, or obstruct the ability
of the United. States or an associate nation
to prepare for or to engage in war or defense
activities, he engages ill conduct (which)
damages, tampers with, contaminates,
defectively makes, or defectively repairs ...
any property which (is) used in, or is par-
ticularly suited for use in, the national de-
fense." Although this does not depart from
present 1. w, it has the potential for vast
abuse in unstable times. I do not believe
that reckless conduct should constitute a
serious criminal offense when it involves
property, even if that property can some-
how be rolated to the national defense. Ac-
cordingly. I will move to strike this section in
its entirely. If sabotage is intentional, it will
be punist,ed. under Section 1111. In addition,
there are provisions in Chapter 17 of the bill
which punish as a Class A misdemeanor the
destruction of government property.
OBSTRUCTING A GOVERNMENT FUNCTION BY
--S'HYSICAL INTERFERENCE
This section again raises serious First
Amendment concerns. As the bill now reads,
it is a Class A misdemeanor for a person to
"intentio:aally obstruct, impair, or pervert a
government function by means of physical
interference or obstacle." One of the most
fundamerrtal and cherished rights under the
First Amendment is, of course, the right of
peaceable assembly. Accordingly, any criminal
offense which touches on this right must be
closely circumscribed. The amendment I am
recommending would add two additional
clauses to this section. The first would pro-
vide a defense that would require the court
to affirmatively determine that the physical
interference charged was not a lawful assem-
bly protected under the First Amendment.
The second would narrow the definition of
"interference" to require that the conduct
disrupts an "essential" government function
for a prolonged period, and in a "substan-
tial" way..
INTERCEPTING CORRESPONDENCE
Several witnesses before the Criminal Laws
Subcommittee also raised questions touching
on the first amendment with regard to Sec-
tion 152:! of the draft code which punishes
anyone who intentionally "intercepts, opens,
or reads private correspondence without prior
consent. Although this section was designed
only to cover actual tampering with the
mails, the use of the terns "reads" is overly
broad. Accordingly, my amendment would
limit the offense to one who "intercepts or
opens private correspondence in transit."
DEMONSTRATING TO INFLUENCE A JUDICIAL
PROCEEDING
This is still another section of the bill
which raises serious Srst amendment con-
cerns. The judicial process should, of
course, be protected from undue influence.
These protections must not, however, be
allowed to infringe on the protected right
of assembly. The draft of Section 1328 cur-
rently penalizes as a Class B misdemeanor
one who "with intent to influence another
person in the discharge of his duties in a
judicial proceeding, pickets, parades, dis-
plays a sign, uses a sound amplifying de-
vice, or otherwise engages in a demonstra-
tion in, on the grounds of, or after notice of
potential violation of this section, within
200 feet of . a courthouse or another
building occupied by a person engaged in
the discharge of judicial duties."
The amendment I offer will require a
specific finding by the court that the con-
duct involved was not protected under the
First Amendment and, in addition, would
require a showing by the government that
the conduct did, in fact, pose a serious
threat to the integrity of the judicial
process.
CRIMINAL CONTEMPT
In the comomn law, a judicial officer had
virtually unlimited power to punish sum-
marily any person in his courtroom whose
conduct he did not like. The Congress has
imposed some restraints on this power, as
in Section 401 of Title 18 passed in 1831,
but it remains today a glaring exception to
normal due process requirements. Section
1331 codifies current law In limiting sum-
mary contempt power to a maximum
penalty of six months. The draft also im-
poses restrictions on consecutive sentences.
While it is obviously necessary for a judi-
cial officer to be able to exercise some con-
trol over those who are participating in
the judicial process, there is an obvious
danger in such unbridled power. Accord-
ingly, the amendment I am recommending
would restrict summary contempt to an
infraction (five days). Several other sub-
sections of Chapter 13 including 1333-Re-
fusing to Testify or to Produce Informa-
tion; 1334-Obstructing a Proceeding by
Disorderly Conduct; and 1335-Disobeying
a Judicial Officer, seem to adequately cover
serious disruption of the judicial process.
The amendment also has the salutary re-
sult of interposing an impartial tribunal
between the offending defendant and the
offended judge prior to the imposition of an
extended jail term. This was an atlernative
solution suggested by the Brown Commis-
sion.
In addition, the amendment I am recom-
mending to the Committee would adopt
language from Mr. Justice Black's opinion
in In Re McConnell and require that the
government show there was, in fa: t, an.
"actual obstruction of justice."
REP USING TO TESTIFY BEFORE CONGRESS
The lawful committees of the Congress
must, in order to properly fulfill their pub-
lic duties, have the right to compel testi-
mony. History has shown us, however,thai
on a few occasions this power can be sub-
ject to abuse. The draft provisions of the
cade. raise the penalty for such refusa:.
JC-
from a misdemeanor, as in current law,
a Class E felony. Because of the possibility
of abuse, I do not believe that this increase
is justified. Thus, the amendment I will
propose will reduce this offense to a Clans
A misdemeanor.
SIGMUND ARYWITZ, IN
MEMORIUM
Mr. TUNNEY. Sigmund Arywitz Nvat
known as Siggy.
He was beloved in California as a per-
suasive crusader for human rights ape:
personal dignity for all Americans.
He spoke with gentle voice but with
booming convictions on America and the
principles of individual freedom and self-
worth on which the Nation stands.
Siggy shall be sorely missed.
As executive secretary for the Los An-
geles Federation of Labor since 1967, he
fought for the right of working men and
women to get, what he called, "their fair
share of the economic system."
But he was more than a forceful labor
leader.
Siggy was a person of cultivated taste
and exceptional insight, into all the ele-
ments that join to strengthen the com-
munity and unify our society.
He had great wisdom and compassion,
and tireless energy, and he gave selflessly
of his time and his talents not only to the
labor movement, but to the communit,
at large.
I enjoyed his vigorous advocacy, ad-
mired his drive and his intellect, and I
was shocked at his unexpected death or?
Tuesday.
Siggy was born in Buffalo, N.Y., took
his degree from university there, served
with the Army in World War II, then
settled In California.
From 1949 to 1959, he was a director
for the Pacific Region of the Interna-
tional Ladies Garment Workers. He then
became a labor commissioner for Cali-
fornia until he became the executive sec-
retary of the Los Angeles Federation, sec-
ond only in size to the one in Los
Angeles.
From time to time, he and I disagreed,
and I shall always respect his unfailing
civility and meticulous attention to detail
when he argued for his views.
Sigmund Arywitz invariably was forth-
right and always incisive.
Organized labor has lost a great advo-
cate; California and the Nation have lost
a vigorous champion for social progress:
and those of us who knew him have lost
an esteemed friend.
FORECLOSURE RELIEF PROGRAM
DEFICIENCIES
Mr. MONDALE. Mr. President, th
Congress has passed and, on July 2, 1975,
the President .signed into law the Emer-
gency Homeowners' Relief Act. That act
contained a mechanism for providing
emergency payments to homeowners
faced with foreclosure! due to unemploy-
ment.
As the author and original sponsor of
legislative proposals to provide fore-
closure relief to citizens faced with thc
threat. of the loss of their homes, I anx-
iously awastted HUD's first report to
congress under the act,
That report has now arrived, Mr.
President, and it is truly disappointing.
HUD has failed to implement the fore-
closure relief program. And, Mr. Presi-
dent, it now appears it reasonable pos-
sibility that it may never be irr. plemented.
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