Document Type: 
Document Number (FOIA) /ESDN (CREST): 
Release Decision: 
Original Classification: 
Document Page Count: 
Document Creation Date: 
December 9, 2016
Document Release Date: 
August 31, 2001
Sequence Number: 
Case Number: 
Publication Date: 
January 23, 1976
Content Type: 
PDF icon CIA-RDP77M00144R000800020029-4.pdf1.49 MB
Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 S 404 CONGRESSIONAL RECORD-SENATE January 23, 1976 through saber thought and constructive criti- cism. We need to reason together, to see new facts in the light of old principles, and evalu- ate old principles in the light of new facts. Democracy's need for wisdom will remain as perennial as its need for liberty. Self-exami- price of liberty. The t never ceases.. S. 1-CONSTITUTIONAL AND CRIM- INAL JUSTICE SAFEGUARDS NEEDED Mr. JAVITS. Mr. President, as the 2d session of the 94th Congress begins, we face a major legislative issue in the sound resolution of the deficiencies which exist in S. 1, the massive bill which seeks to revise and reform our Federal criminal laws. I regard the responsibility to bring the bill into line with the requirements of the Constitution and the principles of justice as among the most serious and far reaching which have faced Congress in recent years. I support the overall goal of restruc- turing the Federal criminal law into a more coherent and rational code, elim- inating the contradicting redundancies which practitioners and teachers of the law have properly criticized for decades. The objective of clarifying and improv- ing present law is desirable. More than 10 years of study, hearings and comment-starting in 1966 with the appointment of the National Commission on the Reform of the Criminal Laws by President Johnson-is now reaching its final stages as the full Senate Judiciary Committee takes up the bill In the com- ing weeks. .. As introduced, this legislation would sharply extend the power of the Federal Government over individuals and make certain significant decreases in the free- doms of individual Americans. Some of Its principal provisions reflect, I feel, a shocking insensitivity to individual rights and to comprehend the fundamental na- ture and limits of governmental power under the Constitution.. Other sections, while not raising constitutional ques- tions, involve issues of major social and political importance to the Nation. Sev- eral provisions, therefore, require elim- ination or major revision: 1. ESPIONAGE AND SECRECY PROVISIONS In at least four areas, the bill ignores the premium which we have long placed upon public awareness and debate about national security issues. It broadly ex- tends the field of "classified information" and establishes an "expansive purview" of espionage. Linked to a new section re- lating to "impairing a government func- tion," all of these provisions create a standing challenge to the guarantees of the first amendment. In the view of some experts, these pro- visions go too far in giving virtual own- ership to the Government of all public information. This approach could make government employees and news report- ers vulnerable to prosecution where their HASKELL-would accomplish this, and conduct is now lawfully protected. my pending amendment to S. 1 would 2. WIRETAPPING _ S. 1 would continue authorization for wiretapping on order of the U.S. At- torney General without a court order for up to 48 hours, when "an emergency situation exists with respects to con- spiratorial activities threatening the na- tional security." It would require land- lords and private businesses to cooperate with Federal agents in the carrying out of surveillance activities. The difficult change that bill accordingly. 7. FEDERAL OFFICIALS DEFENSE Sections 541-544 of the bill appear to subject federal officials to a lower stand- ard of culpability under the criminal law than is imposed upon other citizens. In authorizing "public servants" to assert that the conduct charged "was required or authorized by law to carry out the defendant's authority," we would relieve such individuals from the high standard and dangerous issue of national security, of personal responsibility which public wiretapping must be resolved without officials-at every level of government- further eroding constitutional Protec- should be held to. 3. SEDITION A further challenge to first amend- ment freedom is raised in section 1103 of the bill which appears to make criminal activity which is short of that required under current law. The new language suggests that statements "inciting" oth ers to engage in conduct that then or at some future time would facilitate the destruction of the Government would be enough. The constitutional line between punishable inchoate revolution and non- punishable subversive speech has been expressed in the rule of the Supreme Court that "clear and present dangers" may be prosecuted. I am not persuaded that this standard should be changed. 4. CONSPIRACY The Federal law of conspiracy has long been criticized as permitting the charg- ing of individuals whose intent and crim- inal participation is corroborated by overt acts which are of questionable evi- dentiary significance. The bin appears further to weaken the overt act require- ments by requiring the overt act not to demonstrate that the plotting has gone beyond mere talk, but rather that it con- stitute "conduct" that is engaged in with intent to effect an object of a criminal agreement. "Conduct" is defined to in- clude "omission" and "possession". 5. CAPITAL PUNISHMENT Under the bill, capital punishment for homicide is mandatory in a variety of special circumstances. In attempting to develop legislative standards, meeting the requirements set out by the Supreme Court in Furman against Georgia- the drafters of the bill have failed to meet even that test by the arbitrary character of the categories which are suggested. 0. MARIHUANA OFFENSES S. 1 continues the provisions in cur- rent Federal law authorizing prison sen- tences for petty marihuana offenses. This approach flies In the face of a strong movement among the States to decriminalize the personal possession and private use of small amounts of marihuana, and the recommendation of President Nixon's National Commission on Marihuana and Drug Abuse. I was persuaded as a result of my work as a member of the Commission, and by the numerous studies which have since been completed that decriminalization is ap- propriate and urgently necessary. My bill, S. 1450-cosponsored by Senators CRANSTON, BROOKE, NELSON, TpNNEY, and 8. THE INSANITY DEFENSE The bill's handling of the insanity defense is regressive. It in effect would abolish this long recognized defense. It would admit insanity as a defense only if the insanity caused a lack of the "state of mind required as an element of the offense charged." If a defendant insanely believed that his victim sought to kill him or that God required him to kill, he would be convicted. Present law requires that the defendant be acquitted if he lacked substantial capacity to ap- preciate the nature or chracter of his conduct. By adopting the provision pro- posed in S. 1, we would remove the element of moral responsibility and cognitive choice from the equation in determining legal guilt. Mr. President, there are numerous other provisions in S. 1, which give me cause for concern. They deal with the issues of entrapment, sentencing, riot control, demonstrations, obscenity and complicity. Some have argued that Sen- ators should announce opposition to the entire bill now. In view of the fact that the National Commission on the Reform of the Criminal Laws and the House and Senate Judiciary Committees have de- voted almost 10 years to 'this monu- mental effort, I believe that it is prema- ture to oppose the entire bill prior to the time that the amended version is re- ported by the Senate Judiciary Commit- tee to the Senate floor. I do not believe that it is reasonable or fair to deny the committee and its staff the opportunity to present for our consideration the re- sults of more than a year of intensive work to improve the bill since its intro- duotion in January of 1975; or to abort proposed Senate amendments to improve the bill whether or not I support it ulti- mately as the Senate votes on it. U.S. RELATIONS WITH THE THIRD WORLD Mr. GARY HART. Mr. President, dur- ing the holiday recess there appeared in the Washington Post a U.S. foreign pol- icy analysis by Joel Dreyfuss that is one of the best pieces of writing on the sub- ject that I have seen in a long time. Mr. Dreyfuss proposes that the American Government and people might learn a little about some of our problems with Third World countries in the United Nations and elsewhere if we looked at our policies from their point of view. I would not say this is a very radical suggestion, Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 January 23, 1976 CONGRESSIONAL RECORD - SENATE S 403 and orderly way, a means of achieving our goals.with available resources. ! This is hapNaing through the growing effectiveness of * to and local consumer organizations an py recent congressional cause substantial economic right of those complained shackles of government intervention and In- terference from the farmer. A policy of "gov- ernment hands-off" as some advocate, sim- ply is not realistic in a world where state- controlled trading operations dominate the export business of many nations. How many times are our producers and consumers going to be burned by volatile markets before we come to the realization that some basic structural changes have oc- curred in the world's agricultural system and we need a food and agricultural policy to re- flect these changes? It is no easy task to develop a compre- hensive policy to meet the needs of both producers and consumer. But it should aim at the following objectives: Price and income protection for producers of food and fiber; Food supply stability for consumers at reasonable prices; Adequate supply of inputs and transpor- tation for producers at reasonable prices; Adequate agricultural production for do- mestic and international needs; The establishment of a reserve program to rovide market stability during periods of endeavors in housing, consumer goods, health services, credit and other similar consumer activities. This could be one of the greatest economic additions to the forward look that consumers already have brought to many of our national programs and goals. Consumers and producers alike have an interest in maintaining it strong system of cooperatives. They help the farniers compete and help assure a reliable food supply for consumers. The erratic "boom and bust" policies ad- vocated by this Administration are not the answer. They wrongly have set the consum- er against the farmer. For example, the food bill of American citizens has increased over $57 billion in the, last three years as a result of the "doctrine of the free market" as interpreted by Sec- retary Butz. This Administration's policies are encouraging higher food prices while driving our farmers out of business. We've all heard a lot of hoopla about the cost of farm subsidies. Butduring the last 40 years the government has paid less to the farmers for price supports, conserva- tion, cropland adjustment and other pro- grams than it has cost you at the cash regis- ter in the supermarket in the' last three years alone. The percent of your income going for food had actually been declining before this Ad- ministration took office. Government costs for farm programs have gone down In the last three years. But your food bill has in- creased by almost 50 percent. Neither the consumer nor the farmer is being served by this "boom and bust" policy of the Admin- istration. The time has come to make tough de- cisions so that our food policy is fair to farmers and consumers alike. It simply Is not a political issue or an economic problem. when rising food prices mean the difference between a decent meal and gnawing hunger, between health and malnutrition for :hundreds of thousands of families across America. It is too much to ask: our poorest consumer to eat only in good years. It also is too much to ask our! farm fam- ines who have made American agriculture the most productive and efficient in the world-to plan and plant next years' crop when widly .gyrating prices give not one clue as to whether they will recover their invest- ments for production costs, let alone make a profit. Farmers and consumers both . have paid a high price, because we have ignored the need for a balanced national food policy. We should not be deceived by the rhetoric to- day concerning the need to remove the Approved an sis Sod. cause until now ' pay 80 percent more for gas, 140 percent re for heating oil, and 75 per- cent more for ctricity than we did in 1973. And we've had' fight mightily just to keep these prices iron going still higher. no justification other tha naked monopoly power. O11 decontrol was proposed in fur name with claims that it would reduce, ports. But the Administration's own data reveals that imports would be reduced by 1 ban 10 percent by 1980. And this, had it co to pass, would have cost you at least $12 b! n after Lime agencies that purport to represent the public interest end up costing the con- sumer more money? In this time of economic recession and energy conservation, we need to devote a major effort to change regulatory processes which increase costs to the consumer and encourage e. wasteful use of our,;precious re- sources. With the possible exception of taxa- tion"; no economic activity touches so much of the citizenry as does the regulatory com- m.isri' ns. Yet 'we're still operating according to-concepts that have been or are becoming outmoded by change. We need to encourage competitive pricing and restore industry to higher levels of pro- duction. Recent price Increases in many in- dustries simply cannot be justified when one realizes that 30 percent of our industrial re- sources lie idle and unused. Au? a production is down and has been for over two years, yet buyers are being asked to pay $1,000 more for the average car than they were two years ago. No wonder so many Americans are clinging to their old cars and so many auto workers remain unemployed. No wonder so many of our people feel that "free enterprise" is simply the mumbo-jumbo of the monopolists and their economic apologists. In a truly competitive market, many of these pricing actions would not have taken place. Such irresponsible use of arbitrary pricing power has delayed and weakened the economic recovery by reducing the real value of consumers' purchasing power at a crucial time and by reinforcing the fear of inflation. Renewed wage and price controls, reorga- nization of concentrated industries to create more competition, and the creation of gov- ernmc-nt corporations to inject competition into certain concentrated industries have proposed to restrain corporate power. Each of these remedies, however,- has serious draw- backs. But fundamental changes will be necessary if arbitrary economic power continues. to grow as it has done. In fact, we may not be far from a new era of general trustbusting like the one that swept America in the early 1900's in response to excessive corporate 'big- ness acd power. I have talked about the direction we need to take in addressing the problems facing consumers today-food, -energy, continued price escalation In the industrial sector in spite of production slack, and participation In the decisions so directly affecting you. But to solve these problems we need a posi- tive government with strong leadership. Don't let anyone promise-to take government out are paying. According to projections by thftof your lives. Some would have you believe Joint Economic Committee, you would have W at big federal government is to blame for in oil exploration without total -decontrol. Who. we really need is direction-some Instead of taking more money out of your clear, n nal economic policy that~is shaped pocket, we need to establish a reliable oil by the le it will affect. Businesses plan; and energy supply to achieve energy inde- consume `;plan. All other industrial nations pendence. We need to tax American know- Plan. We aka nation with our destiny in our how, not American consumers. We need: hands. Let'sct like one. A challenge to private enterprise to devel- op effective automobiles, appliances and machines that save energy; A good-sized emergency oil stockpile of up A massive solar energy program to replace deal depends on the c ce you make at the . scarce and environmentally-damaging nu- polls in November an the quality of clear and fossil fuels; and leader: hip provided by t, person selected An expeditious solution to the problems of as the next President of t, United States. transporting natural gas so that badly- One of the great moral po1$xical leaders, of needed energy will not be flared off in Alaska our time was my dear and good,fri.end, Adlai as shortages occur in the other 49 States. StevehhSon. Is it any wonder that public confidence in Adlai reminded us that democracy Is not government is at an all-time low when time self-exr=outing. We have to make it work For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 We must 1: ahead in a free, democratic and orderly Wft, to put the nation back on the road to pr erity. But we must do it So / Q0800020029-4 1975 d For ReICONGRER NA&I ,pjLMOQ 6 November 5 , of the Whole House on the State of the Union, reported that that Committee, having had under consideration the bill (H.R. 7575) to establish an Agency for Consumer Protection in order to secure within the Federal Government effective protection and representation of the in- terests of consumers, and for other pur- poses, had come to no resolution thereon. BUDGET OF DISTRICT OF COLUM- BIA FOR FISCAL YEAR 1976 AND TRANSITION PERIOD JULY 1, 1976, THROUGH SEPTEMBER 30, 1976-- MESSAGE FROM THE PRESIDENT OF THE UNITED STATES (H. DOC. NO. 94-296) The SPEAKER laid before the House the following message from the Presi- dent of the United States; which was read and, together with the accompany- ing papers, referred to the Committee on Appropriations and ordered to be printed with illustrations. To the Congress of the United States: I am today transmitting for your con- sideration the budget of the District of Columbia for fiscal year 1976 and for the transition period July 1, ' 1976, through September 30, 1976. This budget is the first prepared by the city government in full exercise of its powers under the District of Columbia Self-Government and Governmental Re- organization Act. It reflects the results of a constructive city budget process which included participation by many District citizens. As such, this Home Rule budget represents a cornerstone of re- sponsible city government and confirms the strength of a Federal-local partner- ship in the administration of Washing- ton, D.C. This budget also carries the Nation's Capital and the District community through the peak of our Nation's Bicen- tennial observance. I urge the Congress to review these proposals with the knowl- edge that Washington will be a focal point for the national celebration and that the city will be visited by greater numbers of American and foreign visi- tors than ever before. At the same time, residents of Washington, who also take pride in their own community, plan lo- cal observances just as other cities do across the country. It is, therefore, im- portant that the Congress act promptly on the District Budget for 1976. GERALD R. FORD. THE WHITE Houses, November 5,1975. SELECTION OF SERVICE ACADEMY APPOINTMENTS The SPEAKER pro tempore. Under a previous order of the House, the gentle- man from Wisconsin (Mr. Coawzi.L) is recognized for 15 minutes. Mr. CORNELL. Mr.. Speaker, it is often said that a Member of Congress has many roles to perform in carrying out the functions of his office. Today, Con- gressman McHuGH and I are introduc- ing legislation which will remove from this long list of duties the role of dean ,of admissions for the three military academies. Our bill permits the service academies to select their own students. We believe this step is overdue and that compelling reasons exist for making this change. First of all, although each congres- sional office tirelessly endeavors to se- lect the best candidates from among the applicants, it is still true that no single established standard of admissions ex- ists to guide us. Therefore, the nominees are now being chosen In a variety of ways instead of having all applicants judged by one set standard. Our bill eliminates the congressional role in the selection process but retains the present geographical distribution pattern so that we can continue to draw our future officers from across the en- tire country. This means, in short, that the number of positions allotted to the congressional districts, the States on an at-large basis, Puerto Rico, District of Columbia, Guam,. Virgin Islands, Pan- ama Canal Zone, and American Samoa remains the same, but now the acade- mies themselves will make these selec- tions solely on the basis of merit. Second, the existing system for naming candidates has political overtones and leads many people to believe, however falsely, that one must personally know the Member of Congress in order to have his son-and now daughter-appointed to the military academies. This misun- derstanding has undoubtedly dissuaded some qualified students from even ap- plying. Members of Congress are also placed in the difficult position of having to break the news to the disappointed applicants who were not chosen since there are usually more candidates than vacancies. Under our bill, the Represen- tatives will continue to make the public announcements of those chosen for the service academies, but they will play no role in the decision on admission. Third, for the Merchant Marine Acad- emy at kings Point, N.Y., we believe the best procedure is a purely competi- tive admission system. This is currently done at the Coast Guard Academy with great success. The'small total enrollment at Kings Point-600-lends itself to this approach. In order to provide an orderly transi- tion to this new admissions policy and to insure congressional oversight over this process in the future, we have amended the duties of the now existing Boards of Visitors for each of the service academies to add the charge of overseeing admis- sions. An annual report to the Congress would also be required. We realize that it has become a tra- dition for Members of Congress to ap- point students to the three service acad- emies. We firmly believe, however, that now is the time to break with tradition and to institute a more equitable and efficient process for selecting the future military leaders of the United States. I now turn to my colleague, Congress- man McHuoH, who would like to add his comments on our proposal. POSED REVISIONS IN THE FED- ERAL CRIMINAL CODE The SPEAKER pro tempore. Under a previous order of -the House, the gentle- 1110689 woman from New York (Ms. Aazus) is recognized for 60 minutes. Ms. ABZUG. Mr. Speaker, both the House and Senate Judiciary Committees have pending before them identical bills which would make major revisions in the Federal Criminal Code-H.R. 3907 and S. 1. These revisions were primarily drafted by the Department of Justice during the tenure of John Mitchell as Attorney General. If enacted, this legis- lation will result in the most repressive Federal activity since the McCarthy era. Known officially as the Criminal Jus- tice Reform Act of 1975, these bills rep- resent the Nixon-Mitchell concept of law and order. They skillfully play upon the widespread and legitimate fear of crime in the streets to place on our Federal statute books a large number of repres- sive measures that have been referred to by leading newspapers and legal com- mentators as modern day alien and sedi- tion laws. We should all be alerted to the poten- tially dangerous implications that. are inherent in this legislation, which has been put forward as a needed measure to combat crime. I certainly agree that re- duction of crime is of critical importance. However, it must not, and indeed, can- not, be reduced through repressive laws which serve only to limit constitutional rights, while not reaching the root causes of crime in our society. There was virtually no press coverage of the hearings which were held on the proposal during the 93d Congress, per- haps because the hearings overlapped with the Ervin committee hearings and the House Judiciary Committee hearings concerning Watergate and the Impeach- ment of President Nixon. S. 1 is now receiving relatively minor amendments in the Senate Judiciary Subcommittee on Criminal Laws. That subcommittee held 2 days of what the New York Times described as "perfunc- tory" hearings in May. The timetable for having the bill signed into law is some time before the 1976 Presidential elec- tions. On June 19, President Ford, in his message to Congress on crime, vigorously supported S. 1 and called for its adoption as a "first step" in the "war on crime." The President said: In an effort to insure domestic tranquillity, I am recommending new legislation to put the rights of the victim ahead of the rights of the criminal. Analysis of this bill reveals, however, that there is far more in it than a tough law-and-order approach. It Is not too much to say that it provides a blueprint for a police state. It makes legal much that both Senator Joseph McCarthy and those involved in the Watergate coverup would have welcomed. Its provisions re- stricting the press and the news media would have made the exposure of Water- gate impossible. S. 1, it is readily demonstrable, rep- resents an astute and sophisticated at- tack upon the first amendment and upon other constitutional freedoms. It is di- rectly aimed at peace groups, organized labor, as well as all other concerned cit- izens who may attempt to oppose future Vietnams and other unwise govern- mental policies. It affords - a statutory basis for intimidating anyone who does Approved For Release 2001/09/03 CIA-RDP77M00144R000800020029-4 H 10690 Approved Fe6RVM? 1JJ9W - 8A3 2PHOUgE144R0008ORO20026 -4 5 1975 f thought necessary or useful in- pursuit of its fearful and corrupt policies. As such, the bill is permeated with assumptions, points of view and objectives, finding expression in numerous overt or subtle provisions, that run counter to the open and free spirit upon which American liberties are based. This per- vasive taint cannot be amended out. Professors Emerson and Countrymen have made clear that they do not oppose revision of the Federal Criminal Code. They point out, however, that the task is an enormously complex one involving de- cision on literally thousands of provision of law that vitally affect every citizen. Congress, they emphasized, should start with a bill that has been drafted by peo- ple who are committed to preserve Amer- ican rights. It can then effectively pro- ceed to debate and amend those partic- ular parts of the legislation where policy changes are thought desirable. As they put it: But it must have a solid foundation firmly fixed in the tradition of American democracy; to begin with, S. 1 does not supply such a foundation. not accept a continuation of national goals and priorities favored by whatever administration is in power. There has been very' little publicity given to this dangerous bill. It is safe to consider that most attorneys have not even heard of it, despite its potentially momentous; impact upon all of us. What publicity there- has been has largely centered about the concern by newspapers over what is known infor- mally as the Official Secrets Act provi- sion of the bill. There isa grave danger that some compromise will be reached making these provisions somewhat more palatable to the press and the media to remove their opposition, and to open the way to adoption ofall the other repres- sive measures contained ;in it. These re- pressive proposals are so numerous and interlinked that two nationally prom- inent law school professors, Prof. Thomas 1. Emerson of the Yale Law School and Prof. Verne Countryman of the Harvard Law School, have issued a statement de- claring that the legislation is simply not amendable, and that it must be re- jected in its entirety, and recommitted for complete overhaul and redrafting. They stated firmly that, in their judg- ment, the enactment of this legislation would constitute an unparalleled disaster for the system of individual rights in the United States. The conclusion of Professors Emerson and Countryman that H.R. 3907 and S. 1 cannot be satisfactorily changed by the amendment process was based primarily upon two essential features of the pres- ent bill. They had stated that- The bill contains for many chapters, sec- tions, clause, words and definitions that would have to be-changed. They include pro- viaions dealing with the handling and pub- lication of '"national defense information," advocacy of overthrow of government by force (the Smith Act), obstructing govern- ment functions by fraud, statements impair- Ing military effectiveness, riots, disorderly conduct, contempt, the obligation to give testimony, entrapment, wiretapping and electronio surveillance, this death penalty, conspiracy, attempts, the insanity defense, obscenity, responsibility of public officials for violation of law, penalties for criminal offenses, probation and parole, and compli- cated problems of Federal jurisdiction. It would be naive to believe that these count- less provisions could be restructured and re- drafted, one by one, through the procedure of motion to amend, amendments to the amendment, debate and vote, either in com- mittee or on the Senate floor. Long before such a process could be completed, the pres- sures would be irresistible to make a few changes and let the rest go through. Professors Emerson and Countryman also have noted that- S. 1 was designed and drafted upon the basis of philosophical, ethical and political goals that were repudiated by the American people in the Watergate scandals. These legal scholars have done a great service in reminding us that- The bill is the product of the Nixon Ad- ministration, prepared under the aegis of Attorney Generals Mitchell. and ffieindienst, and put into concrete - form by a group of lawyers in Nixon's Department of Justice. The objective of the draftsmen was to incor- porate into the criminal code every restric- tion upon individual liberties, every method and device, that the Nixon Administration Mr. Daniel Crystal, an attorney who has performed valuable work in the area of constitutional rights, has prepared re- view and analysis for me of the inherent dangers in many of the provisions of this legislation. This review and analysis gives abundant evidence that the bill is an ar- rogant attack upon the Bill of Rights and cannot be amended in a manner which would make it acceptable. There is certainly a need for revision of the ar- chaic and unsatisfactory scheme of Fed- eral criminal law. However, that need for codification simply does not justify a bill which flouts fundamental constitutional freedoms as does S. 1 and H.R. 3907. Legitimate widespread fear of crime in the streets, of muggings, assaults, armed robberies, and burglaries, is being used astutely to secure passage of highly re- pressive legislation that Incorporates the Nixon-Mitchell formulafor terminating constitutional freedoms. Whatever the motive of the bill's sponsors, sxch repres- sive legislation eases the way to the pos- sibility- of an American police state. The proposed legislation would have the unexpectedresult of making official what was being done surreptiously through the secret state that was ex- posed in the Watergate scandal. Former President Nixon was driven out of office because of that scandal. Nevertheless, his repressive views are very much alive in these bills, and his philosophy will domi- nate Federal criminal law for genera- tions if the legislation Is enacted. It is incredible and unacceptable that, with the Watergate scandal still in our minds, there is under active considera- tion a bill which would make it pos- sible to imprison reporters and editors who, with boldness and courage paralleling those who exposed Watergate and its coverup, publicize comparable news that will be embarrassing to post-Nixon ad- ministrations. This legislation also puts the Bill of Rights and modern concepts of correc- tional reform in danger. It substitutes harsh, punitive measures for the experi- ence of those who offer workable ap- proaches toward the enormous problem of Grime. Its support comes from those, who are impatient and who take the demogogic path of appealing to the fears of 'those properly alarmed at spreading crime, or those who supinely go along with unworkable law-and-order measures formulated by the Nixon- Mitchell administration, fearing to be labeled as soft on crime. Let there be no mistake about the gravity of the threat to the Bill of Rights posed by this legislation. There must be much more urgent opposition to it than has been manifested thus far. The coun- try must become aware of the constitu- tional and civil liberties horrors that are hidden in this massive bill. Opposition must not turn solely on the Official Secrets Act, outrageous as this new Alien and Sedition Act is. Some concessions to the press and media are likely to mollify them. Even if the Official Secrets Act were completely deleted, these bills would still not be acceptable. The provisions go far beyond "codification" or even "revi- sion" or "reform." They urgently need to be studied and debated far more pub- licly than they have been yet. A candid article in the Wall Street Journal of June 5, 1975, put the issues bluntly: Some opponents of the bill worry that to improve its chances, sponsors will tone down the press sections to the point where the press is willing to forget about the other questionable changes. With crime rates ris- ing again and an election coming on, Sena- tors and Representatives might then find it hard to vote against the bill If it reaches the floor-regardless of civil libertarian concerns. With a bill like S. 1, it's probably necessary to keep ringing the alarm bells loud and often. - As Professors, Emerson and Country- men noted, a bill to codify the Federal criminal law is desirable. But that simply does not mean that-it should be one that is cast in the mold of the repressive thinking of a disgraced former President and a former Attorney Generalconvicted of crimes that this bill would legalize. The Criminal Code that Congress should enact should be in the spirit ,calledfor by Mr. Justice Tom C. Clark who urged in an article in 68 Northwest- ern University Law- Review 817 that we "strive to make our laws instruments of justice, sufficiently strong to snare the guilty, but discerning enough to insure that the innocent go free." It should eliminate from our criminal law all the fearful, repressive statutes ' that marked the post World War II period. Adoption of 'a Federal Criminal - Code framed in that approach would be the greatest con- tribution that the Congress and the President could make to celebrate this country's Bicentennial. It would con- stitute a legislative declaration of con- fidence in our future and would bear witness to a continuing faith in the wis- dom and workability of our unique Bill of Rights. it is incumbent upon us to extend con- stitutional freedoms, not to narrow them; to utilize our best thinking to solve the problems of crime, not to take a long leap backwardby pretending that long prison sentences will somehow elim- inate that pressing problem. This leg- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 Approved For Release 2001/09/03 : CIA-RDP77M~V600800020029-4 H10691 November 5, 1975 CONGRESSIONAL RECORD - islation takes exactly the wrong ap- opposite. Americans would be free to speak to the level of bar-room fights. (Section roach. only at their peril on vital matters of defense 1831.) P I feel it would be helpful to my, col- and foreign policy. The press would be free WIRETAPPING leagues to make Mr. Crystal's analysis to publish only at the peril of possible prose- S. 1 reaffirms the 1968 Omnibus Crime cution under laws that would lend them- Control and Safe Streets Act, despite the available in an effort to clarify the real selves to almost any interpretation the gov- stunning defeat of the Nixon Administra- issues involved in H.R. 3907 and S. 1. ernment wished to place on them." tion wiretapping policy in United States V. The analysis follows: On Sunday, June 15, 1975, the Chicago United States District Court, 407 U.S. 297 MAKING WATERGATE LEGAL: AN ANALYSIS OF Tribune observed that, "by trying to seal (1972), in which the Supreme Court unani- S. 1 every crack in the Pentagon walls, the Me- mously held that the customary Fourth (By Daniel Crystal) Clellan subcommittee has actually con- . Amendment requirement of judicial approval strutted a concrete straight jacket that can applies before there can be a wiretap of a THE OFFICIAL SECRETS ACT be clapped on any journalist at. the slightest person or organization claimed by the Presi- For the first time in American history whim of bureaucrats." dent or the Attorney General to be a do- SABOTAGE mastic subversive. As drafted, S. 1, despite since the Alien and Sedition Act it is pro- posed to enact an Official Secrets Act. This S. 1 provides the death penalty or life im- this defeat, continues ambiguous Presiden- would reverse democrto decision mang risonment in some cases, and a 20/30 year tial authority to wiretap domestic activities g v' under the Constitution by substituting freedoms imprisonment/$100,000 fine in others, for where a "danger to the structure" of the guarannt t eeed d the secrecy First for nthe freedoms activity that "damages, tampers with ... government can be alleged. S. 1 and H.R. guara es cl dng the almost any property, facility, or service that 3907 further make changes in existing stat- i y penalties, including the death or might be used In the national defense, utes so as to expand existing wiretapping pen nalty, , to tops prohibit bit public access to broadly is with intent "to interfere with or obstruct authority. They continue the current 48- Crimid "national defense information." ,the ability of the United States or an asso- hour "emergency" wiretaps permitted with- Criminal sanctions are provided for the first elate nation (e.g., South Korea, Saudi Arabia, out court approval. They direct telephone time to enforce the administrative classifies- or Spain) to prepare for or engage in war or companies, landlords, workers, and others to tion of documents. I understand that Sec- defense activities." Available information cooperate "forthwith" and "unobtrusively" lion 1124, dealing with disclosing classified discloses that Sections 1111 (a) (1) and 1111 with government wiretappers, and provide information, has been rewritten in response (a) (2) relating to sabotage have been compensation for such forced cooperation, to sharp criticism, but the terms of the amended so as to add the language "used in providing that such order may be included revision have not yet been made public. As or particularly suited for national defense." in the order for a wiretap, and thus made presently written, s. 1 expands criminal This change would limit the application of punishable by contempt proceedings if the sanctions to enforce the Administration's sabotage only to that property which is used person refuses to "cooperate" (Ch. 31A.) classification of documents. Section 1121 for national defense. However, "national de- "SEDITION" provides life imprisonment up to the death fense" Is itself such a vague and all-inclusive The proposed legislation redrafts the 1940 penalty for communicating "national defense term that the chilling effect of the sabotage Smith Act used in the McCarthy era witch information" with the knowledge that it provisions is hardly diminished by this hunt trials until made inoperative by the "may be used to the prejudice of the safety change. Under its terms, participants in decision of the Supreme Court in 1957 In or interest of the United States, or to the every public. demonstration objecting to gov- Yates v. United States, 354 U.S. 298 (1957) advantage of a foreign power." This raises ernmental property, facilities or services, re- It further provides a 1s-year/$100,000 fine for but does not clarify the question of whether gardless of how peaceful and orderly the allegedly inciting "other persons to engage in it applies to exposure of governmental cor- demonstration Is, could become the subject imminent lawless conduct that would fa- Section by a news reporter. of potential criminal prosecutions. cilitate" the destruction of the federal or any Section 1123 provides seven years/ , Furthermore, the sabotage provisions of state government, and a penalty of seven $100,000 fine for a person who receives such S. 1 would make certain striking workers, years/$100,000 fine for a member of an orga- infgrmation and "fails to deliver it promptly" and even simply negligent workers potential- nization who "knows" his group has such a to a federal agent. This section would have ly liable for punishment up to and including purpose. (Section 1103). There would be an reached to the New York Times, The Wash- the death penalty, provided only that a even greater jeopardy to First Amendment ington Post, and the Unitarian Universalist United States Attorney can persuade a jury protected free speech If this "sedition" pro- Beacon Press, upon their publication of the that the worker possessed the requisite evil vision is combined with the penalties for Pentagon Papers. Intent. Under the legislation any interfef'- ?' conspiracy" of Sec. 1002. Section 1124 would extend suppression of ence with production of national defense information to the ultimate, providing three materiel, any faulty manufacture or delivery, WATERGATE CRIMES to seven, years/$100,000 fine for passing or delay in delivery, may provide the factual S. 1 would Inhibit the prosecution of vaguely defined "classified information" to foundation upon which a conviction for wrongdoing by "public servants" if their 11- a "person who is not authorized to receive it." "sabotage" can be based. (Sec. 1111 of S. 1) legal conduct is the result of a "mistaken The bill, as presently drafted, provides ad- This provision appears to constitute a direct belief" that it was "required or authorized" ditional, alternative means of curbing free- threat to organized labor and to all workers. or based on a written interpretation issued nom of the press, including such vague pro- The provision gives the Government a most by the head of a government agency. This visions as making it illegal to obstruct a gov- potent weapon to coerce unions and workers section would have granted legislative im- ernment function by fraud. and making It and to prevent them from voicing their munity to Messrs. Mitchell. Haldeman, Ehr- possible. to define the information contained views or taking any action In opposition 'to lichman, and Mardian in the Watergate in government papers as "property" thereby government policies. criminal proceeding. and virtually made making a newsman possessing a classified DEMONSTRATIONS Watergate legal. If enacted, It will establish document vulnerable to prosecution for if S 1 is enacted into law in its present In American statutory law the Nuremberg- "theft." form, virtually every kind of civil rights, Eichmann defense. for those cooperating in "S 1espionage" contains a which converts broadened that cridefinitionme, of peace and other prtest action would be cover-ups of future Watergates. Justice Tom C. Clark, Retired Justice of the United states normally thought of as involving spies and threatened with severe penalties under a Supreme Court. writing about parallel pro- agents for a foreign power, into a means of series of vaguely defined infringements on visions in the predecessor bill (S. 1400 of the censorship of press publication of classified the constitutional right of assembly. Includ- visions Congress) has sin a 1400 of the information. It accordingly will have a chill- ing the right to demonstrate adjacent to the 93ricle `The bstated these provisions ing effect on, and will limit, the freedom of "temporary residence" where the President O alarming, exceeding breadth any I eve.ever ons the press. Newsmen could be prosecuted may be staying. (Seca. 1112, 1114, 1115, 1116, -Is served in a federal statute. Known as the under this section on the same grounds as 1117, 1302, 1311, 1328, and 1334.) 'Nuremberg sections, . . - I believe that were the Rosenbergs in the 1950'x. In a lead "LEADING" A RIOT such sections should be condemned as they editorial on Tuesday, May 6, 1975, the New S. 1 redrafts the 1968 Antiriot law which would only encourage or facilitate irre- York Times summarizing the Official Secrets was used as the basis for the Chicago Seven sponsible, If not unlawful, conduct on the Act provisions of S. 1. declared: trial growing out of the "police riot" at the part of some public officials." Prologue to "The need for secrecy and the claims made Democratic National Convention in Chicago. Symposium on S. 1400, 68 Northwestern Uni- for 'national security' are usually vastly over- it provides a three-year/$100,000 fine for versity Law Review 817, 823-824 (1973). stated. The United States has no need for a "movement of a person across a state" line (Secs. 542, 544, 552, pp. 57-59). law that would help officials conceal their in the course of consummation of a "riot." ALLEGED OBSTRUCTION OF , MILITARY RECRUIT- mistakes far more often than it would hide The present language of S. 1 defines a "riot" MENT OR OF INDUCTION: INCITEMENT TO IN- anything of importance from a foreign as involving five or more people. I under- SUBORDINATION enemy.., stand that the committee has amended this S 1 and H.R. 3907 provide legal machinery The Los Angeles Times in an editorial on provision so that it now could involve as intended to curb future peace mover Sunday, May 18, 1975, entitled "An Assault few as "10" participants who create "a grave clearly on the People," concluded that the Official danger of imminently causing" damage to ments and their impact upon potential Secrets provisions "if enacted, would have the property. The antiriot provisions of 8.1 would draftees and members of the military. It effect of perverting self-government into its therefore extend federal jurisdiction down Is aimed directly at movements which were Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 10692 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 H CONGRESSIONAL RF CURD -- HOUSE November 5, 1975 effective m bringing the Vietnam War to an by temptations without government adding The death penalty, under the present lau-the bill, would be end. Broad, sweeping language is used to to them and generating crime." provide a. legislative framework for punish- This warning by a distinguished Justice aJagckoAnderson, Seymour Hersh, CarlbBern- ment of persons in and, out of the military has particular relevance today, when the en- stein, or Bob Woodward If they printed clas- services who utilize First Amendment rights tire country has become familiar with epi- sifted information in wartime or a time of of speech., press, and other media to advise sodes of misconduct by government agencies, national emergency. The latter provision is current or potential members of the armed including the "plumbers," the FBI, the CIA, probably the most frightening section of all services regarding the action the- Govern- the IRS, and Army Intelligence. It is now in this repressive legislation and shows how ment is taking with its military powers. documented that 'agents provocateurs have grimly serious a threat to the Bill of Rights This legal machinery Would infringe upon repeatedly provoked extreme actions for the these bills are. The proposal to reestablish the American tradition. of having an in- secret purpose of provoking a police con- capital punishment ignores the fundamental formed body public. frontation, discrediting an unpopular or- flaws which were emphasized by the majority If enacted, the provisions would override ganization, inducing someone to purchase justices in the Furman case. Justices Marshall the decision of United 'States v. Baranski, marijuana, or otherwise Inducing crime and Douglas, in particular, there emphasized 484 F. 2c1 556 (7th Cir 1973) in which a where it would not otherwise have occurred. that the death penalty had fallen particularly similar statutory provision was declared un- Government misconduct In this regard be- on blacks, the poor, and the Ignorant, constitutionally broad alid violative of First comes the more reprehensible where the in- Amendment rights. The Baranskt court filtrated organization is exercising rights CRIMINAL ATTEMPT found that by forbidding "the use of any guaranteed under the First Amendment. In- S. I uses a broad definition of "criminal means whatsoever" to hinder or Interfere filtration of an organization tinder such oir= attempt" and punishes such crime with the with the draft, this prior: statutory provision eumstances raisessharply the basic question came 'sentence as the completed crime. It infringed upon speech, writing, and con- whether First Amendment rights are being makes a person guilty of an attempt to com- duct that were expressly protected by the put in jeopardy by a carefully orchestrated nit a crime if his conduct "indicates his First Amendment:" It is understood that plan, devised a high governmental levels, to intent to complete commission of the crime." less restrictive language has been added. weaken or defeat a civil rights organization; In addition, he is to be found guilty, even There is still abundant room in the new pro- religious or peace group, or any other group though "it was factually or legally impossi- vision for subjective interference with First opposing some aspect of governmental policy. ble for the actor to commit the crime, if the Amendment rights. The paramount issue here is whether re- crime could have been committed had the If the "Impairing Military Effectiveness" spect for justice itself can be reconciled with cireumstnces been as the actor believed them provisions of S. 1 and H.*t. 3907 become law, the government's conduct as successful law- to be.,, The latter provision is extremely close it will be possible for the Department of breaker. Clearly it cannot. As Mr. Justice to the archaic medieval British law which, Justice to bring an action against a civilian Brandeis once remarked in his famous dis- made it a crime to wish for the death of the for violation of these secfions, claiming that sent in the wiretap case of Olmstead v, Olm- king. (Sec. 1001). any participation in a future peace move- stead, 277 U.S. 438 (1928) : "If the govern- Concussions meat by a member of the Armed Services ment becomes a lawbreaker, it breeds con- The bill allows acceptance of, so-called had been incited by a civilian, and "could tempt for law; it invites every man to be- "voluntary" confessions, even if they were impair military effectiveness. The provisions come a law unto himself; it invites anarchy." obtained by the police in the absence of are sufficiently sweeping to impose upon MARIJUANA counsel, and without the Miranda warning civilians the military discipline and restric- S which the Supreme tive philosophy which sharply curtails First ,. 1000 fine for t provides or the posspossesessiooof in n 10 of dh the es i )test a Court has rycl to p to be Amendment rights for those in the Armed amount of marijuana use; the constitutional It right necessary a mss on Forces. Thus the amount for personal use; the the Innocent. also allows the admission proposed legislation in this penalty is 6 months imprisonment/$10,000 of eyewitness testimony regardless of prior regard would drastically Impede any future fine for a second offense. The penalties are police irregularities in suggesting identilIca- peace movement. It would make punishable drastically increased for successive conic- crlure to give the by long prison sentences and lines any liaison tions on the above (Secs Miranda rThis would make by drafting counsellors or representatives of considered These 1812, 1813 of S. 1). nsidered by the warnings only court a in deciding wouming whetetheer the peace movement with anti-war groups These provisions go directly against the r in the mflii;m Such realistic recommendations of virtually all the defendant had made the confession or y. groups had a significant state and federal commissions which have In- admission "voluntarily" so that it was ad- impact in bringing to an end American _ in- vestigated the marij missible. volvement in Indochina. gested an d an easing g of of t t he e p aintess. , and lug- pepnalti INSANITY (See sees 1112-11171 IMMUNITY defense only if the mental defect. caused a The legislation reaffirms ,the 1970 "use" im- The present language of S. l (Subsection m unity of "the state of mind required as an unity law.. allowing indeterminate "unt"ies 541 (b) (1) (B)) provides a defense for pub- element of the offense charged," It thus m supersede the allowing Amendment privilege satisfied other preconditions and the person old primitive state. against sea'-incrimination: (See. 3111.) being arrested was attempting to "escape ENTRAPMENT with a deadly weapon." I understand that The defense of insanity would be permitted The bill ;hermits the conviction of defend- the, language has been limited by the com- if a person killed another thinking, under ants for committing crimes which they were mittee, by adding the word "danerous" to ` an Insane delusion, that he was doing some- induced to commit by improper pressures, make defensible the "escape with a danger thing else, whereas if his delusion led him inducement, and suggestion of police agents. out weapon." to kill someone thinking he had been dered to do power The burden is placed on the defendant to There clearly are still highly questionable so by some imagined power it would not be an admissible defense, prove unlawful entrapment" and that he was permissive provisions in this section. An offi- Justice Tom C. -Clark has written that 851) . If preis,,,)Osed" to commit the defen ant may be found eto cer is allowed to prevent ly violent crime, this "would roll back the insanity defense son arrested for, an allegedly the dark ages." "predisposed" to commit the offense charged, without regard o the danger to the lives of to Law Review at (24 Northwestern Univer- the defense of entrapment is not available others. The statute permits the use of deadly to him, regardless of the blatant efforts by force where the claim is raised that such Professor Louis B. Schwartz of the Univer- one or more government merits provocateurs force was "reasonably required" under the city of Pennsylvania Law School who had to entrap him. The Government is permitted, circumstances to prevent the felon's escape. been Staff Director of the National Commis- In establishing predisposition and thereby in The escape hatch of "reasonable belief" that ',ion for Reform of Criminal Laws has sharply rebutting the defense of Illegal entrapment, the killing was necessary sanctions excessive criticized this abrogation of the insanity to rely on -evidence of such claimed predis- use of guns by police officers., Moreover, the defense as using "the gravest sanctions of position. The way is accordingly open to it present language permits force (although not the system of deterrence we call the criminal to rely on evidence which: would ordinarily deadly force) to be used where the defendant law against people who are obviously un- be inadmissible hearsay or otherwise road- claims that he was making an arrest as a of f discrimination, and that, with monumental lack. missible. private person. This could give widespread o discrimination, the sane and insane are The quest iba of the damage which such official sanction to citizens arrests by ir- - treated alike for purposes of criminal con- police misconduct does to the very essence responsible private vigilante groups or per- voidd n. "The chief impact of such a change of justice itself, was raised sharply by the sons acting on their own, would be those cases where the defendant Justice Felix Frankfurter, concurring in DEATH PENALTY la en ed to do well what he was doing and kind of do it, but was governed ' some Sherman v. United States, 366 U.S. 3.69 (1968). S. 1 and H.R. 3907 attempt to circumvent (kind of insane compulsion: t i.o do da the 'will ill of Justice Frankfurter there warned: the 1972 Supreme Court decision limiting the God' or the devil; to right illusory wrongs, "The power of government isabused and death penalty in Furman v, Georgia, 40$ U.S. to defend against hallucinated attacks." directed to an end for which it was not con- 238 (1972). Furman held that capital punish- ( Louis B. Schwartz, The Proposed Federal stituted when employed to promote rather ment was "cruel and unusual" because It as Criminal Code, 13 Criminal Law Reporter at than detect crime and to'' bring about the "so wantonly and so freakishly imposed." 8269, July 4, 1973). downfall of those who, left to themselves, (Stewart, J., concurring). In addition, legis- The effect of the insanity provisions would might well have observed the law. Human lation would provide mandatory executions be to steer unequivocally sick people to jail nature is weak enough and sufficiently beset for certain crimes under certain conditions, or to a prison environment rather than to Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 qq~~ 000800020029-4 H 10693 5. fft oved For t 1\Tnv~en?,ber -GU~r55dV1~'~~ 'I~~ mental hospitals and to a health environ- ment. At the present time, courts define in- sanity as a mental disease which made it im- possible for the defendant to appreciate the wrongfulness of his criminal act or to resist the impulse to commit it. S. 1 would make mental disease a defense only if it had the effect of making the defendant either un- aware of what he is doing or unable to un- derstand its consequences. It is clearly a re- gressive concept (See Sec. 529). OBSCENITY S. 1, H.R. 3907 freeze into statutory law recent restrictive decisions of the Supreme Court. They preclude the defense that the questioned material might be lawfully dis- tributed under relevant state laws. I understand that the bill now includes a revised definition of "obscene material," which applies to material "which, taken as a whole, appeals predominantly to the puri- ent interest," Despite this reported amend- ment, the legal mischief which can be achieved by this regressive legislation is very great. The statutory sanction given to Miller v. California, 413 U.S. 15 (1973). and Miller's companion cases still presents a clear and present danger to our Bill of Rights. This danger arises in connection with what can be done by local Puritanical censor groups, or by unethical United States Attorneys with the loose provisions for local censorship us- ing local "contemporary community stan- dards." There is a direct threat to the book- seller, movie house operator, magazine ven- dor, or other distributor or disseminator of material which may be charged to be ob- scene under the particularly vague language used in Chapter 18 of S. 1. As now drafted, there is not even a defense provided of a good faith belief that the,material in issue was not obscene. The penalties are severe-three years im- risonment and a fine of up to $100,000 for and HR. 3907, reflecting the position of both President Richard M. Nixon and now of President Gerald R. Ford, is thus to be widely extended to state offenses, and to serve as the model for equally repressive state legislation. (Secs. 201-205). SENTENCING In addition to reinstating the death penalty, and contrary to the recommenda- tions of the National Commission on Reform of Criminal Laws, the legislation imposes harsh, retributive prison sentences and fines for many crimes. Fines for all felonies are increased to $100,000; criminal terms are increased to seven, fifteen, and thirty years, depending on the felony involved. The pro- posal establishes mandatory, minimum for a r- tences with no chance of probation tain offenses. This eliminates judicial discre= tion-to consider the defendant's record. Profesor Louis B. Schwartz, formerly Staff Director of the Nationa'i Commission on Re- form of Criminal Laws, has sharply criticized the sentencing procedures of S. 1 and HR. 3907 and their predecessor bill, S. 1400. He wrote : "The core of any penal code is its sentenc- ing system. One should ask about any sys- tem: What is the general level of punish- ment contemplated? Is it adequate to deter? Is it gratuitously harsh? Are offenses ra- tionally classified into grades of seriousness? Is the sentencing discretion properly distrib- i parole author- uted as between judges and - ? Is the discretion properly guided by I es legislatively declared standards and judicial review?" Professor Schwartz' conclusion was It that is the bill "fails these tests" and that, gratuitously harsh." (See his article in 13 Criminal Law Reporter at 3265) . APPELLATE REVIEW OF SENTENCING there was some reason why imprisonment better fits the needs of the situation, includ- ing protection of the public. As the Brown Commission said, the purpose was to pre- vent automatic, unthinking use of imprison- ment." Furthermore, S. 1 totally excludes proba- tion for certain designated crimes. Giving all due emphasis to the need to curb crime, this nevertheless constitutes a totally un- warranted interference with the exercise of expertise and judicial discretion by experi- enced federal district judges.. It flatly ignores the vast range of differences among defend- ants in degree of complicity, age, readiness to cooperate with the authorities, and other factors relevant to probation. As a practical matter, moreover, even if the mandatory sentence is provided, and even more mandatory sentences are called for un- der President Ford's Message on Crime of June 19, 1975, this merely shifts the area of discretion from that of the courts to secret political decisions in the White House and the Department of Justice under the President's constitutional power to pardon and commute sentences. See Secs. 2101-2106; 3810-3813, administration of probation pro- gram). PAROLE The burden of proof is placed on the prisoner to demonstrate why what amounts to an exceptional privilege of release on parole should be granted to him. Inevitably, many prisoners will be denied parole under these unduly severe provisions sharply re- stricting grant of psrole. The difficulty here is that this converts incarceration into simple storage of human beings for the term of im- prisonment, leading inevitably to further training in crime from the experts who are the prisoner's fellow prisoners, recidivism upon release, and a revolving door between release and further crime and arrest. This seemingly though, but in reality re- gressive and doomed-to-failure, approach contrasts sharply with that recommended by New Jersey Chief Justice, Richard J. Hughes, when he served as Chairman of the Commission on Correctional Services and Facilities of the American Bar Association. appellate review of, sentencing into federal criminal law. However, there is a chilling effect on the freedom of the defendant to utilize the right of appellate review of sen- tencing. Such review is made available to the prosecution as well as the efandant. ry (See sections 3725-3726). effect of such right of the prosecution to seek a longer sentence is obvious. . The National Commission had taken the position that the government ought not to be given the power to increase sentences. The prestigious Association of the Bar of the City of New York, testifying in opposition to gov- ernment appeal of sentences, stated that the grant of these powers "would inevitably operate to prevent defendants from taking sentence appeals in many arguably merito- rious cases because of their fear of receiving an increased sentence instead." PROBATION If enacted, this legislation would establish what is -virtually a presumption against the grant of probation. It mandates that a trial court must consider guidelines for sentencing which place heavy emphasis upon the need to reflect the seriousness of the offense, to promote respect for law, to afford adequate deterrence to criminal conduct, and to pro- tect -the public from further crimes of the defendant. These mandatory guidelines are very plain- ly restrictive interferences upon the discre- tion of the trial judges, calling for denial of probation in the usual case, except for a first offender. Squarely to the contrary, the Na- tional Commission recommended both proba- tion and parole "unless imprisonment is the more appropriate sentence for the protect tion of the public." The former Director of the National Com- mission, Professor Louis B. Schwartz, has noted in 13 Criminal Law Reporter at 3266: "The effect of this was not to prevent the judge from imposing prison sentences, but to require him to think about the alternative of probation, and to prefer freedom unless P an individual; a fine up to $500,000 for a ootporation or- organization. Film- makers, publishers, and others will face heavy fines and imprisonment if they consider making such films having a serious purpose, such as "Carnal Knowledge". "The Last Picture Show", or a book equivalent to James Joyce's Ulysses. All of which have experienced at- tempts of censorship. The cost of national distribution of such a film or book -becomes an Important factor. of self-censorship, if it may be banned in certain communities, or the distributor fined heavily if it is presented in a community having a local censorship board, this will discourage its broad distribution. The film "Carnal Knowledge" was banned in Georgia after the Miller opinion, although it had previously played three or four times around the State. This occurred even though it is an acknowledged major work of a lead- ing American film-maker, Mike Nichols, and deals with serious issues in a serious manner. S. 1 and H.R. 3907 would make the dis- semination of a film or literary work illegal, if a local censor board can hold that taken as a whole it, appeals "predominantly" to the prurient interest. Public distaste for pornog- raphy is being skillfully used to sanction the introduction of a host of local boards of censors. (See Sec. 1842). EXTENDED FEDERAL JURISDICTION - - The legislation provides that federal policing authority is to be extended into new areas by extending what has been called "piggy-back jurisdiction" over crimes which heretofore had . been regarded as State offenses. "Piggy-back jurisdiction" means . that wherever federal jurisdiction extends to any crime committed by a person, any other crime committed by that person during the same sequence of activity also becomes as a federal crime. The law-and-order approach of S. 1 FOREIGN POLICY: AMERICA AT THE CROSSROADS The SPEAKER pro tempore. Under a previous order of the House, the gentle- man from Delaware (Mr. DU PONT) is recognized for 15 minutes. Mr. DU PONT. Mr. Speaker, about half a century ago, when one of our Secre- taries of Commerce said, "the history of the United States has itself been the his- tory of frontiers," he was talking about our foreign policy. He was saying that we needed to keep the doors to trade open in the Far East and anywhere else that new markets existed. it was not thought odd then, nor would it be thought odd today, for an American to talk about - frontiers. This frame of reference springs naturally from our heritage. We have always been a pioneering nation, our forebearers moving steadily west from our eastern shores to the Pacific and then beyond, always looking for new opportunity, -a chance to grow, and a place to tell the world about the success of our way of life. - Of course, the frontier theme is no longer accurate in the geographic sense. Domestically, we ran out of new terri- tory 100 years ago, about the same time we began to flex our muscles internation- Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 A 10694 Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4 CONGRESSIONAL RECORD -HOUSE November 5, 1915 ally. And now, those horizons of the sec- can share In a prosperity or face at sonic cause we did not agree with the will of and century have run out, as well. We point worldwide economic warfare or its people. Today, Chileans no longer suddenly find ourselves having come full worse. have a democracy. circle, back to our own shores. This, then, is the new frontier--a Because of the Idealism of the past, That is what I want to talk about to- frontier that demandsfresh approaches we are the only major power that does day. There are, I think, some new fron- to foreign policy if we are to master the not formally recognize the People's Re- tiers in foreign relations, but they are new challenges it presents. And, like ans public of China. Yet this nation, with not so easily found on maps as they are reevaluation that focuses on a topic sus almost one-fourth of the world's popula- in men. central to us, it is imperative at the Gov- tion, continues to ascend the power lad- Perhaps the best place to start looking ernment level that the Congress, as well der. Is with an examination of what has as the Executive, enter into it. As these examples show, we have changed in the world,: particularly in the The House International ReIatiom neither inspired the world, nor helped new, developing countries. For peoples Committee can no longer act as it did. ourselves. It is as if H. L. Mencken had who once quietly endured the frontiers- when Sol Bloom, its chairman in the our foreign policy in mind'. when he men from the industrial nations, are now 1940's, would agree with any Executive said: banding together in international com- foreign policy decision so long as the An Idealist is one who, on noticing that a modity agreements and fighting back. President telephoned him 15 minutes rose smells better than a cabbage, concludes Cartels, of course, are not new. They before the plan was announced. that it will also make better soup. have been with us at least since 1301 The Congress has a role to play; and. If we are to produce a better foreign when the kings of Naples and France In order to see that It does, I have policy, we must deal with the world the agreed to control the :price of their salt, pressed for more than a year to have way it is. We can do this without fore- then a vitally important commodity be- hearings on a global strategy for deal- saking our ideals, but we cannot do it by cause of its preservative qualities. That lug with the proliferation of material using trade as a weapon or a wrecker's agreement? like similar ones that fol- cartels and other new "economic devel- ball with which we try to destroy what lowed, was not to last, long. Even today, opments. To my great gratification, the we do not like. in the halals of oil-producing nations, chairman of the Subcommittee on Inter- On the contrary, commerce Is the raw the cartel is a primitive weapon, an ar- national Resources, Food and Energy re- material with which a better world Is rangement too unt6ieldy to wear well. Gently informed me that such hearings built. We must earnestly use it to con- The importance of today's caatelsj would be held. street bridges however, Is not what history tells us This is a beginning, but what of the we to satisfy be their heirn o and other nas about l3ow long they survive, but what end? The real measure of success comes well as ee process, o c needs M will a comparative analysis tells us is dif- when the work is done and we have ac- also o our own. In the Ideals. ferent--namely, that never before have complished something. This is the hard- I do create a market for lye that Idealism many cartels been formed at one time est task, for we are confronted with dif- just not pr d ct imply that by so many countries. Or, to draw a larg- ficult questions. How far, for instance, nomic pa byproduct r our foreign eco- er conclusion, never before have so many are we willing to see consumer prices arily p policy therefe only seconof arily ry i immta Idealism ; should ke of so-called weaker nations been willing to rise for the sake of insuring that every- primary importance; it it should uld make us wage economic warfare. one on the planet has enough to eat? generous contributors to the new inter- Consider what this means to the At this time, it is too early to say national economic order, for instance. United States. In Latin America, for ex- what. solutions we will offer for this or But, it should not lead us to try remaking ample, we established inter-American any of the other complex issues facing other nations in our own Image. For in relations long before we ever thought us. But, It Is not too soon to lay the doing this, we are bound only to estrange about making ourselves a world power. groundwork to insure that we come up ourselves and our ideals from. those we From the very beginning ofourRepublic, with good answers. Indeed, now when might otherwise help and influence. the countries of the Caribbean and South the frontiers are changing, it is time Developing ties-this is the way to and Central America have been impor- to rethink our approach to foreign bring the world closer together. And,. If tant to use economically and for national policy. And, the best way to do that Is we do it by being honest and evenhanded, security. And to our good fortune, they to recognize that some of the old frontier with a careful respect for the integrity have never seriously threatened to solutions do not, work. of other nations, we are likely to achieve change In this regard. Here Is way. Two basic assumptions our goals. At least, not until. recently. Today underlying our foreign policy-that for- The frontier we confront then, is not Latin American countries are expressing etgn commerce is vital to our economic some wilderness that we must harness, in clear terms that they are not satis- well-being and that our foreign rela-. but ourpassions that we must tame. It fied with their relations with the United tions should contribute to a better Is from. this time we will contribute ef- States. It was a South; American coun- world-have been advanced In such a fectively to peace and international pros- try that founded OPEC, and at least one way that they cancel each other out, perity. Latin American nation belongs to each In this traditional approach trade has of the international cartels that has been been used to force our views on other formed. And, while wefcan get by with- nations with the tragic result that we PARADE MAGAZINE EXPLAINS THE out coffee and bananas, what about cop- often deny and subvert the very "Amer'- MONETARY SITUATION per, phosphate, -tin, and bauxite? can ideas and ideals" we seek to en- The SPEAKER pro tempore. Under a Because our Latin American neigh- courage abroad. Previous order of tine House, the gentle- bors have not often chosen to hold these Here are some examples: man from Texas (Mr. P.tTmAN) Is recog- resources back, we easily overlook how In the last Congress, we insisted that nized for 20 minutes. much their friendship means. Take a trade agreement with the SovietUnion Mr. PATMAN. Mr. Speaker, for too Venezuela's goodwill, fair instance. When must include certain promises on Jewish long, the people of the United States many of the OPEC nations embargoed oil emigration. The result? We were hurt have had little opportunity to find out shipments to the United States in 1973, economically because the Russians re- any information about one of the most the Venezuelans supplied us with one- fused to trade with us on those terms, powerful groups In our economy-the fifth of our total foreign imports of As for our Idealism: Jewish emigration Federal Open Market Committee of the petroleum. has lessened dramatically. Federal Reserve System. But, we should not be misled by the We have boycotted Rhodesian chrome I am happy to see Parade magazine- restraint of these nations to date and because of the abhorrent racial policies- In Its October 26, 1975 edition-take think they will continue to give, getting there. But-the policies have not changed steps to correct this situation. In an ar- nothing in return. The less developed as a result, and we are buying this scarce tide entitled "Where Your Money Comes countries want better treatment. And resource from the Soviet Union-a na- From," authors Alexander Cockburn and they are becoming impatient. tion with even more abhorrent national James Ridgeway bring much light in a The options for the developed nations policies--at a much higher price. mass circulation publication to the sub- are clear. Either they help form a new In Chile, our CIA helped to subvert jest of the Federal Open Market.Com- international economic order so everyone a democratically elected government be- mittee. Approved For Release 2001/09/03 : CIA-RDP77M00144R000800020029-4